By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 28 November 2019
Summary: The National Guardian was asked what help she would provide for NHS Trust Freedom To Speak Up Guardians who experience employer reprisal . The answer, as expected, is very little.
The government came up with the Freedom To Speak Up scam to deflect from real reform after repeated scandals involving NHS whistleblower suppression.
We already know that the badly named ‘National Freedom To Speak Up Guardian’ abandons whistleblowers in dire straits when it suits, for example by taking an extreme and restrictive view of its remit, or by arbitrarily conjuring up non-existent exclusion criteria.
We also know where such reprehensible neglect can lead:
“I address this section of my feedback to Dr Henrietta Hughes.
I asked you for help before I was sacked.
You and your office repeatedly declined to help.
I was sacked.
I asked you to help before the appeal against dismissal confirmed my sacking.
You and your office declined to help.
I complained about the handling of my case and the failure to treat me fairly or in line with the original recommendations of the Freedom To Speak Up Review.
NHS Improvement and Robert Francis dealt with my complaint but they would not find against you. I think they should not be in the position of investigating or adjudicating because they are not neutral parties. I do not understand how you can purportedly be held to account by NHSI and CQC and at the same time hold them to account yourself. That is a structural recipe for unfairness and bias, if not collusion.
I later discovered that your Office has handled other cases differently and I complained about the inconsistency.
As far as I am aware, my second complaint disappeared into a black hole of unaccountability.
I asked your Office a second time to review my case, on the grounds that all processes had concluded and that your Office could no longer cite this as one of the reasons for not helping.
Your Office responded by insisting that I re-submit the whole thing on a form of its choosing.
I have no energy left, finding myself in late middle age without a job, having lost my family and children, and soon to lose my home also.
The lack of humanity with which I have been treated has been appalling. I must question if you and your team have a real understanding of the human consequences of your actions and omissions, and the despair they cause.
Please spend some time thinking seriously about the health impact of your actions before claiming any further successes or spending any more public money on PR. The sight of it is very distressing to whistleblowers who know the real truth.”
The inevitable obstruction and victimisation of internal whistleblowing champions, who have the impossible task of holding their own employer to account, is a fact of life.
An example is the resignation of Munwar Hussain the NHS Tayside whistleblowing champion, a board member no less, who claimed that he was ignored when he tried to pursue concerns raised by staff:
There are NHS organisations that are so dysfunctional and authoritarian that it would be nigh on impossible to function effectively as a Speak Up Guardian. For example, the very troubled East of England Ambulance Service (EofEAS) is centre stage again with three staff deaths this month. These deaths came shortly after a whistleblower reported bullying and warned of possible staff suicides. A glimpse into life at the coal face at EoEAS, from what are reportedly anonymised first-hand staff accounts, makes for very difficult reading:
“There is just too much to fix, and no one listening.”
“So many times as I leave for work in the darkness, and I head down my stairs on the cold walk to my car, I think about not having to go in if I fell down the stairs.
“Disiplinaries [sic] for time off sick, so staff reporting for a shift when unfit through health or mental health.”
“Some staff with family have to rely on food banks.”
“We’ve also had three different members of staff this week in tears, all because they feel pressured and stressed because of how they are being treated by management.”
“We are all being worked to within an inch of our lives, sent miles out of the area, travelling long distances for high category calls, and then finishing late every shift because they’ve left someone on the floor for 8 hours, and the hospitals are all at breaking point too!!”
The National Guardian is supposed to stand up for local Freedom To Speak Up Guardians in NHS trusts. There are already indications that this does not reliably happen when the chips are down. More of that another time.
I asked the National Guardian what she would do for NHS trust Speak Up Guardians who report reprisal by their employers. She took the best part of a month to answer, on what should have been a clear and immediately answerable matter of policy. Even then the answer did not come directly from her but was issued by a member of her staff.
This, Speak Up Guardians, is what you can expect:
“When anyone speaks up to the National Guardian’s Office, including Freedom to Speak Up Guardians, we encourage local resolution as far as possible. Using your example, if a Freedom to Speak Up Guardian speaks up about a matter that they feel that they are being victimised for, we would encourage them to raise that matter internally. An organisation’s speaking up policy should accommodate that eventuality by allowing for a number of routes by which a speaking up matter can be raised. As with other individuals who feel unable to raise a matter internally, we would offer to do so on their behalf, with appropriate permissions. If internal resolution is not possible, we would encourage the individual to raise the matter with regulators such as CQC or NHS E/I, and suggest other sources of advice and support.”
The above answer is totally inadequate on several levels, and it is also disingenuous.
Firstly, the victimisation of a Speak Up Guardian is no ordinary matter, but an especially serious governance breach, akin to the victimisation of a trade union representative or the victimisation of an investigator who refuses to falsify evidence. In other words, it is an aggravated offence. It represents an especially destructive and irresponsible mindset by an employer, who is willing to go as far as victimising those who are part of its own governance infrastructure.
Crucially, behind every victimised Freedom To Speak Up Guardian is a whole trust of exposed staff and patients.
