By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 14 October 2018
The Public Interest Disclosure Act 1998 and Prescribed Persons
It has often been said that the genius of the British ruling classes is that they know when to give in.
More accurately perhaps, it should be described as knowing when to pretend to give in.
The twenty year history of utterly ineffective UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA), is scattered with token concessions. Small adjustments have given the semblance that governments have listened to concerns about the law’s inefficacy. In fact these changes just kicked the can down the road allowing governments to rest on their laurels, and to block real reform.
The ‘Prescribed Person’ system is a labyrinthine appendage to PIDA which on close examination amounts to nothing at all. It is a disparate collection of organisations and individuals, some of whom are not regulators and who have no real responsibilities towards whistleblowers under the law. Prescribed persons are appointed by the government of the day.
Under PIDA, prescribed persons originally only had a duty to receive and record disclosures from whistleblowers. Since April 2017 they have come under an additional duty to publish minimal annual data about the whistleblowing disclosures they receive.
Under PIDA, workers may be legally ‘protected’ if they make a disclosure to a prescribed person. But they must make their disclosure to the right prescribed person. It is easy to get wrong. And how is an ordinary member of the public to know? This important point was raised by Dr Philippa Whitford in a parliamentary debate which she led on PIDA on 18 July 2018.
National Audit Office’s 2015 review of prescribed persons
In 2015 the National Audit Office (NAO) examined the function of Prescribed Persons. NAO reviewed itself and five other prescribed persons. The auditor’s report coincided with the publication of the report of the Freedom To Speak Up Review on NHS whistleblowing. NAO’s attempt to paint a picture of much system activity was somewhat overshadowed by the fact that this activity came seventeen years after PIDA’s launch and the introduction of prescribed persons.
NAO reported that the government, through the Department of Business, Innovation and Skills (BIS), had “begun to provide support to the network of prescribed persons”.
Research by Middlesex University undertaken just two years before NAO’s 2015 review had found significant frailties in the Prescribed Persons system, including lack of training and funding when the role was established. A questionnaire by Prof David Lewis and Aaron Phillips of Middlesex University revealed that some Prescribed Persons did not even know that they were Prescribed Persons. Indeed, NAO as one of the prescribed persons surveyed, did not seem to know what it was doing. It did not complete the research questionnaire:
NAO’s 2015 review did not dig as deep as the 2013 Middlesex University research. It narrowed its sights to case studies of just five prescribed persons:
Care Quality Commission
Financial Conduct Authority
Health and Safety Executive
Independent Police Complaints Commission
Office of Rail Regulation
Whilst NAO acknowledged that some staff within prescribed bodies did not have a good understanding of the prescribed person role, it was upbeat overall:
“We found a positive approach to continuously improving procedures. All the prescribed persons we assessed have recently carried out, or are in the process of carrying out, some review of their activity or guidance”.
This observation contained Whitehall’s signature promissory note – ‘We’re on the case, learning from doing, it will be better etc’. Only so many notes of this sort can be penned before people get restive.
NAO touched lightly upon the fact that the law provided no protection to whistleblowers and that it did not require prescribed persons to investigate whistleblowers’ concerns. However, it made no comment on the fitness of the law. NAO has advised that it is unable to participate in formulating policy, to the extent that it cannot even attend an event on 19 October on failure of current whistleblowing law:
Email from Amyas Morse’s office 4 September 2018: “I am sorry to say that we cannot attend this event as we would then be involved in supporting a change in legislation which would give effect to a policy, and we are specifically excluded from that area. It is possible that we may be called on to examine the policy impact assessment at a later date, should the legislation change.”
The recommendations of NAO’s 2015 report were ultimately peripheral. The auditor suggested no remedy for the core problem of defective law.
The government’s failure to act upon NAO’s 2015 recommendations about Prescribed Persons
Of concern, a BEIS FOI response 2018/19127 of 14 September 2018 showed that BEIS had not actioned the specific recommendation that NAO made in 2015 for the government:
Granted, these last few years have been tumultuous, but whistleblowing governance always seem to end up at the back of the queue. This lapsing backing into indifference after the press conference has been given and headlines are achieved, is very typical of how power behaves on issues of whistleblowing.
