By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 17 November 2018
The spin by the government on NHS whistleblowing, channelled through Dr Henrietta Hughes the National Freedom To Speak Up Guardian and her Office, is escalating to dangerous levels. It is misleading staff into thinking that whistleblowing is safer now, when there has been no improvement. The National Guardian rarely steps in when things go wrong and even Freedom To Speak Up Guardians themselves are bullied. There is very little help from the NHS whistleblower employment support scheme after people have been sacked, and blacklisting continues. To cap it all, the National Guardian does not even bother to find out if whistleblowers’ concerns are addressed.
The government is under particular pressure to demonstrate that it has “done something” on whistleblowing, because it is due shortly to respond to the Gosport Inquiry on hundreds of unnatural deaths which occurred after NHS whistleblowers were repeatedly ignored and intimidated into silence.
There was embarrassment for the government in last year’s staff survey because there was no improvement at all in the national score on confidence in raising patient safety concerns, despite all the millions spent on the Freedom To Speak Up project. The dial stayed stuck at 70%.
This year, the National Guardian drove an unedifying, sustained PR campaign through the whole month of October, just before this year’s staff survey was completed. Hundreds of Freedom To Speak Up Guardians were put on message to love bomb the NHS workforce into making disclosures and filling in the staff survey. There was even a Twitter hashtag: #SpeakUpToMe
And the culmination of this festival of falseness is an article today in The Times in which the National Guardian attempts to claim success because numbers of disclosures to trust Freedom To Speak Up Guardians are rising.
It is particularly dangerous for NHS staff because some of the very organisations that should support them, the unions, are now colluding in the pretence that the Freedom To Speak Up project is sound and a safe route of disclosure. The BMA for instance, gives fulsome support to the Freedom To Speak Up Guardian model in its latest guidance on bullying. Yet some unions, such as the BMA, have a poor track record on whistleblowing.
What do NHS staff need to know about the Freedom To Speak Up Project before they whistleblow?
The Freedom To Speak Up project was created as a cosmetic sop, after the government rejected robust recommendations from the Mid Staffs public inquiry for strengthening whistleblower protection.
Robert Francis who chaired the MidStaffs Public Inquiry also led the Department of Health and Social Care’s Freedom To Speak Up Review.
Francis actually stated at one of the Review workshops at which I was present that he did not intend to make any recommendations that were not going to be accepted. It seemed he had already decided to give the government what it wanted.
The Freedom To Speak Up model of Guardians employed by the trusts that they are supposed to hold to account bears no logic or honesty in its basic premise. When it is already known that NHS employees are too often victimised for raising concerns, it is irresponsible to deliberately create more targets in the form of staff whose job it is to challenge the trust board.
Robert Francis proposed this flawed model without any evidence base. The exemplar trust which he very sketchily mentioned in his report of the Freedom To Speak Up Review was no exemplar at all.
The trust failed whistleblowers and there is no evidence that its prototype Freedom To Speak Up Guardian appropriately escalated all serious concerns externally to regulators where they could not be resolved internally. The trust defaulted on an FOI request about this, and I drew my own conclusions.
Robert Francis tried to give the appearance of independence in the Freedom To Speak Up model by proposing the creation of the Office of the National Guardian, to which he claimed local Guardians could appeal, if their trusts were not handling whistleblower cases properly.
However, the National Guardian’s Office is not a safe and reliable backstop, either in intent or design.
The Office has no statutory powers. It is supposed to borrow powers from NHS regulators by asking them to make directions where needed. However, NHS regulators are highly politicised and often complicit in whistleblower suppression.
The National Guardian was appointed jointly by the Care Quality Commission, NHS England and NHS Improvement. She is employed by the CQC and answers to its CEO. The Office is jointly funded by the CQC, NHS England and NHS Improvement.
The Office was established originally to provide the element of independence by conducting reviews of whistleblower cases which were badly handled. It was given a very limited remit – it could not investigate whistleblowers’ concerns, only how they were handled.
The Office was established in April 2016 and appallingly has only completed three whistleblowing case reviews.
NHS whistleblowers who suffer the most serious detriment are on their own: the National Guardian won’t touch your case
The National Guardian’s Office was not meant to be a means of appeal or to replace existing employment processes, which significantly ties its hands. Even then, the National Guardian has interpreted this to a ridiculous degree and seizes on any active employment process as a reason NOT to review cases. The Office has clarified through individual cases that it will not touch whistleblowers’ cases if they have a claim in the Employment Tribunal. This means that whistleblowers, who suffer such serious reprisal that they have to go to law, are well and truly on their own.
The National Guardian invents new reasons for not reviewing some whistleblower cases, and leaves some whistleblowers to be sacked
The National Guardian has also proven to be arbitrary and flowing from that, politicised. She has conjured up exclusion criteria that do not feature in her published guidance, in order to avoid undertaking some case reviews. In response to a mass referral from 24 staff at troubled Brighton and Sussex University NHS Trust, she astonishingly parked the request with the claim that:
This protected the board of Western Sussex Hospitals NHS Foundation Trust which had taken over the running of Brighton and Sussex, and who are currently regulatory favourites.
