By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 6 March 2019
| Summary: The central issue in whistleblowing governance is whether concerns are properly investigated and addressed. The government is resisting the EU directive on whistleblowing, which seeks to compel proper handling of disclosures. The government falsely claimed to parliament that UK whistleblowing provision is “advanced” and maintained that it does not need to be replaced. It produced a misleading report to the European Scrutiny Committee. This sowed confusion by conflating the investigation of whistleblowers’ concerns with the production of activity statistics by Prescribed Persons. BEIS has disclosed that it has no plans to scrap the useless system of toothless, often unhelpful and even hostile Prescribed Persons, to whom UK whistleblowers are supposed to disclose under the Public Interest Disclosure Act.
Caroline Dinenage Department of Health and Social Care Minister and MP for Gosport, has written to a bereaved relative of a victim of Gosport War Memorial Hospital. She claimed that since the Gosport inquiry report was published, the National Guardian has stepped up activity on ensuring that the NHS deals better with staff‘s concerns. This is surprising because recent FOI data showed that the National Guardian does not bother to track whether NHS whistleblowers’ concerns are addressed. Caroline Dinenage has been asked to expand on her claims and for supporting evidence of increased National Guardian activity on whistleblowers’ concerns.
The one key thing that the British establishment tries to avoid when dealing with whistleblowers is the investigation of their concerns.
Investigation may force other undesirable consequences, such as transparency and accountability.
The vital thing that the new EU whistleblowing directive offers is the compulsion of follow up and proper handling of whistleblowers’ concerns.
The EU whistleblowing directive passed an important stage in January.
The Greens were the prime movers in pushing for the directive. They have produced a digestible assessment of the directive’s strengths and areas that need further work.
However in June 2018, Andrew Griffiths MP then BEIS minister submitted this explanatory memorandum by his department to the parliamentary European Scrutiny Committee. It poured cold water on the EU directive:
The memorandum laughably claimed that UK whistleblowing arrangements are advanced:
“The UK has one of the most advanced systems of whistleblowing protection in the EU.”
and that there was no need to adopt the EU directive.
There was a crucial dishonesty underpinning the BEIS memorandum.
It tried to argue that the labyrinthine and ineffective system of UK ‘Prescribed Persons’, under the Public Interest Disclosure Act (PIDA), represented a satisfactory equivalent to the EU directive proposals for investigation of whistleblowers’ concerns:
|BEIS explanatory memorandum to the European Scrutiny Committee June 2018
“Report handling requirements
62. The proposal also prescribes procedures for the way that those receiving reports need to deal with them. lt sets requirements on ensuring confidentiality, diligent follow up within reasonable timeframes not exceeding three months, and clear and accessible information regarding procedures.
63. In addition to the requirement to give feedback to a reporting person within a reasonable timeframe, competent authorities must also keep a record of reports and review procedures every two years. Member States must ensure competent authorities follow up on reports by taking necessary measures to investigate reports and communicate the final outcome of investigations to the reporting person. Competent authorities must also have staff members dedicated to handling reports, who must receive specific training for these purposes.
64.The UK framework already requires prescribed persons (with some exceptions)to report in writing annually on whistleblowing disclosures made to them as a prescribed person over the previous 12 months. Each report must cover the number of disclosures made by workers in a 12 month period and the number of disclosures where the prescribed person decided to take further action. lt must also include a summary of the type of action taken as well as how disclosures have impacted on the prescribed person’s ability to perform its functions and meet its objectives (for example, to improve services in a sector). ln this regard, requirements for Member States to report on whistleblowing disclosures available at a central level may be able to be gathered from collated reports.”
BEIS sneakily tried to conflate whistleblowers’ “reports” – that is whistleblowing disclosures – with statistical activity reports by Prescribed Persons, when they are entirely separate things.
As the government department in charge of PIDA, BEIS would know that Prescribed Persons are not compelled by PIDA to investigate whistleblowers’ concerns.
There are many hundreds of Prescribed Persons and they are a very mixed bag. Some are not even regulators and have no powers at all.
The only legal duty place upon Prescribed Persons is to receive, record and annually produce very superficial statistics on whistleblowing disclosures:
There has been insufficient training for Prescribed Persons. Some do not even appear aware that they have that role. FOI data last year showed that many do not understand or fulfil their basic duties:
In short, the Prescribed Persons system is a Sir Humphrey Special, a master work in convoluted obfuscation.
