By Dr Minh Alexander retired consultant psychiatrist 26 September 2022
Summary: The Scottish Independent National Whistleblowing Office (INWO) for the Scottish NHS, headed by Rosemary Agnew, has published a first report. The INWO is a better model than the English National Guardian for the English NHS, because it has the investigative powers of an Ombudsman and by policy it can investigate whistleblowers’ concerns and whether they are properly handled. The INWO can also address detriment suffered by individuals. In the English Freedom To Speak Up system, the National Guardian’s Office (NGO) conducts only superficial case reviews and by policy does NOT investigate whistleblowers’ concerns. The NGO has also flatly refused to address detriment to individuals (including legally proven cases) despite this being recommended by the original Freedom To Speak Up review. The Scottish INWO however has no enforcement powers to correct wrongdoing or order redress for whistleblowers. In the INWO’s first report on concerns raised about chaotic COVID contact tracing, she upholds concerns about insufficient training and poorly managed instructions to staff. The INWO concluded that the failings could have resulted in wrong information being given to the public on COVID isolation periods. Disappointingly. there was no finding on whether the contact tracing service did give incorrect advice to the public. Was this side step a political omission? The whistleblower’s concern about detriment was not upheld by the INWO. The justification for this finding was withheld in a private section of the INWO’s report. The reason given for withholding this information was to protect individuals’ privacy, but this has a cost in public confidence and accountability. The INWO should at least track whistleblowers’ satisfaction with its process and transparently publish that outcome. Ultimately, a central whistleblowing agency with protected independence and wider powers is required, along with reform of ineffective UK whistleblowing law.
A key failure of UK whistleblowing law (the Public Interest Disclosure Act) and governance is that no one has the legal duty to actually investigate whistleblowers’ disclosures and correct proven wrongdoing.
The National Freedom To Speak Up Guardian’s Office in the English NHS was designed to be ineffective.
It has no powers, few duties and concentrates its efforts on propaganda. The duties that it does have, it conducts in the most half-hearted way possible. The NGO has carried out few case reviews since inception in 2016 – only nine reviews at the following NHS trusts:
Southport and Ormskirk 2017
Northern Lincolnshire and Goole NHS Foundation Trust 2017
Derbyshire Community Mental Health Services 2018
Nottinghamshire Healthcare NHS Foundation Trust 2018
Royal Cornwall Hospitals NHS Trust 2018
Brighton and Sussex University Hospitals NHS Trust 2019
North West Ambulance Service NHS Trust 2019
Whittington Health NHS Trust 2020
Blackpool Teaching Hospitals NHS Foundation Trust 2021
These reviews are very superficial and by policy they only glance at whistleblowing governance in general.
Most crucially, they NEVER investigate the original concerns raised by whistleblowers.
This is a cynical avoidance, the roots of which lay with the Department of Health (then headed by self-proclaimed patient safety fan Jeremy Hunt) and Robert Francis, in their conduct of the 2015 Freedom To Speak Up Review of whistleblowing in the NHS. The review was very carefully designed to avoid any investigation of whistleblowers’ concerns. And indeed, Francis later confirmed to me that the evidence submitted to his review by hundreds of NHS whistleblowers was destroyed after the conclusion of the review.
In the report of the Freedom To Speak Up Review, Francis left the investigation of NHS whistleblowers’ concerns wholly under the control of employers.
Francis weakly slipped in a rider that employers might wish to consider commissioning external investigations, but that was discretionary. We of course know that he who pays the piper calls the tune. Employers can afford to hire a whole orchestra whereas whistleblowers struggle to afford a tin whistle.
In fairness to Francis, he did stipulate in the report of the Review that the Independent National Officer (the National Guardian in other words) should address and help to ensure redress to whistleblowers and patients harmed by poor whistleblowing governance.
Disgracefully, successive National Guardians have steadfastly refused to do this. The NGO has also erected ridiculous and arbitrary barriers to its services. For example, it tells many whistleblowers that it will not accept their cases until Employment Tribunal processes have ended. This can take years.
In contrast, the Scottish government later created an Office which DID investigate whistleblowers’ concerns. This is the Independent National Whistleblowing Officer (INWO), which is hosted by the Scottish Public Services Ombudsman (SPSO).
The INWO has the statutory powers of the SPSO to investigate and direct disclosure of information. It also sets standards for whistleblowing governance in the Scottish NHS and it operates across the Scottish NHS, whereas the English National Guardian has confined her case review role to NHS provider trusts.
The INWO describes itself as the “final stage of the process for those raising whistleblowing concerns about the NHS in Scotland”.
It is still not an ideal approach as the INWO is limited by the ombudsman model – it may only make recommendations and has no enforcement powers.
The INWO states in its material for whistleblowers:
“We follow up on any recommendations we make and we will require evidence to be provided that the organisation has taken action.”
I cannot see from the relevant legislation – The Public Services Reform (The Scottish Public Services Ombudsman) (Healthcare Whistleblowing) Order 2020 – that any such requirement by the INWO has force. This leaves a large loophole through which neither wrongdoing or harm to whistleblowers is reliably corrected.
And unfortunately, the INWO is only a facility for the NHS (and related contractors), leaving huge swathes of whistleblowing in other sectors unaddressed.
