12 March 2019

Top down approach to protecting NHS whistleblowers

Health Secretary Matt Hancock recently told the Patient Safety and Care Conference that he is determined to end the ‘morally abhorrent’ injustice of whistleblowers in the NHS being ignored, bullied and forced out.

To bring about this change, he said that the focus will be on leadership; “Creating a more just culture in the NHS, a more open, honest and trustworthy culture, starts today. And it starts at the top.”

This commitment comes off the back of the publication of the review of the Fit and Proper Person Test by Tom Kark QC and Jane Russell. The test, introduced in 2014, requires NHS trusts to ensure all executive and non-executive directors are suitable and fit to undertake the responsibilities of their role.

 

So how will bosses be held to account?

 

Firstly, by identifying new core competency standards for directors. The proposed competencies include:

• knowledge of clinical and financial governance, patient safety and medical management and the importance of clinical outcomes
• responding to serious incidents
• complying with the duty of candour
• learning from whistleblowing.

Hancock also promised a central database for information about directors’ qualifications, experience and previous employment, including disciplinary issues and grievances. The system will aim to support directors to receive training and improve their skills where they are found to be lacking, or if things go wrong, and ultimately it should stop directors who are guilty of misconduct moving seamlessly from one trust to another.

 

How will these measures protect whistleblowers?

 

So long as whistleblowing makes it to the list of core competencies in some guise, we can at least expect directors to be able to demonstrate an understanding of its value as a legitimate governance tool.

But will that go far enough to prevent the victimisation and unfair dismissal of those who make protected disclosures that has plagued the NHS for so long? In fact, we would hope that, at director level, the core competency goes further than simply learning from or understanding the value of whistleblowing, but extends to actually implementing effective arrangements and actively promoting a ‘speak up’ culture.

Equally, for a central database to help effect change it must include information about any suggestion that a director has suppressed a ‘speak up’ culture and/or victimised directly, condoned or failed to sanction victimisation of a whistleblower. The purpose of this would not be to create a blacklist of directors whose skills are lacking, although this risk exists, but to ensure that training and support can be provided where required.

 

Do these proposals go far enough?

 

In fact, only two of the seven recommendations from the review have been accepted.

Other recommendations included the creation of a new body, the Health Directors’ Standards Council, with the authority to investigate alleged misconduct and ban directors from sitting on NHS boards if necessary, and a mandatory reference form which could not be lawfully sidestepped by way of a settlement agreement when a director moves between trusts.

The review also recommended further work to define serious misconduct, and suggested including in that definition the suppression of whistleblowers or discouraging staff to meet the duty of candour. The NHS workforce working group under Baroness Harding is tasked with considering the other recommendations.

The Health Secretary said: “Making someone choose between the job they love, and speaking the truth to keep patients safe, is morally abhorrent and operationally foolish.”

This recognises that, at a time when the NHS faces such enormous pressures, it cannot afford to lose its most dedicated staff. But for real change to be achieved, directors must not only be fit for purpose but must take responsibility for, and be measured against, their success in embedding a positive and healthy whistleblowing culture from the top down.

If you would like further advice on whistleblowing or wider employment issues, please contact Chris Mayers at cmayers@hcrlaw.com or on 01989 557 051.

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Chris Mayers, Partner
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