By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 24 September 2020
It is now very clear that the government’s five year old Freedom To Speak Up project, on culture change in the NHS, is an an expensive flop.
It is expensive not only in terms of direct costs of
Operating a National Guardian’s Office that has neither powers nor appetite to challenge power and to genuinely protect frontline whistleblowers
Employing hundreds of frontline staff as local Freedom To Speak Up Guardians in NHS trusts, when good trusts do not need them and bad trusts will ignore and or victimise them
Running glossy campaigns, events and conferences to promote a false narrative that it is safe to whistleblow in the NHS
but most importantly, the Freedom To Speak Up project is unaffordably expensive in terms of lives avoidably lost, avoidable harm suffered by patients and the cruel persecution of whistleblowers to silence them.
Byline Times, part of our much needed independent media, is running a series on whistlebowing.
It started with this rare and precious coverage of why UK whistleblowing policy is so poor, the inconceivably dangerous gaps in our whistleblowing legislation and the fact that we will not benefit from the EU Whistleblowing Directive after Brexit:
Today, Byline Times has published a damning investigation of a serious failure by the National Guardian’s Office and NHS regulators to act on intelligence that NHS trust managers tampered with an investigation report and other matters:
A diligent NHS whistleblower ended up with a cardiac pacemaker after an ordeal in which he received no real help from the National Guardian’s Office (NGO) , NHS Improvement, the Care Quality Commission and the General Medical Council, despite raising such serious concerns.
In contrast, the National Guardian got an OBE in the New Years Honours list.
In essence, the NGO bent its own rules and procedures in order to keep a lid on whistleblower reprisal and cover up by an NHS trust that it had previously reviewed. NGO arbitrarily allowed the erring managers of the trust extra time to improve, despite being made aware by the whistleblower of continuing corrupt practices.
Most likely, this was a self interested manoeuvre because to publicly acknowledge this particular whistleblower case and conduct a further case review would have revealed that the National Guardian had failed to make any difference with her original review of the NHS trust.
The omission was reminiscent of the National Guardian’s personal decision at Brighton and Sussex University Hospitals NHS Trust to arbitrarily delay a review to allow a favoured trust CEO and board time to get their story straight.
It is bad enough that the National Guardian’s Office has no powers and no real authority. It is additionally deplorable that it makes up the rules as it goes along, at major cost to frontline staff and patients.
The NHS is a critical public service. Staff must be free to raise issues of unmet need and risks to patient safety, whether or not this is embarrassing for ministers.
It is completely unacceptable for vulnerable NHS whistleblowers’ fates to be left in the control of politicised processes and bodies, and for them to suffer serious personal injury because of oversight bodies’ negligence and collusion with employers.
If you have not done so already, please sign and share the petition calling for reform of UK whistleblowing law, and real enforcement structure to protect whistleblowers and the public.
We need a central whistleblowing agency, free from political interference by any government, which operates fully in the spirit of public service and Nolan standards of objectivity and selflessness.
All of us depend on whistleblowers all the time, whether or not we know it.
Morecambe Bay trust frontline worker Russell Dunkeld @RussellDunkeld whistleblew on several patient safety issues, including concerns that a nurse colleague was ending stroke patients’ lives early by turning off drips:
Russell Dunkeld recently wrote to his MP David Morris about the weaknesses of the law, and he in turn raised them with the government department that is currently in control of whistleblowing law, the Department for Business, Energy and Industrial Strategy.
Paul Scully responded as the relevant government minister, giving an unusually more detailed response than usual, and a more positive appraisal of UK whistleblowing law than is merited. Mr Scully may be well intentioned – he recently sent concerns about the disgraced former Post Office CEO to the Care Quality Commission, under the mistaken understanding that CQC investigates and determines whether NHS directors are Fit and Proper Persons. (CQC stubbornly does not take responsibility for this and he was advised of this). But nevertheless, he is entirely wrong about the strength of current whistleblowing law.
At least he did not wheel out the woeful Freedom To Speak Up project as an excuse not to reform the law. Perhaps a subliminal ministerial slip, as it must be patently obvious to all by now how toothless the Freedom To Speak Up project is.
Russell Dunkeld has responded to rebut the government’s baseless claims that it has done enough so far to improve whistleblowing law. In his reply to Paul Scully, he points out the urgency of the matter and life and death implications of not correcting law so weak that it does not ensure the investigation of whistleblowers’ concerns.
The important exchange of correspondence is provided below.
If you have not already done so, please sign and share the petition calling for reform of UK whistleblowing law:
RUSSELL DUNKELD’S EXCHANGE OF CORRESPONDENCE WITH PAUL SCULLY, BEIS MINISTER
BY EMAIL Paul Scully
Minister for Small Business, Consumers and Labour Markets Minister for London
Department for Business, Energy and Industrial Strategy
24th October [sic – September] 2020
Dear Mr Scully,
Urgent need for whistleblowing law reform to save lives
Thank you for your letter of 7 September, copied below in the appendix.
I believe you have been misled about the strength of whistleblower protection in the UK.
Our whistleblowing law now lags far behind that in many other countries.
The central weakness is that it does not ensure that whistleblowers’ concerns are investigated and acted upon.
This is a longstanding, disastrous failing of UK law which has allowed recurrent mass failures of governance, such as in the Ian Paterson rogue surgeon scandal and the Mid Staffs hospital scandal.
I address below, in turn, several key passages from your letter.
1.“The Employment Rights Act 1996, amended by the PIDA, gives legal protection to those who speak up in the public interest.”
PIDA does not provide any pre-detriment protection.
It does not ensure that reprisal is actively prevented.
For example, PIDA does not oblige employers to carry out risk assessments and to provide protection plans for individual whistleblowers.
Whistleblowers experiencing reprisal by their employer cannot access and activate any mechanism to make it stop.
PIDA only acts after the fact.
Whistleblowers can only make a claim to an Employment Tribunal at a very late stage after suffering serious harm and being made unemployable due to stigma, blacklisting, maliciously manufactured disciplinary or capability record and ill health.
The process of litigation itself is very harmful to whistleblowers and presents more opportunities for employers to abuse them.
Some people suffer not only broken health but are ruined by the highly risky litigation that UK whistleblowing law forces them to take, as the only chance of redress after serious harm.
Some employers make vexatious appeals after losing Employment Tribunals, wasting public money and punitively keeping the whistleblower in a state of fear for several more years.
2. “the legislation provides a remedy for claimants who suffer detrimental treatment by their employer. An Employment Tribunal is the right body to make judgements on the facts of a given case and on the evidence it considers. The compensation that can be awarded by a Tribunal in a whistleblowing case reflects the detriment that the worker has suffered.”
The compensation you cite is very hard to win.
Only 3% of cases succeed at hearing.
The vast majority of whistleblower claimants are forced to withdraw and or accept a substandard settlement because unions will not support cases all the way and most whistleblowers cannot afford to continue.
Where whistleblowers ‘win’, compensation never fully reflects the real long term financial losses.
Compensation may also be swallowed up by legal expenses.
Employers may whittle away compensation by constructing an argument of contributory fault by claimants, which results in compensation being docked.
Claimants may also be threatened and punished with cost applications by employers.
UK whistleblowing [law] only thinks in terms of pounds and shillings.
It does not provide vital non-financial redress such as the wiping of malicious, manufactured disciplinary records.
3. “The most recent change introduced in 2017 was a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. It aims to increase confidence that prescribed persons are taking whistleblowing disclosures seriously through greater transparency about how disclosures are handled, in particular, that they investigate where appropriate and take action where necessary.”
The 2017 changes did nothing to ensure that Prescribed Persons investigate and act upon concerns.
The law still does not compel anyone to investigate or act upon UK whistleblowers’ concerns.
This is at the core of why UK whistleblowing governance is ineffective.
Most whistleblowers’ disclosures to Prescribed Persons are not investigated.
Prescribed Persons are a disparate group of bodies and individuals, some have no power to act.
Regulators who are Prescribed Persons have powers, but are under no legal compulsion to investigate and act upon whistleblowers’ disclosures.
Some regulators who are Prescribed Persons refuse to investigate as a matter of policy, for example, the Care Quality Commission (CQC).
At the very most, the CQC will only review a general theme, not a whistleblower’s specific concern. CQC’s own statistics show that in the majority of cases, CQC takes no further action or merely notes disclosures as information for a future inspection. Even very serious disclosures of corruption
I believe your department’s composite Prescribed Persons’ report 2018/19 relating to 23 bodies revealed that only eight of these bodies explicitly reported that they conducted investigations of some (usually a minority) of the whistleblowers’ concerns received:
· NHS Counter Fraud Authority
· Scottish Social Services Council
· NHS Improvement
· Office of Nuclear Regulation
· Scottish Charity Regulator
· Public Services Ombudsman for Wales
· Scottish Housing Regulator
· Scottish Social Services Council
Some Prescribed Persons reported taking “further action” without clearly indicating whether this included investigation.