Nonetheless, BEIS remains defiant. Despite government spin about possible changes to UK whistleblowing law following the huge scandal of hundreds of unnatural deaths at Gosport War Memorial Hospital after whistleblowers were silenced, BEIS advised in an FOI disclosure of 18 February 2019, Reference FOI2019/01024, that it had no plans to change the Prescribed Persons system. BEIS pointed to some very tokenistic twiddling at the edges as the justification for its continued inaction:
“…you asked about work regarding the Prescribed Person system. We do not have any plans to change the operation of the Prescribed Person system. The Government has already made a number of improvements in this area. Firstly, the Prescribed Persons list is updated annually to ensure the right contacts and the matters they investigate stay up to date. The Government has also published comprehensive guidance for prescribed persons regarding how they handle disclosures. This guidance is intended to help them understand their role as a prescribed person.”
In addition to BEIS’ sleight of hand, the Department of Health and Social Care is also misleading the bereaved families of the Gosport victims.
At a townhall type event in January, the families were handed an information pack consisting of ‘good news’ documents from various agencies about lessons learnt.
This included material claiming improvement in NHS whistleblowing governance, which cited the lamentable Freedom To Speak Up project as evidence of progress.
I have also been sent a copy of a letter by Caroline Dinenage Minister of State for Care and Gosport MP to a bereaved family member, which also makes dubious claims about progress:
Email from Caroline Dinenage MP, 27 February 2019:
I agree that the whistleblowers of Gosport War Memorial were failed both by the hospital and the Government. In response to the Report the Government committed to considering how best to strengthen protection for whistleblowers in the NHS to support patients, families and staff and encourage them that they can raise their concerns in a safe, and heard, space.
One of the key actions that the Government promised to undertake after the Report was to develop and reform measures to support whistleblowers and ‘freedom to speak up,’ as well as making it more transparent in the way individual NHS Trusts manage these cases.
More generally, the National Guardian’s Office is an independent, non-statutory body that holds the Government and the system to account and advocates for change. The National Guardian, Dr Henrietta Hughes, will continue to champion for those who speak up through her Network of Freedom to Speak Up Guardians and will publish an annual report to showcase best practice and Government activity. Since the publication of the report the National Guardian has started to take a more active role and approach into how the NHS deals with concerns raised by staff.
In regards to prosecution, as you know this is a matter for the police and it would be inappropriate for me to comment on the ongoing assessment.
I will however write to the relevant Minister looking at whistleblowing to provide you with further assurances.
Thank you again for taking the time to contact me.
Caroline Dinenage MP
Member of Parliament for Gosport”
A key claim by Dinenage is that the National Guardian has stepped up activity on how concerns are dealt with:
“Since the publication of the report the National Guardian has started to take a more active role and approach into how the NHS deals with concerns raised by staff”
This is unexpected because recent FOI data showed that the National Guardian does NOT bother to track whether NHS whistleblowers’ concerns are addressed:
I wrote to parliament about this in September 2018:
I have now asked Caroline Dinenage for information regarding her claims that the National Guardian has taken a more active role.
Minister of State for Care and MP for Gosport
Department of Health and Social Care
6 March 2019
Dear Ms Dinenage,
Your email to [REDACTED] of 27 February 2019 and comments about increased National Guardian activity
In the above email you advised [REDACTED] that:
“…the National Guardian has started to take a more active role and approach into how the NHS deals with concerns raised by staff”.
Please could you kindly give more details of when this increased activity started, and what it comprises.
In what way is the National Guardian taking a more active role, and what is her revised strategy and new procedure in this area?
What activity measurements are planned or applied?
Is it possible to see the results of any activity monitoring?
I ask as recent FOI showed that the National Guardian was not tracking whether NHS whistleblowers’ concerns are being addressed. This is a letter to parliament on the matter:
As Gosport MP, I am sure you appreciate the paramount importance of acting on whistleblowers’ concerns and of ensuring proper, unbiased investigation.
A poor system response to whistleblowers, such as failure to investigate concerns, can be part of the covert intimidation.
Research by Greenwich University on helpline cases revealed from this particular sample that 44% of the whistleblowers raised a concern only once.
As at Gosport, the window of opportunity for acting on whistleblowers’ concerns can be very limited. Once whistleblowers have been intimidated and silenced, the door may be closed forever, with grave resultant harm to the public.
I provide below some more links to additional evidence about the ineffectiveness and unhelpfulness of the National Guardian’s Office.
As you will be aware, there are many concerns that UK whistleblowing is fundamentally flawed. The reform that is needed is an overhaul of the law, not minor adjustments or ineffectual ventures like the Freedom To Speak Up project.
With best wishes,
Dr Minh Alexander