By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 29 March 2019
Summary: A brief account of an event at the Royal Society of Medicine about NHS whistleblowing. Neither of the two main speakers, Caroline Dinenage Gosport MP and Minister for Care and Justice John O’Hara, turned up. Justice O’Hara last year recommended criminal sanctions for NHS whistleblower suppression. Remarkably, the National Guardian’s Office took no part in the event. Nevertheless, there were appearances by the Department of Health and Social Care and the government’s chosen lead researcher for an evaluation of its Freedom To Speak Up project. Echoes of Matt Hancock’s previous ‘egregious whistleblowers’ narrative were heard via the presentation on the government-sponsored evaluation research. Two whistleblower speakers, Peter Duffy surgeon ex-University Hospitals Morecambe Bay NHS Foundation Trust and Dr Peter Wilmshurst, laid bare false government promises of protection. The real risk has never been problematic whistleblowers. It is egregious government spin and failures of accountability.
The Royal Society of Medicine 26 March 2019 event “Spotlight on NHS Whistleblowing” was an interesting day. There was a mixture of non-expert well-wishers, experienced, neophyte and prospective whistleblowers. There were also the usual sorts drawn by the profile and power issues inherent in whistleblowing matters, and/or the money, personal advantage and political capital to be made from them, and a scattering of policy makers.
Sir John O’Hara the Northern Ireland High Court judge who led the hyponatraemia public inquiry was booked. An important speaker, because in his inquiry recommendations the judge had revived the notion that whistleblower suppression should be criminalised:
The Inquiry into Hyponatraemia-related Deaths, January 2018, Page 85
“2. Criminal liability should attach to breach of this duty and criminal liability should attach to obstruction of another in the performance of this duty.”
Previously, Robert Francis had regrettably dumped the same recommendation from the MidStaffs public inquiry, when he conducted the Freedom To Speak Up Review.
However, Justice O’Hara never arrived at the Royal Society of Medicine. The organisers speculated about travel mishaps, with no further clarification.
Two piercing presentations were given by Peter Duffy Morecambe Bay whistleblower and Dr Peter Wilmshurst cardiologist and clinical drug trial whistleblower. Both gave unvarnished testimony on the collusion of NHS system and professional regulators, very senior NHS officials, medical defence bodies and the government itself. Peter Duffy included the National Guardian’s Office in his list of officials who failed him, and reported that the former Secretary of State, the current Secretary of State and the Minister for Care had all refused to meet with him. The courage of both whistleblowers was acknowledged by audience and peers.
Peter Duffy speaking on the abject failure of the last defence for whistleblowers, the Law:
“In my opinion, the Law fails whistleblowers in at least three critical areas.
Firstly in an Employment Tribunal you would logically expect the emphasis to be on the whistleblowing, the clinical errors and the actions of the dismissing NHS trust and its managers.
But no. You the whistleblower are the one on trial. it’s your character, behaviour, integrity and reputation that will be impuned, with every attempt made to smear and discredit you in the eyes of the Tribunal.
It is standard practice for the NHS trust to trawl back through years of emails, HR records, occupational health records and so on, in order to find anything with which to censure or degrade you under hostile cross examination
It is a horrible experience.
It simply allows the NHS to indulge in another round of whistleblower victimisation, abuse.”
“The next area where whistleblowers are failed is over the issue of cost threats…The threat is are huge, into my case six figures. It tactically arrives at the last minute…you can’t tell the Tribunal that you the whistleblower and any witness are being threatened and intimidated, as the letter is without prejudice, so you can’t disclose it.”
“Finally the Law demands an evidential link between whistleblowers and constructive dismissal, if the whistleblower is to receive full compensation. It’s not enough to show that you blew the whistle and shortly later you were illegally sacked.
The Tribunal needs an evidential smoking gun to link the two. This evidential link is an almost impossible test, particularly as the NHS conducts a scorched earth policy towards evidence right from the start.”
