SpecialistInfo Medico-Legal Magazine

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 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

Public Interest Disclosure Act 1998 (PIDA) which protects whistleblowers from dismissal from their job or detrimental treatment where they have made a “protected disclosure” in the public interest and followed the correct procedure. Only certain categories of disclosures are protected, including reporting a criminal offence or practices which may be a danger to health and safety. Often, disgruntled employees seek to misuse the PIDA for raising personal grievances against colleagues or the organisation. These are not covered by whistleblowing law and careful redirection of concerns may be required. The fundamental challenge is legislating for culture change. Many will agree that it takes years or even decades to change the culture of a monolithic organisation like the NHS yet that is exactly what the new law, roles, policies and procedures seek to impose in an extremely short timeframe. Given the renewed focus on patient safety and care, one could argue that whistleblowing interventions come too late. Culture change will only have been achieved when individuals feel free, or even encouraged, to raise concerns and challenge behaviour within an open and supportive organisation such that the language of “blowing the whistle” on poor practice disappears from the lexicon entirely.

Whistleblowing issues in other industries

In the wake of the financial crisis, concerns were raised about how the Financial Conduct Authority (FCA) safeguarded whistleblowers in the financial services sector. The FCA published new rules on whistleblowing in October 2015 applicable only to specified organisations regulated by it, which are due to take effect from September 2016. Similar to the NHS, affected organisations are required to appoint a “whistleblowers’ champion” responsible for overseeing the steps taken by the organisation to implement the new rules including the introduction of internal arrangements to protect the confidentiality of the person raising the concerns. Even the UK Government is not immune. In March 2016, the Public Accounts Committee declared itself “disappointed at the slow progress” made by the Cabinet Office and other government departments implementing effective whistleblowing procedures. In response, the UK Government committed to introduce improved processes by the summer of 2016, however we expect that this will have been derailed by extremely recent events.

What aspects of the healthcare sector’s approach can be adopted by other industries?

Qualifying disclosures in the healthcare sector generally relate to health or safety concerns and/ or their concealment, whereas in other industries disclosures may be focussed on other issues covered by PIDA. However much of the language of the guidance remains the same – the focus is upon changing culture, so people feel comfortable and encouraged to raise concerns within an open and supportive environment. Similar challenges present themselves as for the healthcare sector in respect of changing culture and behaviour. The Freedom to Speak Up policy addresses a number of questions that a potential whistleblower may have and may prove a useful foundation for organisations outside the healthcare sector creating their own policies: • With whom should I raise my concern? • How should I raise that concern with them? • What will happen after I have raised my concern? • When will a conclusion be reached regarding my concern?

Robust, effective and embedded policies and procedures for whistleblowing will be important irrespective of the nature of a business. Staff training can be useful to ensure employees are aware of and understand new processes and are confident that their concerns will be dealt with appropriately and without retribution. Engagement from the Board and throughout the organisation is essential if culture change is to be achieved. For further information, visit www.blmlaw.com