Katherine Murphy, Chief Executive, Patients Association

9 May 2015

Dear Katherine,

DH consultation on the implementation of Francis’ Freedom to Speak Up review

 I write as invited by the Patients Association to comment on the implementation of the Freedom to Speak Up report. I have already copied Patients Association into a summary of my concerns about Francis’ failure to address the specific issue of accountability (attached). In this letter I will summarise my general concerns, and I will focus in detail on the central issue of abuse of power and the importance of independent mechanisms for managing this.

General comments

 Francis’ Speak Up review report is seriously flawed and features numerous omissions and internal consistencies. Francis admits that there is serious victimisation of whistleblowers, that occurs on a grand scale scale and is an ongoing problem. However, his report also pathologises whistleblowers and presents this as part of a range of excuses for serious management misconduct. Francis is silent as to any description of the nature and scale of matters that have been covered up, although whistleblowers have told him of many matters such as avoidable patient deaths and criminal offences, and their cover up. His report thus lacked authority in its failure to properly demonstrate the proportionality of his proposed measures.

Shockingly, Francis advised against review of past cases, even though many are very recent. Unlike the Hooper report on GMC and whistleblowing [1], Francis’ report is also unfair in the ineffectiveness of its proposed measures. This in my opinion is so serious that it amounts to a form of willful blindness. This is underlined by the fact that Francis has contradicted his own past comments on several matters, as part of reaching unsatisfactory conclusions and recommendations. Furthermore, Hooper commented on matters outside of his terms of reference where serious injustice was evident. Francis in contrast did not, and several elephants still stand in the room, such as the role of ministers and civil servants in whistleblower suppression. Evidence continues to flow freely of the DH and Health Secretary’s refusal to intervene when whistleblowers are suppressed and harmed. [2]

Abuse of Power and failure by Freedom to Speak Up to remedy this

 Whistleblower suppression is abuse of power, by organisations with far superior resources, against staff who are rendered extremely vulnerable. This huge inequality of arms (a concept with which Francis as a barrister will be familiar) allows employers to neutralise perceived threat from whistleblowers with relative ease. I am sure the Patients Association will recognise the NHS tactics used against whistleblowers as very similar to those directed at complainants. [3]

NHS employers can isolate and silence staff through ostracisation, general intimidation, processes such as suspension, and other procedures that impose confidentiality or by strong arming staff into compromise agreements with confidentiality clauses. Employers can and do easily falsify evidence against whistleblowing staff to discredit them and enable their dismissal or justify malicious referrals to professional regulators. Employers often ignore and fail to investigate concerns, or defensively prolong matters. They also frequently conduct corrupt investigations into whistleblowers’ concerns in order to produce false assurance for regulators. Such investigations may be done in house, or for the appearance of impartiality, they may be outsourced, but with ultimate control remaining in the employer’s hands.

For example, in the case of Dr Hayley Dare [4] , her employer arranged an “independent” investigation into her safety concerns. However, the investigator who undertook it was in fact hired by her employer’s solicitors.

The degree of concealment can be extraordinarily intense, orchestrated and sustained. Well-known cases such as that of Raj Mattu demonstrate this. [5,6] Parliamentary Health Committee members have borne witness to many serious cases, and have openly likened the NHS to the Mafia in its treatment of whistleblowers. Many millions are wasted on improperly protecting reputations, at the expense of improving patient safety. Such waste is an unaffordable diversion of resources from patient care.

It would be self evident to most that a corrupt employer should not be allowed to mark its own homework. As such, there have been repeated calls for years by MPs, campaigners, experts, and the Health Select Committee for an independent body and or mechanism that can support, protect and if necessary, investigate NHS whistleblower’s concerns. [7] Most recently, Andy Burnham shadow health secretary also proposed an independent body. [8] Francis however, rejected the need for an independent body.

Independence in an NHS context would require a reporting line that is outside of the Department of Health’s line management (or that of any of its subordinate or arms length bodies such as CQC). There would otherwise be a clear conflict of interest between the DH as the body responsible for NHS stewardship, and the handling of concerns about the services for which it is ultimately responsible.

As you will know, the Public Administration Select Committee in its recent inquiry into NHS Complaints and Clinical Failure [9] affirmed the great importance of timely and independent investigation of serious patient safety issues. It emphasised that when safety issues are considered, the whole system should be evaluated, taking into account the actions of commissioners and regulators. In order to remove current conflicts of interest from such parties’ oversight of safety investigations, PASC recommended that a national investigative body that reports directly to Parliament is established.

