The DHSC, Robert Francis & National Guardian Cabaret: Inconsistencies & Obfuscation about whistleblowers’ concerns

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 19 September 2019

 

Willkommen! And bienvenue! Welcome! Summary: The government’s Chief Medical Officer, Robert Francis and the National Guardian publicly rushed to defend a doctor in a high profile Brexit row, giving the impression that they value whistleblowing. The objective facts suggest otherwise. Importantly, Henrietta Hughes the National Guardian breached her own procedures by intervening in this manner, and she did so in a case which did not even clearly meet her official case criteria. This contrasted with repeated cases where she has questionably turned away and let down NHS whistleblowers in dire straits. Moreover, both she and the government continue to skirt around the central, vital issue of the proper handling and investigation of whistleblowers’ concerns. The government’s cabaret plays on. The encores will continue until UK whistleblowing law is properly reformed and power shifts to the public and the genuine protection of citizens.

 

On 8 September 2019 The Sunday Times published a letter by Robert Francis and Henrietta Hughes NHS Freedom to Speak Up Guardian regarding a row in which a high profile doctor who had campaigned with the anti-Brexit party Change UK on the dangers to health services had exchanged words with Jacob Rees Mogg, the Brexiteer politician on a radio programme. In parliament, Rees Mogg later compared the doctor to Andrew Wakefield, a medic who had been disciplined by the GMC in regards to his controversial claims about vaccination.

There was condemnation of Rees Mogg’s use of parliamentary privilege to make such a remark, including by the Department of Health and Social Care’s Chief Medical Officer who wrote an open letter as follows:

After it was safe to follow such majority condemnation, Robert Francis & Henrietta Hughes hopped onto the already rolling bandwagon and wrote an open letter to the Secretary of State for Health and Social Care, ostensibly urging him to tell NHS staff that it was appropriate and safe to speak up.

More importantly however, Francis and Hughes took the golden opportunity to pat themselves on the back for purported “positive progress being made with the Freedom to Speak Up agenda”and to claim ( illusory) “freedom to speak up” in the NHS. Of course, they provided no evidence for their dubious claims:

Letter by Robert Francis and Henrietta Hughes published by The Times on 8 September 2019 “Dear Secretary of State, As the author of the Freedom to Speak Up Review and the national Freedom to Speak Up guardian, we write to ask you to reassure National Health Service staff directly that they are not only entitled to raise genuinely held concerns but also under a duty to do so. We appreciate and welcome your unequivocal tweet on the subject and the forthright letter from the chief medical officer, with every word of which we agree. We noted with concern the comparison made by the leader of the House of Commons between Dr David Nicholl and Andrew Wakefield. To see the raising of a concern about possible medicine shortages equated with research statements found by a regulator to be seriously misleading and based on fraudulent research was disturbing to say the least. It implied that Dr Nicholl had been guilty of serious professional misconduct, justifying his erasure from the professional register. We know how committed you are to creating an open culture in the NHS in which staff feel free to raise concerns and to comply with their professional duties. That Jacob Rees-Mogg has apologised for this statement is to be welcomed. However, we are concerned that this may be insufficient to correct the message implicit in these events that professionals risk their careers if they raise genuinely held safety concerns where these are politically inconvenient, when the very opposite should be the case. It is even more important, at times of heightened risk, that all professionals should feel free to raise legitimate challenges about the adequacy of the steps taken to mitigate that risk without fear of adverse consequences. The positive progress being made with the Freedom to Speak Up agenda is always vulnerable to being reversed by what may be perceived as threatening behaviour by persons in positions of authority. In the circumstances we would be grateful if you would consider writing an open letter to NHS staff reminding them of their freedom and duty to raise issues of safety in accordance with their duty to do so. Sir Robert Francis, QC Dr Henrietta Hughes, FRCGP, national guardian for the NHS”

 

This letter, a piece of political theatre, threw up serious questions about inconsistency by Henrietta Hughes.

She and her sponsoring bodies have done their level best to water down Francis’ original recommendations from the Freedom To Speak Up Review, weak as they were.

Francis recommended quite clearly that the National Guardian should have a role in ensuring redress where whistleblowers have been mistreated.

Hughes has stoutly resisted this. Hughes has abandoned NHS whistleblowers in dire straits, some of whom have gone on to lose jobs and homes, claiming that she had no remit to intervene in their employment matters or individual cases.

She has even conjured up reasons for excluding whistleblowers from her case review process that do not feature in her official, published exclusion criteria. 

She even insisted that she cannot even review cases for wider governance learning until absolutely all processes are complete, including Employment Tribunal proceedings, which can take years.

Francis seemed to have acquiesced to these developments. Indeed he refused to meet with me when I asked to discuss concerns with him about the implementation of the Freedom To Speak Up project, writing a rather unfortunate email to Hughes about this.

Yet in the Rees Mogg affair Hughes was intervening in a case which was not clearly within her remit. The Brexit speaking up case was more about government policy and its consequences, in the context of advising NHS England, rather than wrongdoing by an NHS trust employer or its staff.

Moreover it is not clear that the case related to whistleblowing as defined by UK whistleblowing law. The speaking up occurred in the context of advice provided to NHS England, but it is not clear what employment relationship, if any, applied.

A local newspaper report of 26 March 2019  stated that the doctor concerned “has been made the subject of a non-disclosure agreement (NDA) regarding Department of Health and Social Care preparations for a no deal Brexit”. If so, it was possible that some sort of contractual arrangement existed with NHS England. However, a blog by the doctor of 14 May 2019 indicated that he had not been asked to sign a non-disclosure agreement.

