Whistleblowing - Public Accounts Committee Contents

1  Supporting and encouraging whistleblowers

1. On the basis of a report by the Comptroller and Auditor General, we took evidence in March 2014 from the Department of Health, the Department for Education, the Ministry of Defence and HM Revenue & Customs.[1] We also took evidence in March 2014 from Public Concern at Work, and from Kay Sheldon, a whistleblower who raised concerns about the Care Quality Commission in her capacity as a member of the board. We then took further evidence in May 2014 from the Department of Health.

2. Whistleblowing is when people raise a concern about wrongdoing, poor practice or malpractice in the workplace that has a public interest aspect to it. Concerns can range from social care and clinical failings, to financial mismanagement and environmental damage. Whistleblowing is important to protect and reassure the workforce, and to maintain a healthy working culture and efficient organisation. Whistleblowing has become much more high profile in recent years, as well-publicised cases such as Hillsborough and the Mid Staffordshire NHS Foundation Trust inquiry have shown.[2]

3. Whistleblowers are often motivated by feelings of what is fair or proper: they have a strong sense that something they have seen or heard is not right, ethical or compliant with workplace regulations. But blowing the whistle can make people vulnerable, so organisations must have clear, comprehensive and accessible policies and arrangements to support and reassure employees, at what is likely to be an extremely stressful time for them. These policies should be reinforced by a culture of transparency and openness so that employees trust the system and are confident in raising concerns.[3]

4. Public Concern at Work told us, however, that many employees feared reprisal if they blew the whistle, and they were often concerned that their employer would not protect them against retaliation or victimisation.[4] The Ministry of Defence, for example, acknowledged that it was very disappointing that 52% of employees who had been concerned about serious wrongdoing within the past two years had not raised their concerns, and also that only 40% thought that they would not suffer reprisals if they did raise a concern. In the Department of Health, only 54% of employees said they would feel confident in speaking up about a concern.[5]

5. Whistleblowers' fears of reprisal are often justified, and such experiences are likely to deter other employees from raising a concern. For example, we heard from Kay Sheldon, a whistleblower who is a board member of the Care Quality Commission, about her shocking treatment. She described to us how she had been victimised by senior managers after she had raised concerns. She said that she felt that: "What they wanted to do was, essentially, get rid of me and discredit me", rather than addressing the concerns she had raised.[6]

6. We asked Una O'Brien, Permanent Secretary at the Department of Health about attempts to remove Kay Sheldon from the board of the Care Quality Commission following her whistleblowing. She stated that Dame Jo Williams [then Chair of the Care Quality Commission] had written to the Secretary of State in November 2011asking him to remove Kay Sheldon from the board of the Care Quality Commission.[7]

7. Una O'Brien's evidence also set out that the Secretary of State sought advice and consulted the Cabinet Office, after which he appointed Gill Rider (at that time, President of the Chartered Institute of Personnel and Development) to undertake an independent review, and to provide him with advice on handling the concerns raised by Kay Sheldon. Una O'Brien stated that Gill Rider was asked to establish the facts around Kay Sheldon's concerns about the board of the Care Quality Commission and to review how the matters had been handled. The evidence considered by Gill Rider included meetings with all of the members of the board.[8]

8. Una O'Brien's evidence further stated that in March 2012, Gill Rider submitted her report to the Secretary of State, who also met and requested further information from Kay Sheldon and subsequently reached the conclusion not to remove her from the board.[9]

9. Kay Sheldon told us that the Gill Rider review: "…was not independent… Frankly, it was a deliberate hatchet job; there is no other way to describe it."[10] Kay Sheldon said to us: "I met with the person doing the review for about an hour, and I was told it was going to report within 10 days, but it didn't. It dragged on. I didn't hear anything else, but when I got my personal data, I found out that the person doing the review, the CQC and the Department of Health were in quite a lot of contact. I was completely out of it. I didn't have a voice."[11]