NHS Improvement received 190 whistleblower disclosures in 2018/19 of which it deemed 100 were qualifying disclosures. Only 16 investigations arose from these disclosures.
NHS England reported receiving 70 whistleblower disclosures, of which only 3 had been investigated. It claimed that others were still ‘under investigation’.
“Most of the reports we received in 2018/19 25 were suitable to be dealt with by the relevant force and so we provided them with the relevant information.”
Similarly, Ofqual did not investigate the whistleblower concerns that it received but referred them back to awarding organisations.
Several Prescribed Persons reported that they received no disclosures at all, such as Ofcom, Registers of Scotland, Revenue Scotland, Water Industry Commission for Wales, Welsh Revenue Authority and Scottish Information Commissioner raising questions about whether the system is sufficiently publicised.
It is significant and of concern that your department presented only 23 vignettes instead of systematic analysis, when there are in fact thousands of Prescribed Persons. Local authorities and MPs are Prescribed Persons.
If the aim of the recently introduced publication requirement is as you say to provide reassurance that whistleblowers’ concerns are investigated by Prescribed Persons, it is surely vital that the government undertakes proper audit and analysis instead of cherry picking a tiny proportion of examples.
Your department’s report did not for instance, feature the Care Quality Commission, the single most important regulator with regard to oversight of vital, safety critical health and social care services.
Indeed, if as the government claims, it wanted Prescribed Persons to investigate, it should change the law and compel investigation.
4. “It is right and proper that the Government reviews the whistleblowing framework once we have had sufficient time to build the necessary evidence of the impact of the most recent reforms.”
The changes to whistleblowing law in recent years have all been superficial.
Because the government has not ensured that whistleblowers’ concerns are reliably investigated and acted upon, serious harm continues, including deaths.
I hope the above demonstrates to you why UK whistleblowing law is deeply ineffective and fails to defend the public’s right to know about unsafe services and corruption, and to be protected from such risks and malfeasance.
I request that the government treats the persisting gap in investigation of UK whistleblowers’ concerns as a matter of great urgency.
It cannot be right to continue for several more years without addressing this matter of life and death.
Cc Davis Morris MP
APPENDIX: YOUR LETTER OF 7 SEPTEMBER 2020
David Morris MP House of Commons London SW1A 0AA
Department for Business, Energy & Industrial Strategy 1 Victoria Street London SW1H 0ET
Thank you for your email dated 20 August, enclosing correspondence from your constituent, Mr Russell Dunkeld of 1 Richmond Farm, Heaton Bottom Road, Heaton with Oxcliffe, Morecambe LA3 3EU, regarding the Public Interest Disclosure Act (PIDA) 1998. I am replying as this matter falls within my ministerial portfolio.
I would like to reassure Mr Dunkeld that the Government believes that whistleblowers play an important role in bringing to light wrongdoing in the workplace. The Employment Rights Act 1996, amended by the PIDA, gives legal protection to those who speak up in the public interest. The legislation is intended to build openness and trust in workplaces by ensuring that workers who hold their employers to account are treated fairly.
The purpose of Part IVA of the Employment Rights Act is to provide means of redress for a worker who suffers detriment at the hands of their employer after ‘blowing the whistle’. In many cases, employers respond appropriately when concerns are raised by their employees. Where they do not, the legislation provides a remedy for claimants who suffer detrimental treatment by their employer. An Employment Tribunal is the right body to make judgements on the facts of a given case and on the evidence it considers. The compensation that can be awarded by a Tribunal in a whistleblowing case reflects the detriment that the worker has suffered.
Over recent years the Government has made improvements to the whistleblowing framework to make it more robust and increase support for whistleblowers. This includes guidance for whistleblowers on how to make disclosures while preserving their employment protections, and guidance for employers, including a non-statutory code of practice. We have added student nurses and student midwives into the scope of the legislation and introduced whistleblowing protections for job applicants in the health sector. We have also fulfilled the commitment to keep the prescribed persons list up to date.
The most recent change introduced in 2017 was a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. It aims to increase confidence that prescribed persons are taking whistleblowing disclosures seriously through greater transparency about how disclosures are handled, in particular, that they investigate where appropriate and take action where necessary. The reporting duty should also improve consistency across different bodies in the way they respond to disclosures. These bodies are due to publish their third set of annual reports, for 2019/20, by the end of September.
It is right and proper that the Government reviews the whistleblowing framework once we have had sufficient time to build the necessary evidence of the impact of the most recent reforms.
Thank you once again for taking the time to raise Mr Dunkeld’s concerns on this matter. I hope that the information above is helpful to you in your response to him.
PAUL SCULLY MP
Minister for Small Business, Consumers and Labour Markets Minister for London
By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 22 September 2020
Summary: Professional regulators are not doing enough to identify, track and manage abusive employers who maliciously refer their staff to their professional regulators. Last month I reported that the Health and Care Professions Council had no systems at all for dealing with these issues, and that the regulators’ regulator, the Professional Standards Authority indicated to me that it would welcome evidence of malicious referrals. Since then, staff who have suffered malicious referrals or witnessed them have been sending in evidence. I provide here more detailed evidence on the HCPC’s systemic failings in respect to whistleblower registrants and to NHS ambulance trusts. There is an astonishing laxity by both the HCPC and employers on assuring the quality and probity of referrals. NHS staff may suffer severe personal injury as a result of oppressive workforce management. Several NHS whistleblowers have reported that they have experienced heart problems in the last year. These organisations are not holding themselves to the same professional and ethical standards that are so sternly heaped on the frontline. It is time for the unions and the PSA to do more to protect frontline staff from abuse. I have written to both.
Professional regulators are supposed to keep the public safe by managing practitioners’ impaired fitness to practice and also to be fair to frontline health and care staff.
It is a challenging balancing act, and there have been failings in both directions.
There have been egregious examples of professional regulators’ failure to keep the public safe. For example, the repeated failures by the General Medical Council to stop Jane Barton the doctor associated with the suspicious opioid deaths at Gosport, Ian Paterson the breast surgeon who was eventually jailed and Zholia Alemi the fake doctor who was allowed to masquerade as a consultant psychiatrist despite not even having a basic medical degree, also jailed and expected in court again today on further charges. Whistleblowers repeatedly tried to raise the alarm on all three of these cases, but insufficient regulatory action resulted.
Juxtaposed against this is a serious failure to track rogue employers who misuse the professional revalidation and Fitness to Practice procedures as a tool for coercing staff and silencing whistleblowers. Professional regulators have very little in the way of systematic approaches to deter employer abuse. Their institutional focus is on erring staff, and as Mark Twain once said: “To a man with a hammer, everything looks like a nail”.
HCPC lets rogue employers off and does not track whistleblowers who are referred
I reported previously that the Health and Care Professions Council has no system whatsoever for tracking and tacking action against rogue employers, even though I am aware that whistleblowers have been vexatiously referred to the HCPC.
I contacted the Professional Standards Authority about this. PSA indicated that it would “welcome” evidence about vexatious referrals to professional regulators. I have since seen some of the submissions that affected whistleblowers and other workers have been sending in about professional regulators.
I will now report further on the HCPC’s handling of referrals by NHS ambulance trusts and its approach to whistleblowers.
When I asked if HCPC had a policy on handling employers’ referrals on whistleblowers, it merely directed me to a generic policy for workers who wish to whistleblow to HCPC – a completely different issue.
Moreover, HCPC admitted that:
It had not been aware of the 2015 Hooper report for the GMC on good practice in cases of whistleblower registrants who are referred
It did not ask senior registrants who make referrals to declare whether the practitioner being referred is a whistleblower
It held no central record of whistleblowers who are referred: “we do not hold a central record on whistleblowers who are referred to the HCPC”
Indeed, the HCPC previously admitted that it keeps no central register of malicious referrals.
I have seen recent correspondence from the HCPC to a vexatiously referred registrant in which HCPC declined to log a referral as malicious.
“I wonder if the HCPC can consider this very serious issue of power imbalance and unfairness and let me know whether and how it might be prepared to correct its omission.”
There has so far been silence in response to this request.
Shockingly, the HCPC has also been failing to fully meet its public sector equality duty under the Equality Act, to track how it is responding to people with different protected characteristics. An FOI disclosure to another party showed that HCPC bizarrely only collects data on age and gender. Nothing on other protected characteristics such as Race and Disability. Its board also looks distinctly white. This serious failure adds to the concerns about whether HCPC is protecting the workforce from unfairness by referring employers.
I have raised this major failure with the Professional Standards Authority, which responded to say that it recently added a requirement for professional regulators about diversity and equality. The correspondence with PSA can be found here.
I am aware of vexatious referrals by NHS ambulance trusts to the HCPC, on whistleblowers and other staff.
One referred individual who has had a terrible ordeal commented that the HCPC’s handling of referrals can be a huge part of the problem:
““The HCPC are, without a doubt the most unprofessional organisation I have ever had to deal with.”
