Pressure Grows to Deliver Justice for Whistleblowers

sharmilachowdhury's avatarSHARMILA CHOWDHURY

The Times Politics 7 May 2014

The group want Jeremy Hunt to assure health service workers that they can raise concerns without fearing for their careers

Oli Scarff/Getty ImagJeremy Hunt
Oliver Moody
Last updated at 12:01AM, May 7 2014
Doctors, nurses and MPs from both sides of the Commons united yesterday to demand justice for NHS whistleblowers who were ousted from their jobs after raising the alarm over poor care.
The new head of the health service faces growing pressure to reopen the cases of six former staff after The Times revealed that they had asked the government for a public inquiry into how they came to be punished for speaking out.
Five were recognised as whistleblowers during their employment tribunals and the medical skills of the sixth were not in question, his trust’s chief executive accepted. None has returned to their job.
The group wants Simon Stevens, the new head…

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NICE urges doctors to treat dying patients as individuals

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My father, who was a retired doctor was admitted to Ealing hospital as emergency. Same hospital where I had whistle blew on fraud. Previously I and my mother cared for him at home instead of placing him in a care home. Being a whistleblower and having covered many incidents involving care homes we did not feel this was a safe option. Additionally, we wanted to be with him and tend to his needs and comfort. There is nothing like being at home with your family and we loved him. I felt privileged to be there and look after him.

When emergency rose, where father had lost momentary consciousness, mother called the emergency services.  Ambulance had  no option but to take him to Ealing Hospital, as A&E based at Central Middlesex had been closed down – which is really unfortunate as both myself and my family have used the services there previously and found it  to be  excellent. My father too had been previously been a patient there and he was treated with great respect and dignity by staff at all levels.

Having worked at Ealing where I had reported fraud, it did not fill my mother or I with any confidence of placing my father there.

When my father was admitted at Ealing A&E I asked if he could be transferred to Central Middlesex but the request of refused. His condition had improved but he was admitted. However his care whilst in hospital was far from satisfactory and  he passed away with 2 weeks of being admitted. He was starved, dehydrated and not given his insulin which was essential for his long standing diabetes for 10 days. I suspect his other medication were also likely to have been excluded.

I discovered another patient’s notes in his file.

Father’s condition deteriorated before our eyes where he was being administered oxygen.

His last meal that I fed him was mashed banana and toffee yogurt- his favourite.

The evening before he died the team transferred him to a side ward as the consultant later advised that he knew my father did not have long. However, he omitted to advise this to us as the family at the time. So, we were not given the opportunity to see him before he passed away early the next morning.

I wrote to the CEO at Ealing hospital:

https://sharmilachowdhury.com/letter-to-ceo-at-ealing-hopsital/

The response from the CEO was far from satisfactory. There was no promise of any investigation for future prevention. Instead the CEO blamed the situation on A&E not documenting his medication – which was false, as pharmacy had called me, day after his admission, to confirm the amount of insulin. The CEO also attributed the failures to lack of consultants during the weekend. Again, not really a good reason as starvation, dehydration and omission of medication had occurred during the week. As had the presence of another person’s notes in his.

Not only had I suffered at Ealing after raising concerns of fraud , we had to further witness the appalling treatment of my father by the same hospital.

The treatment of the elderly and the vulnerable has a long way to go. The following guidance from NICE is a welcomed step forward. The question now remains is how will this be implemented? Who  will be supervising this to ensure adherence? In cases of failures how will individuals be held to account?

BBC News 16  December 2015
By Smitha Mundasad  Health reporter
Media caption The new guideline emphasise communication, as Adam Brimelow reports

 

End-of-life care in England must be tailored to the needs of dying patients rather than a “tick-box approach”, the health watchdog NICE says.

Patients must be treated with respect and compassion, it said, and doctors should avoid making “snap decisions” about whether someone was dying.

The guidance is designed to address misuse of the previous system, the Liverpool Care Pathway.

Charities welcomed the new guidelines – but warned more investment was needed.

The Liverpool Care Pathway (LCP) was introduced in the late 1990s, in an attempt to ensure people had a dignified and comfortable death.

Among other things, it involved checklists prompting staff to consider whether invasive procedures, drips and drugs should be withdrawn from people in the last stages of life.

But it was phased out last year after a government-commissioned review revealed serious concerns that it was being used in the wrong way, leading to a “tick-box” culture.

Reports suggested that incorrect use of the LCP left some patients without food and water.

‘Individualised approach’

The new wide-ranging guidelines – the first national guidelines to be introduced in England – cover many of the same key principles as the LCP.

However, NICE called for a stronger focus on individual plans for each patient, saying their wishes and those of their family must be central.

Palliative care

Palliative care - file pictureImage copyrightScience Photo Library

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Prof Sam Ahmedzai said this needed to be underpinned by a change in attitude to ensure staff had more respect for care of the dying.

“You have to look at each individual person and respect them as an individual person, ask them about their wishes,” he told BBC Radio 4’s Today programme.

“Some people may want interventions, may want tests to carry on. Others may want to stop all those things. Some people may want fluids, others may not want fluids. So respecting the individual and not having a one-size-fits-all approach.”

The expert panel acknowledged that recognising whether someone is in the last few days of life can be difficult.

Staff should seek guidance from senior colleagues if there were uncertainties and avoid snap decisions, the panel said.

The guidelines emphasise that patients must be monitored for improvements on a daily basis. Staff are offered information on how to spot signs that death is imminent.

Hydration

The document also looked closely at hydration for people in their last few days of life.

Previous reports suggested that when the LCP was used incorrectly some patients were left so thirsty they tried to suck water from sponges used to moisten their mouths.

The new guidance says anyone who is capable of drinking should be encouraged to do so if it is safe and family and friends should be able to help.

But despite these recommendations, experts say there is a lack of evidence about whether giving or withholding fluids can prolong or shorten life in these circumstances.

Lord Howard, chairman of Hospice UK, welcomed the guidelines but said there would be real challenges putting them into practice.

“There can never be ‘a tick-list approach’ towards caring for the dying and this guidance must be underpinned by greater investment in training and education for all staff involved in end-of-life care.

“This is crucial if we are to avoid the failings of how the Liverpool Care Pathway was implemented,” he added.

 

Sustainability and financial performance of acute hospital trusts

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National Audit Office

16 December 2015

Full report: Sustainability and financial performance of acute hospital trusts

The financial performance of acute hospital trusts has significantly declined in the last year and their financial position looks set to worsen in 2015-16, according to the National Audit Office.

The deterioration in the financial position of NHS trusts and NHS foundation trusts has been severe and worse than expected, with their £843 million deficit in 2014-15 representing a sharp decline from the £91 million deficit reported in 2013-14.

Overall, the financial position of NHS bodies worsened in 2014-15, as NHS commissioners, NHS trusts and NHS foundation trusts together moved from a surplus of £722 million in 2013-14, to a deficit of £471 million.

In June 2015, the Department of Health announced limits on some elements of trust spending in response to the worsening financial position of NHS trusts and NHS foundation trusts. Today’s report warns, however, that the response by the Department, Monitor and the NHS Trust Development Authority might come too late to improve the 2015-16 financial position. The revisions and resubmissions of trusts’ 2015-16 financial plans have created an unsettled planning period, and might make it difficult for NHS trusts, NHS foundation trusts, the NHS TDA, and Monitor, to meet targets, measure progress and ultimately manage resources effectively.

The government has committed to giving the NHS £8.4 billion more in this Parliament. It is not yet clear that the Department, NHS England, Monitor and the NHS TDA have the coherent plan that is needed to get trusts’ finances back on track and to close their estimated £22 billion gap between resources and patients’ needs by 2020-21.

Despite recent efforts to work together, interventions from the Department and its arm’s-length bodies risk creating perceived or actual competing priorities for trusts. One area where advice to trusts could have created actual or perceived conflicts is on safe staffing. The Department’s interventions to reduce trusts’ spending on agency nursing staff, for example, came at a time when acute trusts needed to recruit more nurses to meet safe staffing guidelines, and when the vacancy rate for permanent nursing staff was high.

The NAO warns that effective oversight by the Department and its arm’s-length bodies will become harder if the number of trusts in financial distress rises further. While the Department and its arm’s-length bodies have taken steps to learn how trusts could reduce costs, the wider use of this learning and how it will improve trusts’ finances overall is not clear.
Today’s report also reported that making savings through the redesigned models of healthcare will be challenging. The NHS’ new models of care aim to integrate services around the needs of the patient, but are relatively new and untested.

“We said in November 2014 that the trend of NHS trusts’ and NHS foundation trusts’ declining financial performance was not sustainable. We repeat this view today. Running a deficit seems to be becoming normal practice for acute trusts. There is a risk that poor financial performance is seen as the least worst option compared with poor healthcare provision. The Department, NHS England, Monitor and the NHS TDA must take a rounded view of how to improve trusts’ finances. The government’s commitment to give the NHS more funding, with almost half of this coming upfront, could be a significant step towards financial sustainability, if this funding can be devoted to improving the financial position of trusts rather than dealing with new costs. Continued demand for healthcare services means that the pressure on acute trusts will not go away. Until there is a clear pathway for trusts to get back to financial stability, we cannot be confident that value for money will be achieved.”

Amyas Morse, head of the National Audit Office , 16 December 2015

Notes for Editors

-£471m
Net deficit of NHS bodies (NHS England, clinical commissioning groups, NHS trusts and NHS foundation trusts) overall in 2014-15

-£843m
Net deficit of NHS trusts and NHS foundation trusts in 2014-15

61%
Of acute trusts (94 out of 155) reported a deficit at the end of 2014-15

115 out of 240 (48%)
NHS trusts and NHS foundation trusts in deficit in 2014-15

-£958 million
Net deficit of acute trusts in 2014-15 (those NHS trusts and NHS foundation trusts that provide acute healthcare services)

26
Acute trusts in 2014-15 with deficits that made up more than 5% of their income

83%
Of planned efficiencies were achieved by acute trusts in 2014-15

£1.8 billion
Additional funding given to both NHS trusts and NHS foundation trusts in financial difficulty as a cash injection, loan or other financial support in 2014-15

181 out of 239 (76%)
NHS trusts and NHS foundation trusts reporting deficits in the first 6 months of 2015-16

  1. Press notices and reports are available from the date of publication on the NAO website. Hard copies can be obtained by using the relevant links on our website.
  2. The National Audit Office scrutinises public spending for Parliament and is independent of government. The Comptroller and Auditor General (C&AG), Sir Amyas Morse KCB, is an Officer of the House of Commons and leads the NAO, which employs some 810 people. The C&AG certifies the accounts of all government departments and many other public sector bodies. He has statutory authority to examine and report to Parliament on whether departments and the bodies they fund have used their resources efficiently, effectively, and with economy. Our studies evaluate the value for money of public spending, nationally and locally. Our recommendations and reports on good practice help government improve public services, and our work led to audited savings of £1.15 billion in 2014.

