Sir Robert Francis’ Review of Whistleblowing Processes in the NHS – Joanna Glynn QC

16 February 2015 by Guest Contributor

It has long been recognised that enabling healthcare professionals to speak up about concerns at work is a key element of the promotion of patient safety. The Final Report of the Freedom to Speak Up review of whistleblowing processes in the NHS was published on 11 February 2015.

Sir Robert Francis recommends the implementation of twenty “Principles” and “Actions” by organisations which provide NHS healthcare and by professional and systems regulators. These measures are to address “an urgent need for system wide action,” in spite of some positive developments in the handling of whistleblowing processes since the February 2013 report of the public inquiry into the failings at the Mid Staffordshire NHS Foundation Trust.

The Principles and Actions appear under five “overarching themes” which are addressed at chapters 5-9 of the 222 page report, each chapter describing the Principles that should be followed to bring about the change required, and the Actions which follow from each. Annex A to the report is a summary of good practice which cross refers to the Principles.

Theme 1 – the need for culture change (Principles 1-6)

 Under this theme heading the report sets out six Principles and connected Actions. It identifies the need for a culture of safety and learning (Principle 1), rather than one of blame, and the need for NHS boards to monitor and publish progress in this regard; system regulators should regard departure from good practice, as identified in the report, as relevant to whether an organisation is safe and well led. There needs to be a culture in which raising concerns (Principle 2) is seen at all levels of the organization as a positive activity. Responsibility for policy and practice, being a safety issue, should rest with the executive board member who has responsibility for safety and quality, rather than with human resources. A standard integrated policy and a common procedure for employees to formally report incidents and raise concerns should be produced by NHS England, and NHS TDA and Monitor.

There were more references to bullying in written contributions to the Review than to any other problem. To achieve a culture free from bullying (Principle 3), the report recommends that all leaders and managers in NHS organizations should make it clear that bullying will not be tolerated; they should be given regular training on how to address and prevent bullying. Evidence on the prevalence of bullying should be part of a regulator’s assessment of the leadership of an organisation. Any evidence of condoning or covering up bullying should be taken into consideration when assessing whether someone is a fit and proper person to hold a post at director level in an NHS organisation. There must be a culture of visible leadership (Principle 4), in which leaders at all levels, but particularly at board level, are accessible and demonstrate the importance and value that they attach to hearing from people at all levels. Employers should show that they value staff who raise concerns (Principle 5), and a culture of reflective practice (Principle 6) should be facilitated throughout the NHS, where staff explore issues, analyse systems, and where problems or best practice is shared.

Theme 2 – the need for improved handling of cases (Principles 7-9)

Principles 7-9 include the need to provide structures to facilitate both informal and formal raising and resolution of concerns, along with the provisions of prompt, swift, proportionate, and blame free investigation (sometimes but not always by external investigators) to establish the facts. On balance Sir Robert was persuaded that anonymous concerns do have an important role to play and should be treated as formal concerns. At an early stage consideration should be given to deploying mediation and dispute resolution techniques before positions become entrenched or relationships break down irretrievably.

Theme 3 – the need for measures to support good practice (Principles 10-17)

The provision of support to those raising concerns is central to the report. A key recommendation is the introduction of a Freedom to Speak Up Guardian (Principle 11) in every NHS organisation to provide genuinely independent advice to staff and to ensure that cases are handled appropriately. There should also be a nominated non-executive director, at least one nominated executive director, and one nominated manager in each department to receive reports of concerns. Staff should have access to a range of other sources of support, including a nominated independent external organization such as the Whistleblowing Helpline, and psychological support. Guidance on the requirement for support should be issued by NHS England, NHS TDA and Monitor. The provision of support is recommended to those who have difficulty finding employment in the NHS for reasons related to making a protected disclosure (as defined by s.43B of the Employment Rights Act 1996), and about whom there are no justifiable performance concerns (Principle 12). Principle 10 concerns the requirement for every NHS organization to provide training for every member of staff about raising concerns and handling them. Principles 13 and 14 address the need for transparency in the way all NHS organisations exercise their responsibilities and the need to hold everyone accountable for adopting fair, honest and open practices when raising or receiving and handling concerns. Principle 15 concerns external review and the requirement for an Independent National Officer resourced by the national systems regulators, whose functions will include the review of the handling of concerns, advising NHS organisations about taking appropriate action, supporting the Freedom to Speak Up Guardians and providing national leadership. This role is specifically not to take over the investigation of concerns, nor is it a means whereby a whistleblower can circumvent existing processes for raising concerns.

The lack of co-ordination between the systems and professional regulators in their approach to whistleblowing is addressed by Principle 16; the systems regulators should take regulatory action when an NHS organisation’s record in handling concerns is poor, and professional regulators should be aware of the GMC’s independent review of how doctors who raise concerns are treated and how they might be supported. Sir Robert highlights the requirement for professional regulators to be alert to the possibility of retaliatory referrals where the referee is someone who has raised concerns within an NHS organisation. NHS organisations that successfully support good practice should be recognized by way of their CQC assessment or by some other means (Principle 17).

Theme 4 – the need for particular measures for vulnerable groups (Principles 18 and 19)

Locums and agency and bank staff should have access to the same support and procedures as permanent staff, because they may bring objectivity and good practice from other organisations. Staff from black and minority ethnic backgrounds who raise concerns might need action over and above what is in the report to support and protect them. Students and trainees should also be subject to all the principles in the report (with necessary adaptations) because they can help to spread good practice when they move between placements. Their training establishments should provide training on raising and handling concerns.

The Principles should also apply to primary care, where the options open to staff who wish to raise concerns have been overlooked since the primary care trusts were abolished by the Health and Social Care Act 2012. The report recommends that NHS England should include in its contractual terms for primary medical services standards for empowering and protecting staff to enable them to raise concerns freely. In regulating registered primary care services the CQC should have regard to the extent to which they comply with the principles in the report.

Theme 5 – the need extend the legal protection currently provided by the relevant legislation

The report highlights the limited effectiveness of current legislation which theoretically provides protection for whistleblowers. Currently, where a worker makes a protected disclosure, he or she has a right not to be subjected to any detriment by his employer for making that disclosure. At best this protection provides a series of remedies after detriment, including loss of employment, has been suffered. Even these remedies are hard to achieve and often too late to be meaningful. Furthermore the legislation applies only to “workers” as defined by the Public Interest Disclosure Act of 1998, thus providing no protection against, for example, discrimination in recruitment, and is only now being extended to include student nurses.

Sir Robert states that his priority is not amendment of the law, but to address the culture that currently exists and to improve the way concerns are handled, so that it is not necessary to seek redress through the law. Nevertheless he recommends that some NHS bodies which are not currently prescribed persons to whom disclosures could be made, should be added to the list. These include an NHS England, CCGs and Local Education and Training Boards. He also welcomes the intention to extend the scope of legislation to include student nurses and student midwives.

The role of the Secretary of State for Health

At the end of the report (para.10.10) Sir Robert says that there is“a great deal to be done by well-led organisations and regulators to bring to life the Principles in this report. It will be for the Secretary of State for Health to ensure that the momentum is maintained to achieve the required culture change throughout the NHS.” He recommends that the Secretary of State should review at least annually the progress made in the implementation of those points and the performance of the NHS in handling concerns, and the treatment of those who raise them, and that he should report to Parliament.

Government Reaction

Jeremy Hunt, the current Secretary of State for Health for England, has indicated that he accepts all the actions recommended in Sir Robert’s report; where appropriate, further consultation will be undertaken to establish how these actions can be implemented.  He has made a commitment to write to every NHS trust chair to reinforce the importance of staff being able to discuss concerns openly in teams, and for appropriate actions to be taken. He stated that each organisation should act now to appoint a local guardian who has a direct reporting line to the chief executive, to whom staff can raise concerns.

Joanna Glynn QC of 1 Crown Office Row specialises in the field of professional discipline and professional regulation (health care, legal and financial).

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