The National Guardian’s Office finally apologises for a breach of whistleblower confidentiality but fails to demonstrate sufficient learning

By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist 13 March 2021

The National Guardian and her Office were bizarrely tardy in apologising to Julian Campbell, a doctor whose confidentiality was breached in 2019.

This delay included maintaining radio silence for a month even after NHS Improvement issued a final investigation report on 27 January 2021 which concluded the National Guardian’s former case review manager breached Dr Campbell’s confidentiality, and recommended that an apology be made.

NHS Improvement also recommended that the National Guardian’s Office should provide “confirmation of an improved approach to such matters in future”.

Again, no such evidence of improvement was given by the National Guardian’s Office for months despite being asked to urgently safeguard whistleblowers’ confidentiality. The request for such protection was first directed in August 2020 to Robert Francis, who has an oversight role, and then to Henrietta Hughes the National Guardian herself in December 2020. Neither responded to confirm that protective action was taken.

The lack of evidence of corrective action continued even after NHS Improvement’s recommendation of 27 January 2021 to demonstrate improvement.

A question arises of whether the silence by the National Guardian and her Office was hostile and an expression of resentment at being held to account.

On 27 February 2021 I protested about the lack of apology and learning to Ian Trenholm who is effectively the National Guardian’s line manager.

Letter 27.02.2021 to Ian Trenholm CQC CEO cc Peter Wyman CQC Chair and Dido Harding NHS Improvement Chair about the dysfunctional National Guardian’s Accountability & Liaison Board and failure to ensure apology and learning

Two days later, an apology to Dr Campbell arrived from the National Guardian’s Office.

The apology did not come from the National Guardian but was delegated to her Head of Office, Russell Parkinson.

Parkinson did not acknowledge the extraordinary delay in apologising.

He also gave limited details of improvement:

“I will therefore issue a reminder to all National Guardian Office staff about the importance of preserving confidentiality and the requirement to obtain consent before the identity of individuals are disclosed, other than when there is a legal requirement to disclose someone’s identity.”

“In addition, I will strengthen the induction process and induction material for new members of the office to ensure that a full discussion of confidentiality is had with all new starters. I will also seek to strengthen our record keeping so that it is clear what level of consent has been obtained before there is any further discussion of a case.”

Of immense concern, it is implied that the National Guardian had not taken corrective action prior to this point, thereby knowingly exposing more whistleblowers to potential harm.

This is not the accountable, responsible or meticulous behaviour one would expect as standard from a whistleblowing agency.

I have written to Russell Parkinson to ask for clearer evidence of improvement and to ask the National Guardian for related policy improvements. For example, that she should make unplanned breach of whistleblower confidentiality by her Office a disciplinary matter, to underline how seriously confidentiality will taken.

It is after all a criminal matter in some jurisdictions to reveal a whistleblower’s identity.

It is not unreasonable that a whistleblowing agency should hold itself to similarly high standards.

I have copied the letter to Henrietta Hughes’ oversight board, comprising Robert Francis and Andrew Morris, woeful though they have been.

The letter to Parkinson is provided below in the appendix.

Combined with past, admitted breaches of whistleblower confidentiality by the CQC, and a whistleblower report of digital snooping by trust senior managers on whistleblowers’ case files, the above breach of confidentiality by the National Guardian’s Office emphasises that whistleblowing can be very perilous.

I would advise would-be whistleblowers to be cautious, to get everything in writing, to request personal data through subject access request if concerns arise about any impropriety and not to assume that those in authority will wish you well or will look after your interests.

UK whistleblowing law’s many faults include the fact that it does not specifically protect a whistlblower’s confidentiality and identity.

If you have not already done so, please help drive change by signing and sharing this petition to parliament for law reform.

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

Many thanks

APPENDIX

LETTER 12 MARCH 2021 TO RUSSELL PARKINSON, HEAD OF OFFICE, NATIONAL GUARDIAN’S OFFICE

BY EMAIL 

Russell Parkinson 

Head of Office

National Guardian’s Office

12 March 2021

Dear Russell,

The National Guardian’s response to the breach of whistleblower confidentiality by her Office: corrective action

Thank you for your letter of 1 March 2021 to Dr Campbell and myself acknowledging the outcome of NHS Improvement’s investigation which concluded that the National Guardian’s Office breached Dr Campbell’s confidentiality.

I write chiefly with the aim of seeking reassurance that:

  • Future whistleblowers’ confidentiality will be safely protected by the National Guardian’s office and that more detail will be shared of the intended service improvements mentioned in your letter.
  • Unplanned breach of whistleblower confidentiality by anybody at the NGO will be treated as a disciplinary matter. The NGO will admit to any unplanned breaches immediately and it will also support any affected whistleblower and help to mitigate harm.
  • Planned breaches of whistleblower confidentiality will be rare, genuinely justified and properly managed, with support for the whistleblower
  • There will from here on be proper transparency and accountability regarding the Office’s interaction with whistleblowers’ employers. The NGO’s communications with employers will in future be fully documented and details will be shared with whistleblowers. There will be no clandestine, undisclosed communications.
  • In future, the National Guardian’s Office will apologise promptly as soon as it becomes aware of any failings, and in particular it will mitigate serious risks at the earliest opportunity instead of waiting months for complaints investigations to be concluded.
  • The National Guardian will conduct a wider review of Simon Pook’s work given the findings that he breached confidentiality and had undisclosed contact with an employer.
  • The  National Guardian will ensure there is regular audit of the work of her office to ensure that there is adherence to operational standards.