Care Quality Commission ‘is not yet an effective regulator of health and social care’

Report by the Commons public accounts committee  11 December 2015

‘The Care Quality Commission has made substantial progress since the Committee last reported in 2012. But it is behind where it should be, six years after it was established, in that it is not yet an effective regulator of health and social care. Because of staff shortages it is not meeting the trajectory it set itself for completing inspections of hospitals, adult social care and primary care. There are also concerns about the consistency and accuracy of draft inspection reports, and the time the Commission takes to finalise a report after carrying out an inspection. At the same time, the Commission is not yet ready to implement new responsibilities it takes on in April 2016 to assess the efficiency with which hospitals use their resources. In addition, the Commission does not yet have the quantified performance measures, linked to explicit targets, that are needed to show whether it is satisfactorily performing its statutory duties. We will be returning to this subject to review what further progress the Commission makes in the coming year.’

 

Listening to patients, carers and staff, and acting on their concerns

11.The number of concerns raised by whistle-blowers, complaints about providers, safeguarding calls and statutory notifications from providers increased from a total of 173,931 in 2013–14 to 208,720 in 2014–15. However, the National Audit Office found that one out of three safeguarding alerts raised with the Commission was not acted on within the Commission’s two-day target.17 The Department acknowledged that the Commission had long-standing problems with how it reported and responded to safeguarding alerts but assured us that the Commission had now put more rigorous systems in place.18 As part of its inspections, the Commission also looks at how hospitals, care homes and paramedical services respond to complaints. It has developed its methodology by speaking to people who have raised complaints about the quality and safety of care, as well as other organisations that people go to when they have a complaint.19

12.The Commission takes the time to talk to patients, staff and carers during an inspection. However, providers were concerned that this only provided the views of people inspectors met on the day of the inspection and meant the Commission could be at risk of placing too much reliance on anecdotal evidence. The Commission organises formal patient and carer consultation events in advance of its inspections, but these may not necessarily be well attended or representative of all people using the services inspected. A GP and Partner of the Jenner Practice in Lewisham told us that, for general practice, the Commission uses a patient questionnaire. However, he felt that the central questionnaire was not very sensitive to local circumstances. He also made the point that responses might reflect an unrealistic or outdated view of what people thought GP services ought to be, rather than how primary care is changing to best meet patients’ needs

Conclusions and recommendations

1.The Commission is behind on its inspection programme and is not, therefore, fulfilling its duty to be sighted on risks to the quality and safety of health and adult social care services. The Commission has struggled to recruit inspectors and analysts with the right skills. By mid-April 2015, the vacancy rate was 34% for inspectors, 36% for senior analysts and 35% for managers, and it did not expect to reach full complement for inspectors until June 2016. Staff turnover in 2014-15 was nearly 8%, much higher than the Commission’s 5% target rate, and was still at this rate for the first two quarters of 2015–16. Because of these staff shortages, the Commission is behind its original target dates for completing its programme of inspections. The Commission forecast that by the end of March 2016 it would be below its planned trajectory by 6% in adult social care and 8% in primary medical services. It expects to have completed its inspections of hospitals by June 2016, six months after its original target date of December 2015. It is likely that it will need to look for alternative solutions to its recruitment problems and is already, for example, using people on secondment to supplement its full time inspectors on mental health. The Commission’s current plans for inspection are based on funding plans made before the 2015 spending review. The Department has asked the Commission to model the impact of reductions in funding of 25% and 40% and, unless the Commission finds alternative solutions to its recruitment problems or changes its methodology, the Commission made clear that any such cuts are likely to lead to further delays to its inspection timetable.

Recommendations:

We are very concerned about the effect being below staff complement has had on the Commission’s ability to carry out its full programme of inspections. The Commission should write to us in July 2016, with an update on staff turnover rates and whether it has met the recruitment targets it gave us in evidence. Specifically, the Commission should set out: whether it has reached a full complement of suitably skilled and qualified inspectors; whether it has sufficient analysts; and what impact staff shortages have had on its forecast trajectory for carrying out inspections.

The Commission needs to demonstrate how it will deliver its programme of inspections in the face of substantial funding reductions. This should include a robust and transparent analysis of risk if it adopts a more flexible approach or prioritises resources. It needs to be clear to the taxpayer and the organisations it inspects about changes of approach.

2.Too often the length of time between an inspection and a report is too long, and the Commission’s draft reports contain too many basic factual errors. At a time when the Commission is asking providers to pay substantially more towards the cost of their inspection it is more important than ever that the Commission can demonstrate the quality of its work. However, providers told us they find too many errors in draft reports, reports take too long to produce and there is too much variation in the quality of initial judgements. On average, inspection reports are not completed within the target of 50 days — reports take an average of 49 days for adult social care, 67 days for general practice and 83 days for hospitals. The chief executive of Warrington and Halton Hospitals NHS Foundation Trust told us they had identified over 200 errors in its draft report. Some of these were just grammatical errors or duplicated points, but some were inaccuracies in the data that could have been resolved while inspectors were still on site. She told us that the Commission had accepted 64% of the points raised and amended the draft as a result. The Commission told us it had strengthened its internal quality assurance processes, but this had lengthened the time it takes to complete a report.

Recommendation: The Commission should set out how it will improve the quality of initial draft reports, and ensure that the time between inspections and publication of reports is shorter. We expect to see progress on this in the next 12 months.

3.The Commission has not always made best use of vital intelligence from patients, carers and staff about the quality of care, or acted quickly enough on their concerns. We are concerned that the Commission’s data suggests that one out of three safeguarding alerts is not acted on within the Commission’s two-day target. The Department acknowledged that there have been long-standing problems with how the Commisison has dealt with safeguarding alerts, and assured us that new processes are being put in place. More generally. the number of calls the Commission receives from the public and whistle-blowers in response to concerns about the quality and safety of care is increasing. During inspections, the Commission also takes time to talk to patients, staff and carers. Providers told us, however, that inspection reports could place too much emphasis on potentially anecdotal evidence inspectors heard on the day of the inspection.

Recommendation: As it continues to build user feedback into its work, the Commission should publicise its role, make it easier for people to say what they think of care, and prioritise action in response to safety concerns. It must work with other bodies – including the ombudsman, central and local government and the third sector — to ensure that concerns are addressed quickly, particularly those raised by whistleblowers. It also needs to improve the quality of information available to people who are choosing a care provider.

4.There is no way for parliament or the public to know whether the Commission is performing its statutory duties to protect the health, safety and welfare of people who use health and social care services. In its March 2012 report the previous Committee criticised the Commission’s lack of adequate performance measures, but over three years’ later the problem is still unresolved. The Commission has developed a new performance framework, but only 6 out of the 37 performance measures included in it have specific, quantified, targets. Reporting performance against clear targets is vital for both transparency and accountability and measuring improvements over time.

Recommendation: The Commission should publish quantified baselines and targets for its performance across the board from 2016–17 onwards.

5.The Commission will become responsible for assessing hospitals’ use of resource in April 2016, but it will take over a year for it to implement these responsibilities in full. The Commission plans to pilot its new approach in April 2016, but it does not believe it will be ready to roll this out to all hospitals until January 2017. The delay risks giving the public the impression the Commission is providing full assurance over the use of resources by all hospitals when it will not be doing so until January 2017. The Commission published a consultation document on the morning of our evidence session asking for views on how it should implement its new responsibilities. But it is not yet clear how the Commission will coordinate with, and draw on the expertise of Monitor and the NHS Trust Development Authority to avoid duplication of effort by providers. We are concerned that there is not adequate preparation for this important additional area of work, which has been introduced before the Commission has the capacity to implement it and while it is struggling to fulfil its exisiting responsibilities.

Recommendations:

The Commission should set out what its approach will be to provide assurance about the use of resources by hospital providers. It should do this as soon as possible as it takes on these responsibilities in April 2016.

The Department should clarify the roles of the Commission, Monitor, and the NHS Trust Development Authority for assessing the use of resources by health bodies, to avoid duplication of effort and unnecessary burdens. We have serious concerns about adding this responsibility to the Commission when it is not yet delivering its inspections.

6.The current regulatory system focuses on single providers and does not give adequate assurance over patients’ experience of the overall quality and safety of care they receive. It is becoming increasingly important for providers and commissioners to collaborate in order to integrate the services patients, particularly those with long term conditions, need from their GP, hospital and local community care services. But existing regulatory systems, including those operated by the Commission and Monitor, focus on services operated by individual providers, and do not look enough across organisational boundaries. A further complication is that providers’ performance is influenced by decisions taken by local commissioners, but the Commission has no power to scrutinise clinical commissioning groups or local authorities. The Department is developing, but has not yet completed, what it described as a ‘scorecard’ to assess the performance of clinical commissioning groups. The Department hoped that the Commission would be able to use this information, once available, populated and published, to assess the economy, efficiency and effectiveness of services to people living in a given locality.

Recommendation: The Department should report back to the Committee by the end of 2016 about how it will support the Commission to ensure that inspections take proper account of the needs of users in ensuring services provided by differenthealth and social care organisations are properly joined up. The Commission will need to work with other key bodies including, for example, the ombudsman, patient representative groups and local delivery partners to collect sufficient information to inform its judgements.

For full report:
http://www.publications.parliament.uk/pa/cm201516/cmselect/cmpubacc/501/50102.htm

NHS trust ‘failed to investigate hundreds of deaths’

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BBC NEWS 10 December 2015
By Michael Buchanan   Social Affairs Correspondent, BBC News
The BBC’s Michael Buchanan speaks to a family about the loss of their daughter:
 
The BBC’s Michael Buchanan speaks to a family about the loss of their daughter

The NHS has failed to investigate the unexpected deaths of more than 1,000 people since 2011, according to a report obtained by BBC News.

It blames a “failure of leadership” at Southern Health NHS Foundation Trust.

It says the deaths of mental health and learning-disability patients were not properly examined.

Southern Health said it “fully accepted” the quality of processes for investigating and reporting a death needed to be better, but had improved.

The trust is one of the country’s largest mental health trusts, covering Hampshire, Dorset, Wiltshire, Oxfordshire and Buckinghamshire and providing services to about 45,000 people.