The National Guardian has repeatedly refused to help in some cases, allowing whistleblowers to be sacked:
This is FOI data showing her rejection of cases for review:
Spin by the National Guardian’s Office
The National Guardian’s Office’s primary function is spin. It has briefed unpleasantly against whistleblowers on several occasions. On one occasion, the National Guardian mishandled a complaint through internal process when she should have put it to NHS Improvement.
The National Guardian cited and supplied the Secretary of State with a false statistic. This breached the UK statistics code of practice not only because it was wrong but also because it was unpublished. It remains unpublished despite the UKSA’s intervention.
This is the briefing between the National Guardian’s Office and Jeremy Hunt’s Office which led up to the breach:
The National Guardian’s secret bulletins to Freedom To Speak Up Guardians, obtained via FOI, show the spinning strategy of the Office.
The National Guardian does not bother to find out if whistleblowers’ concerns are addressed
The tokenism of the Office is revealed in the fact that it takes no interest in whether whistleblowers’ concerns are addressed. This is a letter to all relevant Select Committees about this grievous failing:
The National Guardian’s links to questionable organisations
As part of the tokenism of the Office, the National Guardian established an advisory working group of which I have been part, but did little real work through this channel. The real conversations took place elsewhere such as with the management accountants KMPG, sometimes un-minuted, as revealed by FOI.
The Office has also made extraordinary attempts to woo organisations that are notorious for their treatment of whistleblowers and their role in major corporate scandals.
The National Guardian refuses to support better law to protect whistleblowers
Most importantly of all, the National Guardian has refused to support reform of totally unfit UK whistleblowing law, when reform would be a first basic step to protecting whistleblowers.
The National Guardian wrongly claims that increased disclosures to Speak Up Guardians is evidence of the system working
The National Guardian now claims that because more people are reportedly making disclosures to Freedom To Speak Up Guardians, the system must be working.
As a senior doctor, trained to weigh evidence, she must surely be acutely aware of the flawed logic in such an argument. It is a concern that she even puts it forward.
The reality is that many will be speaking up with no idea of the risks they are taking. Some will be raising low level concerns that are no threat to power, and they will survive because of that. Some will give up when their concerns are not properly addressed, and they too will be seen as unthreatening.
But the really hot cases remain as risky as ever.
Whistleblowers are still coming through with horror stories.
Freedom To Speak Up Guardians are bullied
Some Freedom To Speak Up Guardians have told me, unsurprisingly, that they are also bullied. Some do not feel the role is taken seriously In their organisations. Some Freedom To Speak Up Guardians have left their posts after a short time.
In the Scottish NHS, the equivalent of Freedom To Speak Guardians is Whistleblowing Champions. A senior Scottish Whistleblowing Champion, Munwar Hussain a non executive director, has gone public about how he was suppressed when he tried to pursure serious concerns raised by staff.
There’s precious little help after you’re been unfairly sacked for whistleblowing
There has been a pretence by the government that exiled whistleblowers would be supported to return to work. In reality, the scheme established to do this has been passively aggressively slow, resistive and sometimes downright abusive to some whistleblowers. Some have complained of being messed about, putting critical revalidation at risk. Blacklisting obviously continues.
It is safest to assume that once sacked, there will be no help:
What can you do?
Whistleblowing can cause great, enduring harm to whistleblowers and their families, and sometimes makes no difference at all because of the intense level of suppression in the NHS.
It is a very personal decision and a matter of conscience whether you take that step. Only you can weigh up all the competing risks. But do so with your eyes wide open, and protect yourself as much as you can with knowledge.
There is no reliable protection at present. It would be dishonest to tell you otherwise.
But at least you can learn about the potential bear traps that you face, which includes those who profess to help but have vested interests and may well let you down.
Here is lived experience from whistleblowers whose cases were so serious that they had to litigate, which may help shine some light on the path you face:
UPDATE 21 NOVEMBER 2018
Her annual report ekes out the scant case review activity to date by presenting the work done as 13 cases reviewed, when there have been four joblot case reviews:
A very significant issue arising from the case review on Nottinghamshire Healthcare NHS Foundation Trust Review is that the National Guardian appears to have abrogated responsibility for reviewing progress, despite what appear to be substantial concerns about ‘fear’ in a service. A recommendation is that the trust should arrange for a review within 6 months time:
“Recommendation 3 Within 6 months the trust should undertake a suitably independent review of the speaking up culture in the service relating to Worker A’s case and take all necessary steps to implement the review’s findings without undue delay. Given the evidence of fear of speaking up in this service, the review should take all reasonable steps to protect individuals’ confidentiality.”
What on earth is the logic for effectively leaving staff at the mercy of an employer whom the National Guardian acknowledges has already failed?
Hooray Henrietta The government’s PR material emphasises that the National Guardian is a nice approachable GP. She was in fact an NHS England Medical Director prior to being installed as National Guardian, who made it compulsory for her staff to smile.