By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 28 July 2019
| Summary: The model of internal, nominated whistleblowing officers was spawned in the corridors of Whitehall by Sir Humphrey and enforced by Francis Urquhart. It is huge joke on unsuspecting plebs, who must of course be kept in their place.
It led to the English network of Freedom To Speak Up Guardians who were employed by NHS Trusts and the Scottish whistleblowing Champions, who were directors of Health Boards.
FOI data revealed that despite Robert Francis’ promises that Guardians would provide ‘independent’ advocacy for NHS whistleblowers, hardly any Freedom To Speak Up Champions were escalating matters to the National Guardian.
Similarly, FOI data reveals that Scottish Whistleblowing Champions are escalating very few matters to either the Scottish Health Minister or NHS Scotland.
Feedback from Scottish Whistleblowing Champions raises additional doubts about the effectiveness of the role.
There are examples from other sectors of failure of internal whistleblowing mechanisms, including the recent case of Kathryn Hopkins Ministry of Justice whistleblower. The MoJ denied in legal proceedings that the whistleblower had even made protected disclosures to the Department’s internal nominated officer. However, the Court made a finding of fact that she did.
The Civil Service Code 2006 introduced a model of internal nominated officers with whom concerns could be raised:
‘16. If you have a concern, you should start by talking to your line manager or someone else in your line management chain. If for any reason you would find this difficult, you should raise the matter with your department’s nominated officers who have been appointed to advise staff on the Code.’
The recent case of Ministry of Justice (MoJ) whistleblower Kathryn Hopkins illustrates the ineffectiveness of the model: she made public interest disclosures to an internal MoJ nominated officer, but the MoJ later denied this in Court.
The Employment Tribunal had to consider whether the whistleblowing officer had colluded or had been intimidated into supporting the MoJ’s false narrative.
The Tribunal chose to believe the whistleblower.
“97.The respondent does not accept that the claimant said the following to Ms Lloyd, which comprise the protected disclosures 6g-6l:
97.1. That there had never been any robust evidence that the SOPT worked and that oft-repeated claims of efficacy had been made based on little or no evidence. [PID 6g]
97.2. That the research should have been published immediately after the peer review in 2012. [PID 6h]
97.3. That sexual offences committed since February 2012 may have been prevented if the SOTP had been halted in February 2012. [PID 6i]
97.4. That NOMS and CSAAP were covering up the research by subjecting it to continuing and invalid criticism. [PID 6j]
97.5. That the claimant was being bullied in order to stop her from pursuing the publication of the research. [PID 6k]
97.6. That there was a serious breach of research ethics by reason of the endless running and re-running of the research results which was done in order to try and reverse or minimise the findings which was part of the cover-up. [PID l]
Nevertheless, we find on the balance of probabilities that the claimant did make these extra observations to Ms Lloyd. They are consistent with what she was repeatedly saying to everyone. Although Ms Lloyd does not specifically remember the claimant saying those things, the claimant does remember. Given the overwhelming amount of detail with which the claimant was more familiar than Ms Lloyd, we think on balance the claimant’s memory is more likely to be reliable on this point.”
However, although Hopkins was judged to have made genuine, vital public interest disclosures about the ineffectiveness of the national Sex Offender Treatment Programme, and to have suffered reprisal in consequence, she lost her case because her claim was judged to be have been filed out of time. Such is the weakness of current UK whistleblowing law and governance.
Her case was covered by the Times:
|Fears about sex crime treatment were ignored
Richard Ford, The Times, 17 June 2019
A whistleblower who said that a sex offender treatment programme made some criminals more dangerous was treated unfairly by the Ministry of Justice, an employment judge has ruled.
Kathryn Hopkins’s research highlighted flaws in the programme in 2012 but it was not stopped until five years later. She has estimated that about 180 more crimes will have been committed by sex offenders who were treated in that time than had they not been.
Ms Hopkins had been asked to investigate the effect of the core sex offender treatment programme which had been used by the prison service since 1991. It was aimed at changing the thought processes of men in group sessions and behavioural therapy. Her first results suggested that prisoners on the programme were more likely to reoffend than those who were not.
In 2017 the treatment programme was scrapped and the Ministry of Justice released a report saying that 10 per cent of sex offenders who completed the core sex offender treatment programme (SOTP) committed at least one sexual offence in a follow-up period, compared with 8 per cent of those who had not been treated.
For offences involving explicit images of children the reoffending rate was 4.4 per cent for those who had done the programme, compared with 2.9 per cent in the comparison group.
Ms Hopkins accused the ministry of discrimination at an employment tribunal but lost her case because she had lodged her claim out of time.
Judge Tamara Lewis said in a ruling: “The final report confirmed what the claimant [Ms Hopkins] had been saying all along, ie that there was a higher rate of reoffending by prisoners who had undertaken the SOTP. We can understand the claimant’s frustration that it took five years to publish a report on such an important matter of public policy.”
The tribunal panel said that Ms Hopkins had been unfairly marked down in a performance review in 2014 because she had raised concerns about the SOTP. She was given a “must improve” rating which Judge Lewis said “caused her enormous distress” and prompted her to start a grievance procedure.