The investigation, commissioned by NHS England and carried out by Mazars, a large audit firm, looked at all deaths at the trust between April 2011 and March 2015.

During that period, it found 10,306 people had died.

Most were expected. However, 1,454 were not.

Of those, 272 were treated as critical incidents, of which just 195 – 13% – were treated by the trust as a serious incident requiring investigation (SIRI).

Investigations

The likelihood of an unexpected death being investigated depended hugely on the type of patient.

The most likely group to see an investigation was adults with mental health problems, where 30% were investigated.

For those with learning disability the figure was 1%, and among over-65s with mental health problems it was just 0.3%.

The average age at death of those with a learning disability was 56 – over seven years younger than the national average.

Even when investigations were carried out, they were of a poor quality and often extremely late, the NHS England report says.

Repeated criticisms from coroners about the timeliness and usefulness of reports provided for inquests by Southern Health failed to improve performance, while there was often little effort to engage with the families of the deceased.

Key findings from the report

  • The trust could not demonstrate a comprehensive systematic approach to learning from deaths
  • Despite the trust having comprehensive data on deaths, it failed to use it effectively
  • Too few deaths among those with learning disability and over-65s with mental health problems were investigated, and some cases should have been investigated further
  • In nearly two-thirds of investigations, there was no family involvement

The reasons for the failures, says the report, lie squarely with senior executives and the trust board.

There was no “effective” management of deaths or investigations or “effective focus or leadership from the board”, it says.

Even when the board did ask relevant questions, the report says, they were constantly reassured by executives that processes were robust and investigations thorough.

But the Mazars investigators said: “This is contrary to our findings.”

The culture of Southern Health, which has been led by Katrina Percy since it was created in 2011, “results in lost learning, a lack of transparency when care problems occur, as well as lack of assurance to families that a death was not avoidable and has been properly investigated,” the report says.

Connor SparrowhawkImage copyrightSara Ryan
Image captionConnor Sparrowhawk, who died at Slade House, had epilepsy and experienced seizures

The report was ordered in 2013, after Connor Sparrowhawk, 18, drowned in a bath following an epileptic seizure while a patient in a Southern Health hospital in Oxford.

An independent investigation said his death had been preventable, and an inquest jury found neglect by the trust had contributed to his death.

Responding to the report’s findings, Connor’s mother, Sara Ryan, said the entire leadership of Southern Health had to go.

She said: “There is no reason why in 2015 a report like this should come out. It’s a total scandal. It just sickens me.”

‘Considerable measures’ taken

The report’s authors, who spent months looking into how Southern Health failed to investigate so many deaths, seem to concur.

They say: “We have little confidence that the trust has fully recognised the need for it to improve its reporting and investigation of deaths.”

In response, Southern Health NHS Foundation Trust said it accepted its processes “had not always been up to the high standards our patients, their families and carers deserve.

“However, we have already made substantial improvements in this area over a sustained period of time.”

It added: “These issues are not unique to the trust and we welcome the opportunity to shine a spotlight on this important area.

“Though the trust continues to challenge the draft report’s interpretation of the evidence, our focus and priority is on continuing to improve the services we provide for our patients.”

It said that when the final report was published by NHS England, it would review the recommendations and make any further changes necessary.

‘Shocking findings’

An NHS England spokesman said: “We commissioned an independent report because it was clear that there are significant concerns.

“We are determined that, for the sake of past, present and future patients and their families, all the issues should be forensically examined and any lessons clearly identified and acted upon.”

It added: “The final full independent report will be published as soon as possible, and all the agencies involved stand ready to take appropriate action.”

Norman Lamb, who was the care minister in the coalition government, said the findings were shocking: “You end up with a sense that these lives are regarded somehow as slightly less important than others and there can be no second class citizens in our NHS.

“The thought is just horrifying and there have to be some answers from the trust.”

  • If you are directly affected by this issue, you can call this NHS number: 0300 003 0025.

More on this story

  • Connor Sparrowhawk inquest: ‘No formal logging’ of bathing
    5 October 2015
  • Connor Sparrowhawk inquest: Care unit was ‘chaotic’
    12 October 2015

Gagged, smeared, sued and threatened by the NHS – a media whistleblower tells his story

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Press Gazette   Dominic Ponsford    3 December 2015

A former hospital executive who blew the whistle to the BBC over concerns about patient safety has revealed that he remains blacklisted by the NHS two years on.

Gary Walker broke a gagging order in order to raise concerns about Lincolnshire NHS Trust in 2013.

Speaking at this week’s British Journalism Awards he revealed how he was punished by the NHS for speaking out.

He revealed that he agreed to break a gagging order imposed as part of his exit agreement when he was sacked from his NHS job in 2010 after “unrelenting persistent persuasion” by Andrew Hosken of the BBC.

He said: “It was February and I’d just watched the prime minster in the House of Commons announce the results of Sir Robert Francis’ review into what went wrong at Mid Staffordshire NHS Trust.

“That review, which took two years and cost more than £19m of taxpayers’ money, didn’t find a single person accountable for the premature deaths of hundreds perhaps thousands of people.

“From my time in the NHS, I knew it was custom and practice for those in senior roles to hide their wrongdoing or incompetence by gagging those who attempted to speak out.

“I myself was an example of someone gagged for putting patient safety ahead of targets. Indeed the gag was so draconian I wasn’t even allowed to mention it existed.”

He said that when Hosken went to the NHS for comment he received a legal letter threatening to sue him for £500,000.

The story went across the media and ultimately led to a ban on NHS gagging orders.

Walker said the initial NHS response was “to smear me as much as possible but as they had no evidence and because you are professionals no one ran their tall tales”.

He added: “My personal story continues today as I remain blacklisted from the NHS and find getting work very difficult. That is I’m sad to say the plight of most whistleblowers whether they win or lose their cases in court. They are seen as the troublemakers.”

Walker issued a plea for whistleblowers like himself to be protected.

He said: “Being able to protect your sources is the cornerstone of investigative journalism and the attempts by the state to change that is wrong. This must never happen.

“Those wanting to blow the whistle on serious wrongdoing sometimes can only do that with anonymity – to protect themselves and their families. Without that protection there would be more power to the state and corporations and that is something that we must always avoid.”

He also spoke out in favour of the Freedom of Information Act, which is currently under review and could face a Government move to water it down.

He said: “In my time in the NHS there was an unwritten rule that sensitive information should not be written down because of the FoI Act. I suspect many parts of the public sector do not document controversial issues for fear of the press finding out.

“We should start again on this subject. All public money belongs to the public and everything it is spent on should be public information. It should all be published. It should all be available. If we are a democracy and hold ourselves to be the most advanced society why do we hide so much?”

Paying tribute to the role of journalists in society, he said: “Without you we, the public, would never know just how corrupt and broken parts of our society are, and without you society would not improve.

“You are the balancing force keeping the state accountable and not allowing people to be exploited.”

Blacklisting of NHS whistleblowers

3 Comments

You make think it’s far-fetched, the thought that an NHS employee can be blacklisted by Trusts. But it’s true, it does exist. The whistle-blower isn’t just blacklisted by their own Trust, but other Trusts, who were not included in the whistleblowing.

Having lost my job as a whistle-blower, I was constantly looking for alternative employment. I had won Interim Relief Hearing by that stage and was so proven that I was unfairly dismissed directly due to my whistleblowing. So, there were no wrongdoings on my part.

For me the most important thing was to find work and resume a normal existence. I had applied for numerous jobs, including in the private sector, without success. I had managed to get one temporary work for a short period to undertake a project.  This temporary post  only came about as a result of a  referral from a friend.

About couple of years ago, I applied to a nearby Trust, (for now I will leave this Trust nameless).  For my interview, I took copies of my CV to hand to the panel members and a folder with my whistleblowing background. The reason I took the folder was to be upfront about my past and so there is no loss in trust in me if they at a later date discover my whistleblowing past. They basically employ me with their ‘eyes open.’

The interview went well. Panel members consisted of Radiologists and a manager with clinical background – previous post holder, of the one I was being interviewed for. Basically, all clinical staff. At the interview, it seemed they had already done their research into me and were very supportive. They had clearly spoken to their clinical colleagues at Ealing. They didn’t  look at my folder, and they already knew I was a whistle-blower.

The following day I received a call to say that I was being offered the post and they will give me all the support I needed to return to working. It was a wonderful phone call. I received an offer letter few days later, which contained the usual terms of being subject to occupational health clearance.  I was so excited, I contacted my lawyer, Julie Morris, who was on holiday at the time to let her know. When Julie returned, I had to see her at her office about some paperwork. Whilst I was there, I spoke to James Laddie, QC, who was on the phone to Julie while I was there. He wished me the very best and was really happy for me.

About couple of weeks later I received a call from the Trust’s HR manager, asking me as to whether I had informed my current Trust that I was leaving. I explained that I was no longer in direct correspondence with my Trust but have let my lawyers know. To which he replied that the Trust (one applied for) did not want anyone who had disputes with their current employer.

Few days later, I received a letter stating that they are withdrawing their offer of employment offer.  Yes, I could have taken further action regarding this underhand action. However, I was legally fighting Ealing Trust with already a massive legal bill of £110, 000 at that time, and I didn’t feel I could fight yet another Trust for their wrongdoing. So, I let it be.

On Tuesday 8 April 2014, agency I was registered with, organised an interview at the same Trust for a 3 month temporary post as an Imaging Manager. Same post as the one I had applied for, which was then permanent couple of years ago. Although at first I hesitated, I hoped that the Trust would have by now moved forward with their treatment of whistle-blowers. The agent said the Trust was really interested in me and that I had a very good chance of being offered the post. I dropped off relevant paperwork at the agency and prepared myself for the interview.

On the morning of the interview, I received a phone call from the agency, advising me that HR has withdrawn the interview, even though the staff member who they were dealing with was interested in interviewing me. HR apparently did not give any reasons apart from the fact that I had applied before to the Trust. The HR manager apparently remembered my previous application.  Sir David Prior, CQC, intervened and wrote to the Chief Executive at the time but without success. I was devastated that I wasn’t even interviewed and was made to feel like a criminal.

Clearly I had been blacklisted. The same Trust has behaved in this manner twice, despite being the strong or even the strongest candidate for the job.

I have applied for numerous jobs without success. I went to an interview at another Trust – again being advised that I was the strongest candidate. I had undertaken extensive work in preparation for the interview. After the interview, the post was withdrawn.

At another trust, I have had interview cancelled on the day, again having extensively prepared for the interview.