10. Kay Sheldon also told us that no disciplinary action had been taken against any of the people involved in her mistreatment and that she was surprised that they were still in their posts, despite her concerns having been vindicated subsequently by an independent review.[12] We asked Una O'Brien about what has happened to people who had made threats and perpetrated bullying against whistleblowers, and whether any disciplinary action had ever been taken against people for these actions. Una O'Brien was unable to provide any information as the Department did not collect it from NHS employers. Una O'Brien said that there were such cases locally, and accepted that the Department had not brought these to the fore, or made them visible in the public domain. Una O'Brien agreed to consider whether this could be done.[13]

11. We heard from Public Concern at Work and other departments that departments have not effectively dealt with employees who victimise whistleblowers.[14] Public Concern at Work told us that it was rare for someone who has victimised a whistleblower to be sanctioned, and that it was only aware of one case where this had happened, which was at the Mid Staffordshire NHS Foundation Trust. The other departments were also unable to give us any concrete examples of where they had taken disciplinary proceedings against an employee who had victimised a whistleblower.[15]

12. If reprisals do occur, whistleblowers should reasonably be able to expect that their employer would provide them with the extra care and support that they need. However, Kay Sheldon told us that her employer had initially denied her legal help after the Secretary of State for Health had told her that she might have met the statutory grounds for termination of her appointment on the board of the Care Quality Commission. Kay Sheldon told us that she sought legal advice herself, and that this considered the Gill Rider review was unfair and unlawful. She presented the advice to the Secretary of State for Health and told us that: "I agreed not to sue Andrew Lansley and he agreed not to remove me".[16] Both HM Revenue & Customs and the Department of Health acknowledged that they did not have an earmarked budget to support whistleblowers, although both claimed that they had some resources which they could make available to cover costs such as legal advice.[17]

13. Whistleblowers are not always clear with whom they should raise a concern.[18] For example, the 2013 annual civil service survey found that although 89% of respondents were aware of the civil service code, over a third did not know how to raise a concern under the code.[19] A survey of employees in the Ministry of Defence found that 57% of respondents did not know that a whistleblowing policy existed. The Ministry of Defence told us that, in response, it was introducing a new policy that will clearly set out all reporting routes. It also said that it planned to send the policy to all employees, and to publicise its whistleblowing arrangements through an awareness week and training programmes.[20]

14. The Department for Education operates in a system with many different entities, ranging from arm's-length bodies and regulators, to schools and academies, each of which has distinct areas of responsibility. The NAO found that reporting routes were not consistent in the whistleblowing policies that it examined from the education sector, and that employees could raise their concerns with many different internal and external bodies. The NAO concluded that this could result in fragmented intelligence, particularly if the intelligence that was forthcoming was not shared.[21] The Department for Education acknowledged that it was often unclear to people how they should raise an issue, and that at the moment it did not have a route map for people, explaining how they should raise concerns.[22]

15. It is also often unclear to whistleblowers how departments have addressed their concerns once these have been raised. Kay Sheldon told us that she had been asked not to attend board meetings. She described how she was not given sufficient information about the Gill Rider review, had a one hour interview only with Gill Rider, and was not told what other people had said to Gill Rider. Kay Sheldon found that this prevented her from responding effectively to comments made about her.[23]

16. Kay Sheldon told us that "a secret mental health report" had been carried out about her, and that an issue about her mental health had been raised by the then Chair of the Care Quality Commission, Jo Williams. She also told us that Una O'Brien at the Department of Health was involved, although she did not know the extent of this involvement. Kay Sheldon told us that Una O'Brien's office had recommended that a private occupational health company, Medigold, carry out the assessment of her mental health.[24]

17. Kay Sheldon said that Jo Williams had told her that she had been referred to Medigold. She told us that she had only a ten minute conversation with Medigold and that she later found out that they had prepared a three page letter about her, stating she: "probably had paranoid schizophrenia, and that…my medical notes should be obtained in confidence."[25]

18. We asked Una O'Brien about her involvement in a review of Kay Sheldon's mental health. Una O'Brien stated that Jo Williams had raised with her a request from Kay Sheldon for her needs to be assessed under the Equality Act 2010. Una O'Brien stated that she had told Jo Williams that she would turn to the occupational health service if approached with such a request. This service was provided by Medigold at the Department of Health and it was one of the providers at the Care Quality Commission. Una O'Brien told us: "I did not recommend them [Medigold] as such. This was just a conversation and a suggestion".