Ms Hopkins told the BBC that the ministry had “allowed people to continue attending the course” while knowing “it could be harmful”.
A ministry spokesman said: “Both internal and external experts who reviewed Ms Hopkins’s research judged that it was not of sufficient quality and that the methodology needed to be changed to remove the risk of bias and inaccurate results.”
Another case which starkly illustrates the uselessness of internal whistleblowing models, when the stakes are high, is that of the head of whistleblowing at Barclays, who Private Eye reported was gagged and left under mysterious circumstances.
Internal whistleblowing champions in the NHS
The Head of HR at the then Department of Business, Innovation and Skills steered the Freedom To Speak Up Review on NHS whistleblowing.
The civil service model of internal whistleblowing officers (which had not been properly evaluated – more of that another time) was parachuted into the NHS as ‘Freedom To Speak Up Guardians’.
Robert Francis, the government’s frontman peddled the myth that it was an innovation.
At the National Guardian’s first national conference in March 2017 he told star-struck Guardians they were “pioneers”.
This false claim was flatteringly repeated by Public Concern at Work (now rebranded as Protect), whose head of legal had taken up a job at the National Guardian’s office:
Evidence of the ineffectiveness of the Freedom To Speak Up project continues to accumulate, despite the frantic spinning coordinated by the National Guardian’s office.
Henrietta Hughes National Guardian has gone as far as claiming that the Freedom To Speak Up project has prevented “untold harm” and saved lives. She has not evidenced this claim and has not so far responded to a request to do so.
NHS whistleblowers continue to be disciplined and dismissed, and the National Guardian does her best to turn a blind eye through both unfairly designed processes and failure to even adhere to her own processes:
Some Freedom To Speak Up guardians have reported that they have been bullied and obstructed:
Importantly, and predictably, FOI data showed that Freedom To Speak Up Guardians are not fulfilling a core function as intended – acting independently by escalating matters to the National Guardian.
The National Guardian’s office admitted that it received only 18 whistleblowing disclosures from 18 Freedom to Speak Up guardians in 2017/18, out of many hundreds of guardians in that year:
Scotland followed the English model and installed ‘Whistleblowing Champions’ in Scottish NHS Health Boards. The variation being that the posts were restricted to non executive directors and the champions were not intended to be the main interface for staff:
“The Whistleblowing Champion would not be expected to:
- Be the sole point for staff, or expected to become directly involved in the operation of the whistleblowing policy
- Investigate cases.”
It had been a recommendation of Robert Francis’ Freedom To Speak Up Review that NHS bodies should designate a NED as a whistleblowing lead on boards. This was interesting because NEDs are not classed as workers under UK whistleblowing law and are not covered by the legislation.
As might be expected, the Scottish model also failed. A Scottish whistleblowing champion came forward with related disclosures:
To test whether Scottish whistleblowing champions had in fact been doing much championing, I asked about the number of disclosures that they had made to the Scottish Health Minister and NHS Scotland. The numbers were so small that they could not be released without risk of identifying individuals.
“No whistleblowing champions have approached Ms Freeman to make ‘qualifying disclosures’ as defined under the Public Interest Disclosure Act 1998 (PIDA), since Ms Freeman made her speech on 8 October 2018.”
“Prior to 8 October 2018 between 1-5 whistleblowing champions disclosed to Ms Freeman that health board staff concerns are being covered up by a health board, or that health board staff are being unlawfully victimised and subjected to detriment for making public interest disclosures. We are unable to advise you of the exact numbers as this could potentially identify any individual(s) involved in the case(s).”
“Since the role of whistleblowing champion was established in November 2015 between 1-5 whistleblowing champions have made whistleblowing disclosures to the Scottish Government. We are unable to advise you of the exact numbers or the nature of the concerns as this could potentially identify any individual(s) involved in the case(s).”
The Scottish government disclosed feedback from Health Board whistleblowing champions about the role:
The comments by the whistleblowing champions give an impression of variable and primarily administrative processes, with dependence on information filtered by executive directors. Some indicated that they cross-checked whether whistleblowers were happy with investigations (NHS Lothian). Others such as NHS Tayside emphasised that they had a hands off role:
“WBC are not expected to be the sole point of contact for staff, be directly involved in the operation of the whistleblowing policy and investigate cases.”
At NHS Grampian, a site of much suppression and multiple whistleblower carnage, the whistleblower champion noted with doubt, that there had been no recent reports of whistleblowing. They speculated on what this meant, but concluded that they could have no part in directly investigating whistleblowing issues.
Structures which are designed to be inconclusive will not reveal the truth.
The ineffective structures that we have in place at present need to be replaced with properly designed infrastructure that genuinely serves the public interest, and is underpinned by effective new UK whistleblowing law.
This is a study by Greenwich University on a highly selected sample of whistleblowers who contacted the PCaW helpline, but it does nevertheless shed very useful light on high levels detriment that are quickly accrued during the internal stage of whistleblowing.