By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 17 September 2018
The Freedom To Speak Up Guardian role, introduced upon Robert Francis’ recommendation from the Freedom To Speak Up Review 2015, is an ill designed mess.
Employees of NHS provider organisations are expected to hold their employers to account for misconduct, such as failure to investigate whistleblowers’ concerns properly or at all, and victimisation of whistleblowers.
“The Freedom to Speak Up Guardian:
– is recognised by all as independent and impartial
– has direct access to the CEO and the chair of the board
– has authority to speak to anyone within or outside of the trust
– is an expert in all aspects of raising and handling concerns
– has dedicated time to perform this role, and is not expected to take it on in addition to existing duties – watches over the process, and ‘oils the wheels’
– offers support and advice to those who want to raise concerns, or to those who handle concerns
– ensures that any safety issue is addressed and feedback is given to the member of staff who raised it
– safeguards the interests of the individual and ensures that there are no repercussions for them either immediately or in the longer term
– takes an objective view where there are other factors that may confuse the issue, such as pre-existing performance issues, to enable these to be pursued separately
– identifies common themes and ensures that learning is shared
– raises concerns with outside organisations if appropriate action is not taken by their employer
– works with Human Resources to develop a culture where speaking up is recognised and valued
– helps drive culture change from the top of the organisation.”
To most people of common sense, this is clearly a non-starter. This system just creates more potential victims. In a corrupt organisation, any honest employee who has the specific role of raising concerns and challenging is vulnerable to reprisal.
But Francis had the chutzpah to refer to these roles as ‘internal and independent’.
There was no evidence base for the Freedom To Speak Up Guardian model. Staffordshire and Stoke on Trent Partnership NHS Trust (SSOTP), the exemplar trust that Robert Francis very sketchily cited in the Freedom To Speak Up Review report, was not an exemplar. Crucially, after the Guardian role had purportedly been established at this trust, staff still had to make serious external patient safety disclosures to the CQC.
Francis’ solution to the problem of local trust Guardians being victimised was to suggest a National Guardian to whom local Guardians could turn if needed, for support and to whom they could escalate concerns. But the National Guardian’s Office (NGO) has not been reliable or robust in supporting whistleblowers in trouble.
It has sat on even mass referrals from distressed trust staff and has made poor decisions generally. It refused to support calls for reform of obviously defective UK whistleblowing law. It is now evident that the NGO is flirting with corporate interests, that have a very poor track record on whistleblowing. Instead of a safe harbour, it is more of a fire wall. There is no reason to believe that it would be a reliable support to trust Guardians who need help to progress concerns blocked by their trusts, or that it would always protect them from retaliation by trusts.
A critical and as yet unanswered question is whether local Guardians are escalating concerns appropriately outside of trusts, such as to the NGO or to regulators, if they encounter trust obstruction. To do so would incur the greatest risk that a local Guardian could face. I asked SSOTP, Robert Francis’ exemplar trust, about how many matters its local Guardian had escalated externally. The trust fudged the answer, then stopped responding to further enquiries. I drew my own conclusions.
SSOTP issued this partial FOI response to my questions on 27 June 2017:
Email to SSOTP FOI Officer 27 June 2017:
Thank you for the attached trust response.
I do not think it answers my request fully or clearly.
1) I originally requested how many of the 629 concerns raised with the Cultural Ambassador were escalated externally, broken down by financial year. In its reply, the trust only gives indication of external escalation of staff concerns by the Cultural Ambassador from March 2015 onwards, and it gives no exact figure.
Please clearly indicate whether or not any concerns were externally escalated by the Cultural Ambassador prior to March 2015, and please give the numbers of concerns escalated externally by the Cultural Ambassador for each financial year, as requested.
3) I asked the trust how many of the 110 concerns about staffing were externally escalated by the Cultural Ambassador, broken down by financial year. The Trust’s reply does not provide this data. The Trust’s response only indicates that staffing concerns were amongst concerns escalated externally by the Cultural Ambassador from March 2015 onwards, but no clear figure is given. Please provide the information as requested.
Dr Minh Alexander
cc Helene Donnelly Ambassador for Cultural Change”
Moreover, a FOI disclosure (Ref 1022, 24 April 2018) revealed that only 35% of SSOTP staff who contacted the trust Freedom To Speak Up Guardian gave feedback about their experience of using the service. This is a low figure for an established service, and compares poorly to the response rates in other trusts. Moreover, the trust indicated that feedback questionnaires had only been sent out to trust staff since January 2018.