There are 10 English NHS ambulance trusts, which form a subculture of their own, with the highest levels of bullying in any category of NHS trusts.
Yet their workers carry out high pressure emergency work, sometimes in dangerous conditions, facing abuse or even assault by the public, and witness terrible, traumatic scenes. They need the best quality employer support.
The last NHS staff survey continued to show what a difficult employment environment ambulance trust workers face.
Ambulance trusts have by far the lowest levels of staff engagement:
Ambulance trust staff report the highest levels of bullying:
These high levels of disclosed bullying are despite ambulance trust staff being less ready than other groups to report bullying:
Ambulance trust staff are also less likely to report safety incidents:
Ambulance workers are also the least likely to feel secure when raising concerns about unsafe care:
TYPE OF NHS TRUST
% of staff who agreed with the statement: “I would feel secure raising concerns about unsafe clinical practice.”
Combined acute and community trusts
Acute specialist trusts
Mental health and learning disability trusts
Combined mental health, learning disability and community trusts
To get some idea of the scale of meritless and or frankly abusive referrals to HCPC by ambulance trusts, I asked both the HCPC and ambulance trusts for data.
The HCPC response was very poor and claimed that the regulator held no central data by ambulance organisation on numbers and outcomes. This implied that HCPC fails to track referrals by individual organisations and is not actively assessing whether employers may be misapplying or abusing Fitness to Practice procedures. Alternatively, HCPC may be able to call up the data, but wishes to shield employers from scrutiny. HCPC decisions quite often refer to paramedic’s employing organisations, so it is surprising that the HCPC cannot produce the data.
HCPC’s poor approach is of particular concern because concerns had already been raised that some groups of registrants, such as paramedics, are referred at disproportionately higher levels. The concerns had resulted in research being commissioned from Surrey University, reporting in 2017:
This report by Surrey noted that paramedics faced a “blame focussed” work environment.
Ambulance trusts’ FOI responses to my enquiries about HCPC referrals since 1 April 2018 showed:
South Central Ambulance Service NHS Foundation Trust has not responded despite reminders
Three ambulance trusts have not bothered at all to oversee and evaluate how they make HCPC referrals (South Western Ambulance Service NHS Foundation Trust, which had major bullying issues, and West Midlands Ambulance Service NHS Foundation Trust, dubiously rated ‘Outstanding’ by CQC, and Yorkshire Ambulance Service NHS Trust)
Two trusts (North East Ambulance Service NHS Foundation Trust and London Ambulance Service NHS Trust) held numbers on referrals but not outcomes
There was a great range in the numbers of referrals. South East Coast Ambulance Service NHS Foundation Trust had not referred any staff to HCPC in the period.
North West Ambulance NHS Trust – a whistleblowing and severe bullying hotspot known to both regulators and the National Guardian – made 20 ‘personal misconduct’ referrals, with 4 ending in a “No case to answer” finding by the HCPC, and 9 ‘clinical practice/ patient care concerns’ referrals, with 3 ending in a “No case to answer” finding by the HCPC. Whistleblowers at this trust have continued to be harmed after an ineffective review by the National Guardian.
East of England Ambulance Service Trust – which has had recent paramedic suicides answered in a muddled way, giving all sources of referral and thus obscuring the number of ‘no case to answer’ outcomes arising specifically from referrals by the trust
The FOI responses from ambulance trusts can be found linked below. I will add the overdue response from South Central as it arrives.
NHS Trusts and the HCPC should in particular actively track the ‘no case to answer’ referral outcomes for possible learning, and it is a concern that this is not happening most of the time.
This all paints a picture of neglect and casual abuse of the frontline. People who save lives, who work so hard and under such pressure, yet are so easily discarded upon employer whim, with regulatory complicity through lack of duty of care.
The mistreatment of staff in these summary ways is extremely serious and causes personal injury, sometimes life threatening. I am in touch with several NHS whistleblowers who have experienced heart problems just in the last year. It is also not just staff but their family who suffer. Linda Faircliffe, North Tees and Hartlepool NHS Foundation Trust whistleblower, tragically lost her partner to a heart attack whilst the trust suspended her.
Innocent staff can be pinned down by vexatious referrals for years, especially where a professional regulator is especially incompetent.
It is inconceivable that a safety critical sector can lurch on in this dangerous way, with lazy tolerance of poor culture.
The NHS Chief People Office Prerana Issar’s office promised on 7 September 2020 that Issar would shortly respond to a prompt on 26 August 2020 about the much delayed implementation of the Kark Review on unfit NHS senior managers and continuing impunity for whistleblower reprisal but she has not done so yet.
The unions should be cracking down harder on these failures and so should PSA.
I have written to the PSA cc the unions, to forward the above further evidence of professional regulatory failure to deter employers’ abuses of power.
All the above is a glimpse into the weak systems that favour employers and allow whistleblowers to be silenced.
If you have not done so already, please sign and share the petition to reform UK whistleblowing law, so that there is a legal duty on bodies to protect whistleblowers and to deter reprisal with effective penalties.
David Martin, Concerns and Appointments Officer, Professional Standards Authority
22 September 2020
More examples of professional regulatory failure to deter vexatious Fitness to Practice referrals on frontline workers, as a means of intimidation and punishment
To follow up on my concerns about the Health and Care Professions Council admitting to having no systems whatsoever for identifying, tracking and managing rogue employers and its failure to fully track protected groups of registrants (it only tracks age and gender), please find via this link more evidence of HCPC failure to address employer abuses of the Fitness To Practice process as an improper means of punishment:
This additional evidence focuses on ambulance services, which have troubled culture and whose staff suffer the highest levels of bullying in the NHS.
Importantly, please note that as part of HCPC’s failures, it has little understanding of the importance of ensuring that whistleblower registrants who are referred need to be properly protected and that vexatious referrals on such registrants need to be identified and robustly deterred.
Thank you again for picking up the general issue of how professional regulators should manage vexatious/ malicious/ dishonest referrals.
I hope some improvements can be made in due course.
You will note amongst this latest evidence the fact that I have heard from several NHS whistleblowers who have suffered from heart problems in the last year relating to the immense stress of employer reprisals. There is the terrible case of Linda Fairhall, North Tees and Hartlepool NHS Foundation Trust whistleblower, whose partner died of a heart attack when she was suspended by her employer.
The problem is of course relevant to all workers, whistleblowers or not.
I hope this helps to illustrate the gravity of system and professional regulators allowing employers to get away with seriously abusive behaviour and coercing the workforce through this means.
With best wishes,
Dr Minh Alexander
Alan Clamp CEO PSA
Secretaries of TUC, Unison, Unite, GMB, HCSA, BMA, RCN, DAUK
By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 21 September 2020
Summary: The UK does not investigate and act upon whistleblowers’ concerns as a matter of policy. This is the central failure at the heart of UK whistleblowing governance. The only question that really matters is ‘When will this be put right?’. The organisation Protect, which raises funds on the purported basis that it champions whistleblowers, is failing in its mission by not meaningfully challenging this critical failure. Moreover, it has made a misleading public claim that its whistleblowing Bill will ensure the investigation of whistleblowers’ concerns, when it does NOT. Protect intends to brief parliament shortly. It cannot be allowed to mislead or to undermine real attempts at law reform. The CEO of Protect has been asked to account for the organisation’s behaviour.
Protect the “leading experts”and a factual inaccuracy
The unsuspecting majority would surely be amazed and horrified by this.
The UK introduced sham whistleblowing law over twenty years ago which formalised the policy of cover up, whilst deftly making it look as if something had been done. This law, the Public Interest Disclosure Act (PIDA) was criticised very early on by the Bristol Heart public inquiry, but the government admitted that it did nothing. See BEIS FOI response.
The organisation Protect (formerly known as Public Concern at Work) was chief midwife to this useless legislation.
It has spent the last two decades embedding itself into the establishment machinery, sitting on the national Employment Tribunal user group and cornering the market in public sector contracts for training, consultancy services and advice lines. It is reluctant to be fully transparent about its customers, but always quick to self-promote and tout itself as the “leading” whistleblowing charity. Its humble strapline is ” Whistleblowing Charity – The Leading Experts”.
Commensurate with this pattern of behaviour, Protect has frequently flattered power, including by supporting the government’s deeply flawed and frankly dangerous Freedom to Speak Up project. It got contracts off the back of the initiative and its head of legal went to work at the NHS National Guardian’s Office.
Protect’s Bill is yet more tinkering with existing whistleblowing law.
The Bill strangely does not compel employers to investigate whistleblowers’ concerns. It only leaves the door open for a new regulator to introduce a duty in the regulatory small print.