The emphasis on plodding through the usual internal processes in such a situation is wrong. Reprisal against a Speak Up Guardian is a huge red flag and a sentinel event. What follows should not be token business as usual.
Regulatory mechanisms should swing into action and the behaviour of any employer accused of reprisal against a Speak Up Guardian should face immediate, formal scrutiny. Any detrimental actions against the Speak Up Guardian in question should be stayed as appropriate, subject to Safeguarding and patient safety considerations. The matter apparently being covered up by the employer should also receive swift external review.
Instead of real action, the National Guardian’s tepid approach would simply allow bad employers time to further harm embattled Speak Up Guardians and to cover their tracks.
The National Guardian is of course being disingenuous because the above reply from her Office focuses on the matter of concern and not the reprisal, which was the subject of my original enquiry. The above reply merely states that if the concern for which a Speak Up Guardian is being victimised cannot be resolved internally, it should be raised with CQC and NHS England or NHS Improvement.
The National Guardian avoids the issue of where to externally report reprisal because she knows full well that CQC et al refuse to deal with individual whistleblower reprisal. CQC et al typically side-step cries for help from whistleblowers with the dismissive excuse that it is just an employment matter, with which they cannot concern themselves.
Here is CQC’s guidance to its inspectors on the issue:
“If a person who had raised a concern was involved in an employment tribunal in the future, the fact that they had told CQC about their concern might help any claim for unfair dismissal. However, CQC cannot intervene or be involved in any advice or any dispute with employers as a result of the concern or any other issue.”
So Guardians, there you have it in black and white. The National Guardian offers you nothing more than some half-hearted hand holding, should you find your world caving in as result of just doing your job.
Even the half-hearted hand holding is not guaranteed, based on experience from individual cases.
The National Guardian’s Office does not even take responsibility for escalating the sentinel event of the victimisation of a Speak Up Guardian to regulators. It will just encourage you to DIY.
So what should you do?
The following advice is not for the cynical NHS trust executives and kindred who are acting as Freedom To Speak Up Guardians to block staff concerns or to single out ‘troublemakers’. Nor is it for self-interested climbers, who have worked out that flattering power and playing the Freedom To Speak Up game is a career fast track. It is for those frontline Guardians who walked into these jobs in good faith, sometimes with no experience of whistleblowing, and without being fully aware of the poisonous politics that created these posts and the risks involved.
I would advise: Do your best, and act thoughtfully according to your conscience. No one but you can decide what is right for your individual circumstances and your personalised risk assessment. These can be agonising choices, and there is not always a clearly ‘right’ choice. But do not enable government lies or feed the government propaganda machine. Do not make or imply promises of safe harbour or protection to staff that you have no way of keeping, and indeed which you cannot even make to yourself.
Keep good records. A good audit trail helps you and those whom you support. Be aware that amongst the first things targeted if they come for you, are your data and your records. Classically, there will be the one-two punch of suspension and then barring from your email and computer files.
If you whistleblow externally, do not use your work email account for correspondence. In any sensitive dispute, your employer will scour your mail, and may start monitoring it at a surprisingly early stage. If you are an honest broker, your status as an irritant will be clear to a bad employer, even if they do not show their hand. Be aware that your Speak Up case files may not be secure either. Your employer after all, controls everything, including the IT systems.
Understand that in any dispute, you will be seen as a particularly severe threat to your institution because you will not only be a whistleblower in your own right, but you know where other bodies are buried. You may also be perceived as a threat because you would be an embarrassment to the government propaganda machine which seeks to claim that NHS whistleblowing has been solved by the Freedom To Speak Up review. If you are a Guardian struggling at a trust that has already been reviewed by the National Guardian, you may cause even more embarrassment to the government. Being a threat to power brings more risk.
Do not bank on being rescued if you appeal to a higher authority. Higher authorities sometimes act, but more often collude with employers, by inaction or action. They can be even more ruthless than the provider bodies under their control. Higher authorities may have vested interests in defending the policy decisions that caused the safety problems in question. In the case of regulators, they may have missed or turned a blind eye to the very harm or risk that you have been trying to raise a concern about. In the case of government departments, they often deflect and leave the dirty work to their arms length bodies, but the higher you go, the more politically charged your case becomes. You may feel that escalating upwards is nevertheless the right thing to do, but do so after researching as much as you can.
Not all whistleblowing ends in disaster, but the most serious cases that threaten power often do. All that is usually achieved in such cases is wasted public money, harmed whistleblowers and little or no learning.
Do not weigh too lightly your responsibility to your loved ones and to yourself. The government and National Guardian’s Office put on a good show which includes moralising about your duty to speak openly and to pursue concerns. They do their best to encourage reporting. They want crude case numbers with which to bang the political PR drum. It doesn’t matter to the government how many lives are ruined by false promises of a safe reporting environment. They have not kept their end of the bargain by providing protection.
Raise concerns as safely as you can, with a safety net in place if possible. If faced with obstruction and reprisal and you have options, consider leaving. It may be better than submitting to years of harassment and unending processes that could follow if you stay. The law is currently no protection. Litigation is in many cases just another source of trauma, which can also end up as a heavy expense.
All my best.