By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist
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Many employers will set out to deliberately hurt whistleblowers in any way they can, if they believe they pose a threat to an organisation’s senior leaders.
In health and social care, a classic weapon is to make trumped up Fitness to Practice referrals to professional regulators. This is a nuclear option as it is a threat to long term career and livelihood. For often conscientious whistleblowers, the stigma and worry causes immense distress. A malicious referral to a professional regulator is especially ‘good value’ from an employer’s point of view as it incurs little cost compared to litigation but inflicts a very harmful process that can be protracted, sometimes taking years. This eats people up and can contribute to serious mental and physical ill health.
Indeed, it is not just whistleblowers who can be harmed this way but any staff who fall foul of employers for any reason.
There is little evidence that professional regulators take a systematic approach to managing abuse by employers of the Fitness To Practice system. Abuse of process recurs repeatedly and there is no sign of deterrence by the regulators. A recent FOI response by the Health and Care Professionals Council (HCPC) showed that the regulator did not even track or analyse cases of potential abuse by employers. And yet I am aware of malicious referrals by employers on whistleblowers to the HCPC.
Following the revelation of this negligence from the HCPC, I asked the professional regulators’ regulator, the Professional Standards Authority (PSA) what it expected professional regulators to have in place.
The PSA has given a considered response which acknowledges the difficulty that professional regulators may have in establishing whether referrals are vexatious, but it nevertheless acknowledges that such referrals are a grave matter of the “utmost seriousness”:
“…we would consider any instance when a regulator establishes that a referral by an employer was malicious to be of the utmost seriousness. We would expect the regulator to fulfil its duty to share information with the appropriate systems regulator on each occasion, for example in England with the CQC. They should also consider if the individuals concerned with the referral should be subject to its own fitness to practise process or that of another regulator and make any necessary referral in order that any malicious behaviour is fully investigated.”
Importantly, the PSA has indicated that it would welcome evidence of abuses in order to support its oversight of the professional regulators:
“I will share your concerns as feedback to my colleagues within the performance review team and this will give us the opportunity to consider the approach taken across the regulators. We would welcome seeing evidence from any party at any time about employers using the fitness to practise process to victimise staff. The regulators’ handling of such cases would certainly be of interest to us for our reviews of their performance. I also note your reference to the GMC’s procedural safeguards to protect whistleblowers. How well this is working is something we may consider through our performance review.”
If you have been the victim of a vexatious and or self-evidently untruthful referral to your professional regulator, or are aware of any such referrals, please consider sharing your evidence with the PSA to support its work and to help build the case for change.
| HOW TO CONTACT THE PSA:
Professional Standards Authority Telephone: 020 7389 8030 |
With regard to an assertion by the PSA that professional regulators cannot take action unless a hostile referral can be proven to be malicious, I have suggested that the least that can be done is that a record is kept of referrals to regulators that result in no further action, and that employers are given feedback on their overall performance. I have suggested that such employers should be reviewed if they do not improve. I have also asked that data on outcomes of referral by specific employers should be tracked and available. If an organisation has a higher than average proportion of referrals that result in no further action, this fact should be public and transparently available to registrants.
The correspondence with the PSA is provided below in the appendix.
Better UK whistleblowing law would also help stop laxity by regulators in managing reprisal.
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APPENDIX
CORRESPONDENCE WITH PROFESSIONAL STANDARDS AUTHORITY ON ROGUE EMPLOYERS
From: minh alexander <REDACTED>
Subject: Identification and tracking of rogue employers who make vexatious, malicious and or dishonest referrals to professional regulators
Date: 2 September 2020 at 11:39:13 BST
To: David Martin <REDACTED>
Cc: Alan Clamp <REDACTED.
BY EMAIL
David Martin
Concerns and Appointments Officer
Professional Standards Authority
2 September 2020
Dear David,
Identification and tracking of rogue employers who make vexatious, malicious and or dishonest referrals to professional regulators
Many thanks for your helpful reply, and for welcoming any evidence from health and care professionals who have been subject to abusive referrals for the purposes of victimisation.
I write with respect to one point arising.
I understand your arguments that proving maliciousness is hard:
“We can also understand if regulators were cautious about definitively labelling referrals/referrers as malicious as it is not always easy to determine whether a referral has been made in good or bad faith. Regulators would also not wish to place barriers to concerns being raised. Moreover, establishing whether a referral is malicious is not the regulator’s main function when carrying out their duty to investigate concerns about fitness to practise. If they find there is no case to answer about a registrant their investigation will cease and while they may have doubts about the referral, the reasons for it and even communicate these doubts to the referrer, this may stop short of proof. The regulators have no remit to pursue such concerns further.”
However, I do think more could be done by professional regulators on a systemic level .
If regulators tracked referral outcomes by referring employer, that would show variation in outcomes. I think the least that could be done is for professional regulators to feedback to employers who may be outliers, and question them about their governance. Arguably, persistent outliers should be subject to formal review. Indeed, I thought that was partly the role of local liaison officers who work with employers to reduce the number of unwarranted referrals.