Protect’s Bill gives Prescribed Persons (authorities legally responsible for receiving whistleblower disclosures under current law) a new duty to investigate whistleblowers’ concerns “as appropriate”:
“follow up on disclosures by taking the necessary measures and investigate, as appropriate, the subject-matter of the concerns. Where the prescribed person is not competent to investigate, they shall inform the person making the protected disclosure of their intention to pass the concern to the appropriate body.” [my emphasis]
Protect’s Bill creates a new Whistleblowing Commission but only provides for investigation by a proposed Whistleblowing Commission of how whistleblowers’ concerns are handled, and NOT of the concerns themselves:
“(3) The Whistleblowing Commissioner shall have the following functions: a) to act as an investigator of alleged maladministration or a failure to investigate a protected disclosure either by an employer or by a prescribed person”
Thus by sleight of hand, Protect’s Bill gives no ultimate means of investigating whistleblowers’ concerns where employers and regulators fail to do so, as currently happens all the time.
Of concern, Protect set out to spin about its Bill in a blog of 27 August 2020 which compared three Bills in play at present: its own Bill and two Bills going through parliament proposed respectively by Dr Philippa Whitford MP and by Baroness Susan Kramer. The latter is co-Chair of the suspect whistleblowing APPG which is a in essence a shop window set up on behalf of bounty hunters. Protect’s blog took some unjustified swipes, such as claiming that Dr Philippa Whitford’s important bid to introduce criminal sanctions for reprisal and cover up is ill advised. Perhaps because Protect knows criminalisation is one of the most powerful measures against undesirable behaviours – cf. seatbelt and drink driving law.
In its blog, Protect also bizarrely and misleadingly claimed that its proposed Whistleblowing Commission would investigate whistleblowers’ concerns:
“A Whistleblowing Commissioner – a new independent body toinvestigate a concern, or unfavourable treatment of the whistleblower, set standards and administer penalties.”
Was it because Protect knew that this is the heart of the matter, and that its Bill would not be acceptable to most people if shown for what it really is?
I have written to the CEO of Protect to seek clarification of Protect’s position on ensuring the investigation of whistleblowers’ concerns. The correspondence is provided in the appendix. Protect should retract its major factual inaccuracy. Alternatively, Protect can always listen to whistleblowers and amend its Bill to ensure that its Commission has direct investigative powers, like the forty year old US Office of Special Counsel which has a duty to protect federal whistleblowers.
Will Protect finally step up or will it continue as enabler in chief of the powerful and of corporate interests?
Protect grandiosely announced in its blog that it would be “briefing” parliament in the run up to the second reading of Dr Philippa Whitford’s Bill on 25 September 2020.
Does this mean Protect will spam MPs with more misleading claims about its Bill?
If you have not yet done so, please support this petition to reform UK whistleblowing law so that the proper handling of whistleblowers’ concerns is given centre stage, and not swept under the carpet with legislative trickery:
I noticed that in Protect’s blog of 27 August 2020 “Unpacked: The 3 bids to transform whistleblowing law PIDA” in which Protect gives its view of the three whistleblowing Bills in play, that Protect stated its proposed Whistleblowing Commission would investigate whistleblowers’ concerns:
“What are the stand out asks of each Bill?
All the Bills are united in that they want to see PIDA reviewed but vary in what they call for. The ‘headlines’ for each are as follows
• Wider protection of more people e.g. Non-executive Directors (NEDs), volunteers, self-employed workers and job applicants
• A duty on employers to prevent victimisation
• A Whistleblowing Commissioner – a new independent body to investigate a concern, or unfavourable treatment of the whistleblower, set standards and administer penalties.”
Aa far as I can see, this is an inaccurate representation of Protect’s Bill. The Bill only proposes that its Whistleblowing Commission should investigate the HANDLING of concerns:
“(3) The Whistleblowing Commissioner shall have the following functions:
a) to act as an investigator of alleged maladministration or a failure to investigate a protected disclosure either by an employer or by a prescribed person
b) to set standards about protected disclosures expected of prescribed persons and employers and issue guidance of such standards
c) to improve public awareness and education of individual’s rights regarding protected disclosures
d) to administer civil penalties where they judge appropriate against employer or prescribed persons for breaches of function (a) or (b) above.”
The majority of whistleblowers, whose prime focus is the public interest, consider that PIDA’s central failing is the fact it ignores their disclosures and thus allows them to be covered up.
Obviously it would be very disappointing if this central fault remains in our whistleblowing legislation.
I’d be grateful if you could clarify whether the claim in Protect’s blog of 27 August 2020 that Protect’s proposed Commission will investigate concerns means that Protect will amend its draft Bill to give the proposed Commission powers to investigate whistleblowers’ concerns per se, or is it Protect’s intention still to restrict the role of the proposed Commission to just examining the process of how whistleblowers’ concerns are handled?
By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 17 September 2020
There is an understandable temptation in whistleblowing to abandon hope of constructive reform. However, hard though the road is, the focus needs to be on possible solutions.
UK regulators currently fail whistleblowers but that is not a reason to discount in entirety the regulatory model for whistleblowing. Afterall, someone has to oversee the process.
Regulation can only be as good as the legal regulations and frameworks which govern regulators’ operation and powers and most importantly, which protect them from political interference. And of course, this is all dependent on any given government’s respect for the rule of law. Our current political climate is hardly fertile ground, but paradoxically whistleblowers are needed more than ever.
Others have suggested that the police, an organ of the Home Office, should control UK whistleblowing governance. This is equally of concern given the long and notorious history of UK political policing against even peaceful and legitimate dissent:
To give an illustrative example of political policing from the above study, the Home Secretary & Metropolitan Police Commissioner met press barons to suggest the press avert their eyes from police violence against Vietnam war protestors, who were instead cast as the guilty parties by police briefing:
The terrible Hillsborough scandal, with decades of cruel official lies and silenced police whistleblowers is another example of the serious unfitness of the Home Office and its police instruments to be controllers of whistleblowing governance:
Institutions which control, conceal and deceive as a political habit are not whistleblowers’ friends.
I will briefly describe below a long established regulatory precedent in the US: The Office of Special Counsel, which has a range of powers that can potentially be adopted and built upon when designing systems of whistleblower protection.
The US Office of Special Counsel
The US Office of Special Counsel (OSC) is in essence a forty year old central whistleblowing agency, established in 1979 after the Watergate scandal broke and after related legislation was passed to reform the US civil service. OSC has responsibility to protect public sector (federal) whistleblowers, offer a channel of reporting for federal whistleblowers raising concerns about wrongdoing and to help remedy corruption and abuses of power in public office. It has investigative, prosecutorial and regulatory powers and also has powers to direct other federal agencies to investigate and provide evidence of corrective action.
OSC’s strong points are its range of powers and its jurisdiction over a wide range of federal bodies. It is in principle independent but one of its key weaknesses is that the Special Counsel is appointed by the executive and can be removed by the executive, albeit this is tempered by Senate oversight of appointment, and legal limitations on the range of reasons under which a President can remove a Special Counsel.
OSC has an imperfect history, and for a number of years was paralysed by the appointment of a poor Special Counsel, who was mired in scandal and allegations of cover ups. But that will always be the story of whistleblowing – all schemes to protect whistleblowers are at high risk of being subverted and captured. The important thing is to be fully prepared for this and to continue working on and adapting to weaknesses and threats.
Nevertheless, in principle, the OSC has some of the most powers ascribed to date to any whistleblowing agency.
The main laws governing the establishment and operation of the OSC are:
The 1939 Hatch Act, sought to maintain the neutrality of public servants and to prohibit their participation in any “pernicious political activities” by misusing public office or resources.
“provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation’s diversity, and to improve the quality of public service, Federal personnel management should be implemented consistent with merit system principles and free from prohibited personnel practices”
“the authority and power of the Special Counsel should be increased so that the Special Counsel may investigate allegations involving prohibited personnel practices (PPP) and reprisals against Federal employees for the lawful disclosure of certain information and may file complaints against agency officials and employees who engage in such conduct;”
This strengthened the OSC’s role and made its prime duty the protection of federal employees, especially whistleblowers, from prohibited personnel practices
Whistleblower Protection Enhancement Act of 2007
The Uniformed Services Employment & Reemployment Rights Act
The 1978 Civil Service Reform Act provided for appointment of the Special Counsel only by consent and confirmation of the Senate, with limitations on removal by the President:
“The Special Counsel of the Merit Systems Protection Board shall be appointed by the President from attorneys, by and with the advice and consent of the Senate, for a term of 5 years. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of his predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.
Under Section 1206 of the 1978 Act, the Special Counsel was given wide powers to investigate any allegations of prohibited personnel practices against any “employee or former employee or applicant for employment’, including reprisal against federal workers making public interest disclosures, to compel the heads of federal agencies to locally investigate any such allegations, to require agency heads to report to OSC in writing certain specified findings of local investigations within 60 days, including evidence of corrective action:
“”(E) a description of any corrective action taken or planned as a result of the investigation, such as –, “(i) changes in agency rules, regulations, or practices; “(ii) the restoration of any aggrieved employee; “(iii) disciplinary action against any employee; and “(iv) referral to the Attorney General of any evidence of a criminal violation.”
