Sir Robert Francis and Reform of Whistleblowing Law

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 17 November 2017

 

Everybody knows that UK whistleblowing law, the Public Interest Disclosure Act (PIDA), is not fit for purpose. 1

Robert Francis admitted in his report of the Freedom to Speak Up Review that PIDA fails to protect whistleblowers:

the existing legislation is weak. 2

But he held back from recommending substantive reform.

He made a timid recommendation to outlaw blacklisting of sacked NHS whistleblowers. 3

The government accepted it. It was good PR and posed little threat. 4

Starving, unemployed whistleblowers cannot afford to litigate effectively, and in any case, such litigation will likely have little prospect of success in many cases. 4  And what use is such legislation to clinicians who have been rendered unemployable from de-skilling, illness or loss of licence from not being able to practice and revalidate?

Instead of major challenges to power, Sir Robert banged the DH’s drum on culture change.  Warm and fuzzy culture change, with minimal accountability for power abusers, as subsequently demonstrated by CQC’s persistent refusal to hold any NHS directors who have harmed whistleblowers to account under FPPR. 5

The National Guardian has similarly been holding DH’s line and has declined to seek law reform on the basis that she considers culture change to be more important:

I do understand the views of campaigners who say that the current legislation requires reform. However, we are not currently seeking to campaign for changes to the law. Instead, we will be working collaboratively with a wide range of bodies to deliver a reformed NHS culture where freedom to speak up is ingrained and becomes ‘business as usual’ 16 February 2017 6

This ignores the principle that good law has a communicative function and drives culture change.

For example, drink driving is now socially unacceptable, with this change having been driven by statute.

Despite previously eschewing the need to reform PIDA, Francis stated at a recent financial sector conference that the law needed “looking at”. He seemed a little discombobulated when he was consequently asked by an NHS whistleblower to clarify if he believed UK whistleblowing law needed reform.

In response, he initially produced some NHS bullying statistics that were a little tangential to the point in question.

And then he replied that there should be review of how the NHS applies the Law. Phew. DH goal protected. Whistleblowers nil.

Here is a transcript and recordings of the relevant conference proceedings:

Francis culture and conduct comments 7.11.2017 transcript

 

Implausibly, Francis suggested that lawyers acting for the NHS should have regard to values and not just the letter of the law.

Tell that to the family of John Moore Robinson, who died through failings at Mid Staffs that were obscured with the help of a lawyer who was ultimately found to have acted professionally by her regulatory body. 7

Francis’ continued intellectual gymnastics around PIDA are not supportable.

He had made a number of critical comments about the legislation at the conference, before the above final exchange about reform of PIDA. These makes it clear to any reasonable person that Francis must surely know PIDA needs to be replaced.

 I have written to ask if he will act upon his criticisms of PIDA:

Correspondence with Francis about Law reform November 2017

One small consolation from the conference is that in an unguarded moment, Francis indicated that he intended that the NHS should run a ‘re-employment scheme for sacked whistleblowers. That is, not the watered down ‘employment support’ scheme that NHS England and NHS Improvement have tried to sell. 8 And he commented that it is not working very well. A little truth goes a long way sometimes. Thank you Sir Robert.

 

UPDATE 26 NOVEMBER 2017:

On 22 November 2017 Sir Robert kindly replied, but sadly maintained his position on not supporting reform of UK whistleblowing law:

Robert Francis Law Reform correspondence November 2017

 

RELATED ITEMS:

 

Letter to the Health Service Journal’s Patient Safety Correspondent

https://minhalexander.com/2017/07/10/letter-to-the-health-service-journals-patient-safety-correspondent/

Postscripts on Paula: NHS England’s apologia and regulatory reticence

https://minhalexander.com/2017/10/10/postscripts-on-paula-nhs-englands-apologia-regulatory-reticence/

Jeremy Hunt’s Secret Whistleblower (Non Employment) Scheme

https://minhalexander.com/2017/10/14/jeremy-hunts-secret-whistleblower-non-employment-scheme/

 

REFERENCES

1 Protecting whistleblowers in the UK: A new blue print. Blue Print for Free Speech 2016

https://blueprintforfreespeech.net/wp-content/uploads/2016/05/Report-Protecting-Whistleblowers-In-The-UK.pdf

2 Robert Francis’ Report of the Freedom to Speak Up Review 11 February 2015

“9.5 Contributors who mentioned the existing legal protection were generally in agreement that it does not work well. It is complex and the concept of a protected disclosure is not easily understood. This can act as a barrier to those who try but fail to understand what protection they have if they choose to raise a concern.”

