By Dr Minh Alexander, NHS whistleblower and consultant psychiatrist, 28 November 2018
| Summary: Recent survey data shows that some Speak Up Guardians are bullied and obstructed when raising patient safety concerns. The National Guardian’s Office has admitted via FOI that it does not track how often such reprisal happens. The same FOI disclosure revealed that the National Guardian received only 18 qualifying disclosures from NHS trust Freedom To Speak Up Guardians in 2017/18, which suggests that not enough concerns are being escalated externally, even though this is the safety mechanism upon which the whole Freedom To Speak Up project hinges. Neither does the National Guardian measure Speak Up Guardians’ experience of whistleblowing to her Office. And yet the National Guardian is well aware of the importance of feedback, as evidenced by her repeated policy statements and demands that others should collect and learn from feedback. In addition to a previously reported failure by the National Guardian to track whether whistleblowers’ concerns are addressed, these are yet more mission-critical failures demonstrating what whistleblowers have known all along: the Office is a government firewall, was designed to be ineffective, and will never work. Real reform is needed. |
The National Guardian’s Office had little merit at conception by Robert Francis and the Department of Health and Social Care. Its position was not helped by the resignation of the first National Guardian.
The Office has been further watered down by the Care Quality Commission, NHS Improvement and NHS England, who appoint and fund the National Guardian.
The key role of the National Guardian was supposedly to provide a safety net for whistleblowers and to support local Freedom To Speak Up Guardians when NHS trusts failed to handle whistleblowing cases properly. It was supposed to review cases where there had been failure to adhere to good practice.
But we know that there is continuing bad practice because of the uninterrupted stream of Employment Tribunal claims against the NHS for whistleblower reprisal. This is a previous analysis of Employment Tribunal decisions about the NHS between February and June 2017:
The NHS in the Employment Tribunal. A Five Month Sample
An exhaustive, update manual search of recent, published Employment Tribunal (ET) decisions is too big a task at present. A very rough search by ‘NHS’ under Public Interest Disclosure jurisdiction on the ET website (which can only generate an underestimate of cases) produced a minimum of 231 decided NHS whistleblowing ET cases since February 2017. The results for other jurisdictions are given for comparison:
| Jurisdiction | Number of ET decisions relating to the NHS since February 2017 |
| Public Interest Disclosure | 231 |
| Unfair dismissal | 937 |
| Disability Discrimination | 454 |
| Race Discrimination | 233 |
| Sex Discrimination | 155 |
| Age Discrimination | 74 |
Source: https://www.gov.uk/employment-tribunal-decisions
NB The above results were not based on a full manual search and represent an underestimate.
We also know that bad practice continues because of the thousands of whistleblowing disclosures to CQC every year. Such external disclosures are typically made because health and care staff do not feel comfortable to report internally to their employer, or have exhausted internal channels without resolution. In its most recent annual report, CQC advised that it received ‘8,449 whistleblowing enquiries’ in 2017/18 from Health and Social Care workers.
The National Guardian’s Office, constituted as part of CQC, has legal Prescribed Persons functions under the Public Interest Disclosure Act. It should receive, record and periodically publish data on the ‘qualifying disclosures’ that it has received from whistleblowers.
The National Guardian published her first Prescribed Persons report for the period 2017/18 which showed that her Office had received a tiny number of qualifying disclosures – only 85 – out of hundreds of thousands of staff from over 200 NHS trusts.
Smaller still was the number of these 85 disclosures which came from NHS Trust Freedom To Speak Up Guardians. An FOI disclosure by the NGO has revealed that only 18 of the 85 qualifying disclosures came from Freedom To Speak Up Guardians.
The National Guardian’s Office has additionally clarified that these 18 disclosures were made by 18 Speak Up Guardians.
This represents a tiny proportion of hundreds of NHS trust Speak Up Guardians. The National Guardian’s directory of NHS trust Speak Up Guardians lists over 400 current Speak Up Guardians in NHS Trusts.
In her second annual report, published last week, the National Guardian advised that the latest headcount of all Speak Up Guardians is over 800:
“there are now over 800 guardians and champions in trusts, independent sector organisations and some arm’s-length bodies”
This inflated figure was part of the Office’s self-aggrandising spin. The latest, smaller number of Speak Up Guardians for whom she has an official remit – those employed by NHS trusts – was not given.
Nevertheless, The low number of disclosures from NHS trust Speak Up Guardians to the National Guardian strongly suggests that hardly any Speak Up Guardians are inclined to take the plunge into Robert Francis’ purported safety net. And who can blame them. But it does mean that Speak Up Guardians are unlikely to be escalating enough concerns externally, despite Francis’ original, breezy assurances that they would.
The National Guardian’s Office was asked what action it took in response to the 18 qualifying disclosures by Speak Up Guardians, but its response on this point was somewhat slippery. Clarification has been requested.
Astonishingly, the Office admits that it has not tracked Speak Up Guardians’ experience of whistleblowing to the National Guardian.