Barring some circumstances of state security and secrets, the Act required the majority of such investigation reports to be submitted to Congress and to the President, as well as shared with complainants.
The Act gave OSC the power to determine if such investigation reports were complete and made “reasonable” findings, and to take further action if not.
The OSC has powers to petition for stays of harmful prohibited personnel actions and to seek extensions:
“(a)(1) The Special Counsel may request any member of the Merit Systems Protection Board to order a stay of any personnel action for 15 calendar days if the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to be taken, as a result of a prohibited personnel practice.”
OSC can ensure redress for harmed whistleblowers, importantly, including of a non-financial nature.
OSC also has powers to investigate directly and to require confirmation of corrective action by agency heads,
“(B) In any case in which the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken, the Special Counsel may proceed with any investigation or proceeding instituted under this section notwithstanding that the alleged violation has been reported to the Attorney General. “(3) If, in connection with any investigation under this section, the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred which is not referred to in paragraph (1) or (2) of this subsection, the violation shall be reported to the head of the agency involved. The Special Counsel shall require, within 30 days of the receipt of the report by the agency, a certification by the head of the agency which states –, “(A) that the head of the agency has personally reviewed the report; and “(B) what action has been, or is to be, taken, and when the action will be completed.
OSC was given regulatory powers:
“”(k) The Special Counsel may prescribe regulations relating to the receipt and investigation of matters under the jurisdiction of the Special Counsel. Such regulations shall be published in the Federal Register.”
OSC may refer cases to the Merit Systems Protection Board MSPB – the adjudicating body on employee claims of prohibited personnel practices in federal agencies, which can discipline those guilty of violations, including by removal, reduction in grade, debarment from federal employment for up to five years, suspension, or reprimand.
OSC was given powers to litigate, to prosecute cases before the MSPB and intervene in proceedings of the MSPB:
“(i) The Special Counsel may as a matter of right intervene or otherwise participate in any proceeding before the Merit Systems Protection Board, except that the Special Counsel shall comply with the rules of the Board and the Special Counsel shall not have any right of judicial review in connection with such intervention.
(j)(1) The Special Counsel may appoint the legal, administrative, and support personnel necessary to perform the functions of the Special Counsel.”
OSC has also filed third party or amicus briefs (“friend of the court”) in other courts, all the way up to the Supreme Court.
How does this help?
There will never be perfection in whistleblower protection.
No one could claim that the US is an exemplar of whistleblower protection.
There are many US whistleblowers who would say that the systems in place have failed them.
But the OSC can also fairly claim some wins, which is more than can be said for current UK regulators and the toothless NHS National Guardian’s Office. In fiscal year 2017, OSC helped 323 federal employees prove their cases of mistreatment, of which three quarters were about whistleblower reprisal. More cases should probably have been proven, and the OSC model could be improved.
The vital process of learning and refining needs to continue in the design of whistleblowing agencies and systems, whilst maintaining healthy scepticism, robustly testing any progress and keeping in reserve unofficial channels whenever official channels prove totally unfit.
In the UK, we currently have almost zero protections and useless infrastructure. We need effective law to compel regulatory action in response to whistleblowing and correction of harm and risk. We also need law to establish a specialist regulator that has the expertise and powers to ensure compliance by other regulators with good practice standards of whistleblowing governance.
This is not an impossible aim nor should it be discounted based on the experience of poor regulation to date. It is a question of political will and of carefully and painstakingly understanding how failures have occurred, learning from other jurisdictions and addressing the gaps.
What can be done?
A formal review of the law is essential to trigger the necessary public discourse to find solutions and take all views into consideration.
The government will not agree to a formal law review without pressure.
In order to help apply this pressure, please sign the petition to reform UK whistleblowing law and establish a properly independent whistleblowing agency:
Many employers will set out to deliberately hurt whistleblowers in any way they can, if they believe they pose a threat to an organisation’s senior leaders.
In health and social care, a classic weapon is to make trumped up Fitness to Practice referrals to professional regulators. This is a nuclear option as it is a threat to long term career and livelihood. For often conscientious whistleblowers, the stigma and worry causes immense distress. A malicious referral to a professional regulator is especially ‘good value’ from an employer’s point of view as it incurs little cost compared to litigation but inflicts a very harmful process that can be protracted, sometimes taking years. This eats people up and can contribute to serious mental and physical ill health.
Indeed, it is not just whistleblowers who can be harmed this way but any staff who fall foul of employers for any reason.
There is little evidence that professional regulators take a systematic approach to managing abuse by employers of the Fitness To Practice system. Abuse of process recurs repeatedly and there is no sign of deterrence by the regulators. A recent FOI response by the Health and Care Professionals Council (HCPC) showed that the regulator did not even track or analyse cases of potential abuse by employers. And yet I am aware of malicious referrals by employers on whistleblowers to the HCPC.
Following the revelation of this negligence from the HCPC, I asked the professional regulators’ regulator, the Professional Standards Authority (PSA) what it expected professional regulators to have in place.
The PSA has given a considered response which acknowledges the difficulty that professional regulators may have in establishing whether referrals are vexatious, but it nevertheless acknowledges that such referrals are a grave matter of the “utmost seriousness”:
“…we would consider any instance when a regulator establishes that a referral by an employer was malicious to be of the utmost seriousness. We would expect the regulator to fulfil its duty to share information with the appropriate systems regulator on each occasion, for example in England with the CQC. They should also consider if the individuals concerned with the referral should be subject to its own fitness to practise process or that of another regulator and make any necessary referral in order that any malicious behaviour is fully investigated.”
Importantly, the PSA has indicated that it would welcome evidence of abuses in order to support its oversight of the professional regulators:
“I will share your concerns as feedback to my colleagues within the performance review team and this will give us the opportunity to consider the approach taken across the regulators. We would welcome seeing evidence from any party at any time about employers using the fitness to practise process to victimise staff. The regulators’ handling of such cases would certainly be of interest to us for our reviews of their performance. I also note your reference to the GMC’s procedural safeguards to protect whistleblowers. How well this is working is something we may consider through our performance review.”
If you have been the victim of a vexatious and or self-evidently untruthful referral to your professional regulator, or are aware of any such referrals, please consider sharing your evidence with the PSA to support its work and to help build the case for change.
HOW TO CONTACT THE PSA:
Professional Standards Authority
157 -197 Buckingham Palace Road
With regard to an assertion by the PSA that professional regulators cannot take action unless a hostile referral can be proven to be malicious, I have suggested that the least that can be done is that a record is kept of referrals to regulators that result in no further action, and that employers are given feedback on their overall performance. I have suggested that such employers should be reviewed if they do not improve. I have also asked that data on outcomes of referral by specific employers should be tracked and available. If an organisation has a higher than average proportion of referrals that result in no further action, this fact should be public and transparently available to registrants.
The correspondence with the PSA is provided below in the appendix.
Better UK whistleblowing law would also help stop laxity by regulators in managing reprisal.
Please sign the petition for reform of UK whistleblowing law:
CORRESPONDENCE WITH PROFESSIONAL STANDARDS AUTHORITY ON ROGUE EMPLOYERS
From: minh alexander <REDACTED>
Subject: Identification and tracking of rogue employers who make vexatious, malicious and or dishonest referrals to professional regulators
Date: 2 September 2020 at 11:39:13 BST
To: David Martin <REDACTED>
Cc: Alan Clamp <REDACTED.
Concerns and Appointments Officer
Professional Standards Authority
2 September 2020
Identification and tracking of rogue employers who make vexatious, malicious and or dishonest referrals to professional regulators
Many thanks for your helpful reply, and for welcoming any evidence from health and care professionals who have been subject to abusive referrals for the purposes of victimisation.
I write with respect to one point arising.
I understand your arguments that proving maliciousness is hard:
“We can also understand if regulators were cautious about definitively labelling referrals/referrers as malicious as it is not always easy to determine whether a referral has been made in good or bad faith. Regulators would also not wish to place barriers to concerns being raised. Moreover, establishing whether a referral is malicious is not the regulator’s main function when carrying out their duty to investigate concerns about fitness to practise. If they find there is no case to answer about a registrant their investigation will cease and while they may have doubts about the referral, the reasons for it and even communicate these doubts to the referrer, this may stop short of proof. The regulators have no remit to pursue such concerns further.”
However, I do think more could be done by professional regulators on a systemic level .
If regulators tracked referral outcomes by referring employer, that would show variation in outcomes. I think the least that could be done is for professional regulators to feedback to employers who may be outliers, and question them about their governance. Arguably, persistent outliers should be subject to formal review. Indeed, I thought that was partly the role of local liaison officers who work with employers to reduce the number of unwarranted referrals.
