An NHS whistleblower’s conversation with the Minister: BEIS needs to take reform of UK whistleblowing law much more seriously

Morecambe Bay trust frontline worker Russell Dunkeld @RussellDunkeld whistleblew on several patient safety issues, including concerns that a nurse colleague was ending stroke patients’ lives early by turning off drips:

Ignored: whistleblower’s claim of nurse who ‘sped up deaths’

He has been followed by several more whistleblowers at the trust, not all of whom are yet in the public domain, who have suffered and found their concerns ignored or trivialised.

Very weak and unfit UK whistleblowing law allows these serious abuses against the public interest to continue.

Russell Dunkeld recently wrote to his MP David Morris about the weaknesses of the law, and he in turn raised them with the government department that is currently in control of whistleblowing law, the Department for Business, Energy and Industrial Strategy.

Paul Scully responded as the relevant government minister, giving an unusually more detailed response than usual, and a more positive appraisal of UK whistleblowing law than is merited. Mr Scully may be well intentioned – he recently sent concerns about the disgraced former Post Office CEO to the Care Quality Commission, under the mistaken understanding that CQC investigates and determines whether NHS directors are Fit and Proper Persons. (CQC stubbornly does not take responsibility for this and he was advised of this). But nevertheless, he is entirely wrong about the strength of current whistleblowing law.

At least he did not wheel out the woeful Freedom To Speak Up project as an excuse not to reform the law. Perhaps a subliminal ministerial slip, as it must be patently obvious to all by now how toothless the Freedom To Speak Up project is.

But be assured that the same type government claims about the merits of current whistleblowing law will be wheeled out tomorrow in opposition to Dr Philippa Whitford MP’s bid to make the government do more, and to improve the law.

Russell Dunkeld has responded to rebut the government’s baseless claims that it has done enough so far to improve whistleblowing law. In his reply to Paul Scully, he points out the urgency of the matter and life and death implications of not correcting law so weak that it does not ensure the investigation of whistleblowers’ concerns.

The important exchange of correspondence is provided below.

If you have not already done so, please sign and share the petition calling for reform of UK whistleblowing law:

Petition: Replace UK whistleblowing law, and protect whistleblowers and the public

RUSSELL DUNKELD’S EXCHANGE OF CORRESPONDENCE WITH PAUL SCULLY, BEIS MINISTER

BY EMAIL
Paul Scully

Minister for Small Business, Consumers and Labour Markets Minister for London

Department for Business, Energy and Industrial Strategy

24th October [sic – September] 2020

Dear Mr Scully,

Urgent need for whistleblowing law reform to save lives

Thank you for your letter of 7 September, copied below in the appendix.

I believe you have been misled about the strength of whistleblower protection in the UK.

Our whistleblowing law now lags far behind that in many other countries.

The central weakness is that it does not ensure that whistleblowers’ concerns are investigated and acted upon.

This is a longstanding, disastrous failing of UK law which has allowed recurrent mass failures of governance, such as in the Ian Paterson rogue surgeon scandal and the Mid Staffs hospital scandal.

I address below, in turn, several key passages from your letter.

1.“The Employment Rights Act 1996, amended by the PIDA, gives legal protection to those who speak up in the public interest.”

PIDA does not provide any pre-detriment protection.

It does not ensure that reprisal is actively prevented.

For example, PIDA does not oblige employers to carry out risk assessments and to provide protection plans for individual whistleblowers.

Whistleblowers experiencing reprisal by their employer cannot access and activate any mechanism to make it stop.

PIDA only acts after the fact.

Whistleblowers can only make a claim to an Employment Tribunal at a very late stage after suffering serious harm and being made unemployable due to stigma, blacklisting, maliciously manufactured disciplinary or capability record and ill health.

The process of litigation itself is very harmful to whistleblowers and presents more opportunities for employers to abuse them.

Some people suffer not only broken health but are ruined by the highly risky litigation that UK whistleblowing law forces them to take, as the only chance of redress after serious harm.

Some employers make vexatious appeals after losing Employment Tribunals, wasting public money and punitively keeping the whistleblower in a state of fear for several more years.