Blacklisting of NHS staff is not uncommon. Surgeon Edwin Jesudason faced similar situation of being blacklisted. Such a highly skilled man of integrity has been victimised by the NHS as a result of whistleblowing,  which he did in order to protect his patients. Losing Edwin from the NHS is a great loss to patients .

Another case is that of whistleblower Kate Clarke, who exposed agency nurses dozing whilst being paid at £648 for their shift. Kate now cleans tables at a fast food restaurant unable to find work in NHS.

I have yet to see a dismissed NHS whistleblower resume their career within UK. In some instances staff had to take drastic steps and immigrate abroad in order to prevent being left on the scrapheap. Stephen Bolsin is a good example of this. His is not an unusual case. I know of other highly skilled whistleblowers who are also preparing to do the same, causing disruption and upset to their family and friends.  Skills continue to be drained from the NHS.

Recent Freedom to Speak up, FTSU,  Review, led by Sir Robert Francis who looked into whistleblowing in the NHS recommended in page 17:

 Principle 12 – Support to find alternative employment in the NHS Where a NHS worker who has raised a concern cannot, as a result, continue in their current employment, the NHS should fulfil its moral obligation to offer support.

The report goes on to say:

‘A number of people leave their employment, either voluntarily or otherwise, after raising a concern. Some then find it difficult to find another job. The NHS can operate as a monopoly employer in many fields, and a contentious parting of the ways can result in an individual being disadvantaged when applying for a new role, without the full facts of a case being known. This is unfair on individuals, and a waste of valuable skills and resource to the NHS.’

The report recommends:

‘There needs to be a support scheme for staff who are having difficulty finding employment and can demonstrate that this is related to having made a protected disclosure, and about whom there are no issues of justifiable and significant concern about their performance. This should be run jointly by NHS England, the NHS TDA and Monitor, and should be supported by all NHS organisations.’

It will be a year in February 2016, since the publication of FTSU.

I have yet to see an NHS whistleblower who has suffered from career destruction, to have been found a permanent solution by either a restart of their lost career or a satisfactory resolution whereby their lost income and pension have been reinstated.

To demonstrate commitment to supporting NHS staff and patients, we need more than words, policies and recommendations. We need effective and visible actions.

 

CQC criticised for errors leading to trust’s £200k ‘fit and proper person’ bill

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HSJ    2 DECEMBER, 2015  

For full article and other articles by Shaun Lintern    visit http://www.hsj.co.uk

  • Derby Teaching Hospitals chair calls for CQC to rethink its handling of fit and proper person complaints
  • CQC failed to pass on vital information and is blamed for doubling cost of investigation
  • Derby chief executive Sue James exonerated and called “exemplary” by report

Serious concerns have been raised about the Care Quality Commission’s handling of fit and proper person regulations after a complaint against a chief executive left one trust facing a bill of £200,000 for an independent investigation, HSJ can reveal.

The chair of Derby Teaching Hospitals Foundation Trust, John Rivers, told HSJ that unless the CQC urgently reconsidered its approach there were serious risks for the NHS. He said pressure from complaints could cause some trust boards “to implode”.

‘The fit and proper person test came into force last November and has led to nearly 70 complaints against NHS chief executives and board members.’

The regulations require trusts to be assured people are fit and proper to be employed. Directors can be deemed “unfit” to sit on boards if they have been involved in “serious misconduct or mismanagement”. The CQC can require the removal of unfit directors.

 

The report, released today, completely exonerates Ms James. It describes her as an “exemplary” chief executive and the allegations as “misguided”.

Walsall Manor Hospital

The complaints related to Sue James while she was chief executive at Walsall Healthcare Trust. She was subsequently exonerated.

The report said the CQC contributed to substantial delays to the investigation by failing to pass on vital information and evidence, which led to witnesses being re-interviewed and the scope of the probe being widened.

The CQC suggested the trust use barristers to investigate the complaints after it rejected an initial assessment by Mr Rivers in April, but then declined to meet with him to discuss the issue further.

The authors, Charles Corey-Wright QC and Katharine Scott, said: “As a result the investigation has been both substantially delayed and extended in terms of work, by a number of months, and will end up being significantly more expensive. We believe the costs will have doubled from their original estimate.”

The trust estimates the final cost of the investigation will be £200,000.

Mr Rivers said it was a “mistake” for the CQC not to meet him, adding: “I understand the CQC’s need for independence but that shouldn’t prevent them entering into some form of dialogue and offering support and guidance to trusts.”

Without better guidance other trusts would be forced to restart the process, he said.

“That is very time consuming, costly and it runs the highest risk of getting something wrong,” he added. “These sorts of pressures can cause a trust to implode, and that’s not in anybody’s interest. What possible advantage is that to the NHS?”

A CQC spokesman said: “Following the receipt of concerns, the CQC asked [the trust], to consider the concerns, and provide an explanation of how it was meeting the fit and proper person requirements in the light of the issues raised. As a result the trust commissioned an independent review into the all concerns that had been brought to its attention. This approach was supported by CQC. The resulting report has provided the necessary level of assurance to CQC that the trust is meeting its duties under the [requirements].

“We do not accept that delays in sending information to the trust were the cause of significant delays to the investigation. The matters covered by the information we held should have been known to the trust and in some cases were already in the public domain. The main delay was caused because we needed to ask for further assurance. The first report we reviewed from the trust did not give us the assurance we needed.”

Ms James, who intends to retire at the end of December, said: “When a chair is faced with investigations into their own chief executives they are very isolated and I think for the CQC not to provide any support is unfortunate.

“The legislation is designed to stop inappropriate people being directors but because of the way it is being run the danger is that it deters highly appropriate talented managers from ever being in the position where this sort of witch hunt could happen against them.

“I feel I have had to prove my innocence rather than anybody having to prove my guilt.”

Sir Stephen Moss, a non-executive director at Derby and former chair at Mid Staffordshire FT, also warned of dangers for the NHS if the regulations distracted organisations.

He said: “Over the last few years we have all been painfully aware of what happens when a board isn’t totally focused on what matters and more than most people I have a very clear view on that. I could see we were still focused on what matters at Derby but there was a very real personal price being paid for that. What we have to avoid doing is losing the spirit of this legislation by not getting the process right.”

The CQC has been criticised that its fit and proper regulations process is not transparent, with decisions to reject complaints being made without explanation, despite a number involving employment tribunal cases where people have been implicated in unfair action against whistleblowers.

HSJ has decided not to publish the names of directors still subject to complaints until the final outcome of the CQC’s process and only when people are identified as unfit.

David Drew, who made the original complaint against Ms James, rejected the report’s findings and also criticised the CQC.

He said he was shocked that the CQC had not passed on his evidence, adding: “The CQC made this up as they went along. They don’t engage and they run it all from on high.”

He said the process needed to be more transparent for those making complaints.

“Some of these people are very angry and puzzled as to why some of their complaints made no progress. Some of the complaints included examples where there were tribunals, which talked about grossly unfair treatment of people who had made protected disclosures and suffered a detriment as a result. Yet these complaints were dismissed by CQC. We need answers about that.”

Complaint against Sue James dismissed

Sue James was referred to the CQC under the fit and proper person regulations in January by consultant paediatrician David Drew in relation to her tenure as Walsall Healthcare Trust chief executive in 2003-10.

Dr Drew alleged that Ms James was involved in a cover up surrounding the avoidable death of 16-month-old Kyle Keen in June 2006, suppressed critical reports about the hospital’s paediatrics department and took no action on complaints of bullying. Dr Drew was later disciplined and sacked after emailing religious quotes to colleagues and lost an employment tribunal case in 2013 for unfair dismissal and religious discrimination.

According to the report published today, Ms James is fit and proper and an “exemplary” chief executive. The investigation rejected the complaints against her and criticised Dr Drew as an unreliable witness. It said claims against here were misguided and inaccurate.

Dr Drew said he believed the authors were biased against him, the report was a “hatchet job” and that he did not recognise its description of him.

FOR MORE ARTICLES RELATING TO THE HEALTH SERVICE VISIT http://www.hsj.co.uk

CQC: a fraying rope

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To Mike Mire CQC Chair, 26 November 2015

Dear Mr Mire,

CQC’s approach to whistleblowers and whistleblowing

We write to raise concern about these issues. Public Accounts Committee, at its recent hearing with the CQC and Dame Una O’Brien on 28 October, noted the CQC’s continuing ineffectiveness. [1] Specifically, we believe that the CQC has failed and continues to fail whistleblowers. We have the following unresolved concerns about the CQC’s discharge of its responsibilities for ensuring good whistleblowing governance:

1) The CQC’s poor treatment of its own staff who whistleblow and its role modeling of good practice as an employer.

2) The CQC has done little or nothing to challenge the gagging of whistleblowers by the organisations that it regulates.

3) The CQC is not sufficiently transparent about whistleblowing issues.

4) The CQC is failing to act appropriately upon whistleblowers’ disclosures.

5) The CQC still has no structured inspection methodology for assessing regulated organisations’ whistleblowing governance.

6) The CQC has not made serious efforts to engage with whistleblowers.

7) The CQC has shown little will to address serious misconduct by senior managers who engage in reprisal against whistleblowers.

8) The CQC has advised whistleblowers that they can complain to PHSO about CQC’s response, but in six years PHSO has not upheld a single complaint about the CQC

9) Whistleblowers continue to be sacked or forced to move on, and this is supporting evidence of insufficient support for whistleblowers and insufficient deterrence of reprisal.

We provide the basis for our concerns in the appendix below. We ask you to ensure that the CQC rapidly improves its whistleblowing governance and that the shortcomings that we have described are rectified. In particular, we ask that the CQC’s handling of FPPR is appropriately scrutinised and corrected. To borrow from the CQC’s Board, we believe that the CQC’s poor whistleblowing governance is a “fraying rope” which poses a risk to patient safety. We look forward to hearing whether you will be able to help resolve our concerns.

Yours sincerely,

Minh Alexander

Kevin Beatt

Fiona Bell

Sharmila Chowdhury

Eileen Chubb

David Drew

Narinder Kapur

Gary Walker

Maha Yassaie

cc Health Committee

Public Accounts Committee

Secretary of State for Health

Shadow Secretary of State for Health

APPENDIX: The basis for our concerns:

1   The CQC’s treatment of its own staff who whistleblow and the CQC’s role modeling of good practice as an employer.

The CQC has a history of gagging [2] and treating its own whistleblower staff poorly. It has also still not apologised to several of its own whistleblowers. Additionally, a CQC member of staff recently made a serious external disclosure.[3] This suggests that CQC is still not properly handling concerns raised by its own staff. This does not set a good example to the organisations that the CQC regulates.