“9.17 Although the existing legislation is weak, I have not recommended a wholesale review of the 1996 Act for two reasons. First, I do not think legislative change can be implemented quickly enough to make a difference to those working in the NHS today. What is needed is a change in the culture and mindset of the NHS so that concerns are welcomed and handled correctly. If this can be achieved, fewer staff will need recourse to the law. Second, this Review is concerned only with the position of disclosures made within one part of the public sector, the NHS. The Act covers all forms of employment whether in the public or private sectors. There may well be different considerations in other fields.”

http://webarchive.nationalarchives.gov.uk/20150218150953/https://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf

 

3 Robert Francis’ Report of the Freedom to Speak Up Review 11 February 2015

“However I am particularly concerned by one aspect of the legislation, which is that it does nothing to protect people who are seeking employment from discrimination on the grounds that they are known to be a whistleblower. This is an important omission which should be reviewed, at least in respect of the NHS. I invite the Government to review the legislation to extend protection to include discrimination by employers in the NHS, if not more widely, either under the Employment Rights Act 1996 or under the Equality Act 2010.

http://webarchive.nationalarchives.gov.uk/20150218150953/https://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf

4 Whistleblower Discrimination: Hunt’s razzamatazz

https://minhalexander.com/2017/03/20/whistleblower-discrimination-hunts-razzmatazz/

5 A Chief Inspector doesn’t call

https://minhalexander.com/2017/01/27/cqc-a-chief-inspector-doesnt-call/

CQC has lost all moral authority, but will the National Guardian do?

https://minhalexander.com/2017/05/23/fppr-cqc-has-lost-all-moral-authority-but-what-will-the-national-guardian-do/

Postscripts on Paula: NHS England’s apologia and regulatory reticence

https://minhalexander.com/2017/10/10/postscripts-on-paula-nhs-englands-apologia-regulatory-reticence/

6 Letter from Henrietta Hughes National Freedom to Speak Up Guardian 16 February 2017

7 A law unto themselves. Dr Phil Hammond. Private Eye 1341, 2013

http://www.drphilhammond.com/blog/2013/06/04/private-eye/private-eye-issue-1341/

8 Jeremy Hunt’s Secret Whistleblower (Non-Employment) Scheme

https://minhalexander.com/2017/10/14/jeremy-hunts-secret-whistleblower-non-employment-scheme/

 

7 thoughts on “Sir Robert Francis and Reform of Whistleblowing Law

  1. Robert Francis admitted in his report of the Freedom to Speak Up Review that PIDA fails to protect whistleblowers:

    “the existing legislation is weak”.

    But he held back from recommending substantive reform……….WONDER WHY? Read all about it!

    Like

  2. Minh Alexander – you are a national treasure and hero! If all the people like you were given awards, accolades and honours (instead of the litany of snivelling sycophants that do get honours!) then we’d have an NHS that was a pleasure to work in again! Safe for workers and for patients! Please keep up the good work!

    Liked by 1 person

  3. Actually I agree with Robert Francis that the admittedly weak legislation should be at the very least amended to extend protection to whistleblowers to include discrimination by employers in the NHS, if not more widely. If this were done under the Equality Act it would be relatively straightforward, I would have thought, for whistleblowing (raising concerns in the public interest) to be made a protected characteristic. I agree with him that the absence of protection for whistleblowers within the Equality Act is an important omission which should be reviewed, and acted upon.

    I think there are strong grounds for the government going well beyond this and undertaking a wholesale review of the relevant legislation (ERA/PIDA), and would be pleased if the Law Commission (if this is the most suitable vehicle for undertaking such a review) were to do this, soon. However I appreciate that this would probably take a long time to have results, and would have thought that amendment of the Equality Act to include, in theory, protection for whistleblowers, could be done relatively quickly as an interim measure.

    There would still be the problem that employers would, allegedly, continue to deny that unfair treatment meted out to whistleblowers is because they have raised concerns. And they would continue to fritter away large sums of taxpayers money engaging in legal gymnastics irrelevant to valid concerns raised. I think there should be serious questions asked as to whose interests are served when employment disputes leading to employment tribunals are engineered by employers after staff raise concerns. The interests of patients does not seem to figure highly if at all during tribunal proceedings, allegedly. And, as Dr Alexander says, almost invariably unemployed whistleblowers cannot afford to litigate effectively. NHS organisations, by contrast, seem to have access in practice to almost unlimited public funds to defend the indefensible.

    I also agree with Sir Robert that lawyers acting for the NHS, and of course NHS employers themselves, should have regard to commonly-accepted values. Furthermore I think he is right to be critical of the bullying and harassment that, sadly, is widespread within the NHS. I think he is right to draw a link between bullying/harassment and the treatment to which NHS staff who have raised concerns are far-too-often subjected. His Freedom To Speak Up Review provides clear evidence of the fact of retaliation/reprisals against NHS staff who raise concerns, as well as the weakness of current legislation.

    Like

    1. Thank you for contributing Hugh.

      I have to disagree with the framing of your point about substantive law reform taking too long, as I think that is too kind on Francis and the government.

      It is important to remember that Robert Francis had his chance almost three years ago.

      If he had acted then to call for the reform of PIDA, that was so obviously and desperately needed, we might have been well into a process of reform by now.

      Also, Francis claimed in his February 2015 report of the Freedom To Speak Up Review that law reform would take too long, and said he was opting for culture change as that would be faster. But subsequently, when defending lack of progress, he said that culture change takes a long time. Any reasonable person might hear the rattle of a can being kicked down the road.

      As for Francis’ recent suggestion that lawyers should have regard to the values of the organisations they serve rather than the letter of the law (when handling whistleblower cases), it is astonishing to hear this from the person who chaired Mid Staffs public inquiry and the Freedom To Speak Up Review. He knows so much about the totally corrupt values of some NHS organisations.

      Lawyers will do as instructed. Organisations will instruct the sort of lawyers that reflect their own culture. In the worst organisations, this will mean trying to win at any cost. Apropos the case of Croydon Health Services NHS Trust, which has dragged whistleblower Dr Kevin Beatt all the way up to the Supreme Court.

      In all, I saw Francis’ aspirational comment about lawyers and values as a particularly weak point. It was nothing but a threadbare veil, which cannot hide the serious injustice of current UK whistleblowing law.

      BW Minh

      Like

  4. Just a very brief but sincere thank you for this post – keeping the flames of logic and decency alive.
    As I have absolutely nothing positive to say or contribute, I will keep my homicidal thoughts to myself and wish you a good weekend instead.
    Thank you.
    Kindest, Zara

    Like

  5. The Public Interest Disguised Act (PIDA) protects nobody……least of all whistle blowers or the people they try to protect.

    What it is really effective in doing however is keeping the premiums rolling into the insurance companies who are happy to take these from unscrupulous employers. Employers will pay a premium to disregard this supposed employee “protection” in the hope they will never be met with an employee who might actually have the savvy to use it when detrimentally treated.

    If an employee actually does……well that goes towards lining the pockets of the lawyers appointed by said insurance companies so win – win all round for our legal profession jumping on the PIDA gravy train.

    I can vouch for the lines and the lengths these lawyers will go to when defending the indefensible as I have been on the receiving end….. twice.

    On my first occasion I did eventually get compensation and costs from a tribunal……two years after the event. That was after having to jump over all the legal hurdles PIDA puts in place and falling down a few procedural potholes on the way due to legal ignorance.

    However if I was truly protected by the PIDA I would never have been there in the first place as employers would be so scared of the consequences of flouting this law they would make sure they didn’t.

    And in exactly three weeks I’m back in the same tribunal building nearly five years on with an almost ground hog day like case. Same insurance company and same firm of lawyers.

    A knight of the realm who is a member of the CQC board and a queens council to boot clearly sees what I (and any WB) already knows when he vaguely acknowledges this “weak” legislation and that it is “used” differently in different fields….

    Correct on both counts Sir Robert…..PIDA needs reforming ASAP. Somebody in your position of power and influence could be instrumental in putting a bill before parliament sooner rather than later.

    Whistle blowers from all sectors need true protection under the law not lip service from the legal profession.

    You are a QC……get to it and stop pontificating and hedging your bets from the top of that legal fence.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s