I accept that you do not wish to discourage employers from raising concerns. However, a balance is needed in not allowing so many unwarranted referrals that frontline staff work in an atmosphere of intimidation, which itself prevents just culture and the raising of concerns. I am aware of so many frontline staff who have described the highly traumatic experience of being referred without just cause.
If the PSA is not already aware of it, even when NHS employers cannot make something stick on an employee, they will sometimes rid themselves of unwanted staff through a loophole known as SOSR:
The Dismissal of over Ten Thousand NHS Staff via ‘Some Other Substantial Reason
Some NHS organisations will go as far victimising those with a duty to be independent, such as Freedom To Speak Up Guardians and investigators, if they do not dance to an employer’s tune.
I think it is important that data on the outcomes of Fitness to Practice referrals by employing organisation should be published and transparent to registrants, especially those who have the misfortune of being referred without good cause.
Would the PSA help ensure that such data is available to frontline staff?
At present, I am aware that some employers claim not to even hold collated data on the outcomes of their referrals. If that is true, they cannot be reflecting much about their practices or trying to improve.
With best wishes,
Minh
Dr Minh Alexander
Cc Alan Clamp
From: David Martin <REDACTED.
Subject: RE: Professional Standards Authority
Date: 2 September 2020 at 09:59:29 BST
To: Minh Alexander <REDACTED>
Dear Dr Alexander
Thank you again for your email to Alan Clamp, Chief Executive of the Professional Standards Authority (the Authority).
You wrote to raise your concerns about whether professional regulators are doing enough to deter employers from using the fitness to practise process to make malicious, vexatious or dishonest referrals. In particular you were concerned when such referrals are made to silence whistleblowers. You were further concerned following the response of the Health and Care Professions Council (the HCPC) to your FOI request. In this request you asked if the HCPC had a policy for dealing with vexatious referrals from employers and was able to track how many such referrals it received. The HCPC informed you that it did not have a policy and could not tell you how many referrals of this type it received.
You asked the Authority what we expect regulators to have in place to manage employers who make malicious referrals.
We acknowledge it is important that regulators take into account contextual factors when considering concerns raised about registrants, including the status of a registrant as a whistleblower. Whistleblowers play a vital role in protecting the public from harm and should themselves be protected from the effects of such retaliatory actions.
We also recognise that regulators receiving referrals may have a difficult task ensuring that they act at all times in line with their overarching duty of public protection. That duty requires they must thoroughly investigate any issues of concern brought to them, including those about whistleblowers. To do so with due fairness requires them to recognise those contextual factors, in particular the status of a whistleblower.
We can also understand if regulators were cautious about definitively labelling referrals/referrers as malicious as it is not always easy to determine whether a referral has been made in good or bad faith. Regulators would also not wish to place barriers to concerns being raised. Moreover, establishing whether a referral is malicious is not the regulator’s main function when carrying out their duty to investigate concerns about fitness to practise. If they find there is no case to answer about a registrant their investigation will cease and while they may have doubts about the referral, the reasons for it and even communicate these doubts to the referrer, this may stop short of proof. The regulators have no remit to pursue such concerns further.
Nevertheless, we would consider any instance when a regulator establishes that a referral by an employer was malicious to be of the utmost seriousness. We would expect the regulator to fulfil its duty to share information with the appropriate systems regulator on each occasion, for example in England with the CQC. They should also consider if the individuals concerned with the referral should be subject to its own fitness to practise process or that of another regulator and make any necessary referral in order that any malicious behaviour is fully investigated.
Our focus is also on how well the regulators fulfil their role to protect the public. In doing so we expect regulators to carry out their own independent consideration of the material referred to them. In the past we have been critical when we considered regulators were relying too much on employers’ own investigations. I should say this has also been in circumstances where the evidence provided by the employer has been in favour of its registrants who have concerns raised about them by other parties.
I will share your concerns as feedback to my colleagues within the performance review team and this will give us the opportunity to consider the approach taken across the regulators. We would welcome seeing evidence from any party at any time about employers using the fitness to practise process to victimise staff. The regulators’ handling of such cases would certainly be of interest to us for our reviews of their performance. I also note your reference to the GMC’s procedural safeguards to protect whistleblowers. How well this is working is something we may consider through our performance review.
I hope this reply is helpful, but please do not hesitate to let me know if you would like any further information about our role and approach.
Yours sincerely
David Martin
Concerns and Appointments Officer
Professional Standards Authority
157-197 Buckingham Palace Road
London SW1W 9SP
www.professionalstandards.org.uk
Switchboard: 020 7389 8030
Fax: 020 7389 8040
For information regarding the Authority’s privacy policies please see our privacy notice here
From: David Martin
Sent: 28 August 2020 17:14
To: Minh Alexander <REDACTED>
Subject: Professional Standards Authority
Dear Dr Alexander
Thank you for your email to Alan Clamp, Chief Executive of the Professional Standards Authority, concerning employers who make malicious referrals of whistleblowers to the professional regulators.