I accept that you do not wish to discourage employers from raising concerns. However, a balance is needed in not allowing so many unwarranted referrals that frontline staff work in an atmosphere of intimidation, which itself prevents just culture and the raising of concerns. I am aware of so many frontline staff who have described the highly traumatic experience of being referred without just cause.
If the PSA is not already aware of it, even when NHS employers cannot make something stick on an employee, they will sometimes rid themselves of unwanted staff through a loophole known as SOSR:
Some NHS organisations will go as far victimising those with a duty to be independent, such as Freedom To Speak Up Guardians and investigators, if they do not dance to an employer’s tune.
I think it is important that data on the outcomes of Fitness to Practice referrals by employing organisation should be published and transparent to registrants, especially those who have the misfortune of being referred without good cause.
Would the PSA help ensure that such data is available to frontline staff?
At present, I am aware that some employers claim not to even hold collated data on the outcomes of their referrals. If that is true, they cannot be reflecting much about their practices or trying to improve.
With best wishes,
Dr Minh Alexander
Cc Alan Clamp
From: David Martin <REDACTED.
Subject: RE: Professional Standards Authority
Date: 2 September 2020 at 09:59:29 BST
To: Minh Alexander <REDACTED>
Dear Dr Alexander
Thank you again for your email to Alan Clamp, Chief Executive of the Professional Standards Authority (the Authority).
You wrote to raise your concerns about whether professional regulators are doing enough to deter employers from using the fitness to practise process to make malicious, vexatious or dishonest referrals. In particular you were concerned when such referrals are made to silence whistleblowers. You were further concerned following the response of the Health and Care Professions Council (the HCPC) to your FOI request. In this request you asked if the HCPC had a policy for dealing with vexatious referrals from employers and was able to track how many such referrals it received. The HCPC informed you that it did not have a policy and could not tell you how many referrals of this type it received.
You asked the Authority what we expect regulators to have in place to manage employers who make malicious referrals.
We acknowledge it is important that regulators take into account contextual factors when considering concerns raised about registrants, including the status of a registrant as a whistleblower. Whistleblowers play a vital role in protecting the public from harm and should themselves be protected from the effects of such retaliatory actions.
We also recognise that regulators receiving referrals may have a difficult task ensuring that they act at all times in line with their overarching duty of public protection. That duty requires they must thoroughly investigate any issues of concern brought to them, including those about whistleblowers. To do so with due fairness requires them to recognise those contextual factors, in particular the status of a whistleblower.
We can also understand if regulators were cautious about definitively labelling referrals/referrers as malicious as it is not always easy to determine whether a referral has been made in good or bad faith. Regulators would also not wish to place barriers to concerns being raised. Moreover, establishing whether a referral is malicious is not the regulator’s main function when carrying out their duty to investigate concerns about fitness to practise. If they find there is no case to answer about a registrant their investigation will cease and while they may have doubts about the referral, the reasons for it and even communicate these doubts to the referrer, this may stop short of proof. The regulators have no remit to pursue such concerns further.
Nevertheless, we would consider any instance when a regulator establishes that a referral by an employer was malicious to be of the utmost seriousness. We would expect the regulator to fulfil its duty to share information with the appropriate systems regulator on each occasion, for example in England with the CQC. They should also consider if the individuals concerned with the referral should be subject to its own fitness to practise process or that of another regulator and make any necessary referral in order that any malicious behaviour is fully investigated.
Our focus is also on how well the regulators fulfil their role to protect the public. In doing so we expect regulators to carry out their own independent consideration of the material referred to them. In the past we have been critical when we considered regulators were relying too much on employers’ own investigations. I should say this has also been in circumstances where the evidence provided by the employer has been in favour of its registrants who have concerns raised about them by other parties.
I will share your concerns as feedback to my colleagues within the performance review team and this will give us the opportunity to consider the approach taken across the regulators. We would welcome seeing evidence from any party at any time about employers using the fitness to practise process to victimise staff. The regulators’ handling of such cases would certainly be of interest to us for our reviews of their performance. I also note your reference to the GMC’s procedural safeguards to protect whistleblowers. How well this is working is something we may consider through our performance review.
I hope this reply is helpful, but please do not hesitate to let me know if you would like any further information about our role and approach.
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LETTER 21 AUGUST 2020:
Professional Standards Authority
21 August 2020
Identification and tracking of rogue employers who make vexatious, malicious and or dishonest referrals to professional regulators
I previously exchanged correspondence with your predecessor Harry Cayton after Sir Antony Hooper reported on his review for the GMC. This review was on how to fairly treat and better Safeguard whistleblowers who may be unjustly ignored, referred or have their re-validation threatened by employers as a negotiating tool and or punishment:
The handling by the General Medical Council of cases involving whistleblowers. Report by the Right Honourable Sir Anthony Hooper to the General Medical Council presented on the 19th March 2015
As I am sure you know, the GMC has now introduced some procedural safeguards to make referrers – senior doctors – declare whether the doctor being referred to the GMC is a whistleblower.
I am uncertain of how effectively the GMC is using its new procedures and the intelligence derived from these procedures.
I am certainly concerned that the GMC remains too remote/ passive and not proactive enough in responding to complaints about whistleblower victimisation by senior registrants such as Medical Directors.
I now write on a broad issue of whether professional regulators are doing enough to deter bad employers from abusing process by making malicious, vexatious and or dishonest referrals.
If registrants are scrutinised, it only seems fair to ensure the integrity of the processes of scrutiny, especially given the great power imbalance between employers and workers.
I was very concerned to receive an FOI response from the Health and Care Professions Council (HCPC) reference FR06782, today, which indicated:
We do not collate and track data on vexatious, malicious and/or dishonest referrals by employers.
We do not have a policy or equivalent for handling employer referrals which we find are vexatious, malicious and/or dishonest.
To determine if the HCPC had ever taken action against registrants who have made vexatious, malicious or dishonest referrals would require us to manually review each fitness to practise case. This would exceed the appropriate cost limit under Section 12 of the FOIA, that being £450.”
I made the above FOI enquiry partly because I am aware that whistleblowers have been maliciously referred to the HCPC.
I cannot see from the above response how the HCPC could hope to identify and manage rogue employers who repeatedly bully and abuse power.
If there is no system in place whatsoever to spot, sanction and deter serious abuse of professional registration mechanisms by employers, that seems in effect to amount to carte blanche for arbitrary employer behaviour and misconduct.
Any injustice and bullying is toxic to safety culture, but it is particularly serious when such behaviour is tolerated against whistleblowers.
I wonder if the PSA could advise on what it expects to be in place by professional regulators to manage rogue employers and their toxic effect on just culture and safety culture.
Many thanks and best wishes,
Dr Minh Alexander
NHS whistleblower and former consultant psychiatrist
By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 24 August 2020
Summary: NHS whistleblowers’ confidential case files, kept by NHS trust Freedom To Speak Up Guardians are being stored on insecure IT systems, an investigation by Computer Weekly has concluded. I am aware of evidence of NHS managers’ unauthorised access to such files and Computer Weekly gives an example. Some NHS staff are placing themselves at serious risk by whistleblowing when their confidentiality is not guaranteed, or may be actively undermined with hostile intent. Freedom To Speak Up Guardians may be vulnerable as whistleblowers in their own right, as part of their role in pressing organisations to act on poor whistleblowing governance. They should be aware that their confidential files may not be secure, and that the advice they give to whistleblowers may lead to their own victimisation by employers. The National Guardian should do much more to prevent abuses by employers, but in its real role as a political firewall, it is very unlikely that it will genuinely protect whistleblowers and Freedom To Speak Up Guardians. In fact, the National Guardian herself breached the confidentiality of a doctor who sought her help, and whose concerns were subsequently vindicated by external review. NHS regulators have also been known to breach whistleblower confidentiality.
NHS whistleblowers need to weigh all the risks very carefully, and consider if they should make direct disclosures to the media on an unnamed basis, to avoid reprisal and cover ups of their concerns and consequent risks to the public.
After learning of instances of breached NHS whistleblower confidentiality, including unauthorised access by senior managers to whistleblowers’ digital files kept by local NHS trust Freedom To Speak Up Guardians, Karl Flinders, a journalist at Computer Weekly has investigated.
As a specialist IT journalist, Karl Flinders has looked into the matter and approached the National Freedom To Speak Up Guardian’s Office, NHS Improvement and relevant tech insiders.
He has concluded that highly sensitive whistleblower personal data is being held insecurely by NHS organisations.
His report covers the case of a former trust Freedom To Speak Up Guardian who shockingly discovered that their confidential files on whistleblowers had been improperly accessed by trust management: a senior manager under investigation very improperly looked at confidential whistleblowing files about herself.
Deplorably, the National Guardian’s Office is not proactive in ensuring that employers adhere to the standards that it issues, including standards on whistleblower confidentiality.
All this has massive implications and it only throws more serious doubt on the weak internal NHS whistleblowing mechanisms, the misnamed Freedom To Speak Up mechanism, that the government wants to palm off onto NHS workers.