2  The CQC has done little or nothing to challenge the gagging of whistleblowers by the organisations that it regulates.

The CQC’s inspection reports do not explicitly deal with this key issue of whistleblowing governance. Despite the CQC acknowledging that confidentiality clauses can be seen as gagging clauses [2], the CQC seems to have turned a blind eye to the widespread and continuing use of such clauses by regulated organisations. This allows employers to continue forcing whistleblowers into silence.

3  The CQC is not sufficiently transparent about whistleblowing issues.

Despite Public Account Committee’s recommendations that public bodies make proactive and transparent use of whistleblowing data [4], the CQC has failed to analyse and publish meaningful whistleblowing activity data. This is despite the fact that the CQC holds an unparalleled national database on health and social care whistleblowing, which could clearly be powerfully used to drive learning and care quality. It is a hugely wasteful, major governance failure that the CQC has not made better use of this data. The CQC has also declined to make a definite commitment to publishing such whistleblowing data in the future [5], even though the government says that it plans to make it compulsory from April 2016 for prescribed bodies such as the CQC to publishing whistleblowing data. [6] We are also concerned that the CQC has refused to publish the outcome of an external review of its whistleblowing governance, which was conducted at a cost of £150,000 to the public purse. The cost of this exercise was revealed only through an FOI request. [7]

4  CQC’s failure to act appropriately upon whistleblowers’ disclosures.

The CQC has repeatedly failed to give due weight to whistleblowers’ concerns, and has repeatedly failed to investigate their concerns either singly or as part of

wider thematic review, despite the fact that the CQC acknowledges it has powers of thematic review. In the few instances where the CQC has undertaken thematic reviews, it has not been adequately supportive of whistleblowers. [8] The CQC has also far too readily accepted “independent” investigations that regulated organisations arrange to manage concerns raised by whistleblowers. These investigations are not truly independent, and there is evidence in some cases that employers have unhealthy if not clearly corrupt control of such investigations. The CQC must surely be aware of the shortcomings of such investigations, but it still permits and in some cases, encourages their use. In essence, the CQC divests itself of responsibility, does not take whistleblower intelligence seriously, and allows regulated organisations to waste public money on superficial and sometimes false assurance.

5  The CQC still has no structured inspection methodology for assessing regulated organisations’ whistleblowing governance. [9]

We have written to the CQC about this issue. [9]Sir Robert Francis concluded the CQC was not making sufficient use of its powers to protect whistleblowers, and that it could do more. He recommended that regulatory action should be taken where organisations have poor whistleblowing practice. [10] However, it is hard to see how this will be achieved until the CQC sets clear, auditable inspection standards and measures its adherence to such standards. The CQC does not seem to have adopted Sir Robert Francis’ recommendations in any measurable way and appears to be carrying on regardless.

6  The CQC has not made serious efforts to engage with whistleblowers.

It has only held two whistleblower listening events in two years. This is despite the CQC’s promise to keep whistleblowers regularly involved and informed. The CQC’s approach has been tokenistic, and it continues to postpone discussion of the real issues that concern whistleblowers. Also, the CQC stated last year that it was reviewing its customer care, including its approach to whistleblowers, but it has not yet taken an evidence-based approach and measured whistleblowers’ experience of the CQC. One important consequence of the CQC’s failure to measure whistleblowers’ experience is that it is failing its duty of Equality. The CQC has no data to evidence that it is treating protected groups as well as others, and CQC has admitted that it is not collecting data on the ethnicity of whistleblowers. This is despite the fact that the Freedom To Speak Up Review demonstrated that BME whistleblowers have a worse experience of whistleblowing. The CQC also set criteria for a recent CQC whistleblowing post which disadvantaged whistleblowers, and meant that many whistleblowers would not be eligible to apply even though they were the individuals with the very knowledge and expertise that were relevant to this post. [11]

7  CQC has shown little will to address serious misconduct by senior managers who engage in reprisal against whistleblowers.

Not one director who has been referred under Regulation 5 Fit & Proper Person (FPPR) has so far been removed from office as a result of the CQC’s actions. [12]

[13] Whistleblowers have in fact noted a tendency by the CQC to spare such managers. Professor Sir Mike Richards, who chairs the CQC’s FPPR panel, has stated that only certain levels of reprisal would be considered for regulatory action, although there is no clarity and transparency about the determining levels of reprisal. Professor Mike Richards has also stated to whistleblowers that it will not be possible to remove too many managers for reasons of public opinion.

In our view, the CQC’s application of FPPR has been arbitrary and its position contradictory. The CQC claims that it is up to Trusts to make determinations of fitness, but the CQC itself has declared a number of FPPR referrals to be meritless and has not even passed these referrals to the relevant Trust Boards. This brings to mind recent comments by Professor Mark Baker of NICE:

“I think the reason they don’t want it is if you don’t like the answer to the question, you don’t ask the question” [14]

 

It seems logical to ask if the CQC is not allowing FPPR questions to be raised with Trusts, because it wishes to avoid the answers. This is particularly disappointing to whistleblowers as FPPR is currently the sole mechanism for holding managing victimising whistleblowers to account. This is because in his report of the Freedom To Speak Up Review report, Sir Robert Francis eschewed managerial regulation in favour of a trial of FPPR.

We do not believe that the CQC have shown robust will to deter whistleblower reprisal. Another government agency has overseen the successful barring of a company director responsible for whistleblower suppression at Winterbourne view [15], but the CQC have failed to remove other directors for even worse reprisal using FPPR. Mr Behan and Professor Mike Richards recently claimed that although no director has yet been removed under FPPR, they believed that FPPR is now having a “deterrent” effect. [13] Their view was not supported by the recent appointment by St. George’s hospital of a high profile director, who was previously found by an Employment Tribunal to have victimised whistleblowers. [16] Sir Robert Francis referred to this specific case as an example of “oppressive” employer behaviour that should not be tolerated. [17] Yet it seems to us that the CQC has tolerated many such instances of oppressive behaviour. The resulting injustice to whistleblowers and impunity for “oppressive” managers is, as Health Committee has noted, a serious patient safety issue. [18] In the case of Hayley Dare whistleblower, her former employer West London Mental Health NHS Trust has now finally admitted in EAT proceedings and after prosecuting a ferocious campaign against her, that she raised concerns in good faith. [19] Yet such is the licence afforded to employers that we have no expectation that the Trust board will be held to account for unlawful reprisal, sacking a whistleblower or for gross waste of public funds.

8  The CQC has advised whistleblowers that they can complain to PHSO if they are unhappy with its response, but this is likely to be an ineffective means of appeal.

However, it is clear from the statistics that a complaint to PHSO is unlikely to be upheld. Based on FOI disclosure by PHSO, of 354 complaints to PHSO about the CQC since the CQC’s inception in 2009, none have yet been upheld. [20] An appeal to PHSO is likely to be just another journey between pillar to post for whistleblowers. So in short, whistleblowers are obstructed by the CQC’s failures to discharge its responsibilities, and in effect have nowhere else to go.

9  Whistleblowers continue to be sacked or forced to move on, and this is supporting evidence of insufficient support for whistleblowers and insufficient deterrence of reprisal.

In the continuing case of whistleblower Dr Kevin Beatt illustrates the fact that even when whistleblowers are fully vindicated by Employment Tribunals, employers may still subject them to further harrowing appeals. The Employment Tribunal found that Dr Kevin Beatt was a genuine whistleblower, that he was blameless and that he suffered serious detriment which included being vexatiously referred by his employer to the GMC. However, Dr Beatt’s former employer has appealed against the ET judgment despite the recommendations of Sir Robert Francis’ whistleblowing review and his advice that employers should reflect on current legal action [21], and despite Mr Hunt’s promises to protect whistleblowers. Furthermore, the CQC arbitrarily rejected Dr Beatt’s FPPR referral about the actions of his employer. It is clear to us that poor employers continue to victimise whistleblowers because there is a palpable lack of deterrence, and they have no fear of consequences.

[1] Public Accounts Committee, oral evidence on the CQC 28.10.2015

Click to access 23822.pdf

[2] Health watchdog put 20 gagging orders on staff, Patrick Sawer and Laura Donnelly, Telegraph 30 June 2013

http://www.telegraph.co.uk/news/health/heal-our-hospitals/10150664/Health-watchdog-put-20-gagging-orders-on-staff.html

[3] DH audit of the CQC’s procurement process in response to a CQC whistleblower’s disclosures to DH

https://www.gov.uk/government/publications/review-of-2-cqc-procurements-made-in-2013

[4] House of Commons Public Accounts Committee, Whistleblowing, Ninth report of session 2014-2015, 1.08.2014

Click to access 593.pdf

[5] Correspondence about the CQC’s analysis and publication of its whistleblowing data

[6] Correspondence from Sir Jeremy Heywood, Cabinet Secretary 20.10.2015

[7] Correspondence about the publication of a review of the CQC’s performance as a prescribed body under the Public Interest Disclosure Act

[8] Joint review by the CQC and Monitor into whistleblowing concerns at the Christie NHS Foundation Trust

Click to access Christie_Review.pdf

[9] Letter to Mr David Behan, CQC Chief Executive 19.10.2015

CQC Inspectors in the dark

[10] Report of Freedom to Speak Up Review by Sir Robert Francis QC, 11.02.2015

[11] Correspondence to Mr David Behan about National Guardian Set Up Manager post 10.10.2015 and 22.10.2015

CQC’s processes leaves exiled whistleblowers in the cold

CQC slams door on whistleblowers

[12] More than 60 managers have faced Fit and Proper complaints, Shaun Lintern, Health Service Journal 29.06.2015

http://www.hsj.co.uk/news/more-than-60-managers-have-faced-fit-and-proper-complaints/5087202.article

[13] Chief inspector: Fit and proper regulation having ‘deterrent effect’, Will Hazel, Health Service Journal, 24.09.2015

http://www.hsj.co.uk/news/chief-inspector-fit-and-proper-regulation-having-deterrent-effect/5090599.article

[14] NHS leaders ‘didn’t like answer’ they got on staffing levels, Shaun Lintern, Nursing Times 7.07.2015

http://www.nursingtimes.net/home/specialisms/leadership/nhs-leaders-didnt-like-answer-getting-on-staffing-levels/5087589.article?referrer=RSS

[15] Nursing home director disqualified for failing to act on whistleblower concerns

https://www.gov.uk/government/news/nursing-home-director-disqualified-for-failing-to-act-on-whistleblower-concerns

[16] Ex-South Devon Chief joins London trust, Sophie Barnes, Health Service Journal, 12.10.2015

http://m.hsj.co.uk/5091013.article

[17] Francis criticises Vasco-Knight trust, Judith Welikala, Health Service Journal, 7.02.2014

http://www.hsj.co.uk/news/acute-care/francis-criticises-vasco-knight-trust/5067807.article

[18] House of Commons Health Committee, Complaints and Raising Concerns, Fourth report of session 2014-2015, 21.01.2015

[19] NHS Mental Health Trust accepts whistleblower who spoke out about bullying acted in good faith, Paul Gallagher, Independent on Sunday 8.11.2015

http://www.independent.co.uk/life-style/health-and-families/health-news/nhs-mental-health-trust-admits-whistleblower-who-spoke-out-about-bullying-acted-in-good-faith-a6725786.html

[20] FOI disclosure 21.09.2015 by PHSO on the handling of complaints about the CQC.

http://twitdoc.com/4S1Y

[21] NHS to get whistleblower guardians, Hugh Pym, BBC 11.02.2015

Every nurse should feel able to speak up’

3 Comments
Nursing Times

25 NOVEMBER, 2015

BY     Editor

Whistleblowers should be regarded as heroes, thanked and celebrated.