This cannot be for lack of awareness of good practice, because the National Guardian’s guidance to Speak Up Guardians thunders:
“Freedom to Speak Up Guardians are required to record all cases of speaking up that are raised to them. Your records:
- help you keep track of individual cases.
- promote consistency in the handling of cases
- provide a measure of the speaking up culture in your organisation and the use of the Freedom to Speak Up Guardian route
- act as a source of intelligence enabling trends in, and barriers to, speaking up to be identified.”
Indeed, as recently as August 2018, the National Guardian waxed lyrical in an interview with the NHS managers’ union, Managers In Partnership, that valuing feedback is “key”:
“The key is to value that feedback, and to see it as a way of helping to make improvements”
Perhaps the National Guardian’s Office simply sees itself as above such tiresome accountability, and or lacks real empathy for the dangers that face staff who speak up.
The National Guardian has repeatedly demanded ‘courage’ of Speak Up Guardians – both in her model job description
and in publicity material. “Courage” is only required when protection is absent. A true understanding would surely focus efforts on protecting those at risk, rather than criticising a lack of courage.
Not only has there been inadequate emphasis on protection, implied by the demand for ‘courage’ by Speak Up Guardians, but the National Guardian’s Office admitted that it could not tell me how many Speak Up Guardians had complained of being bullied or blocked in the course of raising concerns:
So there you have it, another mission-critical failure. The external Office that is supposed to be a bulwark against the obstruction of internal Speak Up Guardians isn’t much interested in tracking obstruction. Even though Robert Francis once considered ‘obstruction’ so serious that it merited a criminal sanction.
I asked Speak Up Guardians about obstruction, through a brief, anonymised Survey Monkey questionnaire which was emailed to every published contact address for NHS trust Speak Up Guardians. The response rate was low – only 14.2% (65 responses out of over 456 invitations to participate).
Based on this low response rate, the results cannot be safely assumed to be representative of the whole group. However, it was nevertheless important that 13 of the 65 (20%) Speak Up Guardians were brave enough to say that they felt it was ‘difficult’ or ‘very difficult’ to raise patient safety concerns.
12 of the 65 (18.5%) Speak Up Guardians were brave enough to say that they were ‘sometimes’ or ‘frequently’ bullied or blocked when raising concerns.
Only 5 of the 65 (7.7%) Speak Up Guardians had escalated concerns to the National Guardian’s Office.
Even allowing for an assumption that this sample of 65 Speak Up Guardians who responded may contain a higher proportion of Speak Up Guardians who have had poor experiences, the results suggest that a fair number of Speak Up Guardians in the total population experience bullying and obstruction when trying to raise patient safety concerns. The results also reinforce the impression that few Speak Up Guardians are escalating up to the National Guardian. This represents a critical patient safety bottleneck.
The free text section of the questionnaire generated more concerns and questions about the Speak Up Guardian role, than unalloyed, positive feedback. Twenty seven free text comments were made and they are provided below in the Appendix. The last comment summed up everything that is wrong about Robert Francis’ and the government’s Freedom To Speak Up project:
“I feel like a whistle blower for being in the guardian role”
NHS Freedom To Speak Up Guardian, 12 November 2018
Any idiot could have reasonably foreseen this, unless blinkered by a wish to please power.
The fate of even senior internal whistleblowing Champions is writ large in the example of Munwar Hussain non-executive director at NHS Tayside who quit claiming that his attempts to pursue concerns raised by staff were suppressed.
It is also starkly illustrated by Barclay’s head of whistleblowing who left the bank under gag, following the scandal in which Barclay’s CEO tried to expose the identity of a whistleblower and was fined for this misconduct.
Private Eye Issue 1470, 18 May 2018:
We also already know that some Speak Up Guardians have left their posts after a short time.
Finally, I asked Speak Up Guardians if they felt that the investigation of whistleblowers’ concerns should be mandated. The National Guardian has declined to support reform of UK whistleblowing law, but the great majority of Speak Up Guardians who answered the survey felt that investigation of concerns should be compelled in law:
That is to say, by implication, Freedom To Speak Up Guardians did NOT give a ringing endorsement of Robert Francis’ theories of persuasion that underlie the whole Freedom To Speak Up project.
Good NHS trusts do not need Speak Up Guardians, and Speak Up Guardians make no difference in poor trusts – they simply become another target for reprisal.
NHS staff and patients, and indeed all whistleblowers need something much better than a disinterested, toothless office. Real change needs to start with reform of UK whistleblowing law.
UPDATE 4 JANUARY 2019
The National Guardian’s slippery response to the question about action taken in response to whistleblowing disclosures by Speak Up Guardians was challenged. A further response from the Office has confirmed that its initial claims were inaccurate and misleading. Seventeen, not 18, disclosures were received from Speak Up Guardians. The National Guardian’s Office only provided advice or sent the Speak Up Guardians to someone else. It did not intervene, a mission critical failure.
The correspondence is provided here.
