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Whistleblowing: publicly encouraged but still dangerous

Kim Holt and Roger Kline, 29 October 2012

A central concern of Robert Francis QC, when taking evidence at the public inquiry into Mid Staffordshire Foundation Trust, was why more staff had not formally raised concerns, and why they had been so ineffective. It was, after all, the work of the relatives of hospital patients led by Julie Bailey, not hospital staff, managers or regulators, that forced the scandal into the open.

No one can disagree with the sentiment of the “speaking up” charter, launched last week. The question that has to be answered is why is yet another statement necessary?

The NHS is awash with statements of good intent on whistleblowing. Every trust and health authority is required to have in place policies and procedures which comply with the Public Interest Disclosure Act (PIDA).

Guidance for GPs was then issued following the inquiry into Harold Shipman. Two years ago, “Speak up For a Healthy NHS” urged employers to have good policies and practice in place. And in March this year Andrew Lansley published an updated NHS constitution, stressing the responsibility of staff to report concerns and of employers to act on them, but did not introduce any additional statutory obligations on employers.

It may be useful to have a restatement of the principles set out - but signed by even more organisations -- though it is curious that neither the Department of Health nor the health secretary signed the statement.

However, the reality on the ground is that the NHS remains, in too many places, a dangerous place to raise concerns. The 2010 NHS staff survey found that staff are increasingly aware of their organisation’s policies and process for reporting concerns, and that they understand how to raise concerns about risks to patient safety, with 80 per cent saying their “trust encourages us to report errors, near misses, or incidents”. But despite this, only 41 per cent of staff said their trust “treats staff who are involved in an error, near miss, or incident fairly”.

The saga over London paediatrician and Baby P whistleblower Kim Holt’s exclusion from her post for over four years has been well documented. Her story is supposedly a success and to be celebrated, but is long-term exclusion the best we can do?

The conclusion from Patients First’s recent inaugural conference, co-hosted with the British Medical Association, was that the law does not protect whistleblowers from punishment and bullying.

We make two suggestions to turn the warm words into real cultural change.

First, signatories to the charter could insist that the original intention of the PIDA to protect whistleblowers, not just compensate them, is restated through changes to the act which reverse the effect of recent court cases. The case of Jennie Fecitt and other Manchester nurses who questioned a colleague’s qualifications utterly undermined the principle of vicarious liability in whistleblowing cases. Had this principle been applied to Helen Donnelly, the nurse at Stafford who was bullied by colleagues, she too would presumably have lost any PIDA case she brought alleging detriment.

There should be clear legal protection for job applicants who have whistleblown, for students on vocational placements in health and care settings, for all GPs and for public appointments such as Care Quality Commission board member Kay Sheldon. Ministers could abandon their attempt to slip another barrier to whistleblowing in place through clause 14 of the Enterprise and Regulatory Reform Bill now going through Parliament.

Second, signatories could call for decisive action to change the culture of denial and closing of ranks. How many people blew the whistle and were then promoted? Whistleblowing is seriously bad for your career. Should a chief executive allow the detrimental treatment of a whistleblower, or seek to gag them, then why shouldn’t Jeremy Hunt or Sir David Nicholson oblige them to resign? Such decisive action might be just the trigger, in the wake of the Francis inquiry, to ensure the sector takes the issue more seriously.

The issuing of a charter on the day that the Francis report was due might be used by some to claim the NHS is putting its house in order. Not yet we’re not.
These principles need to be implemented in every trust (and private sector healthcare organisation). Otherwise, instead of creating a service in which whistleblowing is not necessary, we will continue to have one in which it is unsafe.

  • Kim Holt is a consultant paediatrician and founder of Patients First, which campaigns for whistleblowers.
  • Roger Kline is co-author of Professional Accountability in Social Care and Health: challenging unacceptable practice and its management (Learning Matters 2012) and an associate consultant with Public World.

This article is reproduced by kind permission of Health Service Journal – well worth a subscription.

Footnote on the Mid Staffordshire Inquiry: You can find Roger Kline's new Working Paper on what the Mid Staffordshire Inquiry is likely to suggest and the likely Government response here.

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