That’s the view of Margaret Heffernan, author of Wilful Blindness and Beyond Measure, who has researched cultures that dissuade people from speaking up. She was appearing last week at the launch of whistleblowing charity Public Concern at Work’s review of the first group of companies to implement the recommendations from its Whistleblowing Commission. See our story on this at bit.ly/whistleblowing_commission.

The launch came the same week as the whistleblowing policy – drawn up by NHS England, Monitor and the NHS Trust Development Authority in response to Sir Robert Francis’s Freedom to Speak up Review – was put out for consultation. The policy reassures staff who speak up that they will be listened to, their concerns will be investigated, and they will not suffer detriment.

These are laudable aims. But I am not convinced that one national policy peppered with a few local freedom-to-speak-up guardians answering to one national figurehead for concern-raising everywhere will do the trick.

The culture is so toxic in many NHS organisations that they refuse to listen to those who know best when problems arise. Staff are fed up of being ignored and bullied when they put their heads above the parapet, and are unlikely to do so just because the NHS has published a document saying they should. The NHS needs to celebrate staff who have saved lives and trusts by speaking up – and normalise the process of raising concerns.

Click here!

Ms Heffernan argues that organisations should encourage staff to say the unsayable, and train and retrain their managers to hear the issues that are raised without becoming defensive.

That’s what we’ve been encouraging people to do through our Speak Out Safely campaign. We want employers to sign up to publicly demonstrate that they support staff who raise concerns. Despite numerous invitations, many have not yet felt the need to.

Check today whether your organisation is signed up at nursingtimes.net/sos and let us know if they aren’t by emailing speakoutsafely@emap.com.

Speaking up can save money in some organisations, but, in healthcare, it also saves lives. Every nurseshould feel able to speak up as a matter of course.

NHS whistleblower fears patients will die as he leaks image of suffering patient

Daily Mirror  21 NOV 2015
BY MARTYN HALLE , NICOLA FIFIELD

Ambulance worker Martin Jackson turned whistleblower to hand over a shocking picture of seriously ill people queuing on stretchers to be checked in at A&E

Northumbria Specialist Emergency Care HospitalNorthumbria Specialist Emergency Care Hospital  Delays: Patients wait to be booked in at the new hospital

A NHS whistleblower fears ­patients will DIE in corridors due to the crisis in hospitals .

The warning from ambulance ­worker Martin Jackson came as he ­handed over this shocking picture of seriously ill patients on stretchers queuing to be checked in at A&E.

He said they waited for two hours. The hospital denied it was that long.

The photo was taken at Northumbria Specialist Emergency Care Hospital in Cramlington which opened in June and has been described as a “vision for the NHS”.

But Mr Jackson, 51, said: “It’s only a ­matter of time before a patient dies on a stretcher waiting to be seen,” the Sunday People reports.

Northumbria Specialist Emergency Care Hospital in CramlingtonFlagship: The new hospital at Cramlington has been called “a vision for the NHS”

He said centralising A&E care for serious illness and injury in such ­“super” hospitals at the expense of other NHS units was not good for patient care. He believed it meant longer travel time for patients and waits for ­ambulance crews.

The emergency care assistant with North East Ambulance Service spoke after 98 per cent of junior doctors voted for three days of strike action next month.

On December 1 medics will provide only emergency care and on December 8 and 16 there will be a total walkout by thousands of junior doctors .

The action is over a contract being imposed by Health Secretary Jeremy Hunt which medics say would be ­unsafe for patients and unfair for staff.

Labour shadow health secretary Heidi Alexander said: “It is no ­exaggeration to say that the NHS is close to meltdown.”

Jeremy HuntJeremy Hunt Under fire: Jeremy Hunt’s new contract for doctors has sparked a strike

Mr Jackson said: “It is frightening to think about what will happen during the strikes. What is happening here in Northumberland is insane.”

He pointed out patients are ­ambulance crews’ responsibility until booked in. “If a patient goes into cardiac arrest in the queue, we have to resuscitate them on a stretcher in a corridor, even though we’re inside what is supposed to be an emergency super hospital full of specialists.”

He said the delays meant the ­already stretched crews could not respond to other emergencies.

Mr Jackson, who has been ­suspended by his hospital on an unrelated matter, said he had to do a 120-mile return trip to Berwick from Cramlington to transport a sick baby.

Martin JacksonWorries: Martin Jackson fears a patient will die on a stretcher

He said: “It was a ‘load and go’ ­situation. We needed to get that child to the next level of care very quickly.

“On the way back to Cramlington we drove past three hospitals. They no longer had the right specialists.

“How can this be better for patient care? Being in an ambulance for an hour and then enduring a wait of a further hour or two to be seen by a doctor when they get to hospital?”

He claims the needs of the local population and patients were ­better met when A&Es at Hexham, Wansbeck and North Tyneside hospitals handled more than just minor conditions.

Crisis: Ambulance and A&E services are feeling the pressure

Mr Jackson, of Amble, Northumberland, raised his concerns with the chief executive of North East Ambulance Service Yvonne Ormston in August. He has launched an online petition on the 38 degrees website.

Paul Liversidge, chief operating ­officer at North East Ambulance Service, said: “This has been a major change for hospital services in Northumberland and North Tyneside and we’re working closely with Northumbria Healthcare to ensure a smooth transition for ­patients into the new emergency department.”

But Dr Chris Biggin, clinical ­director of emergency care at Northumbria Healthcare NHS Foundation Trust, said there were no issues regarding the trust’s A&E performance.

He said: “Our new model of ­emergency care is working extremely well and has already exceeded our expectations in terms of the positive impact on patient outcomes.

NurseWinter rush: Medical staff are dealing with high numbers of patients

“Having access to dedicated diagnostics 24/7 and the right ­consultant specialists on hand seven days a week means patients who are most seriously ill or injured are now being assessed, diagnosed and treated much quicker than ever before, which is excellent news for patient care.”

“Our urgent care centres at Hexham, North Tyneside and Wansbeck general hospitals remain open 24/7 and ­continue to see hundreds of patients every week with less serious problems.

“Like the rest of the NHS we are ­already seeing high numbers of people ­accessing both urgent and emergency care and, as we head into winter, we would urge the public to make sure they use NHS services wisely.”

A spokesman for the Cramlington hospital said it had met the ­government target of 95 per cent of A&E patients being seen within four hours.

She claimed that Mr Jackson’s claims of patients were waiting for two hours was untrue.

Warning: Labour’s Heidi Alexander says hospital deficits are “eye-watering”

But Labour MP Ms Alexander said: “Hospitals have racked up an ­eye-watering deficit of ­£1.6billion in just six months.

“This isn’t just a problem for ­hospital accountants. It’s a problem for each and every one of us.

“It could mean fewer beds, fewer staff and even longer waits at A&E.

“It could mean cancer treatments further delayed and some operations rationed or even denied.

“It could mean closures, as hospital bosses have to decide whether to ­balance the books or deliver safe and timely care.”

 

Picture from Jeremy Hunt’s flagship hospital is a vision of hell that shames Britain

Clearly the NHS needs a radical hall to meet changing demands but the Government needs a to keep doctors on board, not push them away, the Sunday People say
Northumbria Specialist Emergency Care HospitalShocking: Patients forced to queue for A& E at Northumbria Specialist Emergency Care Hospital

This is the picture that shames Health Secretary ­Jeremy Hunt .

It was taken at one of his flagship new hospitals hailed as a “vision for the NHS”.

It’s a vision all right. A vision of hell.

Patients in pain have to queue in this corridor until hospital staff can see them.

Meanwhile they are in the care of the ambulance crews who brought them there.

Florence Nightingale would have had a fit to witness such appalling treatment.

And what was unacceptable in Victorian England should not be tolerated in 21st century Britain.

Andy Stenning/Daily MirrorJeremy Hunt
Unacceptable: Jeremy Hunt needs to sort out this crisis

But Mr Hunt is more ­interested in making junior doctors work longer hours for less pay than sorting out this mess.

Now those doctors intend to walk out for three days next month.

That will only make what is happening at this hospital and others like it even worse.

Yet it shows the strength of feeling among doctors for 98 per cent of them to vote to strike. They are rightly furious that Mr Hunt will not even ­have proper negotiations with them.

Read more: Check our online tool to see where you come in the health postcode lottery

This newspaper believes in a truly seven-day NHS. An NHS run more for the benefit of patients and less for the ­convenience of doctors.

But to create it Mr Hunt must take the doctors with him, not push them away.

NHS
Make plans: A Royal Commission may be needed to fix the NHS

As the population ages and medical science advances there is no doubt the health service needs a radical ­overhaul.

It is time Mr Hunt set up an old style Royal Commission to diagnose what is wrong and how to cure it.

It means looking at best practice at home and abroad. It means examining hospital administration. It might mean sacking ­managers. It might even ­recommend Mr Hunt should lose his job.

But it would end the scandal of patients dumped in hospital corridors.

National whistleblowing policy launched by Monitor, NHS England and NHS TDA

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National Health Executive 16 November 2015:  ‘First-ever whistleblowing policy will protect staff and guarantee probes’

 Whistleblowing staff in the NHS will get more support under the first national policy drawn up by Monitor, NHS England and the NHS Trust Development Authority (TDA).

The policy, unveiled today (16 November), wants to improve the working environment for staff across the health sector by supporting them in raising concerns about poor-quality care – and improving how services learn from them.