A failed attempt to make prescribed persons aware of serious whistleblower cases which reached the Employment Tribunal
In 2010, one of the token government concessions was to add a mechanism for alerting prescribed persons to whistleblowing cases that came before the Employment Tribunal.
The stated rationale was thus:
“The Government committed to explore whether there was a practical process to allow the substance of allegations giving rise to PIDA claims to employment tribunals to be forwarded to the relevant regulator so that the allegations of the underlying issue can be investigated where appropriate by the regulator”
This was a theatrical touch given that the government had failed to confer a legal duty upon prescribed persons to investigate whistleblowers’ concerns.
Since 2010, many distressed whistleblowers have ticked the box on their ‘ET1’ claim form in the innocent hope that that someone would finally address their concerns.
It was just another unkind hoax. By 2013, when BIS reviewed PIDA, By 2013, when BIS reviewed PIDA, it received submissions advising that this system of notification was not working.
“Analysis of responses
Concern was raised around the ET referral process because the ET cannot always easily identify the appropriate prescribed person to refer an issue to. It could be argued that this is beyond the ET remit. The point was also raised that the time it takes an ET claim to get through the system (with some cases taking longer than a year), may negate the need for the information to be referred as the issue may have already been resolved.
The Government recognises that the ET referral system should be a useful tool to give prescribed bodies more information than they may currently have, to enable them to consider trends and to pick up issues which may not have ordinarily been brought to their attention. This referral could play a more strategic role in ensuring the matter about which an individual had blown the whistle, is investigated by the appropriate regulator.”
In response to these concerns, the coalition government made this promise:
“To address the concerns raised, the Government will analyse the current referral system in place, working with HMCTS and prescribed bodies, to collate numbers and evaluate its effectiveness. As part of this work, the Government will look at a sample of ET1 forms specifying a referral to prescribed persons to understand if this happened and if not, what the reasons behind this are, with a view to making changes if this is the appropriate course of action.”
I asked HMCTS what systems and guidance it had in place for Employment Tribunal staff to ensure that the ET1 notification process worked, and whether it had undertaken any audits of the process.
HMCTS advised thus about its internal process:
“I can confirm that the HMCTS provides standardised guidance to offices in relation to claims accepted under the Public Interest Disclosure (Prescribed Persons) Order 1999(a) in accordance with the provisions set out in the Employment Tribunal rules of procedure
Internal administrative guidance states:
‘If an accepted ET1 includes a claim under the Public Interest Disclosure Act, the vetting clerk should check if the box at question 10.1 of the form has been ticked. If it has, the claimant is giving their permission for the claim form to be copied to a relevant regulator in cases where there are allegations of underlying issues such as serious fraud, health & safety violations, care home standards etc. If the box has been ticked, do not forward a copy of the claim form direct to the regulator. A copy of the form should be sent via email to:
EmploymentJurisdictionalSupportTeamInbox@justice.gov.uk with the subject ‘PID Whistleblowing claim’ in the subject heading.’
Relevant claims are forwarded to and processed at a central location, and the parties are notified which regulator(s) the claim has been referred to.”
It would seem there is some attempt by HMCTS to introduce order through centralisation of this specialist work, to identify the correct regulators, but is it working? Are local Employment Tribunal offices aware of the protocol and adhering to it? Is the jurisdictional support team competently trained?
Anecdotally, there is still evidence of problems. For example the following case of a whistleblower who raised concerns about a major private healthcare provider. Their ET1 form should obviously have been copied to the Care Quality Commission. Instead, the whistleblower received a note from the Employment Tribunal Jurisdictional Support Team on 5 December 2017 advising that it had been ‘unable’ to identify the relevant regulator for forwarding:
Continuing failure of the system for notifying prescribed persons of whistleblowing cases which reach the Employment Tribunal
FOI requests were made to prescribed persons in August 2018 about the numbers of ET1 notifications that they had received. When compared against ACAS FOI data on the number of whistleblowing claims lodged with the Employment Tribunal, this suggested that only a small proportion of ET1 forms are forwarded to prescribed persons.