This letter does not mean that Dr Campbell has accepted the outcome of NHS Improvement’s complaint investigation, and is without prejudice to any further steps he may decide to take.

I lay out my requests more fully as follows:

More details of proposed improvements by the National Guardian’s Office

I would be grateful for details of the planned strengthening of the National Guardian’s systems, with respect to this assurance in your letter:

“In addition, I will strengthen the induction process and induction material for new members of the office to ensure that a full discussion of confidentiality is had with all new starters. I will also seek to strengthen our record keeping so that it is clear what level of consent has been obtained before there is any further discussion of a case.”

Apologising promptly

I am glad that the National Guardian’s Office has finally apologised to Dr Campbell.

May I ask why it took so long?

Firstly, there was a shocking lack of empathy in Simon Pook’s response of 14 June 2019 to a distressed email by Dr Campbell when he discovered that his confidentiality had been breached by the National Guardian’s Office.

Breach of whistleblower confidentiality is an incredibly serious matter and the lack of apology is all the worse for this.

NHS Improvement’s investigation concluded that Simon Pook former NGO case review manager likely broke Dr Campbell’s confidentiality to his employer and Mr Pook reportedly accepted this.

Did Simon Pook inform the National Guardian or anyone else at the National Guardian’s Office in June 2019, that Dr Campbell’s confidentiality had been breached?

If he did, who at the National Guardian’s Office was aware of the breach at that point, and what was the organisational response?

Who at that point was the most senior person who was aware of the confidentiality breach?

Why was no apology provided by the National Guardian’s Office when I brought the matter to Robert Francis attention in August 2020? 

I presume Robert Francis liaised with the National Guardian’s Office about the confidentiality breach at this point, but please confirm that he did so, when and whom he informed.

Why was an apology still not provided by the National Guardian’s Office when NHS Improvement’s final report was issued on 27 January 2021, with the formal finding of confidentiality breach?

An apology has only come now after I wrote to Ian Trenholm about the lack of an apology. 

NHS policy is to express regret and say sorry straightaway to patients and families when things go wrong, and the NGO should act in accord with this. 

Request: Please could the National Guardian’s complaint policy be amended to specifically reflect that an apology will be given promptly as soon as it is clear that there has been a failing, whether or not a formal complaint investigation has been completed.

Acting urgently on serious risks 

It is disappointing that the National Guardian’s Office is only acting now to strengthen its systems to prevent unjustified breaches of whistleblower confidentiality when it has known about the breach of Dr Campbell’s confidentiality for months if not longer.

This implies that other whistleblowers have been potentially and avoidably exposed to similar risk. This not only affects the whistleblowers but the patients and co-workers who depend upon them.

Good whistleblowing governance focuses on promptly addressing the primary concerns raised by a whistleblower and not diverting into or delaying through adversarial processes. The National Guardian should act in this spirit.

Request: Please can the National Guardian’s complaint policy explicitly commit the National Guardian to correcting any future failings at the earliest stage possible, instead of waiting until a formal complaint investigation is concluded before acting.

Policy for managing breaches of whistleblower confidentiality

At present, the FAQs on the National Guardian’s website state that in all cases the National Guardian’s Office will tell whistleblowers if it decides to breach their confidentiality

“20. How will the NGO protect my confidentiality when I submit a case for review? 

Wherever possible, the NGO will seek to protect the confidentiality of individuals who refer cases to it. In most circumstances the NGO will ask a referrer for their consent before discussing their case with their employer or any other agency. The office will only share information contained in a case review referral where there is a need to protect individuals from possible harm, for example where the matter relates a safeguarding issue. In all circumstances, the NGO will let referrers know when they have discussed or shared information about their case with another organisation.” [my emphasis]

However, the National Guardian’s Office did not inform Dr Campbell that it breached his confidentiality. Nor did it offer Dr Campbell any support with the consequences of its breach of confidentiality.

Request: May I suggest that the National Guardian’s policy includes an additional commitment that wherever the National Guardian’s Office breaches a whistleblower’s confidentiality, it will urgently provide the whistleblower with support to manage any risk or harm that arises from this.

Also, the policy should indicate that if a breach of confidentiality is planned and deliberate, the National Guardian’s Office should if at all possible inform the whistleblower beforehand that their confidentiality is about to breached. This would give the whistleblower the greatest chance of mitigating the harm that any breach of confidentiality might cause. 

