By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist 28 February 2021
Summary: A common experience amongst whistleblowers is to find that employers destroy important records in order to cover up. This is a brief post about an example of poor whistleblowing record keeping by ‘Outstanding” West Midlands Ambulance Service NHS Foundation Trust (WMAS), brought to my attention by an NHS worker who prefers not to be named. An FOI request and a related complaint to the Information Commissioner revealed that the trust allegedly held almost no records of meetings on whistleblowing about racism, and a conclusion by the ICO that some of the related correspondence had possibly been destroyed. The trust does not recruit BME staff in proportion to the diversity of its local population. The trust’s workforce race equality data showed that BME staff are disadvantaged in terms of bullying and harassment, equality of opportunity and experience of discrimination. The trust’s Freedom To Speak Up Guardian is corporate – the Head of Organisational Development – and almost no staff concerns are raised with her. The trust’s denial that it held records of an important whistleblowing event calls into question whether the trust Freedom To Speak Up Guardian is keeping adequate records of disclosures made to her.
WMAS was dubiously rated ‘Outstanding’ by the Care Quality Commission despite repeated criticism by the coroner for systemic failings and mediocre staff survey results. The 2016 staff survey, preceding CQC’s January 2017 ‘Outstanding’ rating, showed that 34% of WMAS staff had experienced bullying and harassment by other staff in the previous 12 months. It also showed that only 62% of WMAS would feel secure raising concerns about unsafe clinical practice.
The ICO’s decision on a complaint about whistleblowing records at WMAS
A decision notice by the Information Commissioner of 20 January 2021, kindly sent to me by an NHS employee who tellingly would prefer not to be named, now reveals that WMAS claimed to have few records of important meetings about race discrimination concerns at the trust in 2017.
On 4 August 2019 the trust was asked for documents relating to whistleblowing meetings as follows:
“Please provide the agendas and minutes of meetings held with WMAS BME staff raising concerns about racist staff, primarily at Willenhall Hub, held on the following dates; 22/07/2017 – WMAS Chief Executive, Dr Anthony Marsh. 24/07/2017 – Meeting with WMAS Emergency Service Operations Delivery Director, Nathan Hudson. 28/09/2017 – WMAS Chief Executive, Dr Anthony Marsh. 09/10/2017 – Meeting with WMAS Chief Executive, Dr Anthony Marsh. Please provide all preceding and following email correspondence relating to the agendas and actions arising from the above meetings”
WMAS claimed that it held none of this information save for two emails, request reference FOI 2782:
“That information comprised two emails associated with Trust staff who were involved in facilitating the meetings, and in which actions had been noted.”
The trust was asked by the requestor to review its response, but still concluded that it held no other information.
The requestor complained to the Information Commissioner that there were other emails (already in his possession) which the trust had failed to disclose, that replies to the two disclosed emails would exist in his view and that he believed that meetings about such a serious whistleblowing matter would have necessitated more records.
The trust told the ICO that it had approached various managers during its search for disclosable documents, including the Head of Organisational Development who was also the Freedom To Speak Up Guardian:
“In its submission to the Commissioner the Trust has told her that an independent search for relevant information was conducted by its IT Department. The Director of Corporate & Clinical Services, the Emergency Service Operations Delivery Director, Head of Human Resources, Head of Organisational Development (Freedom to Speak up Guardian), Senior Operations Manager of Willenhall Hub and the Private Secretary to the Office of Chief Executive were also approached to confirm that no further information was held.”
Astonishingly, WMAS claimed that meeting papers were never generated because the meetings – about serious whistleblowing concerns – were not “formal”
“The Trust has stated that such information was never generated and was never held, because the meetings referred to in the request were not formal meetings.”
The alternative of course is that meeting papers existed and the trust’s claims are untruthful, but that was not proven. Neither option is good.
|West Midlands Ambulance Service NHS Foundation Trust’s whistleblowing policy The trust’s policy emphasises that there must be a written audit trail of the response to concerns: “Staff who have raised a concern will receive a written initial response, within 14 days of the stage meeting summarising the issues raised, how the matter will be dealt with and providing details of who will be handling it and how they may be contacted. The person raising the concern will be treated with dignity and respect at all times and kept updated as reasonably possible throughout the process. The member of staff raising the concern will be provided with written feedback at the close of the investigation, or within 28 days, whichever is the sooner advising what actions have been taken to address the concerns. There may be circumstances where it is not appropriate to provide full and detailed feedback where this may infringe a duty of confidence owed by the Trust to a patient or other third party.”|
The ICO considered that some of the documents on this whistleblowing incident may have been destroyed by the trust:
“However, it might also be the case that any relevant email correspondence that one or more members of staff once held was routinely destroyed in line with the Trust’s retention schedule.”
The ICO explained that it must rule on whether organisations hold information, not whether they should hold information:
“The Commissioner’s role is not to consider whether a public authority should hold information that has been requested. She must decide, based on the balance of probabilities, whether a public authority did hold information at the time of a request for it.”
and decided in the trust’s favour:
“The Commissioner has therefore decided that, on the balance of probabilities, no information other than the two emails it has provided to the complainant was held at the time of the request. As such, she finds that the Trust has complied with section 1(1)(a) of the FOIA.”