Inexplicably Francis, despite all the mass of evidence that he was given about the above corrupt processes used against whistleblowers, did not make any provision for truly independent investigation or support. This was altogether unexpected, given that he had previously recommended that complaints about serious safety incidents should be independently investigated. [10] Francis also previously recognised that Boards often control whistleblower reprisal, and he recommended that CEOs who victimise whistleblowers should be sacked. [11] Further, he recommended that criminal sanctions be introduced for whistleblower reprisal. [12] The above demonstrated that Francis had a clear understanding of the need for independent process.

However, in his Freedom to Speak Up report, Francis suggested that local whistleblowing guardians should be employed by and based within NHS Trusts, and that the “independent” national guardian should operate under the combined aegis of CQC, Monitor and NHS England. In reality, these proposed arrangements are neither independent nor without conflicts of interest. Francis’ proposal has also been criticised because the bodies that he entrusts with whistleblower welfare are believed by many to be sources of the top down bullying in the NHS, and responsible for a “culture of fear and compliance”. Furthermore, whilst Francis superficially opined that “an element of independence” would be desirable in the investigation of staff concerns, he watered down the arrangements in that:

• He advised that the “independent” national guardian should not investigate whisteblowers’ concerns or have binding powers.

• He left the control of investigations in employers’ hands, and allowed them to decide which cases would require “independent” investigation

Paradoxically, Francis at the same time as recommending that precious resources should be spent on his toothless guardians, dismissed the establishment of an independent body because it was purportedly too “bureaucratic”. He also repeatedly dismissed formal processes as “too legalistic”, when in fact it is arbitrary and corrupt process that is the undoing of whistleblowers. But then, language and spin can be very powerful tools in the service of bias.

All this gives substantial comfort to rogue employers and enables suppression to continue. Without sound process, it will remain just as hard and risky for staff to speak up, and there are dangers for the interests of patients. Arguably, there is now even greater danger to patients as the current government pursues its political agenda of slashing services. It is especially regrettable that further cover ups have been enabled through such weak governance.

Moreover, the government’s consultation [13] on the implementation of Francis’ report is highly restrictive. It allows only comment on how his very flawed proposals should be enacted. As you know from correspondence into which I have copied you, the DH has confirmed that it will disregard any comments that fall outside of its very narrow consultation framework. By implication, the DH will therefore ignore Andy Burnham’s call for a properly independent whistleblowing body.

In short, Francis has surreally offered whistleblowers a teacup of water to put out a house fire, and the DH are consulting on what sort of teacup it should be.

I ask the Patients Association to reject Francis’ report and the government’s charade of consultation, and to call for a public inquiry into NHS whistle blowing to allow true learning. I also ask the Patients Association to call for urgent redress for whistleblowers who have been harmed and are seriously struggling. As you will know, the Health Committee called for whistleblowers who have been harmed to be identified, given an apology and practical redress. It is shameful that dedicated staff who have stood by patients are now consigned to long term unemployment and food banks, and face uncertain old age due to pension losses.

In order to stand by patients, I ask that the Patients Association stands by whistleblowers and helps to prevent future suppression. Until whistleblowers and complainants are fairly treated, healthcare failures and serious avoidable harm will continue.

Please let me know if any additional clarification is required.

With best wishes,

Minh

Dr Minh Alexander

Whistleblower and former consultant psychiatrist

 

Enc. Article on Freedom to Speak Up report and issues of accountability.

[1] The handling by the General Medical Council of cases involving whistleblowers by Sir Anthony Cooper QC, 19 March 2015

[2] Health secretary: ‘victimisation’ of Croydon NHS whistleblower not my problem. Croydon Guardian, 23 April 2015

[3] 21 ways to skin a whistleblower, Andrew Bousefield, Private Eye Special issue 2011

[4] Blow the whistle if you Dare, Dr Phil Hammond, Private Eye 1386, 2015

[5] Raj Mattu and the death of whistleblowing, Dr Phil Hammond Private Eye 1364, 2014

[6] There were hundreds of us crying out got help: the afterlife of the whistleblower, Andrew Smith, Guardian 22 November 2014

[7] House of Commons Health Committee, Patient Safety, Sixth report of session 2008-2009

[8] Labour to create NHS staff champions to protect stressed-out nurses and give an ear to whistleblower, Nigel Nelson, Daily Mirror 19 March 2015

[9] House of Commons Public Administration Committee, Investigating clinical incidents in the NHS sixth report of session 2014-2015

[10] Report of the Mid Staffordshire NHS Foundation Trust public inquiry, February 2013

[11] Oral evidence by Mr Robert Francis QC to Health Committee inquiry into Complaints and Raising Concerns, HC 1080, 11 February 2014

[12] Francis calls for new protections for whistleblowers, Shaun Lintern, Nursing Times 11 February 2013

[13] Consultation on the implementation of the recommendations, principles

and actions set out in the report of the Freedom to Speak Up review, DH March 2015