Alan has asked me to reply on his behalf and I will write with our full response early next week.
Yours sincerely
David Martin
Concerns and Appointments OfficerProfessional Standards Authority
157-197 Buckingham Palace Road
London SW1W 9SP
www.professionalstandards.org.uk
Switchboard: 020 7389 8030
Fax: 020 7389 8040
For information regarding the Authority’s privacy policies please see our privacy notice here
All reasonable precautions have been taken to ensure that this e-mail is virus free. As we accept no responsibility for loss or damage arising from the use of this e-mail or attachments, we recommend that you subject these to your own virus checking procedures prior to use.
LETTER 21 AUGUST 2020:
BY EMAIL
Alan Clamp
Professional Standards Authority
21 August 2020
Dear Alan,
Identification and tracking of rogue employers who make vexatious, malicious and or dishonest referrals to professional regulators
I previously exchanged correspondence with your predecessor Harry Cayton after Sir Antony Hooper reported on his review for the GMC. This review was on how to fairly treat and better Safeguard whistleblowers who may be unjustly ignored, referred or have their re-validation threatened by employers as a negotiating tool and or punishment:
The handling by the General Medical Council of cases involving whistleblowers. Report by the Right Honourable Sir Anthony Hooper to the General Medical Council presented on the 19th March 2015
As I am sure you know, the GMC has now introduced some procedural safeguards to make referrers – senior doctors – declare whether the doctor being referred to the GMC is a whistleblower.
I am uncertain of how effectively the GMC is using its new procedures and the intelligence derived from these procedures.
I am certainly concerned that the GMC remains too remote/ passive and not proactive enough in responding to complaints about whistleblower victimisation by senior registrants such as Medical Directors.
I now write on a broad issue of whether professional regulators are doing enough to deter bad employers from abusing process by making malicious, vexatious and or dishonest referrals.
If registrants are scrutinised, it only seems fair to ensure the integrity of the processes of scrutiny, especially given the great power imbalance between employers and workers.
I was very concerned to receive an FOI response from the Health and Care Professions Council (HCPC) reference FR06782, today, which indicated:
“Question 4
We do not collate and track data on vexatious, malicious and/or dishonest referrals by employers.
Question 5
We do not have a policy or equivalent for handling employer referrals which we find are vexatious, malicious and/or dishonest.
Question 6
To determine if the HCPC had ever taken action against registrants who have made vexatious, malicious or dishonest referrals would require us to manually review each fitness to practise case. This would exceed the appropriate cost limit under Section 12 of the FOIA, that being £450.”
I made the above FOI enquiry partly because I am aware that whistleblowers have been maliciously referred to the HCPC.
I cannot see from the above response how the HCPC could hope to identify and manage rogue employers who repeatedly bully and abuse power.
If there is no system in place whatsoever to spot, sanction and deter serious abuse of professional registration mechanisms by employers, that seems in effect to amount to carte blanche for arbitrary employer behaviour and misconduct.
Any injustice and bullying is toxic to safety culture, but it is particularly serious when such behaviour is tolerated against whistleblowers.
I wonder if the PSA could advise on what it expects to be in place by professional regulators to manage rogue employers and their toxic effect on just culture and safety culture.
Many thanks and best wishes,
Minh
Dr Minh Alexander
NHS whistleblower and former consultant psychiatrist
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A very welcome move and something I will be providing to the PSA in due course.
I was referred to the NMC as a direct result of blowing the whistle in a care home in 2013. I was subject to trumped up allegations from the employer referral which questioned my fitness to practice and professionalism.
The NMC, who if they were told by an employer the world was flat would believe it, originally found a case to answer. I found that unbelievable given the evidence that proved otherwise. They had not been told by the employer I had whistle blown and adopt the position the registrant is guilty until proven otherwise.
I then escalated the fact I had raised concerns and this was retaliatory to the head of the fitness to practice directorate. The investigation was reopened and all of the evidence reviewed. A very hurried review concluded I had no case to answer.
The NMC made several damning statements about the honesty, integrity and credibility of the managers making this referral and their reasons in their final report.
Despite this they did nothing to address this themselves and they have the power of referral on these matters. Honesty and integrity are fundamental tenets of the nursing profession and are subject to many fitness to practice hearings.
The NMC sat on their hands and did nothing to address the serious misconduct here of the employer referrer which was written by a nurse. They may have closed the case against me but that person is free to do this again – unchecked by her regulator.
Andrea Sutcliffe the NMC CEO is on record tacking credit for setting up a support line for nurses undergoing FTP proceedings as she acknowledges how traumatic these are. I wonder if she will be tracking how many of these referrals involve a whistleblower?
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