Appendix
Free text answers from Freedom To Speak Up Guardians in response to: “Question 5. Please add any other comments that you would like to share about your experience of working as a Freedom To Speak Up Guardian”
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I feel like a whistle blower for being in the guardian role 11/12/2018 6:26 PM
“Staff at all level are currently working within extreme pressure and juggling priorities. Handling of concerns is yet another initiative that they have to deal with, most are not equip with the basic skills to do so and as such are ineffective, whilst for others don’t see this as a priority. 10/29/2018 9:45 PM
Culture is changing, slowly but its changing. 10/29/2018 1:41 PM
The role is making a difference, direct feedback from staff is telling us this. It really is making a change to those who may not have otherwise raised their concern or would have remained stuck if it were not for the FTSU forum. It will continue to need genuine support from leadership in taking issues serious and giving it a fair and appropriate attention. From my personal experience, it can be challenging psychologically dealing with concerns but with the right support, it has made functioning in the role much easier. 10/25/2018 11:34 PM
A theme that I am working on at the moment is how to support our managers to respond positively and actually put in place solutions where staff in their areas speak up and raise concerns. I think we are seeing more staff in our organisation feel empowered to speak up, but I am concerned as to the variation in how we then help managers to address the issues – this includes issues raised as protected disclosures as part of whistleblowing. I agree that the law should be reformed and should not just be about employment law; I also think that if investigations become statutory, there needs to be much better guidance to Trusts as to how to respond to issues that are investigated, and that would be in terms of how to respond to and protect the interests of the whistleblower, as well as how to properly respond to serious concerns as an organisation. 10/24/2018 12:24 PM
Needs to have a higher profile in the trust structure 10/23/2018 4:19 AM
Whilst not an easy role having worked at [redacted] its something I feel passionate about. I’m lucky not have experienced a g [sic] blocks from the trust management however I have had to escalate to trust managers above mid managers who have tried to block. 10/22/2018 1:44 PM
The work load is very high with not a lot of support from the trust! 10/22/2018 9:16 AM
I would like more involvement with finalising the problems. 10/22/2018 8:29 AM
A difficult lonely job but very rewarding 10/22/2018 8:24 AM
Nil 10/22/2018 7:50 AM
I am reasonably senior so I think that it’s easier for me to carry things forward, possibly more difficult to more junior champs. Conversely, I suspect that my seniority discourages some people from raising concerns directly with me (perhaps I’m seen as ‘part of the establishment’), so I tend to spend more time acting as a sounding board for other champions. 10/22/2018 6:38 AM
My own experience and detrimental treatment after raising concerns lead me to become a confidential contact. 10/22/2018 6:18 AM
None at these time 10/21/2018 8:27 PM
You don’t get any real guidance on how to deal with concerns and it often feels like a tick box exercise and staff are still suffering a detriment for speaking out so I probably will not continue in the role much longer. 10/17/2018 3:14 PM
Trusts need to make all managers more aware of the guardian role and responsibilities. I have found it difficult to get appropriate responses at times and feel I am not being given enough acknowledgement for what we are trying to investigate and that it is about improvement rather than blame 10/17/2018 12:18 PM
I think the FTSUG role is an important role in enabling staff to feel confident raising concerns, however, I think it is really important that Trust Board members are equally responsible for creating the culture to enable staff to feel able to raise concerns without fear of detrimental treatment. 10/16/2018 3:55 PM
We need clarification around our role regarding bullying & harassment. It’s all well and good stating that FTSU is a sign posting role however if our HR departments are not providing much needed support to staff then we are often the only service left to provide support. We can not turn our backs on staff members that need us even if it does not fit in with the requirements of the role 10/16/2018 1:59 PM
It is a worthwhile role and my work has evidenced that the Guardian role is essential in all Trusts 10/16/2018 10:03 AM
In practice my Trust takes concerns raised very seriously and makes every attempt to fully investigate. However, it does need to be recognised that whistleblowing concerns are complex and not always easily resolved to everyones’ satisfaction. 10/16/2018 9:59 AM
An unfortunate effect of FSUG is that innocent people have had malicious unfounded allegations made against them which FSUG does not cover. The law of the land is the principle of innocent until proven guilty whereby the opposite applies to FSUG . Also the accused does not have the opportunity to defend themselves when an allegation is made which is very wrong . I speak from personal experience and can state it was a very distressing time which affected my confidence . I can only assume the allegation was unfounded as there were no sanctions or actions made so I was left in limbo which is wrong on every level. 10/16/2018 9:10 AM
The role of Freedom to Speak Up Guardian has enabled staff to feel confident to raise concerns in a “safe environment” and to be supported. 10/16/2018 8:52 AM
This role has made it easier to ensure that issues are brought to the CEO who is supportive. It is important to define the term Whistleblowing more clearly. 10/16/2018 7:43 AM
People are still cautious about speaking up because of fear of consequences. I feel there is a culture change and more staff are willing to speak up, we need to build on this positively. 10/16/2018 7:25 AM
Fear ! 10/16/2018 6:38 AM
The NGO have been a great support for issues where advice outside the Trust has been needed to move forward. 10/16/2018 6:26 AM
The Trust will do anything and go any lengths to protect it’s reputation, in particular with issues connected to staff bullying and harassment. 10/16/2018 6:22 AM
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