Number of NHS whistleblowing cases: A disagreement with Tom Kark QC

Dr Minh Alexander NHS whistleblower and former consultant psychiatrist

 

 

Letter 1 March 2019 to Tom Kark QC who has undertaken a review of CQC Regulation 5, Fit and Proper Persons on behalf of the Department of Health and Social Care:

Dear Tom,

Number of NHS whistleblowing cases

I write to ask about a matter of fact concerning your report from the FPPR Review, which states that there are low levels of whistleblowing cases in the NHS.

I found much of your report very interesting but on this point I need to disagree.

The passage in question is on page 113 of the report:

“10.14 The relatively low levels of whistleblowing cases in the NHS suggests either that there is very good management practice in dealing with whistleblowing issues or that employees are, for some reason, reluctant to raise them. The NHS only received 39 whistleblowing cases about Foundation Trusts in 2013/2014, 28 in 2014/2015 and 60 in 2015/2016. Nationally, the figure for numbers of whistleblowing cases received by Employment Tribunals ranges between 1,395 and 2,754 (in the period between 2007/2008 and 2016/2017). Whilst the national figure for numbers of whistleblowing cases is not particularly high, the number of whistleblowing cases in the NHS is surprisingly low for such a large employer.”

For clarity, the numbers cited in the above, linked FOI disclosure related to whistleblowing disclosures made to Monitor by the workers of NHS Foundation Trusts, and not to claims made to the Employment Tribunal against Foundation Trusts.

Whilst Monitor received disclosures from a small number of whistleblowers, many more NHS staff whistleblew to the CQC.

The CQC’s submission to Robert Francis’ 2014 Freedom To Speak Up Review revealed that approximately nine thousand workers a year from regulated providers raised concerns with the CQC. This figure represents staff from health and social care.

A more recent FOI disclosure by the CQC revealed that, according to the CQC, there were a total of 1535 whistleblowing contacts to the CQC by workers from NHS trusts (Foundation and non-Foundation) over 2015/16 and 2016/17.

For the thousands of NHS staff who get to the stage of making an external disclosure to a regulator such as NHS Improvement or the CQC, there will be more who raised concerns internally, and who possibly gave up and or were silenced.

Some supporting evidence for this comes from a study by Greenwich University, sifting data from Public Concern at Work’s (now known as Protect) helpline data, ‘Whistleblowing: The Inside Story’. 

The study reported:

“Within our sample of 1,000 cases, concerns were raised 1,514 times, 82% of which was internal, 15% external, and 3% to a union.

 The majority of whistleblowers (44%) raise a concern only once, and a further 39% will go on to raise a concern a second time.”

In terms of the number of whistleblowing Employment Tribunal claims against the NHS, ACAS kindly advised that it handled 324 whistleblowing claims from Health and Social Care in 2017/18. As you will see from the tables provided, this represents one of the highest numbers of cases compared to other sectors.

So in short NHS whistleblowing is widespread, but most likely under-reported for a range of reasons, and out of view. The above type of data has to be privately collated, when the government should actually have ensured active tracking and transparent publication.

The invisibility of NHS whistleblowers is to a degree a matter of design. Some are hidden by super-gags which the Department of Health and Social Care, NHS Improvement and CQC all continue to collude with, despite what they told you in evidence about being ‘uncomfortable’ about gagging.

Indeed, NHS Improvement vets NHS trusts’ applications for special severance payments and related settlements agreements, before they go to the Treasury for final approval.

Also, the NHS National Guardian has just jointly produced a guide with NHS Employers on settlement agreements, which still contains a template agreement with a super-gag.

The flat line graph below, generated from the just published annual NHS staff survey, which shows no change in the NHS workforce’s confidence that employers will act on concerns, confirms little has changed since the publication of the MidStaffs Public Inquiry.

NHS Staff Survey 2018 Five year trend on the question: “I am confident that my organisation would address my concern”

 

I hope the whistleblowing case numbers provide some additional perspective in advance of your evidence session with the Health and Social Care Committee.

I also wonder if it is possible to amend the FPPR Review report or to issue an advisory postscript about the real level of NHS whistleblowing, based on the additional data sources.

With best wishes,

Minh

Dr Minh Alexander

cc Jane Russell Essex Court Chambers