Quality : advice on whistleblowing
The vast majority of the NHS’s 1.3 million healthcare workers are comfortable raising concerns about quality and other issues within their speciality, ward or department. This is because they know that their concerns will be resolved though line management or other channels.
However it can be more difficult for healthcare workers and employers to know what to do when there are concerns like : unlawful conduct, financial malpractice, breaches of codes of conduct, ill-treatment of patients and clients, abuse to clients, disregard of health and safety rules, dangers to the public or the environment, and other similar matters
I thought that you might be interested in an overview of whistleblowing from the perspectives of healthcare workers, employers and those that are offering support. Most of the information in this article is from the Public Interest Disclosure Act 1998 (PIDA) and Public Concern at Work
The NHS differs from most other sectors of the economy in that the Public Interest Disclosure Act 1998 applies to every professional working in the NHS – including employees, workers, contractors, trainees, agency staff, homeworkers and even the genuinely self-employed.
For individual healthcare workers thinking about whistleblowing, Public Concern at Work has highlighted these points for consideration :
- if the worker is seeking to engineer a claim to protect himself or is seeking to use PIDA to obtain or improve a settlement, it is most unlikely his disclosure will in law be protected;
- if the worker seeks advice about how to raise a concern, it is suggested that making an initial disclosure under s.43C should be considered as the preferred step as the Act’s protection most readily applies here;
- if the worker wishes to pursue a concern, it is suggested that making an external disclosure under s.43F or 43G should be considered as protection under 43C can be jeopardised if the concern descends into a dispute with the employer about its response to it;
- the worker is likely to face real problems with causation [ss. 2, 5 and 6] if he blows the whistle anonymously. This is because for a worker to win protection the tribunal must be satisfied that the worker was victimised by the employer because (and hence the employer knew that) he had blown the whistle;
- if the worker is to disclose information externally because of fear of victimisation or fear of a cover-up or because of the seriousness of the matter, it is suggested that disclosures to ministers [s.43E] and to prescribed regulators [s.43F] are considered first, even though a wider disclosure may also be protected [ss. 43G(2) and 43H];
- if the worker is to make a public disclosure of information [s.43G or s.43H], there are two rules of thumb: (a) a disclosure to a body whose duty it is to investigate the malpractice is likely to be more readily protected; and (b) where the public interest will be equally protected by disclosures to two bodies, the disclosure which causes less damage to the employer is likely to be more readily protected;
- as to media disclosures [ss.43G and 43H], these are more likely to be protected (a) where the information was not confidential; (b) where, if it was confidential, there is or was a cover-up and there is no prescribed regulator; (c) where less public disclosures had failed to secure a reasonable response; or (d) where the matter was exceptionally serious and the client can show the media was a reasonable recipient of the disclosure;
- if the worker suffers victimisation short of dismissal, he is also protected [s.2];
- if the worker is an employee and is dismissed, he can within the first seven days apply for an interim order [s.9] – though these are not readily granted; and
- where a worker has a shopping list of concerns, an employment tribunal may take this as an indication that there is more to the case than public interest whistleblowing.
Public Concern at Work has also produced a series of points for Employers to consider too and these are that :
- employers should positively consider the benefits of introducing a whistleblowing policy. If they have one, they should review and refresh it and promote it effectively to staff;
- employers should – whether or not as part of the policy – make it clear through the management line and across the organisation that it is safe and acceptable for workers to raise a concern they may have about malpractice;
- where a worker raises a concern about malpractice, every effort should be made to ensure that the employer responds [and can show it has responded: s.43G(3)(e)] to the message, rather than shoots the messenger;
- employers should recognise it is in their own interests to introduce and promote effective whistleblowing policies. This will not only help managers and staff separate the message from the messenger but will also reduce the likelihood that a public disclosure will be protected under the Act: s. 43G(3)(f);
- where a protected disclosure has been made, employers should take all reasonable steps to try and ensure that no colleague, manager or other person under its control victimises the whistleblower: s.2;
- where an employer is satisfied with its response to a concern but the worker is not, the employer should consider notifying the regulator as an alternative to finding itself in a protracted dispute with its worker;
- the implications of the Act on confidentiality clauses [s.43J] in severance agreements and employment contracts should be borne in mind by advisers and their use by employers should be carefully reviewed;
- employers should consider whether to revise their arrangements with key contractors to provide that those who work for key contractors have access to the employer’s whistleblowing policy insofar as the concern affects it;
- disclosure to a prescribed regulator is protected [s.43F] whether or not the concern had first been raised internally. It is important to note that where the worker reasonably believes he will be victimised if he goes to a prescribed regulator, he will be entitled to protection if he makes a wider, public disclosure: s.43G (2)(a). Accordingly employers should make it clear that reporting concerns to a prescribed regulator is acceptable;
- any attempt to suppress evidence of malpractice is now particularly inadvisable since (a) a reasonable suspicion of a ‘cover-up’ is itself a basis for a protected disclosure: s.43B(1)(f); (b) a disclosure to the media is more likely to be protected: s.43G(2)(b); and (c) there is less scope for keeping such matters private by a gagging clause: s.43J;
- if the employer is a public body where at least one of its Board members is a ministerial appointee, it should have a policy which authorises and facilitates whistleblowing direct to the sponsoring department: s.43E;
- depending on the employer’s particular business, it is advisable that – at a senior level – it reviews its relationship with any regulator prescribed in its key areas of activity; and
- Board members and/or senior managers designated to handle whistleblowing issues should receive appropriate training.
Where to get information : information and guidance for NHS England healthcare workers is available from many sources including :
- The Royal Mencap Society provide the national whistleblowing helpline on 08000 724 725 and at firstname.lastname@example.org
- British Medical Association – guidance for doctors and medical students
- Nursing and Midwifery Council – guidance and toolkits for nursing and midwifery
- Health Professions Council – guidance for health care professionals
- Care Quality Commission – guidance for health and care staff about how you can contact CQC if you do not feel able to report your concern internally.
- Public Concern at Work – the independent whistleblowing charity and offers advice
- NHS Employers – information about published whistleblowing guidance, answers to frequently asked questions and materials to assist in delivering internal communications
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