BY

EMAIL

Tom Grimes, Head of Enquiries, Complaints and Whistleblowing, Monitor 8 January
2016


Dear Mr Grimes,

Submission to Monitors consultation on a national NHS whistleblowing policy

I write to submit my comments to Monitors consultation on a national
whistleblowing policy. I provide my salient points below, but for completeness also
append a completed consultation questionnaire.

Firstly, I should point out that the Secretary of State has not acceded to a request
that whistleblowers who are currently restricted by confidentiality clauses are freed
from these for the purposes of this consultation. Please note therefore that some of
the submissions you receive will be incomplete and also that you may not receive
submissions at all from some whistleblowers who have important evidence to
contribute.

I agree that it is very important that there is a national, standardised policy and
approach to whistleblowing in order to help improve whistleblowing governance.
However, a policy is not sufficient of itself and there are many other pivotal changes
required in order to ensure that the policy operates effectively, such as legislative
reform.

At present, the government has no plans to comprehensively reform whistleblowing
legislation, so I think it is likely that any policy, improved or not, will still fail because
of a lack of effective, underpinning legislation. The evidence of the campaigning
charity Compassion In Care chronicles over 15 years of ineffective whistleblower
protection under the auspices of the Public Interest Disclosure Act, and you may
wish to take this evidence into consideration:

http://www.compassionincare.com/breakingthesilence


Other significant factors that are likely to undermine any policys effectiveness are
NHS disciplinary process that is biased in favour of employers, and the flawed local
and national guardian structure that the government has adopted. The latter has
been compounded by the governments failure to ensure any consistency in how
local guardians have been appointed and how they operate. It has also been
compounded by the governments inexplicable decision to allow CQC to appoint a
National Guardian who has conflicts of interest as a Chief Nurse and who is only
seconded to CQC two days a week in her National Guardian role. Crucially, both local
and national guardian roles lack true independence. I feel Monitor should remove

the following claim about local guardians from the proposed policy, as it may give
false assurance to staff: an independent and impartial source of advice to staff.

In general terms, I feel that Monitors proposed policy is weak and it does not reflect
the scale of the challenges faced by whistleblowers, the extreme lengths to which
some organisations will go in order to suppress disclosures or the full scope of what
is required to protect the public.

My specific reservations about the proposed policy, and my suggestions are as
follows:

1) The policy does not meet the standard set by existing government guidance on
what NHS whistleblowing policies should comprise. [1] For example, it lacks any
requirement for evaluation of organisations compliance with the policy, including
through the monitoring of staff experience. There is no suitable standard set for
board oversight or strategic response to whistleblowing incidents. Neither does the
policy provide any expectations about how staff should be apprised of their right to
be protected and their obligation to raise concerns.

I suggest: The policy should require boards to continuously monitor trends in
concerns raised by staff, to reflect staff concerns in the corporate risk register, to
annually audit organisational adherence to the policy. The audit should include
structured measurement of staff experience of raising concerns (using a national
template), and evaluation of any indicators that whistleblowers may have been
unfairly treated: the number of grievances raised by whistleblowers, suspensions,
disciplinary action or dismissal of whistleblowers, or ET claims by whistleblower
staff. The policy should require organisations to publish a standard data set about
whistleblowing in their annual reports, reflecting these parameters. The policy
should explicitly require boards to monitor outcomes according to protected groups,
especially as it has been found that BME whistleblowers have poorer experiences of
whistleblowing. The policy should also set minimum standards for staff induction,
and ongoing training about rights and obligations and the whistleblowing policy.

2) The policy does not give firm or clear enough guidance on the circumstances in
which independent investigation of concerns is required, when in fact the lack of
independent investigation is currently a pivotal and unresolved problem.