I had hoped to assess what further spin the government might attempt about whistleblowing, both in the NHS and beyond. Scheduled speakers were the Department of Health and Social Care Minister Caroline Dinenage and the government’s chosen researcher for the evaluation of its Freedom To Speak Up project.
Caroline Dinenage is also the MP for Gosport, where the Gosport Independent Panel investigation concluded that hundreds of defenceless, vulnerable people perished through the deliberate administration by NHS hospital staff of lethal opiates, that were not clinically justified.
Dinenage is therefore in the conflicted position of responsibility to the victims of Gosport and their bereaved families as an MP, whilst defending the government’s handling of the Gosport disaster as a Minister.
This government defence includes reliance on the government’s Freedom To Speak Up project as ‘evidence’ that action has been taken to protect the public.
There is of course no evidence base for the Freedom To Speak Up model of internal Guardians, employed by the very organisations that they are supposed to hold to account.
There is in fact evidence to the contrary, judging from three trusts which had prototype Guardians prior to Francis’ Freedom To Speak Up Review:
- The former Staffordshire and Stoke on Trent Partnership NHS Trust, where trust staff were forced to whistleblow to the CQC despite an established ‘cultural ambassador system’
- Brighton and Sussex Hospitals NHS Trust, where the flow of critical coroner’s reports to Prevent Future Deaths continued.
- And Barking, Havering and Redbridge University Hospitals NHS Trust, which has long been troubled and was not long ago placed in financial special measures.
The NHS National Guardian who oversees the trust Speak Up Guardian network acts more as a controlling firewall than a protection to NHS whistleblowers. She does not track whether NHS whistleblowers’ concerns are addressed. She has not used the full extent of her limited influence to seek directions from NHS regulators to protect whistleblowers and patients.
But this didn’t stop Dinenage telling a bereaved Gosport relative that:
“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”
A request has been made for substantiation of this claim, and the government’s response is awaited.
At the eleventh hour Dinenage pulled out of the Royal Society of Medicine event. The DHSC official who had to cover at short notice gave a very reserved talk, without slides, which largely recounted uncontentious historical background. There was little real detail about government plans. When asked about three meetings that DHSC and BEIS have held to discuss possible changes in UK whistleblowing law, she did not reveal anything about the work being done and only advised that the work is ongoing. Afterwards, she intimated that it is possible that more detail will be revealed at a later stage. We shall see.
The National Guardian’s Office was noticeable by its absence. It did not even participate in the online debate generated by the event.
The lead researcher hired by the government to evaluate its Freedom To Speak Up project broadly described the design and conduct to date of the study. This has focussed largely on trust Guardians and the National Guardian’s Office, rather than the end users – NHS whistleblowers.
He defined the role of the local trust Guardians in terms of creating a conducive environment for speaking up, changing culture and facilitating organisational learning from staff’s speaking up.
Unfortunately, he did not list protecting NHS whistleblowers from harm, despite that being an explicit goal of the Freedom To Speak Up Review recommendations.
So far, about 100 semi-structured telephone interviews have reportedly been undertaken with NHS trust guardians, and there is a reported intention is to conduct a focussed study of six NHS trusts. No information was provided on how these six trusts will be selected, and what parties will influence the selection. This is obviously pivotal in interpreting any results.
As his talk had not covered the experiences of whistleblowers who had disclosed to Speak Up Guardians, I asked if the evaluation study would capture this perspective. He advised that the study will seek to gather the experiences of staff who have used the Freedom To Speak Up Guardian service. There was no time in the session to press for more elaboration, but the methodology and any attempts by Guardians, the National Guardian, NHS trusts the DHSC or other players to filter or control this whistleblower data could have a critical bearing on outcome. These are important questions that must eventually be answered. Not least because I understand that the DHSC was reportedly very controlling during the Freedom To Speak Up Review, and we have seen the unfortunate outcome.