Some whistleblowers have complained of trust Freedom To Speak Up Guardians who have been unhelpful.
It has been clear from information in the public domain that some English NHS trust Freedom To Speak Up Guardians have left or moved around after relatively short spells in post.
When I did a mailshot to Guardians, I received some out of office messages indicating that some were off sick, had left or taken early retirement.
An FOI disclosure of bulletins for local Guardians from the NGO revealed that the National Guardian was aware that some local Guardians had been leaving their posts. In response to this, the NGO had been sending out exit questionnaires. However, the NGO’s annual report of October 2017 had not mentioned this.
The NGO was asked in July 2018 for data about what it had learned from these exit questionnaires:
“Please may I have…a copy of the protocol or equivalent which the NGO uses to conduct exit interviews with Freedom To Speak Up Guardians who have stepped down – as mentioned in NGO bulletins 6 and 24
Can the NGO advise advise to its knowledge how many FTSU Guardians have stepped down, and what have been the range of reasons that Guardians have given for leaving post?
If possible, can the NGO give a numerical breakdown of the reasons that Guardians have given for leaving?”
The Office has prevaricated and failed so far to comply with its obligations under FOI.
Yesterday, there was important news that Munwar Hussain a Scottish equivalent of a Freedom To Speak Up Guardian has decided to quit.
He did so reportedly because his Health Board NHS Tayside was not responding appropriately to concerns.
NHS Scotland adapted the Freedom To Speak Up model and appointed Non Executive Directors of Scottish Health Boards as ‘Whistleblowing Champions’. This is a letter of September 2015 from Paul Gray CEO of NHS Scotland to Scottish Health Boards setting out how the role would operate:
To my knowledge, Hussain is the first Speak Up Guardian-type appointee to go public about difficulties with raising concerns. It has been reported that he was been on leave with stress.
If Hussain as a board member and a member of NHS Tayside’s audit committee could not prevail, how do the Department of Health and Social Care and Robert Francis expect trust Freedom To Speak Up Guardians who are not as senior or powerful to fare?
More recently, it was reported that an NHS Tayside surgeon Sam Eljamel Head of Neurosurgery had harmed ‘dozens’ of patients for years but the Health Board took insufficient action. It was also reported that colleagues felt too ‘intimidated’ to speak up. According to the BBC, the Health Board tried to obfuscate when asked for a copy of a Royal College Surgeons report into Eljamel’s surgical errors:
NHS Tayside’s FOI disclosure log shows that it was also evasive in response to an FOI request which asked about the departure of whistleblowing staff and the underlying reasons.
In another FOI response it disclosed that compromise agreements had been used in recent years, which feature confidentiality clauses.
To whistleblowers who have fallen foul of NHS organisations, these behaviours are recognisable as standard operating procedure. Determined senior managers, bent on self preservation, will go to great lengths.
Hussain’s case adds to the evidence that a properly independent system of whistleblower protection is needed, not half measures.
So, will the National Guardian take a break from churning out Good News, and come clean about why Freedom To Speak Up Guardians are leaving?
It is possible that the information might be embarrassing to Francis and ministers, and it may make it harder for the government to stall on proper whistleblowing reforms. But it is her job to tell the truth. And the whole truth at that.
UPDATE 17 SEPTEMBER 2018:
Clarification: NGO sent the the data on Freedom To Speak Up Guardian departures on 15 August.
At least 15 local Guardians have stepped down. There may have been more departure as the NGO says it is not always informed.
In ten cases Guardians reported they had insufficient time to carry out the role. Of note, in two cases, Guardians stepped down because of ‘conflict of interest’.
“Please note that the NGO is not always made aware when FTSUGs step down from their role. The NGO has conducted exit interviews with 15 FTSUGs.
When the NGO has been informed about a FTSUG leaving, the reasons provided in the exit interview have been summarised as follows: Number of FTSUGs
Summarised reason for stepping down as FTSUG
Potential conflict of interest between the individual’s substantive role and their ability to carry out the FTSUG role
Insufficient time to perform the role
Left the trust/promoted/new opportunities
FTSUG post re-advertised at a higher grade
Please note, some of the FTSUGs are included twice, as they provided more than one reason for leaving the role.”
These are the standard questions which have reportedly generated the above results: exit questions
In addition, this is the ‘compact’ between the NGO and local Freedom to Speak Up Guardians. The NGO undertakes to ‘promote successes’ as part of the deal: