By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 12 November 2020
|Summary The National Guardian’s Office makes it up as it goes along. It has now tied itself in an especially absurd knot by claiming that both an active and a concluded Employment Tribunal case are exclusion criteria which prevent whistleblowers’ access to a case review. This brief post unpacks the careless and dangerous arbitrariness. The National Guardian has not responded to an invitation to comment and to put the matter right.|
The NHS National Guardian for whistleblowing has no statutory basis, no powers and few duties. Even the duties that she holds are not properly discharged.
Importantly, the National Guardian has made a number of arbitrary decisions with regards to whistleblowers seeking review of their cases by her Office.
She has at times invoked exclusion criteria that are not listed in her official publications.
At Brighton and Sussex University Hospitals NHS Trust, she left whistleblowers and patients exposed by allowing the trust board time to get their story straight, before conducting a case review which predictably ended with the cheery conclusion that things had improved.
At another NHS trust, her Office refused to review the case of whistleblower who suffered serious detriment and personal injury which required a cardiac pacemaker to be fitted. Echoing events at Brighton and Sussex, the whistleblower was told by the National Guardian’s Office that their trust should be given more time, when it had already exceeded the timescale given by the National Guardian to make improvements:
The likely reason for the refusal? The National Guardian had already reviewed the trust, self-evidently ineffectively. Opening another case review would have effectively been an admission of failure.
A particularly shocking aspect of the National Guardian’s & her funders’ games with whistleblowers include the operation of an exclusion criterion that all processes must be concluded before any case review by the National Guardian would be considered. This only came to view in May 2017 via a subject access request for personal data by a whistleblower. The exclusion of whistleblowers until all processes are concluded is a dangerous approach because it leaves patients exposed, potentially for years:
In 4 July 2017 the National Guardian’s Office specifically confirmed to the desperate whistleblower that the National Guardian would not consider applicants for case review until any Employment Tribunal claim had ended.
“…I can confirm that outstanding decisions relating to a particular case include those to be made by an employment tribunal…Therefore, as you have informed us that you have submitted your case for consideration by an employment tribunal, I can confirm that we are unable to currently consider your case for review.”
The National Guardian’s Office has now surpassed itself in absurdity by advising a vindicated whistleblower, who succeeded in an Employment Tribunal claim, that their case cannot be reviewed partly because there has purportedly been “learning” through the Employment Tribunal process.
This is the height of slipperiness. Employment Tribunals may make findings from which the NHS could potentially learn, but quite often it fails to do so.
For example, in Dr Kevin Beatt’s case, his trust defied the Employment Tribunal and repeatedly appealed, wasting vast amounts of public money. In the case of the former HR director of South Devon, the NHS re-employed her as Director of HR at another trust after she was found to have victimised two whistleblowers.
Employment Tribunals also have narrow scope and only examine the secondary employment issues related to whistleblowing. They do not investigate if concerns have been safely resolved.
Thus, the National Guardian’s Office is turning its back on patients when it claims there is sufficient “learning” through the Employment Tribunal.
Moreover, the conclusion of an Employment Tribunal is not the end of the story for whistleblowers in terms of detriment. Many face continuing problems with blacklisting and undermining by their former employers.
I have put it to Henrietta Hughes herself that it is surreal for whistleblowers to be told that both an active and a concluded Employment Tribunal case are exclusion criteria. I asked her if she wished to comment and or set out a different position to that recently taken by her Office. There has been no response so far.
The gaslighting of whistleblowers by the National Guardian’s Office on behalf of the government is one of the most unpleasant aspects of the chronic failure of UK whistleblowing governance.
It matters deeply to patient safety that we have a credible alternative to this charade.
This is borne out by today’s news about a cluster of “Never Events” at the Royal Cornwall Hospitals NHS Trust, another trust ineffectively reviewed by the National Guardian, which came to attention three years ago over Never Events.
This is an FOI disclosure of March 2020 by the trust regarding Never Events:
To make a real difference, we need a truly independent whistleblowing agency free of government interference, and which has both the powers and the appetite to protect the public interest.
If you have not done so already, please sign the petition for reform of UK whistleblowing law and for provision of effective enforcement infrastructure.