Alternatively, some of the of ET1 notifications that are received by prescribed persons may not be correctly logged.
The figures quite possibly suggest that there is a large element of failure by HMCTS to ensure that ET1 intelligence is passed on safely to prescribed persons.
This spreadsheet summarises FOI responses from 42 major prescribed persons and a selection of 60 local authorities on the number of ET1 notifications received from the Employment Tribunal during the April 2016 to March 2018:
All local authorities are prescribed persons for food standards, health and safety and consumer protection, but surprisingly they rarely seem to be sent any ET1 notifications by the Tribunal. Forty-eight out of a sample of sixty local authorities had either not received any ET1 notifications, or held no data about ET1 notifications.
Past FOI work by others has revealed that some local authorities are unaware of their prescribed person status. The responses to these latest FOI requests suggested that this is still the case. Several local authorities required clarification of the FOI questions because they were confused between ET1 claim forms received as an employer being sued, as opposed to those received as prescribed person being notified of potential wrongdoing:
“Please can you clarify your request. ET1 claim forms are used to make a claim to an employment tribunal – and are not sent by the claimant to the council. Please could you further explain your request.”
Nottinghamshire County Council flatly denied that it was a prescribed person at all:
Staffordshire County Council revealed that it had never heard of the ET1 notification system to prescribed persons:
Harrow council probably spoke for others when it advised:
Neither did the major prescribed persons, regulators and other oversight bodies seem to receive many ET1 notifications. Collectively, 42 major prescribed persons admitted to receiving fewer than sixteen ET1 notifications during the period April 2016 to March 2018.
Worryingly and bizarrely, and in marked contrast, ACAS reported via FOI that it received a total of 3, 124 notifications in 2017/18 alone, about whistleblowing cases across all sectors. The gross mismatch between the two sets of figures raises very troubling questions.
There were notable refusals by some prescribed persons to reply to the FOI requests citing cost exemptions, viz:
Care Quality Commission
Department for Education
This implied poor governance and a failure to centrally collate and track data about ET1 intelligence.
The Department of Health and Social Care admitted baldly that it could not provide the requested data, because it did not keep the data in a central form.
The fact that the DHSC and CQC do not keep central data on ET1 notifications is breath-taking, after all the lip service and the millions squandered on the Freedom To Speak Up Review and subsequent project of appointing a National Guardian and local Guardian network. According to ACAS, Health and Social Care generated 386 whistleblowing claims in 2017/18. This was the largest number of whistleblowing cases for any sector.
CQC has had to be dragged for the last few years, kicking and bawling, to the point of accepting that its whistleblowing governance was still not sound. As part of this, CQC has accepted that it should review its systems for handling ET1 notifications, notably its lack of any central tracking mechanism.
The recent FOI data revealed clear mismatches between the numbers of ET1 notifications reportedly received by some individual prescribed persons and the numbers of whistleblowing cases reported by ACAS from the relevant sectors.
For example, ACAS advised that there were 23 whistleblowing cases notified from the energy and water sector in 2017/18. However, Ofgem reported that it received no ET1 notifications. Ofwat failed to respond to the FOI at all. However, Ofwat’s response to an earlier, similar FOI in 2016 revealed that it had never received any ET1 notifications since the government introduced the system in 2010.
It is likely that if Ofwat had responded to the recent FOI, it would have reported zero or few ET1 notifications in keeping with the general trend.
As an example of another anomaly, ACAS reported that there were 189 whistleblowing cases notified from the ‘Transport, Storage and Communication’ sector in 2017/18. But the Department of Transport reported that it received zero ET1 notifications from the Employment Tribunal.
Only the Civil Aviation Authority and Prudential Regulation Authority indicated in their replies that they had coherent governance in place to track and act upon ET1 notifications.
