MEDICO LEGAL M A G A Z I N E
WHISTLEBLOWING IN THE HEALTHCARE SECTOR By Juliette Mellman-Jones, Partner and Head of Health and Care Sector, and Judith Davison, Associate Professional Support Lawyer at BLM Law The role of whistleblowing to highlight issues within organisations has become increasingly common in recent years, especially within the healthcare sector. What are the key lessons learnt? Can the healthcare sector claim best practice that other industries may follow? The healthcare sector is arguably ahead of the game when compared to other industries which are only recently developing whistleblowing strategies and policies.
What triggered the healthcare sector’s focus on whistleblowing? The focus on whistleblowing resurfaced following the Mid Staffordshire Inquiry and the Freedom To Speak Up Review, both chaired by Sir Robert Francis QC, a passionate advocate of transparency and openness in the healthcare sector. After the Mid Staffordshire Inquiry exposed unacceptable levels of patient care and a staff culture that deterred staff from raising concerns, the Review emphasised that in order for staff to feel comfortable in challenging poor practice or behaviour, wholesale culture changes in the way the NHS operated were necessary. Focus needed to be on patient care and safety rather than finances and targets.
What lessons were learned? The NHS has acted on a number of the recommendations made by the Francis Review and significant progress has been made. A statutory duty of candour has been introduced, Freedom to Speak Up Guardians have been created and an overarching whistleblowing policy has been published by NHS Improvement, in conjunction with NHS England. The statutory duty of candour, which applies to all NHS bodies and other health and social care providers registered with the CQC in England, requires the
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provider to be open and transparent with patients including providing detailed information and an apology when things go wrong with the patient’s care and treatment whether or not a complaint has been made. The duty has been expanded upon by the healthcare regulators to encompass openness and honesty within the provider organisation itself. Healthcare professionals are required to support and encourage each other to be open and honest and not stop someone from raising concerns. Freedom to Speak Up Guardians are specific individuals within an organisation to whom staff can go to raise concerns and NHS Employers offer a “guardian map” indicating which organisations have appointed their guardians already. The overarching policy, “Freedom to speak up: raising concerns (whistleblowing) policy for the NHS”, published by NHS Improvement in April 2016 for implementation by March 2017, is intended to provide a consistent approach across the sector, setting minimum standards whilst allowing organisations an element of flexibility in relation to finer details, when it is implemented. There has been acknowledgement that a ‘one size fits all’ approach would not be appropriate across the whole healthcare sector, given that smaller settings, such as GP practices, could make it more difficult for employees to feel comfortable raising concerns. Consequently, NHS England has drafted separate guidance on whistleblowing for primary care, which was consulted upon earlier this year.
What challenges remain? Whilst significant progress has been made, ongoing news reports of mistreatment of whistle-blowers at work and ruined careers show that there clearly remains room for improvement. Legal protection is provided for employees by the
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