This would be consistent with NHS Improvement’s recommendation:

“In future, the NGO would benefit from taking greater care ahead of contacting individuals at an organisation about a FTSU case, by ensuring it notifies the individual who has spoken up of its intentions, and allow the individual reasonable opportunity to express any concerns they may have about the proposed course of action.”

In my view, the only valid exception to warning a whistleblower of a planned breach of their confidentiality is if they are the subject of any safeguarding concerns and non-disclosure is necessary to preserve evidence.

Where there are deliberate breaches of whistleblowers’ confidentiality, there must by policy be a full written account of the risk justification for doing so.

The National Guardian’s form, that whistleblowers complete when requesting a case review, should be amended to reflect the above policy changes.

May I also suggest that the National Guardian’s procedural documents be amended to include a clear policy statement to all who work at the NGO including the National Guardian, that breaches of whistleblower confidentiality without just cause are a disciplinary matter.

Record keeping and transparency about communication with whistleblowers’ employers

A disturbing aspect that emerged from NHS Improvement’s investigation of the breach of Dr Campbell’s confidentiality is the poor documentation of telephone calls by the National Guardian’s Office to Dr Campbell’s employer.

On 20 November 2020, NHS Improvement wrote:

“On 3 June 2019, the case review manager contacted the trust’s FTSU Guardian to arrange a telephone discussion, but the topic of conversation was not specified in the email. Shortly afterwards it appears that a phone call took place. I have not been able to locate a note of such a call.”

“On 14 June the National Guardian had a telephone call with the chief executive and Dr Campbell’s name is referred to in her note of the call.”

The fact of one of these calls and the details of both these calls by Simon Pook and the National Guardian were not disclosed to Dr Campbell.

The poor documentation and lack of transparency are unaccountable practice, which does not help with confidence nor demonstration of good faith and impartiality by the National Guardian’s Office.

Poor record keeping by the National Guardian’s Office may also disadvantage whistleblowers in any future processes such as defending themselves against retaliatory charges by employers or any legal action that they may be forced to take.

The poor record keeping is of greater significance given that the National Guardian’s Office has demonstrated that it is aware of the sensitivity and importance of good whistleblowing records through its existing guidance to trust Freedom To Speak Up Guardians:

“Be aware that your records may be requested weeks, months or even years after their creation and this should be taken into account when setting up your systems.”

In the NHS, it is now quite normal for clinical letters between health professionals to be shared with patients. The National Guardian’s Office should act in this spirit of accountability and transparency.

Request: Please could the National Guardian amend her policies to ensure that her Office’s contacts with whistleblowers employers are properly documented and that the details of such communications are routinely shared with whistleblowers.

Further investigation needed

You acknowledge that Simon Pook was sufficiently experienced and trained to be reasonably expected to know that he should not breach Dr Campbell’s confidentiality, but that he seemingly did so nevertheless. 

This is particularly serious and leads to a number of difficult questions, including whether the confidentiality breach was consciously done.

Request: Please can the National Guardian trigger a review of Simon Pook’s work if she has not already done so, to check for any other possible breaches of whistleblower confidentiality and any covert, undisclosed communication with whistleblowers’ employers.

Obviously, the proper disclosures would need to be made to any other whistleblowers whose confidentiality has been breached.

If a review has already been triggered, please advise on whether it has been completed or if not, when it will be completed.

Regular audit of practice standards at the National Guardian’s Office

Related to a wider check of Simon Pook’s work, may I ask what arrangements the National Guardian has for monitoring adherence to her Office’s policies and standards? 

Are quality audits regularly carried out?

If so, what audits are undertaken and what are the specifications for these audits?

You acknowledged through Simon Pook’s example that experience and training do not always prevent failure to adhere to policy.

It is important that there is quality monitoring that can pick up failures to adhere to policy.

If audits are not regularly carried out on important matters such as standards in record keeping, seeking whistleblowers’ consent for sharing information and protecting whistleblowers’ confidentiality and identity, failures may go undetected and uncorrected.

Request: If the National Guardian does not currently have a policy of carrying out regular quality audits on the work of her Office, please advise if she will adopt such a policy.

Many thanks,

Minh

Dr Minh Alexander

Cc Dr Julian Campbell

     Tom Grimes NHS Improvement lead for whistleblowing

     Dr Henrietta Hughes National Guardian

     Robert Francis CQC NED and member of National Guardian’s Accountability and Liaison Board

     Andrew Morris NHS Improvement and Chair of National Guardian’s Accountability and Liaison

Board

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One thought on “The National Guardian’s Office finally apologises for a breach of whistleblower confidentiality but fails to demonstrate sufficient learning

  1. Thank you for being so dogged, Dr A, but how depressing that you have been left with little choice other than having to be so.
    Wouldn’t it be wonderful if those who were responsible for so much pain and distress could at least show a little understanding and some magnanimity in their apologies? Sadly, I believe their actions and inactions throw into sharp focus certain attitudes more clearly than any words I can find

    Like

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