5 Treatment of staff raising concerns
106. The treatment by NHS organisations of staff
who raise concerns in the public interest about their organisation
has long been a matter of controversy. Several NHS employees who
have raised concerns about poor clinical or management practice
in Trusts, and who can consider themselves vindicated by the findings
of subsequent inquiries, nevertheless consider that they have
suffered detriment as a result of their whistleblowing, through
management or professional disciplinary action, victimisation,
severance or dismissal.
107. The Government argues that whistleblowers are
protected from detriment by the Public Interest Disclosure Act
(PIDA). But evidence from Public Concern at Work and others argues
that PIDA is a deterrent rather than a remedy, and that if an
employee has to have recourse to PIDA's provisions then his or
her prospects are already substantially impaired. Cathy James,
Chief Executive of Public Concern at work, told us:
[PIDA] is a vehicle for protection that is not
really about protection but about looking back at the damage that
has been done. We have always said when working with organisations,
and in the model policy that we talk about, in all sectors, but
particularly in health, that the Public Interest Disclosure Act
is not mentioned until probably the last line of the policy: "If
you are worried about your rights, you can look it up." It
is the way somebody is going to sue an organisation, not the way
an organisation encourages its staff to speak up. What they should
be doing is giving very clear assurances on the position of the
individual, clear assurances on confidentiality and clear assurances
around not tolerating victimisation, and acting on it where people
have meted out reprisal.[63]
108. The Committee has said previously that employment
tribunals and related fora are no place for honestly-held concerns
about patient safety and similar issues to be debated.[64]
A means must be found for health and care service workers to be
able to speak up safely about professional concerns.
109. The Committee's position has long been that
there is an unambiguous professional duty on professional registrants
to speak up, but that equally there is a similar duty on employers
to establish an open culture which encourages concerns to be raised
and acts to address and resolve them, rather than punish the person
raising them. There are welcome signs that this is being addressed
but only in some areas, for example through the role established
for Helene Donnelly at Staffordshire & Stoke on Trent Partnership
NHS Trust. This kind of initiative is sadly far from common, and
her evidence indicated that there is a long way to go to achieve
the necessary cultural change across the system.
110. In a development which the Committee welcomes,
in June 2014 the Secretary of State appointed Sir Robert Francis
to lead an independent review into creating an open and honest
reporting culture in the NHS. The Freedom to Speak Up review sought
evidence from staff across the NHS on their experiences of raising
concerns and comments on how the process might be improved. The
Review received more than 600 written responses and 17,500 online
responses and will report early in 2015.[65]
111. It is to be hoped that the findings of the Freedom
to Speak Up review will set out a template for dealing with these
issues. The Francis review is explicitly not a forum for the airing
and redress of historic cases. While those who claim to have suffered
detriment unfairly for having raised concerns have been encouraged
to engage with the Francis process, it will not provide them with
individual redress.[66]
As the Minister made clear, it will be difficult for any measures
to be given an explicit retrospective and restorative effect.[67]
112. It is clearly unacceptable if any employee in
public service suffers detriment for having raised a concern in
good faith. While PIDA provides protection against detriment,
its effect is meant to be deterrent rather than restorative, and
the complexity of the legislation is such that success in a case
brought under PIDA cannot be guaranteed.
113. The Francis review is welcome, as the treatment
of whistleblowers is a stain on the reputation of the NHS and
has led to unwarranted, inexcusable pain for the courageous individuals
affected. The aim for an NHS complaints and raising concerns system
must be to establish a reporting culture in the health and care
sector which parallels the open reporting culture on other safety-critical
sectors such as aviation and nuclear energy: one in which the
concept of the whistleblower is quite simply redundant.
114. The failure to deal appropriately with the
consequences of cases where staff have sought protection as whistleblowers
has caused people to suffer detriment, such as losing their job
and in some cases being unable to find similar employment. This
has undermined trust in the system's ability to treat whistleblowers
with fairness. This lack of confidence about the consequences
of raising concerns has implications for patient safety.
115. We expect the NHS to respond in a timely,
honest and open manner to patients, and we must expect the same
for staff. We recommend that there should be a programme to identify
whistleblowers who have suffered serious harm and whose actions
are proven to have been vindicated, and provide them with an apology
and practical redress.
63 Q 128 Back
64
Health Committee, Third Report of Session 2012-13, After Francis
, HC 657, para 69 Back
65
Health Service Journal, Francis whistleblowing review delayed,
27 November 2014, Back
66
As Sir Robert says on the Review website, "This Review
is not about deciding on past judgements and I realise that I
am asking something quite difficult of people; that they tell
me about their personal experiences of making disclosures in the
public interest without me being able to do anything to resolve
their individual cases. Nonetheless I hope that people will come
forward to the Review and share their views and experiences in
order to help inform better practice in the future." Back
67
Q 498-501 Back
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