3 November 2015

Wellington House
133-155 Waterloo Road
London SE1 8UG

Dr Minh Alexander
By email only

T: 020 3747 0000

E: enquiries@monitor.gov.uk
W: www.gov.uk/monitor

Dear Dr Alexander
Re: Your email of 2 October 2015
Thank you for your email of 2 October to David Bennett, which has been passed to me to
respond to.
With regard to your bullets a) to f), I would like to clarify that although we do not routinely
track (from a record keeping perspective) whether whistleblowers who come to us suffer
detriment as a result, we do of course consider any information we receive alleging
detrimental treatment of whistleblowers. In these instances, although we are unable to get
involved in employment matters or to resolve individual cases , we would wish to explore any
potential wrongdoing on the part of the Trust which raises governance concerns.
I will go on to answer the five specific questions you have asked in your email.
1. What trends does Monitor intend to track in future and will we consult
whistleblowers about intended improvements to our process?
We have yet to determine precisely how we will report on whistleblowing concerns, but I can
explain how we now categorise whistleblowing concerns (in a similar way to that which we
have done with complaints in the past) to quickly identify those that are most relevant to our
role. These categories are as follows:

category 1 relates to cases which are unlikely to lead to us having concerns about a
providers governance (for example, contractual issues, poor record keeping,
cancelled or rescheduled appointments)

category 2 relates to cases received about serious quality or safety concerns

category 3 relates to cases received that initially raise potential governance concerns
(for example, possible misconduct of board members, financial governance
concerns, poor treatment of whistleblowers).

(The numbers used do not indicate an order of priority, nor does the order of the examples
used).
As referred to in our annual report, the changes we have made are partly the result of
listening to complaints and feedback from whistleblowers we have dealt with in the past.
However, we have yet to finalise our new process and will consider your point about

consulting whistleblowers on it. We intend that our new process will ensure we have a more
detailed record of how we use whistleblowing information in our regulatory approach to an
organisation and a senior level of sign-off where we decide not to take any further action on
a case.
2. Will Monitor help ensure lawful practice by foundation trusts, including tracking
any detriment suffered by making disclosures to Monitor?
We are currently working on implementing the recommendations of the Freedom to Speak
Up review, including a single national whistleblowing policy. We have also been involved in
the CQCs work on the National Guardian. This is all aimed at improving the experience of
whistleblowing in the NHS. It is not our role to enforce the Public Interest Disclosure Act, but
of course we look carefully at any information that may indicate a foundation trust may not
be complying with its legal obligations and breaching, or potentially breaching, its licence to
operate.
I will make sure that we do make provision for systematically recording any reported
detriment suffered by whistleblowers, and consider how we might follow up cases to
understand whether they believe they have suffered detriment as a result of speaking to us.
We also intend to agree with the National Guardian specific methods for receiving similar
information from their office. However, many concerns we receive are sent in anonymously
and Monitor therefore has no means of determining whether detriment has been suffered
and, ultimately, the decision on whether detriment has occurred is one for an employment
tribunal.
3. You suggest that whistleblowers are unlikely to have confidence in Monitor when
we decide to investigate informally by making enquiries to a foundation trust
Our new approach to complaints and whistleblowing in our newly strengthened central team
means that where we identify a case that raises potential governance concerns, we consider
a range of other information about that organisation to help us determine our regulatory
approach. This includes information from the CQC, the Parliamentary and Health Service
Ombudsman, the NHS Staff Survey results for the trust and any comments made by the
local CCG(s). The action we then decide to take may involve making enquiries to the trust in
question, but it may include discussing the matter with the CQC, the CCG(s) or at local
Quality Surveillance Groups.
It is important to remember that our role is to consider whether whistleblowing information
indicates wider governance concerns about a foundation trust that may indicate a breach, or
potential breach, of the provider licence. It is not our role to resolve individual cases.
4. Please could Monitor provide a list of the 67 disclosures and brief details of each of
these disclosures.
We do not hold an analysis of the whistleblowing cases we received in the years in question.
Nor have we routinely kept brief details of each case as you have requested rather we
have simply kept all the relevant details on a case-by-case basis which we would not be
willing or able to release for obvious reasons. But to be helpful I have retrospectively
identified the category we would place each case in (as we would if received today). I have

included a table with the breakdown of the cases received by category for 2013/14 and
2014/15.
We are not willing or able to provide any further details of the individual cases because we
are concerned that this could potentially indirectly reveal information about the
whistleblower. We are particularly mindful that whistleblowers approach Monitor with an
expectation that we will treat their information confidentially and do not want to discourage
further approaches for fear that we will reveal even small amounts of information about their
case.
Year

Total received

Category 1

Category 2

Category 3

13/14

28

12

15

14/15

39

10

26

5. I would be grateful if Monitor could advise why it appears not to have investigated
the trust responsible for Dr Antoinette Geoghegans victimisation, or other trusts that
have also been found by ETs to have victimised whistleblowers.
To clarify, we have not said that we give higher priority to sexual harassment than to
whistleblower reprisal as you suggest. We have simply pointed out that the recent
Derbyshire Healthcare employment tribunal case is not directly comparable with the case
you refer to because the Derbyshire case did not identify that a whistleblower had suffered
detriment. Whereas you say that the case you refer to did identify a whistleblower suffering
detriment.
We were aware of the case you refer to a few years ago and have been kept up to date by
the trust. We are aware of an appeal hearing and a decision to have the original tribunal
decision set aside and the case re-heard. We are not aware of any subsequent tribunal
decision, but if you have information to the contrary then please share it with us and we will
consider it. However, I am aware that this case relates to incidents that occurred
approximately eight years ago and so is unlikely to lead us to have current concerns about
how the trust is now run by its board.
I appreciate that you take a strong interest in whistleblowing in the NHS and may not be
happy with how we responded to your whistleblowing concerns several years ago. However,
as I have explained, we are changing the way we handle whistleblowing cases and are
committed to the Freedom to Speak Up recommendations to improve the experience of
whistleblowing in the NHS.
Yours sincerely

Tom Grimes
Head of Enquiries, Complaints and Whistleblowing

Direct line: 020 3747 0365