Notably, the lead researcher reported that some Speak Up Guardians had alleged bullying and harassment by the “whistleblower community” on social media. Many Speak Up Guardians are of course well intentioned and will be acting in good faith. It may be that some of this is genuine feedback, whether or not it is based on reasonable conclusions. But equally, there may be an element of injected spin, ultimately driven by the government’s interests. A worrying number of Speak Up Guardians are corporate appointments, who are arguably less likely to press the frontline’s interests and more likely to deliver what they think is desired by their CEOs, the DHSC and politicians. Some are even PR/Comms managers and Directors of HR. A number are seen broadcasting about the virtues of their senior managers, which introduces issues about neutrality and lacks consideration for staff who may wish to report managerial wrongdoing. I continue to be contacted by whistleblowers who complain about the trust Guardians or the National Guardian’s Office, some bearing tales of shocking and sometimes undeclared conflicts of interest.
Moreover, we have had instances of unfortunate modelling, such as through the Secretary of State’s comments about ‘egregious’ and possibly unwell whistleblowers, when he was invited to an event of 20 November 2018 on NHS learning, chaired by Dr Philippa Whitford MP.
|Matt Hancock Secretary of State, joining the debate on 20 November 2018 about two thirds of the way through:
“I’ve been struck since becoming the Secretary of State for Health and Social Care about four months ago, at the need across the system as a whole, for a culture change led by leadership. When I looked into the questions that people were asking and looked into some of the terrible stories of failure of the system to listen to whistleblowers, and within the system individuals to listen to whistleblowers, both historically and more recently.”
and ending with these comments:
“One of the challenges is that the system needs an effective way to filter out just as innocent mistakes and acts of neglect, there is a, we’ve got to get the line right between just whistleblowing and egregious whistleblowing. And there is especially because of the nature of the fact that some of the people in the system are not well, there is a challenge. I wonder whether some of the highly defensive culture that organisations that don’t have strong enough leadership end up holding, is partly because of some genuinely egregious whistleblowing that is not reasonable. And whether or not we like it, that is a feature.”
Another example is of a guest speaker at a conference organised by the National Guardian last year, whose comments had the effect of stereotyping whistleblowers as ‘angry’.
The research presentation at the Royal Society of Medicine therefore had echoes of this ‘egregious whistleblower’ narrative.
Certainly, the incessant empire building, spinning and self-congratulation about the Freedom To Speak Up project, led by the National Guardian’s office, casts a potential shadow on some of the data being fed to the government-commissioned evaluation of the project. Not to mention some instances of negative briefing by the National Guardian’s Office, collusion with CQC and others despite protestations of independence, and also its misuse of statistics.
There is also the fact that some of the Speak Up Guardians have pre-emptively blocked whistleblowers on social media, without any prior interaction, which speaks to a desire to block out dissent and uncomfortable truths about the project into which they have bought and seek to promote.
Importantly, the National Guardian’s Office is not independent as repeatedly claimed by the government. More about that another time.
In response to the RSM audience’s doubts and to troubling accounts by whistleblower speakers and audience members about their experiences of the Freedom To Speak Up project, the government’s appointed lead researcher maintained that it had been necessary to try something.
But we don’t take that approach to clinical interventions and medicines. We insist – in principle – that they must go through formal clinical trials to make sure they work, and importantly, are not harmful.
We rely on souls like Dr Peter Wilmshurst to keep such research honest. Especially because it concerns matters of life and death. It is reckless to launch a costly national programme without evidence base or even a pilot.
Vanity projects may serve an obvious political purpose, but they can delay and obstruct real reform for years, sometimes deliberately.
Bogus and problematic whistleblowers are the minority.
The much greater risk is egregious government spin, flannel and failures of accountability.
UPDATE 31 MARCH 2019
At the Royal Society of Medicine event on 26 March 2019, the government’s lead researcher for the evaluation of the government’s Freedom To Speak Up project put up a slide describing the National Guardian’s Office as an independent body.
It is not. It is a sub-committee of the Care Quality Commission, which is an arms length body that is line managed by the government.
Here is yet more evidence of government control of the Freedom To Speak Up project and the National Guardian’s Office, as revealed in an FOI disclosure 27 March 2019 by the Department of Health and Social Care: