Memorandum submitted jointly by Professor
Michael Preston-Shoot (Dean, Faculty of Health and Social Sciences,
University of Bedfordshire) and Roger Kline (on behalf of Aspect,
the Association of Professionals in Education and Children's Trusts)
SUMMARY
— At both qualifying and post-qualifying
levels in academic curricula, students are taught the standards
of decision-making required by administrative law, powers and
duties in legislation and amplified in government guidance, and
human rights.— Research evidence in social work (as in the
health service) indicates that practice assessors and managers
often attach greater importance to agency policies and procedures,
rather than legal and moral duties.— Pressure on resources
leads managers and staff to constantly seek to adjust service
provision to inadequate funding, often at the expense of the requirements
for public involvement and accountability built into government
policy. In so doing, they undermine legislation and guidance,
service user needs, and compliance with the GSCC Code of Practice.
— Practical steps to ensure a change of
culture linked to robust supervision arrangements are required
since the current processes, including whistleblowing, are ineffective,
notably for newly qualified social workers.
INTRODUCTION
We welcome this opportunity to present evidence
about social work education and practice to the Committee. It
is derived from our experience as a social work practitioner,
educator and researcher (MPS) and as a trade union official representing
professional staff (RK). It should be read in conjunction with
submissions from the Joint University Council Social Work Education
Committee and the Association of Professors of Social Work. One
of us (MPS) is a member of both organisations and Immediate Past
Chair of the former. Our focus here is that, when considering
the outcomes of social work education and practice, a key aspect
of the practice context is often overlooked, which provides half
of the qualifying degree. In seeking to improve outcomes for vulnerable
adults and for children in need or at risk, searching questions
should be prompted by judicial review evidence, Ombudsman and
other inquiries and narratives from service users and carers.
MESSAGES FROM
THE NHS
1. Professor Ian Kennedy has described the
culture that drove the sole Bristol Royal Infirmary whistleblower
to emigrate to Australia:
"If the culture of openness between the
NHS and the public has to change, so too does the internal culture
within the NHS, so as to allow for greater openness with and between
staff. Currently, there continues to be a sense among the workforce
that they cannot discuss openly matters of concern relating to
the care of patients and the conduct of fellow workers. There
is a real fear among junior staff (particularly amongst junior
doctors and nurses) that to comment on colleagues, particularly
consultants, is to endanger their future work prospects. The junior
needs a reference and a recommendation; nurses want to keep their
jobs. This is a powerful motive for keeping quiet."(1)
2. The Public Interest Disclosure Act 1998
sought to give statutory protection to whistleblowers. Each NHS
employer is required to have an internal Freedom of Speech procedure
to enable staff to whistleblow. The Healthcare Commission was
established as a new powerful inspectorate. Research evidence
questions the Act's effectiveness.(2)
3. The professional regulatory bodies, notably
the GMC and NMC, explicitly require registrants to draw attention
to concerns about the environment of care in terms that are similar
to those of the General Social Care Council Code of Practice.
4. Yet, despite this framework, patients
died at Maidstone Hospital NHS Trust and at Stafford General Hospital.
The Healthcare Commission report on Stafford General reported
deficiencies at "virtually every stage" of emergency
care as managers pursued targets to the detriment of patient care.
At Maidstone Hospital, the Commission said a "litany"
of errors in infection control had caused the "avoidable
tragedy", with nurses too rushed to wash hands and leaving
patients to lie in their own excrement.
5. There have been no reports of whistleblowers
triggering either the Maidstone or Stafford investigations. The
NMC has been unable to tell Aspect if any nurses or managers have
faced fitness to practise charges as a result,(3) but did not
hesitate to remove from the NMC register Susan Hayward, one of
the few nurses in recent years who have publicly raised concerns
as they are required to.
6. Whistleblowers were also absent when
in 2007 the Healthcare Commission audit of services for people
with learning difficulties found that:
"... most services for people with learning
difficulties provide poor standards of care and there are unacceptable
variations in the quality of services throughout the country.
"The Commission said that while services
are driven by committed staff working in difficult environments,
significant institutional failings are depriving people with learning
difficulties of human rights and dignity in many instances. It
said services operated off the radar of the healthcare system,
with poor leadership, poor training and no framework to measure
the performance of services."(4)
7. Social work faces similar problems, despite
a framework whose purpose is supposedly to ensure staff can raise
concerns about unsafe or inappropriate practice.
THE LOCAL
AUTHORITY EXPERIENCE
8. Local Authority social services are required
to have in place:
"appropriate whistle-blowing procedures,
and a culture that enables issues about safeguarding and promoting
the welfare of children to be addressed"(5)
9. The CQC (formerly Commission for Social
Care Inspection Guidance) states:
"Care service providers know how internal
whistleblowing arrangements can help safeguard the interests of
people using their services.
"Staff in regulated care services know they
can make whistleblowing disclosures to CSCI if they need to and
CSCI responds appropriately when they do.
"The law requires care service providers
to have in place measures to safeguard people using their services
from harm or abuse and to promote their rights and welfare. National
minimum standards expand on this requirement and call upon care
service providers to have whistleblowing arrangements."(6)
10. When an Ofsted whistle-blower hotline
was finally established on 1 April 2009, no one used it in its
first month (April 2009).
11. The GSCC Staff Code of Practice requires
all social care staff to comply with the Code by:
"Bringing to the attention of your employer
or the appropriate authority resource or operational difficulties
that might get in the way of the delivery of safe care."
(Para 3.4)
12. Despite the GSCC Code of Practice requirements,
workplace whistleblowing procedures, and the Public Interest Disclosure
Act, CSCI's Chief Inspector explained their role as follows, in
2005:
"The Commission for Social Care Inspection's
(then) chief inspector David Behan sees whistleblowing as a key
weapon in improving standards in social care services, and wants
more employees to tell the commission of their concerns.
"A lot of people will be reluctant to go
to their employer so they can come straight to us," a CSCI
spokesperson said.(7)
13. In response, the view of Public Concern
at Work was that:
"the sector (social care) was a long way
behind even the health service. The important thing is to try
to develop a culture of accountability where people are more likely
to speak out."
THE HUMAN
COST TO
STAFF
14. Despite the Public Interest Disclosure
Act, a large number of whistleblowers have lost their jobs or
suffered detriment. The very first whistleblower (Bryan Bladon)
to go to court to use its provisions worked in a private nursing
home. He won his case but lost his job.
15. Twenty years ago, social worker Alison Taylor
raised concerns about apparent abuses in a North Wales children's
home. A decade later the Government set up a public inquiry. By
then she had been sacked. Though she won damages for unfair dismissal,
she suffered stress and ill health, and never worked again as
a senior residential social worker.
16. Susan Machin was a social worker at
Ashworth special hospital on Merseyside, the subject of a 1992
inquiry into alleged abuses of patients. She was the only social
worker to give evidence. A year later she was suspended and subsequently
sacked for helping patients keep records of alleged ill treatment.
In 1995, an industrial tribunal awarded her compensation for wrongful
dismissal. She suffered a nervous breakdown, ill-health, and her
marriage broke up. She has not worked in social services since.
17. More recently, Community Care reported:
"Haringey Council has launched a counter-offensive
against a senior social worker who won an employment tribunal
against by default last week. Nevres Kemal had claimed that seven
children had been put at risk by being left with an alleged abuser,
that the council did not act on her concerns when she raised the
alarm, and she was then treated unfavourably. Haringey is appealing
against the tribunal's decision claiming it was not served papers
in time. It described Nevres' allegations as `spurious and incorrect'.
Haringey hits back at child protection whistleblower". (22
February 2007)
However, 14 months later the same journal reported:
"Haringey council this week agreed to pay
a senior social worker who had claimed children were being left
at risk an undisclosed sum". (18 April 2008)
Nevres Kemal has been unable to get work as
a social worker since.
WHY IS
THIS?
18. Firstly, professionals experience the
employment relation as much more powerful than that of external
professional accountability. Despite what they are taught at qualifying
and post-qualifying levels in academic curricula, which includes
standards of decision-making required by administrative law, powers
and duties in legislation and amplified in government guidance,
and human rights, research evidence indicates that practice assessors
and managers often foreground for students and staff agency policies
and procedures rather than legal and moral duties.(8) The requirements
within the Code of Practice for registered social workers need
a far higher profile within employment contracts. In particular,
social workers must interrogate agency policies for accuracy in
interpretation of the legal rules. They must also challenge, in
ways that the Ombudsman and judicial reviews have exposed, where
decision-making is not evidence-based, research-informed or defensible
in terms of values and professional knowledge. Education for professional
practice and the management of that practice must embed the skills
to introduce legal, ethical and other forms of knowledge for child
care and child protection practice into decision-making.
19. Secondly, without more public involvement
in the development and scrutiny of services, other pressures are
often more pressing and immediate. In Stafford, the Regional Health
Authority, the Healthcare Commission, the GMC and the NMC all
professed to know nothing of what was happening, yet a high profile
local patients campaign was repeatedly raising concerns without
any contact from these bodies.
20. There are requirements for public involvement
and accountability built into government policy, legislation and
guidance, and at the heart of the public sector equality duties
and within staff codes of conduct, yet none had the desired effect.
Indeed, complaints to the Ombudsman routinely feature grievances
regarding the management of complaints procedures. Recent case
law has shown how disability and race equality duties are not
always considered by local authorities.
21. Thirdly, the inexorable pressure on
resources, linked to a large degree of discretion in the provision
of services, means that managers and staff are constantly seeking
to adjust service provision to inadequate funding, often at the
expense of service user needs. The influence of this context should
not be underestimated when reading judicial review decisions and
Ombudsman investigations.
22. Fourthly, workloads and vacancy rates
are often too high. One result, apart from high stress levels,
is that, Lord Laming pointed out in his 2009 Report:
"in some authorities visited in the preparation
of this report over half of social workers are newly qualified
with less than a year's experience. Inevitably such staff may
be asked to do work that should be done by `experienced' social
workers."(9)
23. Fifthly, when concerns are raised, it
can be very hard to do so effectively and without consequential
detriment for those doing so. The General Social Care Council
has had some decisions regarding removal of social workers from
the professional register overturned by the Care Standards Tribunal
because of inadequate supervision and management structures, performance
and support.(10)
A CRUCIAL STEP
24. Local Authority social services should
be "learning organisations". Some are. Many social workers
and their managers work effectively, a point noted in several
High Court judgements. Employers should have in place regular,
frequent, formal supervision. Staff should be able, and be expected,
to raise concerns in the first instance as an explicit and integral
part of social worker supervision. It should not be necessary
for staff to take out grievances or trigger a whistleblowing procedure
to raise concerns about the range, nature or quality of care being
provided (or not provided). Whilst whistleblowing may be a part—and
sometimes an essential part—of such a culture, the raising
of concerns should be seen as a normal, constructive and essential
part of an early warning system that will allow social care organisations
to learn from mistakes and to take preventative action to reduce
risks to service users and staff. It should be seen as part of
a practitioner's and manager's legal and ethical literacy.
25. It is quite unreasonable to expect social
care staff to risk their careers without a robust, enforceable,
co-ordinated framework in place which enables the GSCC, Ofsted
and CQC to ensure that staff who ought to, do raise concerns,
and can do so in the knowledge that any attempt to prevent them
doing so or to cause them detriment will be dealt with in a robust
and timely manner.
RECOMMENDATIONS
26. We therefore recommend the following
as a means of helping ensure that social workers are better able
to comply with their Code of practice and their duty of care as
taught in the social work syllabus:
(a) The Code of Practice (GSCC, 2002) to become
an express term of the contract of employment for social workers
and all social care staff, including agency staff.
(b) The Code of Practice for Employers of Social
Care Workers to have mandatory force, as requested by the GSCC,
endorsed by Lord Laming in his 2009 Report and agreed by the Secretary
of State.
(c) Social worker supervision must be the cornerstone
of the raising of concerns. Ofsted, CSCI and the GSCC should ensure
employers have in place protocols and resources which ensure that
regular, frequent formal supervision takes place as the cornerstone
of making the authority a "learning organisation". Staff
should be able, and be expected to raise concerns in supervision.
They should not have to resort to using the employer's, let alone
an external, whistleblowing procedure.
(d) The extent to which staff can raise concerns
should become a part of the inspection process of both CQC and
Ofsted. To that end all providers of social care are expected
to maintain records of all such concerns that have been raised
and make them available to inspectors in the same way that complaints
from the public are already monitored and made available for inspection.
Ofsted inspections require those being inspected to "make
sure you have available the record you keep of complaints about
the care you provide".(11)
(e) Directors should have specific protection
to ensure they are able to carry out their statutory duties, including
making protected disclosures, without detriment. They are required
to ensure that "there are sufficient financial, human and
other resources available to discharge the authority's statutory
functions and maintain service standards in the future."
PIDA regards as a protected disclosure one stating "that
a person has failed, is failing or is likely to fail to comply
with any legal obligation to which he is subject". The Secretary
of State should issue specific guidance to Local Authorities,
to make clear that if Directors believe that sufficient resources
are not available to meet those statutory duties then any disclosure
is specifically protected.
(f) Specific advice and protection should be
provided to agency and temporary staff to ensure they have the
same access to supervision and the opportunity to raise concerns
without fear of detriment.
27. The experience of those who have tried
to raise concerns in social services has not encouraged others
to do so. It is extremely unusual that a whistleblower of any
kind is promoted rather than suffer a detriment. As one small
step that would resonate across the sector, Haringey council could
reinstate Nevres Kemal thereby showing that whistleblowing is
appreciated as one part of the protection of the public.
REFERENCES(1) Learning
from Bristol: the report of the public inquiry into children's
heart surgery at the Bristol Royal Infirmary 1984-1995 Ch 22.28.
Command Paper: CM 5207.
(2) Hunt, G. (1998). Whistleblowing in the Social
Services. Public Accountability and Professional Practice. London:
Arnold.
(3) When Aspect asked the Nursing and Midwifery
Council whether anyone from Maidstone or Stafford General Hospital
had faced fitness to practice proceedings arising from these events
they were unable to say since "the NMC records case files
by a registrant's name, not by outcome or by health site
location. Although the information you seek may or may not be
retained in individual case file, it is not easily available."
(Letter 5 May).
(4) Healthcare Commission press statement. 3
December 2007.
(5) DfES. (2006). Working Together to Safeguard
Children. A guide to inter-agency working to safeguard and
promote the welfare of children Para 2.8. See also DoH. (2000).
No Secrets: guidance on developing and implementing multi-agency
policies and procedures to protect vulnerable adults from abuse.
Para 7.5.
(6) CSCI. (2006). Whistleblowing arrangements
in regulated care services. Para 3.
(7) Community Care. (3 February 2005).
(8) Braye, Preston-Shoot and Thorpe (2007). Beyond
the classroom: learning social work in practice; and Preston-Shoot
(2000). Using the law to uphold practice values and standards.
Practice Volume 12. No 4.
(9) Lord Laming. (2009). The Protection of
Children in England: A Progress Report. Para 5.2.
(10) See for example LA v General Social Care
Council [2007] 985.SW and Tricia Forbes v General Social Care
Council [2008] 1267.SW.
(11) Ofsted (2007). "Are you ready for
your inspection" p 12.
May 2009
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