By Dr Minh Alexander retired consultant psychiatrist 9 April 2022
|Summary: The ambiguous organisation Protect which sells whistleblowing compliance services to industry has called for yet another independent review of whistleblowing in the NHS. Such a review is fraught with risks for future whistleblowers from all sectors, and can obstruct real change. Any such review will need to be carefully negotiated. Whistleblowing touches on power and where there is power, there will be manipulation. Whistleblowers will need to be well informed and prepared, and stand their ground. The public interest is the priority. Genuine whistleblowers will need to do what they can to protect whistleblowing from more political abuse and deflection, or exploitation as a means of personal gain and profit.|
Yesterday the organisation Protect which receives money from many employers including NHS organisations, for whistleblowing compliance services, issued a statement calling for yet another independent review of speaking up in the NHS.
“We are calling for an urgent review of speaking up in the NHS. NHS staff should be enabled to come forward freely and talk about their experiences in detail. In our experience, whistleblowers and would-be whistleblowers often have a clear insight into the problems, and potential solutions. Protect’s preference would be for the Health Select Committee to conduct this review, this could be done urgently, independent of Government and, if necessary, the use of Parliamentary privilege could be used to enable evidence and testimony to be gathered without legal repercussions for those involved.”
The purported trigger for Protect’s call is the report of the Ockenden Review on maternity safety failings, which is actually an obfuscatory piece of work where whistleblowing is concerned, but more on that another time.
|Protect is part of the establishment whistleblowing furniture |
In predecessor form, Protect was midwife to the UK’s highly flawed whistleblowing law the Public Interest Disclosure Act. Anyone can make a mistake, and law making of course always has to involve compromises, but Protect then failed to whistleblow on the law’s failures for many years. This was despite the organisation regularly hearing from whistleblowers and its seat on the Employment Tribunal national user group. Perhaps the seat was too comfortable. Protect promotes the odd high profile case, to its mutual benefit, but has been known to tell some whistleblowers not to bother and to run, even when they were shown later to have a case. Presumably Protect does so because it knows the law is weak. The law that it did not whistleblow on, that is.
Oh, and in 2018, a Protect trustee endorsed the Freedom To Speak Up project: Protect. A View from the Fence.
Protect’s former head of legal has also been working at the National Guardian’s Office for some years now, such is the tangled web of the whistleblowing industry.
There were TWO ineffective reviews of whistleblowing in the NHS published seven years ago, which seriously failed both whistleblowers and the public.
Firstly, the well known and now much derided Freedom To Speak Up review by Robert Francis which holds no credibility amongst whistleblowers, and has failed so many patients.
The other is the less remembered but equally reprehensible review by the parliamentary Health Select Committee headed by a then Tory chair. This was released ahead of the Francis report and was little more than platitudes and pulled punches. But it provided nice headlines and a photo op:
The same committee chair was later overheard by whistleblowers sympathising with David Behan CEO of the Care Quality Commission over negative publicity due to a critical Times letter by whistleblowers. The letter was issued partly to highlight research about CQC’s whistleblowing failures – hard evidence actually submitted to the Committee, not that it seemed to cut much ice with the Chair.
For years after the Freedom To Speak Up Review report, the same Committee Chair refused to hold any hearing into the ever more obvious failures of the Freedom To Speak Up project or the failure of the NHS to meet the sparse and loose recommendations of her 2015 review. This refusal continued after the publication of the Gosport Inquiry which showed that hundreds of killings of NHS patients could have been avoided if whistleblowers had not been intimidated and silenced early on.
|These are collated witness statements about Gosport War Memorial Hospital which show the many concerns that existed: Witness statements about concerns at Gosport War Memorial Hospital|
The refusal to hold a follow up hearing on whistleblowing was despite evidence to the Committee to show that the National Guardian’s Office did not even collect data on whether NHS whistleblowers’ concerns were addressed.
Instead, friendly private meetings with the National Guardian were preferred over a public hearing with testimony from whistleblowers on an equal footing.
A Committee hearing is needed but one difficulty now is that the Health and Social Care Committee is chaired by Jeremy Hunt former Health Secretary. How will he review his own handiwork, the Freedom To Speak Up review, expressly designed to leave NHS whistleblowers entirely at the mercy of their employers? Let alone deal with the evidence from many whistleblowers who made disclosures to him but were fobbed off, as is de rigueur for the Department of Health and Social Care. Hunt should never have been allowed to take charge of the Committee due to the obvious conflict of interest as a recent past Health Secretary. Any review by him would not be truly independent.