The doctor’s primary employer, an NHS trust, was happy for him to speak to the media in a private capacity about his concerns with government policy:

“I warned my Trust, who were happy for me to be interviewed in a personal capacity.”

So the next time that an NHS trust whistleblower who does clearly meet the National Guardian’s case criteria asks her to intervene, what will be her response?

“I’m sorry but I cannot intervene, because your case carries no political/ publicity/ career advantages for me.” ?

As a member (and former Chair) of Henrietta Hughes’ Accountability and Liaison Board for over two years, Francis can be criticised for not ensuring that Hughes discharged her responsibilities fairly and consistently.

Also undermining the sincerity of the grand gesture letter to Matt Hancock, Hughes continues to evade the question of whether NHS whistleblowers’ concerns are addressed.

In the very basic data that she asks NHS trusts to provide, she does not track whether whistleblowers’ concerns are addressed.

The National Guardian’s current published dataset: Henrietta Hughes collects the following limited, self-reported data from NHS trusts, and without verification, publishes it quarterly on the CQC website: –       Total number of cases raised with trust Speak Up Guardians –       Number of cases raised anonymously –       Number of cases with an element of patient safety –       Number of cases with an element of bullying or harassment –       Number of cases in which the Speak Up Guardian considered the worker suffered detriment as a result of speaking up This is the National Guardian’s guidance document for Speak Up Guardians on how to collect and report data: Guidance for Freedom to Speak Up Guardians: Recording Cases and Reporting Data The data definitions provided to Speak Up Guardians by the National Guardian’s Office are rough in some domains, such as in regards to detriment: “Detriment can be described as any treatment which is disadvantageous and/or demeaning and may include being ostracised, given unfavourable shifts, being overlooked for promotion, moved from a team, etc. You should record the number of cases brought to you where an individual feels they have suffered detriment as a result of speaking up. In addition, should details of a case reveal elements of detriment as described, these should also be recorded even if the individual bringing the case does not identify detriment.”

The proper handling of whistleblowers’ concerns is the central issue in whistleblowing governance.

I raised concerns with parliament last year about the National Guardian’s disinterest and failure to track whether NHS whistleblowers’ concerns are addressed.

The Chair of Health and Social Care Committee advised that she would raise the matter with Hughes.

I heard no more and there was no evidence of any change in the data tracked by Hughes’ Office.

In August I wrote again to parliament. I did not receive a very clear answer on what action had been taken in the intervening months, but Sarah Wollaston did offer once again to raise the issue with the National Guardian.

The correspondence with the parliament to date can be found here.

Below is the latest incredibly weak & wriggly response from the National Guardian. By its style, one senses that it has Sir Humphrey’s imprimatur.

The observation that there is assurance because things are working well, where they are working well, is a corker of convoluted barrel bottom scraping.

Importantly, Hughes implied that she cannot track whether whistleblowers’ concerns are addressed because that would involve a breach of whistleblowers’ confidentiality.

This is sheer nonsense as Hughes could clearly apply the same process that she uses for all the other data parameters that she already tracks.

It is plainly disingenuous for her to seek and accept Speak Up Guardians’ reports of detriment experienced by whistleblowers, but then in contrast claim that only whistleblowers can determine if their concerns have been addressed.

I will write back to Health and Social Care Committee to raise my concerns about this further obfuscation.

The simple truth is that the government does not want to go anywhere near whistleblowers’ concerns, and Henrietta Hughes will not risk upsetting the government.

As for her and Francis’ comment in their letter about political inconvenience, arguably their greatest hypocrisy is their refusal to date to oppose the government by supporting reform of totally unfit UK whistleblowing law, which Francis acknowledged was ‘weak’.

Hughes’ joint letter with Francis to Hancock was just opportunistic display, for the benefit of those at the top table.

It was not in any way the quiet, unsung altruism of many NHS frontliners who suffer every day for speaking up when their livelihoods are at stake and their managers are hostile.

The government is as hypocritical as ever and despite the recent political panto, it has no intention of acting properly on NHS staff’s concerns.

I am in fact waiting for a reply from Matt Hancock to a letter of 8 September about his Department’s failure for the best part of a year to answer a simple question on the investigation of NHS and social care whistleblowers’ concerns. I doubt I will receive a meaningful response.

BY EMAIL

Matt Hancock

Secretary of State for Health and Social Care

8 September 2019

Dear Mr Hancock,

Will the government ensure that the Care Quality Commission investigates individual whistleblowers’ concerns?

As you will see from the letters copied below, I have been in correspondence with the Department of Health and Social Care for the best part of a year in order to get a very simple question answered:

“It would be very helpful if the DHSC could either clearly confirm that CQC has the power to investigate individual whistleblowers’ concerns, or alter CQC’s regulations to make this unequivocally so.”

I have tried without success to resolve the issue including with the Minister of State for Care, who is ironically the MP for Gosport, who one might hope would be alive to its importance.

The Department has:

• Initially replied affirmatively
• Gone silent for extended periods
• Replied past the point
• Replied opaquely and or with delphic ambiguity (see the email from Mr Addison of 9 August 2019 and my reply of the same date)
• Failed to respond as promised after the latest exchange of correspondence, despite this being relevant to CQC event

Ensuring the investigation of whistleblowers’ concerns is the major unresolved issue at the heart of NHS, and indeed all UK whistleblowing governance.

Without addressing this single central issue, all else is effectively noise.

I would be very grateful if you could ensure that the Department finally provides a clear and meaningful response as per my request of 9 August to Mr Addison.

Yours sincerely,

Dr Minh Alexander

Cc Health and Social Care Committee

 

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http://www.drsarah.org.uk/in-parliament/news-and-speeches/dr-henrietta-hughes/2228