19. We asked Una O'Brien whether she had received the report on Kay Sheldon's mental health. Una O'Brien told us that she had received, but not examined, a medical assessment of Kay Sheldon's mental health, and that Gill Rider had not received the assessment. Una O'Brien considered that the medical assessment was not relevant to Gill Rider's review. When Una O'Brien learnt that the diagnosis on Kay Sheldon from the medical assessment was that she was suffering from paranoid schizophrenia, Una O'Brien told us that she was shocked and that she did not consider it a proper diagnosis. Una O'Brien also told us that no-one in the Department of Health had seen Kay Sheldon's personal medical records, that Gill Rider did not see them either, but that she did not know if anyone at the Care Quality Commission had seen them.

20. Research by Public Concern at Work showed that institutional silence is a common reaction to whistleblowers, with 60% of the whistleblowers it surveyed receiving no feedback from management in response to their concerns.[26] This inaction affects employees' confidence in how departments will handle concerns. In the 2013 annual civil service survey, only 67% of respondents were confident that if they raised a concern it would be investigated properly. Cases can be 'lost' from a whistleblower's perspective, which may result in employees feeling less motivated to come forward when they feel that things have not changed in the past. [27]

21. Public Concern at Work told us that publishing intelligence on whistleblowing cases received and outcomes is one means by which departments can increase their employees' confidence in arrangements, as it enables employees to see how organisations have dealt with issues.[28] Departments agreed that publicising the outcomes of whistleblowing cases is important, but we heard about only limited initiatives to do so. The NAO found that only HM Revenue & Customs of the departments it reviewed had published the outcomes to its cases, but even this only included criminal cases.[29] The Ministry of Defence told us that it recognised "the importance of explaining to people where whistleblowers have whistleblown and what we have done about it", and as part of its new whistleblowing policy it intended to publicise how this was being implemented. And the Department for Education told us that the Education Funding Agency publishes on its website redacted reports, following a whistleblowing investigation.[30]

1   C&AG's Report, Making a whistleblowing policy work, Session 2013-14, HC 1152, 18 March 2014 Back

2   C&AG's Report, paras 1-2 Back

3   C&AG's Report, paras 1.1, 1.4 Back

4   Q 1 Back

5   Qq 41, 138 These percentages refer to employees who responded to the survey. Back

6   Qq 10, 15-19 Back

7   Q 245 Back

8   Q 245 Back

9   Q255-6 Back

10   Q10  Back

11   Q10 Back

12   Qq 10, 19 Back

13   Qq 200-201 Back

14   Qq 3, 10, 14-19, 77, 89-90, 114 Back

15   Qq 2-5, 99-100, 110, 112, 141 Back

16   Qq 25, 32 Back

17   Qq 146, 150-151 Back

18   Qq 10; C&AG's Report, paras 3.2, 3.9 Back

19   C&AG's Report, para 4.5 Back

20   Q 139 Back

21   C&AG's Report, , paras 3.12, 3.14 and Figures 11, 15 Back

22   Q 66 Back

23   Q10 Back

24   Qq 10, 32-38 Back

25   Q38 Back

26   Q1; C&AG's Report, para 3.3 Back

27   C&AG's Report, paras 4.13, 4.18 Back

28   Q 8 Back

29   C&AG's Report, para 4.18 Back

30   Qq 55, 139 Back

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Prepared 1 August 2014