Here, as requested, my response to the questions about case selection criteria for reviews and the main challenges the review process faces. It is important that we are all honest and speak clearly otherwise this exercise cannot work. As you will know I, like many or most or even all whistleblowers, was very disappointed with the Freedom to Speak Up report. That includes the invention of the roles of national and local guardians. Given the ferocity of the retaliation many of us have experienced after raising justified concerns Francis must have realised the need for a guardian with teeth. He ducked this and as a result of political guidance (a belief again shared by many whistleblowers) settled on a solution which is not fit for purpose.
Having said that I intend, as you know, to engage in a positive way with your office. I would be delighted to be proved wrong.
The criteria to select cases for review:
1. All cases unresolved by F2SU guardian at Trust level. I have no idea what numbers will be involved. If it is large more resources will be needed. Reviewing a representative sample would defeat the object.
2. Self-referrals by whistleblowers who are dissatisfied that their concerns have not been acted on or resolved.
3. Self-referrals by whistleblowers who are being victimised as a result of raising concerns. These cases should be dealt with as a matter of urgency before Trusts are allowed to exclude, start disciplinary investigations or hearings. Historic whistleblower cases demonstrate this to be a classic way of dealing with those who raise concerns.
4. Cases submitted by “citizen whistleblowers” (Anna Bradley’s term) who may be patients, relatives, patient champions or any other with information about patient harm or wrongdoing etc. There will need to be some kind of public awareness initiative to make this work. This is entirely in line with a wider NHS commitment to public engagement. Also the current National Guardian has already established a precedent by committing to act in one such case.
5. Cases related to the whistleblower policies of other organisations such as NHS Improvement. (In June 2015 I reported under its external whistleblower policy a number of cases of child deaths covered up in an acute NJHS Trust. NHSI has failed to investigate these cases. In its most recent communication with me NHSI has stated that it has “no duty” to investigate.)
What the greatest challenges of reviewing cases will be and how to meet those challenges:
There are many challenges in “reviewing” these cases but I have selected the two which in my own view are the most important with suggested remedies.
1. Limited independence and powers of NGO.
Given the National Guardian’s (deliberately) limited powers it will be extremely difficult to
collect enough evidence to establish the facts. It is inevitable in the cases meeting the above criteria that the facts will usually be contested by the organisation concerned. Some Trusts have shown themselves adept at this often expending much energy and large amounts of public money in the process.
I suggest that after the first batch of reviews is completed this hypothesis be tested. If there is a significant number of cases where it has been impossible to conclude because of disputed evidence it will be necessary to move from the case review approach to investigation. There will need to be an open process to agree on closure in each case.
On 5 January Keith Conradi head of HSIB (remember the weak explanation from DoH as to why NG could not be co-located with HSIB) exercised his independence of thought in an HSJ article where he called for statutory independence and powers:
I made a suggestion to NG in the comments on this article:
I hope Dr. Henrietta Hughes, the recently appointed National Guardian, will read this article and follow Keith Conradi’s example. It is abundantly clear (to whistleblowers more than anyone) that NG has no real powers to investigate or intervene in situations where patients are being put at risk because staff raising concerns are being ignored or worse. If Dr. Hughes is not yet aware of the critical limitations of her office she soon will be. She must then do as Keith Conradi has done and lobby the health secretary for real powers. Such powers if exercised wisely would be a major impetus to NHS culture change and would protect
patients and staff at the same time. This would enable HSIB and NG together to begin the revolution which the health secretary has so strongly advocated for.
2. The Marginalisation of Whistleblowers.
The current composition of the “Stakeholder Advisory Group” in itself challenges the review process. Some of the organisations represented are the same ones that for many years presided over the very cultures in which whistleblowers were victimised in ways Francis lays out in his report. (In 2011 Sir David Nicholson claimed to the Mid Staffs Public Inquiry that the NHS did not really have a whistleblower problem. Now it has spawned a multi-million pound industry.) The only reason the Secretary of State acted to commission the Freedom to Speak Up Review was because of sustained whistleblower pressure. It is worth noting that the stakeholder advisory group was initially constituted with only one whistleblower who had suffered significant detriment. I was invited to attend after making a strong written case to Dr. Hughes. More to the point the many NHS whistleblowers who hoped and indeed expected to be a part of the National Guardian’s work were excluded. Belatedly after more lobbying the whistleblowers have been invited to a separate meeting to ours. They could be forgiven for thinking of this as a B-list. Whether this was deliberate or an oversight does not matter. It demonstrates again that although NHS leadership is now quick to publicly recognise the importance of whistleblowers they are still ignored or marginalised in practice.
The remedy is clear to me. No-one understands the cultures in which NHS whistleblowers have suffered and patients have been put at risk better than the whistleblowers themselves. Only the wounded physician (or nurse etc.) heals. A significant percentage of the stakeholder advisory group should be whistleblowers. I am not interested in who they are except out of a concern that it might fuel a further sense of exclusion in some. Many NHS whistleblowers held senior posts before their dismissal and have all the qualities needed to chair or if necessary co-chair the group. I would also recommend the appointment of at least two patient champions. Building safe reporting cultures is of greater importance to patients than to any of us. Patients are the ultimate stakeholders. The F2SU guardians are important but there is need for no more than 2 as stakeholders. They will be doing their main work in the Trust. If Nick Ross is the same person that once hosted Crimewatch I applaud the wit and wisdom of whoever invited him.
It is important for all those who have not personally experienced the devastating consequences of retaliation by senior management that the whistleblowers have to recognise the unique contribution they have to make to the work of NGO.
There are of course other challenges to our work but others will probably raise them. Otherwise we will encounter them and recognise them as such in due course.
18 January 2017