2. “the legislation provides a remedy for claimants who suffer detrimental treatment by their employer. An Employment Tribunal is the right body to make judgements on the facts of a given case and on the evidence it considers. The compensation that can be awarded by a Tribunal in a whistleblowing case reflects the detriment that the worker has suffered.”

The compensation you cite is very hard to win.

Only 3% of cases succeed at hearing.

The vast majority of whistleblower claimants are forced to withdraw and or accept a substandard settlement because unions will not support cases all the way and most whistleblowers cannot afford to continue.

Where whistleblowers ‘win’, compensation never fully reflects the real long term financial losses.

Compensation may also be swallowed up by legal expenses.

Employers may whittle away compensation by constructing an argument of contributory fault by claimants, which results in compensation being docked.

Claimants may also be threatened and punished with cost applications by employers.

UK whistleblowing [law] only thinks in terms of pounds and shillings.

It does not provide vital non-financial redress such as the wiping of malicious, manufactured disciplinary records.

3. “The most recent change introduced in 2017 was a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. It aims to increase confidence that prescribed persons are taking whistleblowing disclosures seriously through greater transparency about how disclosures are handled, in particular, that they investigate where appropriate and take action where necessary.”

The 2017 changes did nothing to ensure that Prescribed Persons investigate and act upon concerns.

The law still does not compel anyone to investigate or act upon UK whistleblowers’ concerns.

This is at the core of why UK whistleblowing governance is ineffective.

Most whistleblowers’ disclosures to Prescribed Persons are not investigated.

Prescribed Persons are a disparate group of bodies and individuals, some have no power to act.

Regulators who are Prescribed Persons have powers, but are under no legal compulsion to investigate and act upon whistleblowers’ disclosures.

Some regulators who are Prescribed Persons refuse to investigate as a matter of policy, for example, the Care Quality Commission (CQC).

At the very most, the CQC will only review a general theme, not a whistleblower’s specific concern. CQC’s own statistics show that in the majority of cases, CQC takes no further action or merely notes disclosures as information for a future inspection. Even very serious disclosures of corruption

I believe your department’s composite Prescribed Persons’ report 2018/19 relating to 23 bodies revealed that only eight of these bodies explicitly reported that they conducted investigations of some (usually a minority) of the whistleblowers’ concerns received:

·      NHS Counter Fraud Authority

·      Scottish Social Services Council

·      NHS Improvement

·      Office of Nuclear Regulation

·      Scottish Charity Regulator

·      Public Services Ombudsman for Wales

·      Scottish Housing Regulator

·      Scottish Social Services Council

Some Prescribed Persons reported taking “further action” without clearly indicating whether this included investigation.

NHS Improvement received 190 whistleblower disclosures in 2018/19 of which it deemed 100 were qualifying disclosures. Only 16 investigations arose from these disclosures.

NHS England reported receiving 70 whistleblower disclosures, of which only 3 had been investigated. It claimed that others were still ‘under investigation’.

Some bodies such as the IOPC reported that they referred most whistleblowers’ concerns back to their employer:

“Most of the reports we received in 2018/19 25 were suitable to be dealt with by the relevant force and so we provided them with the relevant information.”

Similarly, Ofqual did not investigate the whistleblower concerns that it received but referred them back to awarding organisations.

Several Prescribed Persons reported that they received no disclosures at all, such as Ofcom, Registers of Scotland, Revenue Scotland, Water Industry Commission for Wales, Welsh Revenue Authority and Scottish Information Commissioner raising questions about whether the system is sufficiently publicised.

It is significant and of concern that your department presented only 23 vignettes  instead of systematic analysis, when there are in fact thousands of Prescribed Persons. Local authorities and MPs are Prescribed Persons.

If the aim of the recently introduced publication requirement is as you say to provide reassurance that whistleblowers’ concerns are investigated by Prescribed Persons, it is surely vital that the government undertakes proper audit and analysis instead of cherry picking a tiny proportion of examples.

Your department’s report did not for instance, feature the Care Quality Commission, the single most important regulator with regard to oversight of vital, safety critical health and social care services.

Indeed, if as the government claims, it wanted Prescribed Persons to investigate, it should change the law and compel investigation.

4. “It is right and proper that the Government reviews the whistleblowing framework once we have had sufficient time to build the necessary evidence of the impact of the most recent reforms.”

