By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 9 January 2020
The government’s response in the last five years to the embarrassment of repeated NHS whistleblower scandals has been to spin, spin and spin some more.
There is a copious trail of failure by the National Guardian and her Office, which demonstrates arbitrariness and a bias to protecting the powerful, at the expense of safety culture and patients.
One of the National Guardian’s most serious failures is her resistance to helping ensure redress for harmed whistleblowers.
Some have been ruined after refusals by the National Guardian and her Office to intervene and challenge the detriment that they have suffered.
Poor handling of patient safety concerns has also been kicked into the long grass, because the National Guardian decided to reject referrals from whistleblowers if there are any outstanding employment processes, importantly including litigation. The latter can drag on for years.
“11. If I submit a case review referral, will the NGO definitely review my case?
The NGO will not review cases where:
• There is a police or fraud investigation
• There are outstanding decisions to be made in the case, such as an on-going employment tribunal
• There are practical barriers to the review, for instance where the matter relates to historic issues and appropriate evidence may not be available
• Where the available information suggests that minimal learning will be obtained by undertaking a review”
This is a ludicrous position. It allows ongoing harm both to whistleblowers and patients. It also sets up the excuse for another exclusion criterion – diminished relevance and limited scope for learning, based on arguments about the passage of time and turnover of key managers. In other words, defend and delay.
Contradicting this strategy of prolonged non-intervention, the National Guardian’s Office in fact promised in 2017 to recommend the reinstatement of unfairly sacked whistleblowers. But there has been no obvious sign that it has actually done so in the intervening years:
Andrew Smith’s whistleblowing case at Mid Essex Hospital Services NHS Trust
Andrew Smith was a clinician, Gulf veteran and trade union representative who fell foul of Mid Essex Hospital Services NHS Trust just for doing his job as a rep.
In particular, the trust – which has a history of proven financial irregularities – objected to his pursuit of concerns that recruitment and retention premia payments had been wrongly withheld from frontline staff.
He reports that there was no adequate investigation of his concerns about payments being withheld from staff, and that a review looked only at a limited period in time, thus omitting vital evidence.
Alongside the controversy about the recruitment and retention payments for trust staff, the trust continued to struggle with serious workforce shortage:
“NHS Mid Essex: why longstanding problems need ‘success regime’ An estimated £32m deficit, serious difficulty attracting staff and a catalogue of failings in patient safety have made it a cause for major concern”
Andrew Smith won an employment tribunal claim for unfair dismissal and whistleblower reprisal, with senior nursing officers being personally criticised for mistreating him as a whistleblower. The trust was a sore loser and appealed, wasting more public money, but lost.
These are some summarised aspects of his legal case:
The unfair sacking of Andrew Smith, NHS whistleblower and trade union representative. A heady cocktail of tainted ingredients. Or how CQC, NHS Improvement & Mid Essex Hospital Services NHS Trust worked together on FPPR.
Even though he had been so clearly twice vindicated by both the ET and the EAT, the National Guardian’s Office ungenerously declined last year to review his case because there was still a remedy hearing to come.
The remedy hearing is now concluded.
Andrew Smith did not succeed in his request to be reinstated, and he believes that the trust did not give a fair account to the ET of the issues around reinstatement.
He also reports that trust management evidence to the ET included a remarkable comment that managers feared he might continue to raise concerns if he was reinstated.
A very far cry from Robert Francis’ utopian vision of NHS trusts being re-educated by the Freedom To Speak Up project to see whistleblowers as valuable assets.
“Principle 5 Culture of valuing staff:
Employers should show that they value staff who raise concerns, and celebrate the benefits for patients and the public from the improvements made in response to the issues identified.”
Andrew Smith has now asked the National Guardian if she will support him with reinstatement, in line with her Office’s promise in 2017.
He has also re-submitted his request for a National Guardian case review.
There are no real excuses left to the National Guardian not to help.
Mid Essex Hospital Services NHS Trust is still not safe or well led, and it even attracted an additional CQC rating of “inadequate” use of resources:
The CQC noted in January 2019 that trust whistleblowing governance was unsatisfactory:
If the National Guardian will not help a legally vindicated, unfairly sacked whistleblower, that would further damage the credibility of her Office.
Especially when one of the trust’s senior nurses who were criticised for whistleblower reprisal went onto employment as an Improvement Director at NHS Improvement.
NHS Improvement acknowledged that the ET finding of reprisal was of concern, and it advised that the manager in question had been spoken to and had agreed to reflect on the matter. NHS Improvement also indicated that it would: “carefully consider whether we need to do anything further.”
If there is no restoration of career loss suffered by whistleblowers, contrasting with job security for those who harmed them, there is no real culture change.
And whistleblowers deserve much better than the unkind, tokenistic and variable NHS whistleblower employment support scheme.
Andrew Smith’s letter to the National Guardian seeking help with reinstatement is provided below in the appendix.
Many whistleblowers will recognise in this letter the stress and suffering not just to whistleblowers themselves, but also their families.
The abuses will not end until there is genuinely fit for purpose UK whistleblowing law and complementary infrastructure to enforce governance standards. Replacement law should favour robust early intervention, harm prevention for both whistleblowers and the public, and swift redress where harm occurs. It also needs to recognise harm to third parties, such as family members.
Letter 8 January 2020 by Andrew Smith to National Guardian
Please note a slight error of fact – where the letter refers to the CEO of NHS Improvement, this should say ‘Chair’.