Whistleblower ‘C’ and COVID contact tracing failures
The INWO has recently published a report of its investigation into whistleblowing about a COVID contact tracing service overseen by National Services Scotland (NSS) the national NHS board in Scotland:
The whistleblowing concerns related chiefly to poor administration of the service, with inadequate staff training, poor recording of frequently changing instructions to staff and incorrect calculation of COVID exposure and isolation dates and therefore incorrect advice to the public on isolation.
In context, there were obvious operational pressures as the pandemic surged, which was later acknowledged by the INWO.
NSS initially conducted an investigation and concluded that none of the whistleblower’s concerns was upheld:
“NSS’s position was that none of the issues summarised in paragraph 2 above was substantiated by their own investigation of the concerns raised.”
This denial was contradicted by the fact that NSS still identified learning points and improvement action, implying that it HAD found failures.
The INWO commented:
“I see that, although NSS’s investigation did not uphold C’s concern, it identified learning and improvement actions and made recommendations in relation to training, staff rotation and gathering feedback from staff. This appears contradictory in the way presented and I can understand why C was dissatisfied with NSS’s stage 2 response.”
The INWO concluded after investigation that contact tracing staff training was insufficient and that incorrect advice could have been given to the public:
“My view is that it is more likely than not that these conditions resulted in an increased risk of incorrect information being given to members of the public.”
In my view, there is a pulled punch here – why is there no finding on whether wrong information on COVID isolation periods was actually given to members of the public?
Would that have been a step too far in terms of government liability for such failures?
The INWO’s public report lacks detailed substantiation for some of its conclusions, such as a conclusion that the employer mounted a suitably impartial investigation.
It is possible that private sections of the INWO’s report addressed this. The stated reason for withholding some of the report material was to protect the whistleblower’s identity.
However, there remains a question mark over the INWO’s conclusion that the employer’s investigation was impartial when it failed to uphold any of the whistleblower’s concerns, despite identifying learning points.
The INWO also concluded that there was a “misunderstanding”by the employer in that it wrongly and initially advised the whistleblower that an HR process was more appropriate than the whistleblowing process. Is a “misunderstanding” too kind an interpretation, and should the INWO have simply concluded that the wrong process was chosen, without imparting a mitigating theory for how it happened?
In terms of NSS’ treatment of the whistleblower, the INWO upheld concerns that there was not sufficient care taken to protect the whistleblower’s identity, and that the confidentiality of witnesses was also not protected.
The INWO concluded that there was no detriment beyond the confidentiality issues:
“84. Based on the evidence provided by NSS and interview with C, the head of complaint that NSS failed to protect the whistleblower from detriment associated with speaking up is not upheld.”
There is no public justification for this finding. The INWO’s rationale was withheld for reasons of individuals’ privacy:
“82. The evidence is summarised in private Appendix F. Due to the sensitive nature of the evidence, I have decided that all of the detail must remain confidential, as to disclose it risks identifying C and other staff.”
It may be that some whistleblowers will understandably prefer anonymity. But this approach by the INWO is different to the relative transparency of Employment Tribunal proceedings, where detailed justifications for findings are usually provided in fully published judgments. It is hard to see why the INWO could not at least give summary information on alleged detriments and her broad reasons for upholding them or not.
The cost of anonymity and completely withheld data is less public confidence that justice has been done and that organisations have been duly held accountable for failings.
The INWO could partly mitigate against this by tracking whistleblowers’ satisfaction with its investigations and transparently publishing the outcome.
Whilst the Scottish INWO is a better offering than the cynically pointless English National Guardian, there are still limitations.
In all though, piecemeal sticking plasters like the Scottish INWO and the English National Guardian are not a satisfactory substitute for a proper central whistleblowing agency with a more comprehensive range of powers. UK whistleblowing law needs reform and such an agency needs to created.
Any whistleblowing agency is prone to capture or other erosion, especially if modelled along the lines of US whistleblowing agencies which feature the payment of massive bounties, with lawyers profiting:
A better model is that of the US Office Special Counsel, which protects federal whistleblowers and is designed with greater public service ethos in mind. Its guiding principle is to fairly restore whistleblowers to the position they would have had but for the whistleblowing, and it also has powers to address wrongdoing uncovered by whistleblowers.
What is crucial is that the design of any central whistleblowing body comes with protection of its independence from the government of the day, along with direct reporting to parliament.
None of the Bills laid before parliament to date as alternatives to PIDA have featured this independence.
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, lets abusers off the hook and it is a threat to public safety.
This is a recent and key case which has revealed both failure and possibly misrepresentation by the National Guardian’s Office, and orchestrated whistleblower reprisal by the National Guardian’s part funder and employer, the Care Quality Commission:
This is another key case, which revealed the fatal weakness of the Freedom To Speak Up project, in its preposterous assertion that employee Guardians can hold erring executives to account.
Fundamental failure of the NHS Freedom To Speak Up Project: Dr Rajai Al-Jehani unfairly sacked by Royal Free NHS Foundation Trust for whistleblowing on breaches of Human Tissue law, with suppression of linked investigations by University College London
Other recent examples of NHS whistleblower cases which show serious failure of the Freedom To Speak Up project are those of Jasna Macanovic, renal physician and Jane Archibald, senior specialist nurse. Both these blameless whistleblowers have suffered a years long ordeal. Both suffered failure of the Freedom To Speak Up mechanism at their respective NHS trusts.