The changes to whistleblowing law in recent years have all been superficial.

Because the government has not ensured that whistleblowers’ concerns are reliably investigated and acted upon, serious harm continues, including deaths.

In conclusion

I hope the above demonstrates to you why UK whistleblowing law is deeply ineffective and fails to defend the public’s right to know about unsafe services and corruption, and to be protected from such risks and malfeasance.

I request that the government treats the persisting gap in investigation of UK whistleblowers’ concerns as a matter of great urgency.

It cannot be right to continue for several more years without addressing this matter of life and death.

Yours sincerely,

Russell Dunkeld

NHS whistleblower

Cc Davis Morris MP

APPENDIX: YOUR LETTER OF 7 SEPTEMBER 2020

David Morris MP House of Commons London
SW1A 0AA

Dear David,

Department for Business, Energy & Industrial Strategy 1 Victoria Street
London
SW1H 0ET

T +44 (0) 20 7215 5000 E enquiries@beis.gov.uk W www.gov.uk

Our ref: MCB2020/28784
7 September 2020

Thank you for your email dated 20 August, enclosing correspondence from your constituent, Mr Russell Dunkeld of 1 Richmond Farm, Heaton Bottom Road, Heaton with Oxcliffe, Morecambe LA3 3EU, regarding the Public Interest Disclosure Act (PIDA) 1998. I am replying as this matter falls within my ministerial portfolio.

I would like to reassure Mr Dunkeld that the Government believes that whistleblowers play an important role in bringing to light wrongdoing in the workplace. The Employment Rights Act 1996, amended by the PIDA, gives legal protection to those who speak up in the public interest. The legislation is intended to build openness and trust in workplaces by ensuring that workers who hold their employers to account are treated fairly.

The purpose of Part IVA of the Employment Rights Act is to provide means of redress for a worker who suffers detriment at the hands of their employer after ‘blowing the whistle’. In many cases, employers respond appropriately when concerns are raised by their employees. Where they do not, the legislation provides a remedy for claimants who suffer detrimental treatment by their employer. An Employment Tribunal is the right body to make judgements on the facts of a given case and on the evidence it considers. The compensation that can be awarded by a Tribunal in a whistleblowing case reflects the detriment that the worker has suffered.

Over recent years the Government has made improvements to the whistleblowing framework to make it more robust and increase support for whistleblowers. This includes guidance for whistleblowers on how to make disclosures while preserving their employment protections, and guidance for employers, including a non-statutory code of practice. We have added student nurses and student midwives into the scope of the legislation and introduced whistleblowing protections for job applicants in the health sector. We have also fulfilled the commitment to keep the prescribed persons list up to date.

The most recent change introduced in 2017 was a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. It aims to increase confidence that prescribed persons are taking whistleblowing disclosures seriously through greater transparency about how disclosures are handled, in particular, that they investigate where appropriate and take action where necessary. The reporting duty should also improve consistency across different bodies in the way they respond to disclosures. These bodies are due to publish their third set of annual reports, for 2019/20, by the end of September.

It is right and proper that the Government reviews the whistleblowing framework once we have had sufficient time to build the necessary evidence of the impact of the most recent reforms.

Thank you once again for taking the time to raise Mr Dunkeld’s concerns on this matter. I hope that the information above is helpful to you in your response to him.

PAUL SCULLY MP

Minister for Small Business, Consumers and Labour Markets Minister for London

One thought on “An NHS whistleblower’s conversation with the Minister: BEIS needs to take reform of UK whistleblowing law much more seriously

  1. For what it’s worth, I admire Russell Dunkeld and other fully realised human beings for having the resilience to continue to try and communicate with those whose faculties are shielded from the real world. Unfortunately, as we appear to be at the start of a mass cull of humanity, whether by design or simply managerial incompetence, I have a feeling his perfectly proper warnings are more likely to be buried than exposed.

    I hesitate to pick on any one individual but, I do get the impression that some of our MPs were only selected for their governmental roles because of their ability to act as mere cyphers to enable other, more influential folk, to manipulate them.

    Thank you for all of your good efforts – much appreciated.

    Liked by 1 person

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