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Freedom of Speech – How Whistleblowers in the NHS are Now Protected

Public confidence in the NHS is vital.  It is an institution that the British public are proud of – and rightly so.  Doctors, nurses and other health professionals, not to mention thousands of administrative staff do a tremendous job of looking after the sick and injured.

In April this year, to help improve peoples’ certainty in the NHS, new policies and procedure guidelines on supporting whistleblowers were put in place for each NHS Trust to review.  Consultation ended in May 2016, and the final guidelines will be released later this year.

The new policy guidelines were introduced following an intense period of consultation and review on the reluctance of NHS staff to raise concerns regarding patient safety and lack of resources.  Many primary health workers felt unable to speak up for a number of reasons:

  • they worked as part of a small, intimate team and were concerned about the backlash from colleagues
  • they feared for their jobs if they raised concerns to their employer
  • those working in ancillary and non-clinical roles felt they had fewer options for raising concerns externally because they often lacked access to a professional body or union

Neil Churchill, NHS England Director for Patient Experience, said:

“Becoming the world’s safest health system requires us to listen to staff and act on valid concerns. In order to do this, it’s vital that NHS staff who witnesses something that risks patient safety feel able to speak out without reprisal.

This guidance builds on existing good practice, gives staff in primary care more options to share any concerns and sets out our expectations about how those concerns should be handled. A safe NHS is an open and honest NHS where we routinely learn from mistakes and use that learning to improve patient safety.”

A definition of whistleblowing

Whistleblowing is the raising of a concern regarding a wrong doing within an organisation. The concern must be genuine and could involve a criminal offence, miscarriage of justice, dangers to health and safety and/or the environment.  Whistleblowing can also concern the cover-up of any of these offences.

The background to the policy change

In 2014 an independent review chaired by Sir Robert Francis QC, found that whistleblowers within the NHS were being bullied, ignored and in some cases intimidated and even sacked.

In an interview following the release of the report, Sir Francis QC stated:

“Some 30% of people who had raised a concern said they felt unsafe after they had done so. Eighteen per cent of staff said they didn’t trust the system so they wouldn’t speak out; 15% told us they feared being victimised if they did so.

“All that climate of fear is brought about by the experiences of what may be a very few people … I’ve spoken to people who have not only lost their jobs, their livelihood, they’ve not been able to find other jobs to do. And I’m afraid in some cases have felt suicidal and become ill as a result.”

Prior to the report issued by Sir Francis QC, nurses in particular had raised concerns about a culture of intimidation and bullying in some NHS Trusts.  A 2013 survey of 8,262 nurses found that 24% of them had been discouraged or warned against going public with concerns about the quality of patient care. Almost half (45%) of participants said their employer took no action about the concerns raised, while 44% said concern about suffering reprisals or being dismissed would make them think twice about blowing the whistle on dangerous or negligent practices.

The recommendations contained in Sir Francis’ report became the basis for the new NHS guidance on whistleblowing.  The new policy includes steps to provide a safe environment for NHS staff to speak up including:

  • Each provider should appoint a Freedom to Speak Up Guardian. This person should not be part of the line management chain. They will be charged with offering support and listen to staff members who raise a concern;
  • There should be proactive steps taken to prevent any inappropriate behaviour, like bullying, harassment, or discrimination towards staff who blow the whistle;
  • All NHS primary care providers should review and update their local policies and procedures by March 2017 so the principles of the agreed guidance are incorporated.

In July 2016, Dr Henrietta Hughes, the medical director for NHS England’s North Central and East London region was made the National Guardian for the Safeguarding of Whistleblowers.  She will take up the post in October 2016. In a statement following her appointment, Dr Hughes said:

“It requires a great deal of courage, honesty, and selflessness to ‘blow the whistle’. People should never feel that they are at risk of punishment when advocating better and safer care for patients.

“Together with my office, the growing network of Freedom to Speak Up Guardians in NHS trusts, our national partners, and anyone else who has an interest in supporting and protecting staff who wish to speak up, I look forward to driving forward this agenda of openness.”

A safer NHS and happier staff

Ultimately these new policy guidelines will make for a safer NHS.  However, staff will also feel more supported and confident in speaking up, especially if the matter is in the public interest.

The last thing anyone wants is a repeat of the appalling distress heaped on Dr Hayley Dare in 2014/15.  The doctor’s unblemished 20-year reputation of helping patients and excelling in her field was tarnished when she raised concerns about patient safety to the then CEO of the West London Mental Health NHS Trust.  The Trust spent £130,000 fighting Dr Dare’s claims, despite knowing that they were at least in part accurate.  She was bullied, harassed, called a ‘very disturbed woman’ and eventually sacked.

After losing her Employment Tribunal case on a legal technicality that no longer existed (the Judge said her disclosure had not been made “in good faith” – a provision whistleblowers no longer have to satisfy), the Trust pursued the doctor for £100,000 worth of court costs.

The Trust eventually backed down and conceded that Dr Dare had made her disclosures in good faith and had acted in the public interest.

It is hoped that the new whistleblowing policy guidelines, once they are finalised and incorporated into all NHS Trusts, will prevent such an unfair and devastating course of events ever being repeated.

Saracens Solicitors is a multi-service law firm based in London’s West End.  We have dedicated and highly experienced employment law specialists who can assist you with any advice you require regarding whistleblowing and your legal rights.  For more information, please call our office on 020 3588 3500.

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