“BY EMAIL, copied to PIDA date fao Mr Cleverly Mp / DOH safety reports and CQC Mid Essex Inspector.
Dr Henrietta Hughes
Care Quality Commission
Dear Dr Hughes,
Request for help with reinstatement after a finding of unfair dismissal
I understand from information in the public domain that your Office gave an undertaking in 2017 to help reinstate NHS whistle-blowers who have been unfairly sacked.
I whistle-blew at Mid Essex Hospital Services N.H.S Trust, and suffered serious reprisal, including vexatious disciplinary processes and dismissal.
The Employment Tribunal (ET) determined that I had been unfairly sacked and that I had been the victim of a witch hunt. The trust still did not accept responsibility for its misconduct despite the ET finding in 2017. It prolonged my and my family’s ordeal, and wasted public money by appealing, but it lost this appeal in 2018.
I am a skilled, experienced theatre anaesthetic nurse of 28 years N.H.S service, with an unblemished clinical record and specialist skills. I am a Gulf war veteran and served my country.
But since being unfairly sacked, I have struggled to get work and it appears that I have been stigmatized and most likely blacklisted as a result of whistle-blowing. I have been turned down for many jobs for which I am amply qualified. I have either not been shortlisted or not even received responses to my job applications. I can only pick up sporadic, small pieces of agency work.
The compensation from my Employment Tribunal action against Mid Essex Hospital Services N.H.S Trust was not enough to make up for the serious financial loss that I have suffered as a result of being unfairly sacked.
I have a spouse to support and four older children whom I would ordinarily support. However, because of the detriment caused by Mid Essex Hospital Services N.H.S trust, my older children have had to use their savings to financially support me and my wife in order to make ends meet and to keep our home. In addition I am carer for a child, due to circumstances in our family, and the financial uncertainty has been a struggle.
My savings have been used up in the long years of legal dispute with my former employer, and I have no reserves for the future. The stress of our financial struggle and insecurity has made both me and my wife ill. After losing the ET and EAT cases, Mid Essex Hospital Services NHS Trust nevertheless resisted my reinstatement in remedy hearing.
During oral evidence to the Employment Tribunal, one of the trust managers claimed that I could not be reinstated because there were no vacancies, and the only way to give me a job would be to take a job away from someone else and remove the post from who replaced me. I very much doubt that this was true, because contacts at the trust have informed me that there were vacancies and that the trust had to rely a lot on agency staff.
[Redacted] manager…previously advised “Andrew could return, with right support from managers”. In 2019 that changed in 2019 from his previous statement. He further advised the Tribunal that he had not even read the two Tribunal Judgements 2017-18, or seen the evidence in legal bundies. He advised Tribunal that he had based his assertion on the previous managers. No learning appears to have occurred from my whistle-blowing case.
Therefore I believe the trust simply did not want me back, despite me being cleared by tribunal. The same trust manager at remedy hearing said in oral evidence that he was concerned that if I returned to the trust, I would continue raising concerns. I believe that is a completely improper reason for resisting my reinstatement.
I need employment to keep my health and my family together. I was a charge Nurse in the Regional Burns and Plastics Theatres the only one of its type in my area. Non reinstatement will impact on my 1995 NHS pension plans of my NHS career.
Please can you advise what help you can offer with respect to supporting my reinstatement?
I should add that I did ask your Office to review my case previously, but it turned me down, referring me to [NHSI] whistleblowing complaints dept. I was advised non review was because I had an active Tribunal, which in my case took from 2015-December 2019.
I hope that you will now conduct a case review with regards to my treatment by Mid Essex Hospital Services N.H.S trust now Tribunal is finalised.
This is especially as one of the senior managers who was found guilty by the Employment Tribunal of mistreating me as a whistle-blower has walked away from the matter unscathed. She went on to become a director at N.H.S Improvement, whilst I and my family suffer the immense stress and worry of just keeping a roof over our heads and basic bills paid.
I have included you a copy of 2017 Reserve Judgements as it is not available online from Tribunal office. N.H.S.I C.E.O is aware of my complex case via N.H.S.I W.B complaint dept.
Once again following completion of Tribunal process in 2019 my case was returned to NHSI W.B complaints dept, despite my requesting CEO N.H.S.I forwarded it to National Guardian for a case review.
N.H.S England N.H.S.I have been aware of my complex Multi Agency P.I.D.A a number of years, whilst Meht was placed into special Measures June 2015 at the very same point of my unlawful Disciplinary process.
I had warned of my safeguarding and case concerns in Meht and via Multi Agency P.I.D.A 2013-15. Meht managers and Executives failed the safeguarding promised in Francis Reports. Safeguarding also never materialized via Doh or CQC/ NHS England 2013-19.
Please see below time line link regarding Broomfield M.E.H.T System wide failures and success regime June 2015..
Not least of all, I am very concerned that the trust represents an ongoing risk to other whistle-blowers and therefore an ongoing risk to patients.
You can obtain my contact details from N.H.S.I W.B Complaints dept, who have an active file. My legal bundles are soon to be released would help a case review and current Regulatory body investigations.
Raised Concerns in Broomfield MEHT 2011-2014.
Multi Agency External P.I.D.A 2013-20
Sir Francis “Right to Speak up Contributor” 2014-15.
Tribunal case 3202272/2015, Judgements 2017,18, 19.”