Several whistleblowers had already complained to me about breach of confidentiality by the National Guardian’s Office including by the National Guardian herself.
Whistleblowers all too often learn that one of the first things that employers do when they put a whistleblower on ‘gardening leave’ or suspend them, is that employers:
Shut off the individual’s access to email;
Scour the whistleblower’s emails for any information about their whistleblowing, to identify any allies who need to be dealt with, or information which can be abused for manufacturing trumped up charges
In the case of Addenbrookes neuropsychologist Narinder Kapur, who raised safe staffing issues, the employing NHS trust covertly cloned his computer for interrogation:
“The tribunal at Bury St Edmunds, Suffolk, heard that Addenbrooke’s management ordered his computer hard drives be “cloned” in an investigation carried out “behind Dr Kapur’s back”.”
It is therefore horrifying but not surprising to learn that some managers will snoop electronically on whistleblowers’ case files.
Such snooping poses all sorts of dangers to both whistleblowers and the public, increasing the chances of victimisation, cover ups and corrupt destruction of evidence.
During the COVID-19 pandemic the levels of suppression and reprisal against staff have been so bad, and the government has behaved in such a bullying and corrupt way, I have felt concerned that conventional routes of whistling would be too unsafe for both staff and the public.
The concerns about confidentiality, possible management snooping and insecure IT add to this.
Each whistleblower’s circumstances, preferences and personal risk assessment are unique. The decision to whistleblow externally is not taken lightly as the legal tests for doing so are more exacting, especially if the disclosures are made to non-prescribed bodies. They are summarised here.
But all told, in my view the safest looking route of disclosure for whistleblowers at present is to disclose on an unnamed basis directly to the media. If you decide to do this after weighing everything up, it is also important to choose your media outlet carefully. Research any biases and look for objectivity and professionalism.
Lastly, this further, major scandal brings us back to the desperate need for reform of UK whistleblowing law, to prevent such grave abuses.
Please sign and share the petition for law reform if you have not done so already.
By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 25 August 2020
The CQC has shamed itself deeply once more in its failure to raise the alarm quickly enough on COVID-19 deaths of highly vulnerable people in residential care or who receive care in their own homes from domiciliary care services.
CQC is by law notified of the deaths of all users receiving care from regulated providers:
Instead, it took CQC months after the World Health Organisation warnings of COVID-19 threat to even ask care home and domiciliary care providers to report whether COVID-19 was a factor in service user deaths – the regulator only did so on 9 April 2020, and the reporting obligation has only been in force since 10 April 2020.
There has been less coverage of the failure to protect domiciliary care service users, even though peripatetic care staff pose an obvious virus transmission risk.
I asked the CQC to provide statistics on COVID-19 deaths of people who receive care at home, and evidence that the CQC is actively tracking and learning from these events.
A delayed FOI response has been issued which reveals that as of 20 August 2020:
There have been 892 confirmed or suspected COVID-19 service user deaths
474 domiciliary care providers had notified CQC of at least one confirmed or suspected COVID-19 death
Some care providers did not report any such deaths
One care provider reported 17 confirmed or suspected COVID-19 service user deaths, which is the highest number
Of great concern, the CQC has not produced actual written evidence of analysis of trends and lessons learned. It only says that it is working with ONS.
The regulator cannot or will not even say if any domiciliary care service users died or may have died of COVID-19 as a result transmission from care workers.
The FOI response is reproduced below in the appendix.
I will pass the information to parliament to feed into both scrutiny of the government’s response to the COVID-19 crisis and the CQC’s regular accountability hearings with the Health and Social Care Committee and the Public Accounts Committee.
The CQC is an example of UK regulatory capture and failure to properly champion the public interest, or importantly, to defend the rights of vulnerable people.
It continues to ignore and silence whistleblowers, including its own whistleblowers, with impunity partly because UK whistleblowing law is so weak.
Please sign the petition and share to call for law reform to make UK whistleblowing law fit for purpose and to serve the interests of the public and not the powerful.
The Healthcare Safety Investigation Branch has today published an intelligence report which reveals that it was informed of a case of a vulnerable service user being fatally infected with COVID-19 by domiciliary care workers who did not wear PPE during the pandemic:
We are able to run reports from the information we receive in the notifications, however we don’t have a standing spreadsheet containing the information at any one time. We would however be able to pull a report to collate the specific data on numbers of notifications that we required for a particular purpose.
Providers are only required under the regulation to submit a notification to CQC where:
This report is based upon regulation 16 notifications received by CQC between 10 April and 19 June. As of that date, 819 deaths of people who use domiciliary care service had been reported to CQC as being confirmed or suspected to have resulted from coronavirus.
Since that data was published, we have been reviewing how we register hospices which provide community services (to support people with end-of-life care in their own homes). This work is ongoing but three of these services are no longer reported as domiciliary care services in the figures provided in this response.
As of 20 August, 892 deaths of people who use domiciliary care services had been notified by providers to CQC as being confirmed or suspected to have resulted from coronavirus.
3/ The total number of domiciliary care providers who have reported COVID-19 deaths of service users to CQC since the start of the pandemic
As of 20 August, 474 domiciliary care providers had notified CQC of at least one death that they recorded as being either confirmed or suspected of resulting from coronavirus.
4/ The lowest and the highest number of COVID-19 deaths of service users notified to CQC by individual domiciliary care providers since the start of the pandemic (ie. the range in number of COVID-19 deaths reported by domiciliary care providers)
As of 20 August, the lowest number of notifications received from any individual domiciliary care services is 0.
308 providers had each notified CQC of a single death.
The highest number (other than for a hospice that provides community services) is 17. This figure relates to a provider that has a number of services (locations) in different areas. The highest number for a single service is 8.
The majority of deaths reported by domiciliary care services as being related to Covid-19 occurred in hospital.
5/ Has CQC reviewed the pattern of notified COVID-19 deaths of service users who receive domiciliary care?
If so, please share a copy of any related report and or findings
CQC has supported ONS in publication of the report linked above. We are monitoring notification data on an ongoing basis and are working with provider organisations and with other organisations to understand the data. CQC has not produced findings or a report.
6/ What evidence does CQC hold on actual or potential COVID-19 transmission by domiciliary care workers to vulnerable service users?
7/ Please advice in summary of the number of confirmed or suspected instances of transmission of COVID-19 by domicilary care staff to domiciliary care service users, of which CQC is aware
CQC does not hold the information requested in questions 6 and 7.
Whistleblower colleagues and I have set up a Westminster petition calling for much better protection of whistleblowers and their valuable disclosures, which protect us all.
UK whistleblowing law is very weak and favours employers and corporate interests, not the public nor whistleblowers. It allows cover ups all the time, which endangers public safety and allows corruption to flourish.
We would be most grateful if you would sign and share with others, to make the government respond.
In 2018 the twentieth anniversary of the notoriously weak UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA), we were invited by Dr Philippa Whitford to produce a concise advisory paper on PIDA’s core weaknesses. This was to inform debate and feed into parliamentary work on this topic. This is the paper that we wrote:
As evident from this transcript of the parliamentary debate, the UK government’s response was tepid.
Indeed, the government had already expressed scepticism about the new proposed EU whistleblowing directive, which was since become law.
Although the EU directive crucially requires the proper handling of whistleblowers’ disclosures, which UK law indefensibly does not, our government absurdly suggested in a memo to the parliamentary European Scrutiny Committee that UK whistleblowing law was already strong.
The new Public Interest Disclosure (Protection) Bill
Two years on, the parliamentary activity that started in 2018 has culminated in the production of a Bill, led by Dr Philippa Whitford and supported by Peter Grant, Alison Thewliss, Andrew Mitchell, Dr Julian Lewis, Kevin Hollinrake and Wera Hobhouse to model potential improvements that could be made in UK whistleblowing law and governance:
The Bill has been developed with input from a variety of parties.
It calls for repeal of PIDA and provides a new freestanding law. It has wider scope and breaks away from the confines of employment law where PIDA is situated, seriously restricting PIDA’s efficacy.
The Bill contains several essential elements of good practice that whistleblowers have been calling for, such as:
Compelling the proper handling and follow up on whistleblowers’ concerns and the correction of wrongdoing
Criminal sanctions for individuals for harming whistleblowers or failing to act appropriately upon their disclosures, to provide meaningful deterrence of victimisation and suppression
Wider definitions of detriment which capture some of the subtler means by which whistleblowers may be persecuted
An expeditious mechanism for redress of harm to whistleblowers that does not require them to face the risk and trauma of litigation, as is the case under PIDA
Legal recognition that third parties such as close relatives of a whistleblower can suffer detriment, and should also be entitled to redress
The Bill establishes a principle of fair compensation for harm and loss but specifically precludes rewards for whistleblowing, to protect credibility in whistleblowing
The introduction of the concept of ‘moral harassment’ or mobbing, currently recognised under EU law, and an issue that is important in many whistleblowing cases
A central body to enforce better whistleblowing governance by employers and bodies such as regulators
The Bill is a constructive step forwards and a sound reference point for future debate on UK whistleblowing governance. It represents a better offer than PIDA.