All NHS organisations except primary care providers will have to adopt the proposals. The policy details who can raise concerns, how they should go about doing so, how the concern will be investigated and what will be done with these findings.

The three NHS bodies intend that organisations also have their own local process that sits beneath the national policy, reflecting their own size and setup. But provided the local process adheres to requirements set out in the overarching national policy, there is “room for flexibility” locally.

It also furthers a commitment to listen to staff, learn lessons from mistakes and properly investigate concerns as they are reported.

Tom Grimes, Monitor’s head of enquiries, complaints and whistleblowing, said: “We want to encourage a culture where raising concerns becomes normal practice in the NHS and foster an environment where concerns are taken seriously and investigated properly.

“We will support the NHS to improve services for patients and a key part of that is listening to its staff and learning lessons. But this will need commitment throughout NHS organisations, from members of the board to those working in frontline services.”

According to NHS England’s director of patient safety, Dr Mike Durkin, any member of the NHS workforce should now feel comfortable in speaking out without fear of reprisal if they witness something that could threaten patient safety.

The policy will also give staff the confidence they need in knowing that concerns are acted on, encouraging them to make improvements themselves.

“A safe NHS is an open and honest NHS where we routinely learn from mistakes and use that learning to improve patient safety. If we are to truly put our patients first, we must create a culture where owning up to mistakes and speaking out about poor care is fully encouraged and embraced. This policy should support that,” Durkin added.

A consultation on the policy will now run for eight weeks, after which the three national bodies will update the proposal with feedback and publish the final policy.

Danny Mortimer, chief executive of NHS Employers, said: “Employers across the NHS will welcome the opportunity to comment on this consultation to ensure we get the right outcome for staff and patients. Ensuring NHS staff feel confident and safe to raise concerns with their employer is a high priority across the NHS. Having clear policies and protocols is important, however, employers recognise that it is essential that this is matched with how issues are received, handled and feedback given.

“We need to ensure we do not lose this local engagement and ownership if we are to make progress. We will be working with employers and our network to inform a response to the consultation and we will be encouraging individual organisations to respond directly also.”

The policy was influenced by findings from the Francis Report, published after an inquiry into staff fears of speaking up about safety failures due to potential punishment or service inertia.

Before the election, health secretary Jeremy Hunt promised to look into creating “whistleblowing guardians” to protect staff.

Andy Weir: Bullying case NHS boss leaves with £170,000

The Independent 16 November 2015  Paul Gallagher     @PMGallagher1
Exclusive: Broadmoor trust executive landed new job before the end of investigation prompted by whistleblower
Broadmoor hospital in Crowthorn, Berkshire David Sandison

 

Britain’s largest mental health trust spent a year investigating multiple allegations of bullying, intimidation and harassment against staff, only to compensate an executive at the centre of the claims who was entitled to a £170,000 package after being suspended for a year on full pay.

West London Mental Health Trust launched an inquiry in March 2013, following complaints over the conduct of Andy Weir, the then £110,000 a year executive director of specialist and forensic services, who sat on the West London board in charge of the Trust’s 32 sites, which include Broadmoor hospital.

The investigation into his conduct looked at claims that Mr Weir “bullied, harassed and intimidated staff” and whether his management style “led to a climate of fear and intimidation where staff feel concerned about raising concerns relating to both themselves and standards of clinical care”.

A heavily redacted copy of a 59-page report, seen by The Independent on Sunday, was presented in June that year. It made two recommendations, one of which is not censored, asking whether relations between Mr Weir and staff who complained about him “can be improved by mediation”. Mr Weir’s evidence to investigators is heavily censored but does reveal he felt staff that made complaints against him “were collaborating in respect of their evidence”.

The report was finalised in October 2013. Despite uncovering “concerns with the culture in forensic services”, Mr Weir remained suspended on full pay for a further five months. He resigned in March 2014 before the overall investigation was complete to take up a senior role in another trust. 

Mr Weir walked away from the trust with £170,303, despite not working for 12 months. He is now working at the Leeds and York Partnership NHS Foundation Trust.

A spokesperson for West London said: “The independent investigation did not lead to any formal management action against Andy Weir but highlighted concerns with the culture in forensic services … 

“We also introduced a comprehensive staff engagement and management development programme to improve the culture and morale of the organisation and address concerns around bullying and harassment.”    

A leaked “communications handling plan” concerning Mr Weir’s departure, seen by the IoS, revealed that, if asked whether Mr Weir was “being made a scapegoat in a witch hunt by disaffected members of staff”, the trust would say: “We have carefully considered the concerns raised by members of staff but were not able to complete the investigation we undertook before Andy found a new role at another trust.”

The West London spokesperson said: “Given the personally challenging circumstances of the investigation Mr Weir understandably decided to apply for a job elsewhere … Mr Weir did not receive a pay-off of £170,000. Under his NHS terms of employment he received what he was contractually entitled to receive.”

When asked why after one year West London had not completed its investigation into Mr Weir, the trust spokesperson said: “While the investigation report was completed, the trust was still considering its response to the investigation report and its findings.”

A spokesperson for the Leeds and York Trust said: “The trust can confirm that we were aware of the allegations made against Andy Weir and had discussed these with him prior to his appointment. We are not able to comment any further as these allegations relate to Mr Weir’s former employment.”

Mr Weir declined to comment.

Although successive annual West London trust staff surveys in 2012 and 2013 revealed that a significant percentage of staff had reported bullying and harassment, the allegations came to public attention last year during the whistleblowing tribunal of psychologist Dr Hayley Dare. She had complained of feeling “bullied, intimidated and harassed” by Mr Weir and took her concerns to the chief executive, Steve Shrubb.

Dr Dare had taken the trust to an employment tribunal. She lost her case on a legal technicality that no longer exists, but appealed against the decision. Both parties came to an agreement last week, with the trust admitting that Dr Dare had acted in good faith and the public interest when speaking out about a culture of bullying and harassment. 

The trust had spent £130,000 in legal fees and Dr Dare agreed to withdraw her appeal, bringing an end to the case.

Doctors’ hunger strike at Parliament against whistleblower discrimination

London Evening Standard 13 November 2015   KIRAN RANDHAWA
Frustration: Dr Narinder Kapur and Dr Shiban Ahmed, right, stage a hunger strike in Parliament Square today against victimisation towards Indian doctors in the NHS

 

 

Two doctors staged a hunger strike in Parliament Square to protest the treatment of NHS whistleblowers on Friday.

Dr Narinder Kapur, 66, and Dr Shiban Ahmed, 51, were demonstrating over “widespread victimisation” of doctors, particularly ethnic minority staff.

The 24-hour hunger strike was due to coincide with the visit by Indian PM Narendra Modi. Dr Kapur, from Harrow, was sacked by Addenbrooke’s Hospital in Cambridge in 2010.

 
 He claimed this was because he blew the whistle over underqualified staff. A tribunal ruled he had been unfairly dismissed but he was not reinstated.

He hopes Mr Modi “will raise with David Cameron the issue of discrimination of Indian doctors”.

Dr Ahmed, a surgeon at University Hospital North Staffordshire, was one of the first to blow the whistle on wrongdoing at sister hospital Mid Staffs.

The Department of Health said: “We are absolutely clear that NHS staff who have the courage to speak out, whatever their background, must be listened to.”

NHS mental health trust admits whistleblower who spoke out about bullying acted in good faith

Independent On Sunday 8 November 2015

 

Dr Hayley Dare was ridiculed after revealing culture of bullying and harassment at West London Mental Health NHS Trust
Hayley Dare Micha Theiner

 

Britain’s largest mental health trust has been forced into a humiliating climb-down after finally admitting the whistleblower who spoke out about bullying and harassment of staff had acted in good faith and in the public interest.

Dr Hayley Dare revealed a culture of bullying and harassment at West London Mental Health NHS Trust – which includes Broadmoor high-security hospital among its 32 sites – but was ridiculed by bosses.

 
 The clinician, who had an unblemished 20-year career in the NHS, followed the trust’s whistleblowing policy and took her concerns to the trust’s then chief executive, Steve Shrubb. During one meeting with the HR director to discuss the issue, Mr Shrubb called Dr Dare “a very disturbed woman” when she was out of the room and compared her with his first wife. He apologised at her employment tribunal for his comments. 
READ MORE

Claims of bullying culture at biggest NHS mental health trust

The trust spent £130,000 fighting Dr Dare’s claims despite knowing it had serious problems about the issues she raised. Official NHS staff surveys in 2012 and 2013 showed that out of 51 mental health trusts, West London had the worst record for staff experiencing violence both from patients and colleagues. 

Steve-Shrubb.jpg
Steve Shrubb, chief executive of West London Mental Health NHS Trust

Thirty per cent of staff experienced harassment, bullying or abuse from other members of staff in 2013 and 26 per cent experienced discrimination. Almost one in 12 employees experienced physical violence from colleagues.

However, Dr Dare lost her employment tribunal against the trust last September on a legal technicality that no longer exists. The tribunal found against her because the judge said her disclosure had not been made “in good faith” – a provision whistleblowers no longer have to satisfy.

I can’t quite express how overwhelmed I feel. This has always been about patient care and staff welfare. I never deviated from that so I feel exonerated at last

Dr Hayley Dare

Dr Dare said she was then left feeling “paralysed” after the trust pursued her for almost £100,000 in costs and vowed to keep fighting. She appealed, and on Friday both sides agreed on a consent order at the Employment Appeal Tribunal in London. The trust conceded Dr Dare had “made a disclosure in the public interest about the bullying and harassment of the staff of the [trust] and that this disclosure was made in good faith” when she went to Mr Shrubb with her concerns in March 2013. The trust also agreed to pay back £10,000 Dr Dare had paid to the trust in respect of the latter’s costs.

Dr Dare said: “I can’t quite express how overwhelmed I feel. This has always been about patient care and staff welfare, which is what whistleblowing should always be about. I never deviated from that so I feel exonerated at last. 

“The trust has spent an obscene amount of taxpayers’ money fighting me. I never acted in bad faith and that was what the case was all about. This has always been about my integrity and the fact that I raised concerns about patient care as a clinician. If you bully staff, patient care will be affected.”

Dr Dare said she hoped the outcome would encourage other people in the NHS to speak out. She said: “My greatest sadness is that I lost my clinical role within the NHS, but I don’t regret what I did and the decision means more than I can probably ever express”

READ MORE

The trust, which employs 3,160 staff serving about 700,000 people, declined to apologise to Dr Dare and said it had “a number of ways in which staff can raise concerns safely”.