But a parliamentary review would still be better than another flimsy effort entirely controlled by the government, in the way that the Freedom To Speak Up review was. Down to the dirty tricks on the launch day of sending whistleblowers to a different venue, miles away from the press conference held by Francis.
The great risk of any review, greatest with the latter fly by night type, is that the government will simply use it to generate another smokescreen of non-actions, to delay and to avoid real reforms. A mark II Freedom To Speak Up review will not only greatly hurt NHS whistleblowers, but whistleblowers in all sectors. It would be used by the government to avoid any discussion of UK whistleblowing law reform, which is the real solution needed.
If any review does materialise, the first wrestling match will be the terms of reference, which is where the seeds of deliberate inefficacy are usually sown.
Also, the whistleblowing scene draws a mixed crowd of secondary characters, which also poses risk to reform at times of possible change. Sometimes well meaning but temporary and ill informed actors pass through in a cloud of misdirected outrage, and ask for superficial interventions that will make little or no difference. For example, minor interventions aimed at the Employment Tribunal when whistleblowing cases should not actually be handled primarily as employment matters. And there are also carpet baggers using the whistleblowing label for publicity or seeking to profit or carve out careers, often driving debate towards financial incentivisation of whistleblowing, or models which maximise conflict and litigation and so generate income for middle men. Behind them stands a multi-billion US business trying to break through into the UK market.
Genuine whistleblowers need to tread a careful path through this morass of politics, backfires, distractions and vested interests to achieve anything of substance for those who come after. I advise that if you decide to engage, do so on clearly informed basis. Do your own research. Accept no second hand information. And do not just submit evidence into any review process and leave it with others to write the punch line.
Instead, ask the government for evidence based solutions. Ask for things that will make a measurable difference and can be auditable. Ask for specific things that the system must do. For example, I recommend that people ask for real reform of UK whistleblowing law, and set out what this means, even if briefly.
|TOOL BOX AND RESOURCES FOR REQUESTING LAW CHANGE |
These are some aids at varying levels of detail for those who wish to ask their MPs or submit evidence to parliament in support of whistleblowing law change
This is a very simple letter with three bullet points about the law that can be sent to MPs: Send this letter to your MP to help protect UK whistleblowers
The law should: 1) Make it compulsory for whistleblower’s concerns to be investigated 2) Ensure that there is a legal duty by employers and regulators to protect whistleblowers from the point at which they whistleblow 3) Include meaningful penalties for individuals who victimise whistleblowers, including criminal sanctions for serious reprisal.
This is a brief but well referenced and linked summary about why current UK whistleblowing law is very weak and arguably, abusive: Replacing the Public Interest Disclosure Act (PIDA)
These are concise lived experiences accounts by whistleblowers who were failed by current UK whistleblowing law: Whistleblowers in Their Own Words: What’s wrong with UK whistleblowing law and how it needs to change
This is a detailed draft law by whistleblowers with many ideas for how an alternative model of law and whistleblowing governance could work. It borrows from the US Office of Special Counsel which is an agency for federal whistleblowers which has principles of fair restoration and proactive, lean resolution. This may include expunging unfair disciplinary findings or unfairly lost seniority. This is very different to the bloated, litigious post hoc response currently imposed by UK law on whistleblowers. Again, there are references for those who want to read more. What could a new whistleblowing law look like? A discussion document
This is a good practice example whistleblowing Bill laid on the parliamentary record by Dr Philippa Whitford MP, to serve as a resource. It introduces many of the standards that are being introduced in Europe under the EU directive, such as criminal sanctions for cover ups and reprisals. Importantly, it takes whistleblowing outside of employment law. A new UK whistleblowing Bill and a petition to the UK government to strengthen protection
Declaration of interest: It is ancient history now but I should declare that I made a disclosure to Jeremy Hunt about NHS regulators ignoring my patient safety and governance whistleblowing at that point, and pretending that all was improved. This roughly coincided with the start of a series of eating disorder deaths with common features of organisational failings that finally led to a critical inquest with national recommendations.
Please click and add your signature to this petition to reform UK whistleblowing law – whistleblowers protect us all but weak UK law leaves them wholly exposed and it is a threat to public safety
A perfect, clear cut example of why UK whistleblowing law – PIDA – is completely unfit for purpose. The case of a gold standard whistleblowing case, Tribunal tested and fully upheld – which still resulted in a six year ordeal of persecution and harassment for whistleblower Dr Jasna Macanovic consultant renal physician and very importantly, still left patients unprotected.