“Allegations received on ET1 forms are logged under the CAA whistleblowing process and investigated as appropriate. The original incoming information, investigation records and closure recommendation are held for 10 years.”
“The PRA collates and holds centrally the information it has received is an ET1 form and the data that has been provided by the author on the ET1 form.”
NAO and HMRC indicated that they collated data centrally, but gave less clear assurance about follow up with the whistleblowers who had made claims to the ET. NAO said it had been sent misdirected ET1 forms, that should have been sent to other oversight bodies. NHS Improvement received one (yes one) ET1 notification, but did not contact the whistleblower and gave no reason for this.
The Competition and Markets Authority put on a trench coat and dark glasses and refused to ‘confirm or deny’ anything.
“We do not hold the information requested. For future reference please note that we know of no formal or legal requirement whereby an ET1 would be forwarded to us by the Employment Tribunal by virtue of our Director’s capacity as a prescribed person under whistleblowing law. Nor are we aware of any instance where this has happened.”
These facets of the failing prescribed persons system spell negligence writ large, writ thus:
- The Employment Tribunal’s failure to identify and send ET1 data to the correct regulators, prescribed persons’
- Prescribed persons’ Lack of diligence or competence in handling ET1 intelligence
- NAO’s convenient averting of its gaze
- HMCTS’ and BEIS the lead government’s Department’s self-admitted failure to do their governance homework.
All this helps to explain the truly dismal experience of whistleblowers as hapless end-users of this ‘service’.
I recall when I first contacted CQC almost a decade ago, to begin the process of disclosure, the person at the end of the phone could not even clearly confirm to me that the CQC was a prescribed person under the Act.
When whistleblowers raise concerns about being given the endless run-a-round, they are often dismissed as querulous or vexatious. Institutions paint themselves as reasonable and long suffering. But laid out here in these various FOI data is the real picture, of torpid, irresponsible and incompetent officialdom. An officialdom that neither cares nor fully understands the central importance of whistleblowing to a safe and healthy democracy, and to public protection.
When Morecambe Bay whistleblower Russell Dunkeld tried to disclose to the Care Quality Commission a PIDA Prescribed Person, the regulator sent him off to the PHSO. The PHSO sent him back to the CQC.
“When I complained to CQC, they gave me the brush off. “CQC’s role does not include investigating individual complaints.”
CQC told me to contact the Health Service Ombudsman. The reply from the PHSO was “I understand the CQC have advised you to contact us…but from the information available on their website, they would be the appropriate organisation to consider your concerns”.
This is an experience to which many whistleblowers can relate.
It is inconceivable that CQC as a regulator has been allowed all these years to refuse to investigate individual whistleblowers’ concerns. It is a convenient collusion between CQC and government that CQC pleads inability, and government does nothing to clearly give CQC the necessary powers despite the regulatory gap being repeatedly highlighted by whistleblowers.
Russell tweets at @RussellDunkeld
The confirmation from these latest FOI responses that there has been no genuine improvement in the prescribed person system comes on top of revelations that the NHS National Guardian’s Office, the UK’s only dedicated whistleblowing agency, does not bother to track whether whistleblowers’ concerns are addressed.
These facts give lie to endless, monotonous government platitudes that the whistleblowing framework has been reviewed and improved with this or that minor adjustment, and that we must all be patient and wait for soft culture change.
After the Gosport disaster, in which most of the 656 lives lost fell after incidents of whistleblower suppression, this pantomime must end. It is time to respect, protect and share power with the public by protecting whistleblowers with new and radically improved law.
UPDATE 22 OCTOBER 2918
An illustrative post script which compellingly shows that the system of forwarding ET1 intelligence on whistleblowing cases by the Employment Tribunal to PIDA Prescribed Persons is truly broken.
A Scottish whistleblower filed a whistleblowing claim with the Employment Tribunal in 2016 and duly ticked the box giving consent for their case details to be forwarded to the relevant regulator. The data was never forwarded. After the whistleblower made recent enquiries, the ET advised on 17 October 2018 that it had finally sent the data onwards…but to an English regulator, who had no jurisdiction whatsoever.