Independence of the proposed whistleblowing body
Our one key reservation is the independence of the proposed central whistleblowing body, which the new Bill terms “the Commission”.
As currently drafted, the Bill states that the body should be independent, but implies that the Commission will be under the purview of a government department and gives the relevant Secretary of State powers to amend the Commission’s regulations.
We have advised against any such government control and maintain our position that guarding the independence of any whistleblowing body is a mission-critical issue.
A great deal of whistleblowing, especially in the public sector, is ultimately whistleblowing about government policy and its effects. Government control over a whistleblowing body sets up instant conflict of interest.
As per our original 2018 paper, we not only believe that a whistleblowing body should be constituted to be independent, but that specific procedural safeguards are required to ensure that is the case. In our view new legislation should include safeguards of regular parliamentary scrutiny and intermittent review and external audit.
Whistleblowing bodies are easily captured, and much vigilance is needed to prevent this.
The upheaval of the COVID-19 crisis has revealed the ugliness of what can happen when a government’s political interests collide with the public interest. Government economy with the truth and disinformation are currently reported and evident on a daily basis. Public servants are whistleblowing much more frequently to the media. Trust in conventional channels of reporting has clearly been shaken, with good reason.
The political interest of any government of the day will always be a threat to transparency and to whistleblowers.
An important recent High Court judgment against the Secretary of State for Justice included a startling finding that the government interfered with the Criminal Cases Review Commission. It did so by abusing its appointment powers, in not renewing the tenure of a Commission Non Executive Director who had been oppositional to the government.
The High Court concluded “This was political interference”:
“63. A submission dated 19 July 2018 was prepared by the ALB CoE for the Minister (Edward Argar, again). The name of the author is redacted on the document. But the document was cleared by Ms Wedge and was copied to her when sent. This was the submission seeking a final decision on the proposed recruitment of up to six new commissioners on 3-year fee-paid terms. The issue of extension of X’s term was addressed in that same submission. The Chair’s recommendation of a temporary extension of X’s tenure and the mixed views on his performance were noted. The submission continued (emphasis added):
“Given the concerns about performance (and a lack of any more recent information about whether they have been addressed) and the fact that we are aiming to conclude the new campaign by early December in any event, we suggested that you do not agree to either a re-appointment or short extension but instead invite [X] to apply for the forthcoming campaign …
We are also aware that [X] has been amongst the cadre of Commissioners seeking to resist further changes to governance/working arrangements. We consider that refusing the re-appointment request will provide the new Chair of the Commission with the opportunity to assess X’s skills and strengths afresh against the job description and criteria for the new campaign as well as against a fresh applicant field. Opening the vacancy resulting from the end of [X’s] tenure will also provide an opportunity to seek to improve the diversity of the commissioners, something which the CCRC is committed to doing.”
64. This is a troubling passage. At the hearing, Mr Pobjoy, counsel for the SoS, accepted that the highlighted passage was, in his words, “not appropriate” for inclusion in the ministerial submission. Ms Wedge’s evidence skirts around this passage, so it was not until the hearing that the SoS acknowledged the problem in any way. Any fair minded and informed observer reading this submission would conclude that the Minister was being invited to reject the Chair’s recommendation that X’s tenure should be extended, albeit only temporarily, for a number of reasons including because X did not support MoJ’s proposed changes. It was not appropriate for the Minister to be advised in this way, or for the Minister to have regard to the fact that X had previously resistedchanges suggested by MoJ when considering his temporary re-appointment. This was political interference. It was inconsistent with the Governance Code.
65. The Minister did not extend X’s tenure, despite the Chair’s recommendation that he should be extended temporarily. Ms Wedge says this was because at the time it was anticipated that the new recruitment campaign would be concluded within a couple of months. This rather misses the point. The Chair had recommended extension pending that recruitment campaign.”
The Law Gazette reported on the government’s scandalous behaviour:
As the backstop against miscarriages of justice, the Criminal Cases Review Commission is an extremely important quasi-judicial body. The High Court’s finding is an indictment of the health of our democracy.
Such abuse could easily apply to a whistleblowing Commission, and it is crucial that no such government leverage can be applied to a body that is tasked with holding the government to account.
Whistleblowers have never been needed more, but the risks that they face are commensurately greater in the current climate and the strains imposed by the pandemic.
We have set up a Westminster petition calling for replacement of PIDA and strengthening of protections for whistleblowers and the public interest and establishment of an independent whistleblowing parliamentary body. We have cited the new Public Interest Disclosure (Protection) Bill as a starting point for debate:
“Replace UK whistleblowing law, and protect whistleblowers and the public
The Government should reform whistleblowing law to: require disclosures be acted upon and whistleblowers protected, with criminal and civil penalties for organisations and individuals failing to do so, establish an independent parliamentary body on whistleblowing, and provide easy access to redress.
We believe the Public Interest Disclosure Act fails to protect whistleblowers, the public and the public purse. It doesn’t compel protection, nor ensure investigation of disclosures or correction of wrongdoing. It doesn’t prevent cover ups, and gives inadequate redress after serious, irreparable harm, and can lead to wasteful, destructive litigation. Only 3% of cases succeed at hearing.
A new whistleblowing Bill by Dr Philippa Whitford MP contains several good practice elements which can inform debate on replacing PIDA.”
We are aware that change will be unlikely in the short term, and recognise the project to reform the law is a work in progress that will need sustained effort. We hope that you will support the petition and help keep the debate going.
This is the link to the petition if you would like to sign it:
Some other discussion points on the new Public Interest Disclosure (Protection) Bill:
The Bill implicitly defines a duty to protect whistleblowers in that the protection of whistleblowers is an explicit duty of the Commission which sets whistleblowing standards for others
However, we advise that an explicit, proactive, pre-detriment legal duty by employers and public authorities to protect whistleblowers should be added.
This would be consistent with the preventative principle set out in the Bill to reduce conflict and harm.
We believe the Bill could be improved with the addition of criminal sanction for not correcting wrongdoing (the Bill currently provides criminal sanction for failure to adequately investigate protected disclosures).
We suggest that the definition of detriment should include breaching or attempting to breach a whistleblower’s anonymity, and inappropriate gagging (see below).
Could the Bill’s section on NDAs be strengthened?
We believe that defining and making inappropriate gagging a legally recognised detriment would strengthen protections against whistleblowers being silenced.
We have also recommended that ‘super gags’, confidentiality clauses which hide even the existence of settlement agreements, should be banned.
What is a just maximum prison sentence with regard to any new whistleblowing law’s criminal provisions?
Should particularly egregious acts and omissions in whistleblowing governance that result in mass harm be subject to longer sentences than 18 months?
Australian corporate whistleblowing legislation provides prison sentences up to two years.
The UK Health and Safety (Offences) Act 2008 provides for prison sentences up to two years.
Gross Negligence Manslaughter has a sentence range of 1-18 years custody and potentially attracts a life sentence, “a blatant disregard for a very high risk of death” contributing to the definition of “high culpability”.
We advise that there is a mechanism for whistleblowers to access legal remedy as a last resort, in the event that redress via the whistleblowing body fails.
This would mirror US arrangements which allow whistleblowers to litigate if other means of redress are not satisfactory.
Does the Bill need to be adjusted to ensure that any new whistleblowing body has realistic focus and workload, especially when starting up?
International experience is that too wide a scope initially can reduce effectiveness.
Our concerns in regards to the width of the Bill’s scope relate in part to the Bill’s very wide definition of who is a whistleblower. For example, the list of parties defined as a whistleblower includes:
“(x) an observer or passer-by; or
(y) any other person.”
This echoes proposals by the controversial Whistleblowing APPG to accept anybody as a whistleblower. Such an arrangement would pave the way for deputisation of members of the public under US style bounty hunting laws.
We agree with the wider definition of whistleblowing to include groups particularly relevant to public safety and the public interest, such as patients, their families and foster carers looking after very vulnerable children, who currently may suffer retaliatory economic harm if they speak up but are not employees and thus are not protected by current law.
However, we feel the scope of the law and of any whistleblowing body should not be widened to the point of over burdening the system and affecting effectiveness.
The Bill is currently drafted to include close relatives only, and current law does not include co-habitees as “close relatives”.
We suggest that the definition of third parties who suffer detriment alongside whistleblowers should at least include co-habitees, if not others.
Emphasising the critical need for any whistleblowing body to be fully independent of the government, the case of a consultant anaesthetist Dr Julian Campbell has raised very serious questions about the NHS National Guardian’s approach to whistleblower confidentiality and her impartiality. She contacted the Freedom To Speak Up Guardian at his employing trust without his consent, causing him great distress because the trust Speak Up Guardian is married to the medical director about whom he had raised concerns: