By Dr Minh Alexander, NHS whistleblower and former Consultant Psychiatrist and Clare Sardari, NHS whistleblower and former NHS Trust Head of Organisational Development, 1 June 2018
Countless whistleblowers and their families, and therefore the public, have been failed by UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA).
Vital matters of public protection have been suppressed because whistleblowers have been silenced and intimidated. The law has not protected them and has even enabled their victimisation. The law has not compelled investigation of whistleblowers’ concerns and it confers no proactive duty of protection. The law only applies to employers and not to other bodies such as regulators, which may also harm whistleblowers and are arguably more important because they have a greater responsibility to ensure good governance.
UK whistleblowing law has fallen far behind law in other jurisdictions. A comparative review by the director of the European Centre for Whistleblower Rights concluded that PIDA met only 37% of international standards.
It is time to focus even more on how the system should be changed to better protect future whistleblowers. Individual whistleblowers’ stories have been repeatedly reported in the media to little avail. Considerable public sympathy has been evident, but this has not resulted in meaningful reform. It has merely prompted public relations exercises by governments and their subordinate bodies.
The best known of these is the NHS Freedom To Speak Up project, which is an expensive, toothless culture change programme under the control of a government department and bodies responsible for many serious cover ups over the years. It has produced zero change in NHS staff survey whistleblowing metrics despite millions of pounds spent in public money on publicity and establishing local Freedom To Speak Guardians and a National Office. Even more alarmingly, the government is rolling out similar models in other sectors such as the Ministry of Defence and financial sectors, and the NHS National Freedom To Speak Up Guardian established a pan-sector network last year which will likely drive the model into additional sectors.
The NHS National Guardian’s Office has proven to be seriously ineffective and a block to real reform. The National Guardian and her oversight bodies have sought to dilute her role so that she does not help individual whistleblowers with detriment and instead makes only general recommendations. Her exclusion criteria also mean that many whistleblowers will not receive help when they should, and their patient safety concerns may be neglected for years, only to be ultimately declared ‘historic’ and irrelevant. The weakness of her office has recently been further exposed by her failure to act upon a mass referral by whistleblowers simply because an employer failed to co-operate. But equally, she previously refused to seek additional powers. This highlights why it is not appropriate to rely upon whistleblowing bodies that operate without guiding statute. In short, it would be an extremely serious blow to the public interest if the Freedom To Speak Up Model is allowed to spread nationally, and would stifle reform for many years.
Law reform is urgently needed, and work continues on lobbying parliament and the Law Commission. An opportunity has arisen in that the NHS National Guardian has agreed to sponsor an event led by whistleblowers on law reform. The National Guardian previously advised that she did not consider lobbying for law reform to be a priority for her office. Latterly, her office has denied that law reform is a matter that is even in its remit. Nevertheless, a small scale symposium will be held at the headquarters of the Care Quality Commission on 19 October which will seek to present expert legal evidence to key decision makers such as MPs and the Law Commission.
As preparation for the event, we are seeking first hand testimony from whistleblowers who have experience of using the Public Interest Disclosure Act, to help build the case for law reform. The whistleblower accounts will be collated into a report for parliament, the government and Law Commission. We would be very grateful if as many people can help as possible.
This is a focussed exercise about helping whistleblowers who come after us, and so is not for general re-telling of personal experiences. It is important to be very concise and to summarise the universal principles in question, to communicate effectively with the public and with decision makers. The more concise and well-distilled the evidence is, the more powerful the final report will be. Busy politicians have many issues competing for their attention, and our task is to explain very clearly and economically why law reform is crucial and important to the public interest. We have therefore set some tight word counts to help ensure that the final material serves its objective – it can be done! A real life example is provided below.
Difficulties that I have experienced in using the Public Interest Disclosure Act:
I was a very senior public sector manager. I whistleblew about corruption. I lost my job. I have never worked again. I ‘won’ my case at ET but my concerns were buried and my compensation was swallowed up by legal fees. I was led a merry dance by lawyers who did not have my best interests at heart or care about the public interest. Over the years, I watched those who lied and who victimised me promoted.
How I think the law should change:
The law should include pre-detriment protection and it should mandate investigation of concerns. There should be criminal liability for serious whistleblower retaliation. The law should hold not just employers but regulators, other officials and government departments to account for failing whistleblowers. There needs to be a body independent of the government to enforce new law. I think the Freedom To Speak Up project is a travesty of justice and a serious risk to patient safety.
So if you have had experience of using the Public Interest Disclosure Act, and have made a claim to the Employment Tribunal, whether or not your case went to court, please send in an account of any problems that you have experienced via the contact page of this website:
Please simply submit free text in this form:
1) Difficulties that I have experienced in using the Public Interest Disclosure Act [Up to 150 words]:
2) How I think the law should change [Up to 150 words]:
Your response will be reported anonymously, and we will in discussion with you ensure that the contents are not identifiable of individuals and organisations, and can be published by the National Guardian’s Office and others. Approaching the data in this way will ensure that the message will have greater reach and be of overall greater benefit to whistleblowers and the public interest.
Your data will be treated confidentially and will seen by us only. It will not be shared with anybody and specifically, will not be shared with the National Guardian’s Office. If you prefer, you can submit to us from a temporary email account that does not identify you. Please indicate if you are doing so, and we will reflect this in the report.
Everybody who submits evidence will receive a copy of the final report and if they wish, updates on any subsequent developments with the Law Commission.
There may be no progress at all in the short term, as all change on whistleblowing is very hard won. Whistleblowing is about the freedom of ordinary people to look after each other, often against powerful vested interests. Even if no visible progress is made at this time, collating this evidence will be an important reference point and an important marker to lay down for those who come after us.
Expressions of interest in facilitating the event on law reform on 19 October 2018
We would be greatly value it if fellow whistleblowers would help us lead this event. If people are interested in helping please contact us via the contact page of this website:
Numbers will need to be limited because the event is designed to generate in depth discussion. We will prioritise invitations based on the best interests of all whistleblowers and the primary objective of achieving a review of the law. This is an outline of the qualities that would help in facilitating the event: Whistleblower facilitators
Our thanks in advance to all who may help either in submitting evidence about problems with the law and or facilitating the event.
Dr Minh Alexander, NHS whistleblower and former Consultant Psychiatrist
Clare Sardari, NHS whistleblower and former NHS Trust Head of Organisational Development
WHY NOT WRITE TO YOUR MP TO ASK FOR REFORM OF UK WHISTLEBLOWING LAW?
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