I suggest: Notwithstanding the serious limitations imposed by the lack of a truly
independent body to safeguard whistleblowers interests, I feel the policy should
should require that as a minimum, investigations should always (and not usually,
as currently stated) be conducted by staff from another part of the organisation.
Where disclosures relate to wrongdoing by board members, where an internal
investigation is disputed by the whistleblower, or where disclosures relate to patient
deaths, this should trigger an external independent investigation. I also suggest that
national policy is that organisations are no longer allowed arrange and control such
investigations, but that a central body coordinates them.

3) The policy does not give any timescale for the investigation of staff concerns, even
though it is well described that deliberate delay is a key tactic against
whistleblowers.

I suggest: The policy should make it clear that investigations into staff concerns
should be swift, that early resolution should be the norm, and that in more complex
cases, investigations should be concluded in the same, current standard timescale as
for investigating Serious Incidents (60 working days). [2]

4) The policy does not specifically allow staff to comment on investigation reports
into their concerns before they are finalised, when it is known that whistleblowers
are often concerned by organisations inaccurate representation of events.

I suggest: The policy explicitly ensures that staff who raise concerns are allowed to
comment on reports of investigations into their concerns before the reports are
finalised.

5) The policy states reprisal against whistleblowers will not be tolerated but it lacks
practical detail on how whistleblowers will be protected.

I suggest: The policy should allow for temporary redeployment (internally or
externally) of the whistleblower if they agree to it, or removal of staff alleged to be
responsible for reprisal whilst matters are resolved. I feel it is necessary that NHS
disciplinary policy is reformed so that staff have a final appeal to a fully independent,
lawyer chaired panel. I also suggest that it is national policy that whistleblowers
have an appeal to the Secretary of State against dismissal.

6) The policy gives no commitments about how central NHS bodies will respond to
disclosures in situations where staff decide to raise concerns externally.

I suggest: The policy should signpost to the external whistleblowing policies of
central NHS bodies. These external whistleblowing policies should also be reviewed
and standardised to ensure a consistent and appropriate response.

7) Monitor only hopes that the policy will be adopted by private providers. This is
inadequate and leaves staff and patients in outsourced services exposed, although
parliament has expressed a wish that equal standards of whistleblowing governance
should apply to outsourced services. [3]

I suggest: It is national policy that commissioners should require all private providers
to adopt the national whistleblowing policy as a standard condition of service
contracts.

8) Some of the sources of information that are signposted by the policy are not
sufficiently informative to empower staff or to help them to make fully informed
decisions. The signposted information mostly derives from the government

commissioned Whistleblowing Helpline, which has little credibility with

whistleblowers.

I suggest: The policy should advise staff that there are a range of organisations and
groups that may be able to provide advice on whistleblowing.

9) Importantly, the policy lists bodies to which staff may make external disclosures,
but it does not inform staff of their right to make disclosures to their member of
parliament

I suggest: The policy should advise staff of their right to make disclosures to their
member of parliament.

10) The policy does not inform staff of the full range of internal routes of disclosure.
It does not mention that there should be a designated board member for
whistleblowing matters (a Freedom to Speak Up recommendation) or that where
Foundation Trusts are concerned, staff can also approach governors or the audit
committee, which has the responsibility for ensuring that concerns are properly
handled and investigated.

I suggest: The policy requires organisations to have a named board member who has
lead responsibility for whistleblowing governance, and that for Foundation trusts,
governors and the audit committee are also listed as points of contact for disclosure.

11) The policy may have a deterrent effect in that it emphasises that staff must act in
good faith (when legally, the good faith requirement has been removed). The
policy also implies that there may be negative consequences such job loss if the
organisation deems that a concern that has been raised is not genuine or
malicious. A seed of doubt and fears of counter-allegations may be sown by these
unnecessary cautions. Whistleblowing policies which contain overt or implicit threats
of disciplinary action against staff raising concerns have been criticised previously.[4]

I suggest: The references to good faith and lack of protection for malicious
disclosures are removed from the policy.

12) Conversely, I feel that Monitors proposed policy does not convey clearly enough
what a serious matter whistleblower reprisal is. The policy states only that
harassment and victimisation of staff who raise concerns may result in disciplinary
action. It does not clearly define whistleblower reprisal as serious misconduct or
indicate that if a board member is found guilty of such misconduct, this should bring
their fitness into doubt (both matters raised by the Freedom to Speak Up Review
report).

I suggest: The policy should clearly state that it is recognised that whistleblower
reprisal is a matter of serious misconduct, and that where board members are guilty
of or privy to whistleblower reprisal, this would raise a question about whether they
meet the Fit and Proper Person requirements.


13) The policy makes no reference to inappropriate use of compromise agreements
and gagging of whistleblowers, even though there has been concern by
whistleblowers and by parliament about these issues.

I suggest: The national policy should clearly define what is and what is not an
acceptable use of compromise agreements. I feel in particular that super-gags,
which prevent staff from disclosing the existence of agreements, and nondisparagement clauses should be banned by policy. Even where compromise
agreements are technically legal, any non-disparagement clauses are likely to
intimidate and deter transparency.

14) It seems to be Monitors intention that organisations will be able to customise
the policy according to local process, which rather defeats the purpose of national
standardisation: Our local process [include hyperlink] adheres to the principles of
this policy and provides more detail about how we will look into a concern.

I suggest: Other than to insert names and contact details of local personnel, there
should be no deviations allowed from the standard policy.

Yours sincerely,

Dr Minh Alexander



[1] Speak Up For a Healthy NHS http://www.pcaw.org.uk/files/SpeakupNHS.pdf

[2] NHS England Serious Incident Framework
https://www.england.nhs.uk/patientsafety/wpcontent/uploads/sites/32/2015/04/serious-incidnt-framwrk-upd2.pdf

[3] Public Accounts Committee
http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpubacc/593/593
.pdf

[4] Whistle while you work BMJ 2010 http://www.ajustnhs.com/wpcontent/uploads/2012/05/whistleblowing-bmj-2010.pdf








Consultation questions



1. Please provide your contact information (optional):

Name: Dr Minh Alexander

Job title: None

Name of organisation you work for: None

Are you responding on behalf of an organisation or as an individual? An individual

Email address: as per my correspondence address

Are you, or have you been, a whistleblower? Yes

2. Our intention is that this policy should be adopted by all NHS organisations, with
the local process sitting beneath it. Do you agree with this approach and do you feel
the national policy is compatible with existing local processes? Please give reasons
for your answer.

As above, I do not think that organisations should be able to deviate from the
national policy.


3. We have used the term whistleblowing in the title of the policy to reflect the
conclusion of Freedom to Speak Up that it is widely used to cover many different
contexts. What do you think about this term? Would something else be more
effective in normalising the raising of staff concerns? For example, 'The national
policy for staff raising concerns in the NHS'?

The term whistleblowing is fine.


4. The policy (and example process in Annex A) encourages staff to first raise
concerns with their line manager, before escalating to their local whistleblowing
guardian and then a board member. What are your views on this system of
escalation: is it helpful or should it be open to the individual to decide at what level
and with whom he/she raises his/her concern with? Please give reasons for your
answer.

It should be up to the individual to decide at which level he or she raises concerns.
In some circumstances it would be understandable and justifiable if a worker chose
to disclose externally.

The policy should make staff aware of the different levels at which they can raise a
concern, but make it clear that it is ultimately for them to judge how to make a

disclosure, depending on the perceived risk of reprisal and the nature of their
concern.

5. The Freedom to Speak Up review looked at the experiences of vulnerable staff
groups when raising concerns. We believe that this national policy will make it easier
for all staff to raise concerns, including those who may be more vulnerable. Do you
think it achieves this and, if not, what else could be included?

I do not think the policy currently makes adequate provision for protected groups.
As above, I think the policy should require boards to monitor whistleblowing
outcomes according to protected group.

6. What else could be included in the policy that would add value?

Please see above

7. Would you like to keep any information confidential?