What arises from this matter is that the Freedom To Speak Up Guardian at WMAS, according to the trust’s claims, may not have kept proper records of whistleblowing incidents, when it is part of the role to do so.
This is the national guidance on what records should be kept by Freedom To Speak Up Guardians:
Guidance for Freedom to Speak Up Guardians Recording Cases and Reporting Data
The guidance requires “brief factual summary of the case”, details of action taken and related failures of governance:
“It is important to record actions taken and when and to whom referrals are made, together with a record of how, when and how often the individual speaking up wishes to be contacted. This is also another place to note anything that is encountered as the case is progressed that indicates a barrier to speaking up, or that indicates that speaking up policies are not being followed, or that policies or processes need to be improved.”
I will ask the trust specifically what records are held by the Freedom To Speak Up Guardian in relation to the 2017 allegations of racism and the related meetings.
Other material raising concerns about racism at WMAS
Alongside the above complaint to the ICO, another FOI of 29 March 2020 evident from the What Do They Know website, suggests there may have been very serious problems of racism at WMAS. This FOI request implied that Hitler had been cited as model of leadership at a trust management training centre:
“Dear West Midlands Ambulance Service University NHS Foundation Trust,
1) Please provide the disciplinary policy that applies to allegations of racist behaviour against staff.
2) What disciplinary action would be considered appropriate where allegations of racist behaviour by a member of staff were proven, for example:
i) A muslim member of staff being referred to as a terrorist and having a bomb in their bag;
ii) A member of the public being referred to by a racist derogatory term;
iii) A member of staff declaring that they “don’t like muslims”;
iv) A member of staff the dismissing concerns of a BAME student about an offensive term with the phrase slavery ended two hundred years ago;
v) A member of staff telling a BAME member of staff that they only achieved because of the colour of their skin;
vi) The use of Adolf Hitler as an example of great leadership in a WMAS management training assessment centre;
vii) The posting of racist and white supremacist material on personal social media?
3) Does West Midlands Ambulance Service have a zero tolerance policy towards racist behaviour from staff?
4) If West Midlands Ambulance Service does have a zero tolerance policy towards racist behaviour from staff, what does that mean in practice?
5) Does West Midlands Ambulance Service consider that holding and sharing racist views is compatible with continued employment by West Midlands Ambulance Service?
6) Does West Midlands Ambulance Service consider that the employment of front line clinicians that hold racist views constitutes a risk to the BAME patients that they serve?
WMAS’ response to this FOI request ignored the majority of the questions without indicating what legal exemption under FOIA was being applied. The trust merely supplied copies of two HR policy documents.
The Workforce Race Equality Standards for WMAS from the 2017 national NHS staff survey indicated that BME staff at WMAS were:
- More likely to suffer bullying and harassment by colleagues (40% v 30%)
- Less likely to feel there were equal opportunities at the trust (47% v 70%)
- More likely to experience discrimination (23% v 11%)
It emerged that a complaint was made about a senior trust manager blacking up at a Christmas party in 2018:
Ambulance boss apologises after pictures show him ‘blacking up’ for party
Whatever your views on the controversies surrounding blackface, this does seem insensitive behaviour in a senior public servant.
The Care Quality Commission
In an inspection report of 25 January 2017 the CQC noted that WMAS staff ethnicity did not reflect its highly diverse local population but it also concluded “The trust was actively involved in effective public engagement to recruit staff from Black and Minority Ethnicity (BME) population”. CQC concluded that the trust was Well-Led and Outstanding overall.
CQC also praised WMAS managers for good handling of an incident of whistleblowing:
“Staff from PTS Stoke raised concerns about lack of mental health training and felt unsupported by local leadership. The CEO and senior leaders were extremely responsive and genuinely concerned. They visited the staff the same week, engaged in open discussions and put in place extra mental health training sessions”
Presumably records were available in order for CQC to evidence its claim of good whistleblowing practice, contrasting with the disputed affair over thornier issues of racism.
Freedom To Speak Up at the trust and the National Guardian
Perhaps not surprisingly given WMAS’ choice of a corporate figure as Freedom To Speak Up Guardian, a local democracy reporter noted on 6 November 2019 that only two concerns had been raised in the previous year.
The National Guardian’s data on Speak Up incidents at NHS trusts shows little improvement: in quarters 1 and 2 of 2020/21, there were three cases reportedly raised with the WMAS Freedom to Speak Up Guardian.
And of course, where would we be without grinning government propaganda by the National Guardian to cheer us all up and fill us with confidence:
Poor whistleblowing governance and cover ups will continue for as long as robust standards are not backed with the full force of the law.
If you have not already done so, please help by signing and sharing this petition for reform of wholly inadequate UK whistleblowing law:
Petition: Replace weak UK whistleblowing law, and protect whistleblowers and the public
The Disinterested National Guardian & Robert Francis’ Unworkable Freedom To Speak Up Project
Replacing the Public Interest Disclosure Act (PIDA)
A new UK whistleblowing Bill and a petition to the UK government to strengthen protection
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