A spokesperson said: “The trust has not conceded the appeal by Dr Dare and no compensation has been paid to her. Both parties to the appeal will bear their own costs in the case. The trust accepts that Dr Dare raised concerns in good faith about bullying and harassment in West London Forensic Services and the trust took immediate action to investigate the concerns she raised.

“We do not now and have never accepted that Dr Dare made any other protected disclosures about the nature of services and patient care in the trust.”

The Independent on Sunday has revealed a catalogue of failings at the trust over the past year as a number of senior staff have either quit the organisation or retired early.

Former trust chairman Nigel McCorkell had been reappointed in January 2013 but stepped down 18 months later, and Mr Shrubb announced his retirement to staff earlier this year – just days after a CQC inspection revealed multiple failings.

The trust “requires improvement” in whether it is “safe”, “effective” and “well led” in three out of five main areas. Of the trust’s specific services, the Broadmoor and forensic services were rated “inadequate”. A fraud investigation was also launched after one of the trust’s departments went millions over budget.

Trust chairman Tom Hayhoe promised a new approach of “openness and candour” following his arrival in April, yet The IoS is still locked in a battle with West London to obtain a copy of the fraud report concerning the wasted millions. 

The trust wants to keep the report secret, claiming that revealing the details of what happened would prejudice its ability to carry out similar investigations in the future.

United Nations Human Rights : Protection of Sources and Whistleblowers

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Report of the Special Rapporteur to the General Assembly on the Protection of Sources and Whistleblowers

The Special Rapporteur’s report to the UN General Assembly in 2015 is now online.

This report, the latest among several produced by the mandate over the past twenty years to consider rights of access to information, focuses on the protection of sources and whistleblowers around the world.  It reviews national and international laws and practices and provides recommendations to improve available protections.

As part of the preparations for this report, the Special Rapporteur issued calls for submissions from Governments and Civil Society. The Special Rapporteur is pleased to acknowledge the many States and NGOs that responded to this call, which may be found below.

International and national protections

The right to access information as established by the two similar versions of Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights underpins the establishment of norms protecting sources and whistleblowers, persons who bring to public knowledge otherwise undisclosed information.

Many States protect source confidentiality and whistleblowers as a matter of their domestic legal systems. Nonetheless, it is common for governments to restrict access to information and to penalize sources and whistleblowers, particularly in (but certainly not limited to) cases touching on national security and intelligence.

Article 19(3) of the Covenant provides that restrictions on the freedom of expression must be provided by law and be necessary to achieve a legitimate interest, identified as the rights or reputations of others, national security, public order, public health or public morals. Mere assertions of such interests are insufficient; to be lawful under the Covenant, the restriction must actually be necessary to achieve a specified interest, and it must be proportionate to that goal.

Recommendations to improve the protection of sources and whistleblowers:

The report draws a number of conclusions and urges States and international organizations to adopt or improve laws and practices – and to foster the necessary political and social environments – that provide genuine protection to sources and whistleblowers. Such protections should be adopted not only by governments but also international organizations such as the United Nations.

  • Ensure national legal frameworks provide for the right of access to information in accordance with international standards: National legal frameworks establishing the right to access information held by public bodies should be aligned with international human rights norms. Exceptions to disclosure should be narrowly defined and clearly provided by law and be necessary and proportionate to achieve one or more of the above mentioned legitimate objectives.
  • Adopt or revise and implement national laws protecting the confidentiality of sources: Laws guaranteeing confidentiality must reach beyond professional journalists, including those who may be performing a vital role in providing wide access to information of public interest such as bloggers, “citizen journalists,” members of non-governmental organizations, authors, and academics, all of whom may conduct research and disclose information in the public interest. Protection should be based on function, not a formal title.
  • Adopt or revise and implement national legal frameworks protecting whistleblowers: State laws should protect any person who discloses information that he or she reasonably believes, at the time of disclosure, to be true and to constitute a threat or harm to a specified public interest, such as a violation of domestic or international law, abuse of authority, waste, fraud, or harm to the environment, public health or public safety.
  • Internal institutional and external oversight mechanisms should provide effective and protective channels for whistleblowers to motivate remedial action: In the absence of channels that provide protection and effective remediation, or that fail to do so in a timely manner, public disclosures should be permitted. Disclosure of human rights or humanitarian law violations should never the basis of penalties of any kind.
  • Protections against retaliation should apply in all public institutions, including those connected to national security: Because prosecutions generally deter whistleblowing, penalties should take into account the intent of the whistleblower to disclose information of public interest and meet international standards of legality, due process, and proportionality.
  • Establish personal liability for those who retaliate against sources and whistleblowers: Acts of reprisals and other attacks against whistleblowers and the disclosure of confidential sources must be thoroughly investigated and those responsible for these acts held accountable. When these attacks are condoned or perpetrated by authorities in leadership positions they consolidate a culture of silence, secrecy, and fear within institutions and beyond, deterring future disclosures. Leaders at all levels in institutions should promote whistleblowing and be seen to support whistleblowers, and particular attention should be paid to the ways in which authorities in leadership positions encourage retaliation, tacitly or expressly, against whistleblowers.
  • Actively promote respect for the right of access to information: Law enforcement and justice officials must be trained to ensure the adequate implementation of standards establishing protection of the right to access information and the consequent protections of confidentiality of sources and whistleblowers. Authorities in leadership positions should publicly recognize the contribution of sources and whistleblowers sharing information of public relevance and condemn attacks against them.
  • All of these principles apply to the United Nations and other international organizations: The UN and international organizations should adopt effective norms and policies of transparency to enable the public greater access to information. Specific norms protecting whistleblowers should follow similar criteria provided in the recommendations for States: wide scope of application, promotion of disclosure of information in the public interest, and clarity in the mechanisms for reporting and requesting protection.  Particular attention must be paid to the effectiveness and independence of existing reporting and justice mechanisms given the lack of access of whistleblowers to any other formal justice system.

Submissions received in the preparation of this study

Twenty-eight States responded to a questionnaire requesting for information on national norms protecting sources and whistleblowers. Individuals and NGOs also submitted information.

Click in the list below to view any particular State submission:

Click in the list below to view any particular civil society submissions:

This report, by necessity, excludes a significant amount of research conducted by individual scholars, civil society organizations, and international organizations and treaty bodies. For those interested in conducting further research, the Special Rapporteur would recommend, in addition to the submissions listed here, the documents cited in the report, such as the Global Principles on National Security and the Right to Information (Tshwane Principles); the documents collected at Right2Info.org; and the UN Office on Drugs and Crime, Resource Guide on Good Practices in the Protection of Reporting Persons.

To view original report: http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/ProtectionOfSources.aspx

 

‘Silence is too often the only safe option left’ – new UN report on sources and whistleblowers

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UN News Centre

Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression David Kaye. UN Photo/Jean-Marc Ferré

22 October 2015 – Governments and international organizations are failing to ensure adequate protections to whistleblowers and sources of information, according to a new report by the UN special rapporteur on freedom of expression.

“Countless sources and whistleblowers around the world are intimidated by officials, co-workers, and others, depriving everyone of information that may be critical to public debate and accountability,” David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression told UN General Assembly during the presentation of his study.

“All too often, those revealing allegations of wrongdoing lack effective protection,” the human rights expert warned delegates in the Assembly’s Third Committee – the Organization’s main body dealing with social, humanitarian and cultural issues. “Silence is too often the only safe option left to them, with the public left in the dark and wrongdoing left unpunished.”

In the first major UN report devoted to the subject, Mr. Kaye reviews national and international norms and practices and presents recommendations to establish or improve available protections.

“The problem of source protection extends beyond traditional journalists to bloggers, citizen reporters, [non-governmental organization] researchers, authors, academics, and many others,” the expert noted. “How can they carry out investigative work if they cannot extend the basic assurances of confidentiality to their sources?”

“While there are major gaps in protections, there are also important advancements in norms protecting sources and whistleblowers around the world. Yet they are often riven with loopholes or, even with strong legal protections, not enforced in practice,” he continued.

According to the Office of the UN High Commissioner for Human Rights (OHCHR), the study also emphasizes that the right of access to information – central to Article 19 of the Universal Declaration of Human Rights – requires that authorities take into account the public interest of information disclosed when adopting measures against unauthorized disclosures.

“States may restrict access to information in specific areas and narrow circumstances, yet the disclosure of information relating to human rights or humanitarian law violations should never be the basis of penalties of any kind,” Mr. Kaye underscored.

The study notes that the UN and other international organizations also frequently fail to protect their own whistleblowers. “The UN, as most international organizations, has adopted rules for enabling whistleblowing and prohibiting retaliation. Yet allegations of wrongdoing and retaliation are rarely protected effectively,” the human rights expert noted.

“Without protection against retaliation, few would disclose wrongdoing. Protections should be detailed explicitly in law, providing clarity for whistleblowers and others on the nature of the protection they may seek,” the Special Rapporteur said, calling upon Governments and international organizations to strengthen protection mechanisms for sources and whistleblowers.

Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council, an independent fact-finding and monitoring mechanism that addresses specific country situations. They do not receive a salary for their work and are independent from any government.

 

CQC slams door on whistleblowers

To David Behan, Chief Executive Care Quality Commission,

22 October 2015

 Dear Mr Behan,

 Whistleblowers, whistleblowing governance and CQC’s recruitment process

 Further to our letter to you of 10 October we have received the attached response from Jacqueline Jackson your Head of HR Operations.

 Ms Jackson indicates that CQC restricted the pool of potential candidates to those currently employed by NHS, DH & arms length bodies because:

“From time to time, CQC may choose to advertise roles to this group first, to ensure deployment, redeployment and secondment opportunities for colleagues”.

 This does not address our concern that many exiled whistleblowers would have been excluded by CQC’s restriction.

 Neither does Ms Jackson agree to our request that CQC removes its restriction the National Set Up Guardian Post. Her letter suggests that CQC will continue in its current course, and will only remove the restriction if there is no appointment made as a result of the current process.

 It is most disappointing that CQC chooses to continue with a recruitment process that it knows will exclude proportionately more whistleblowers, despite the fact that the post in question relates to whistleblowing.

 A question arises about whether CQC’s leadership is unenthusiastic about genuine collaboration with whistleblowers.

 This much was suggested by the fact that CQC launched a “consultation” on the National Guardian Post on 17 September, after advertising the post behind the Sunday Times’ pay wall on 13 September.

 Please advise us clearly whether CQC will remove the restriction on candidates eligible for the National Guardian Set Up Manager post, and so allow exiled whistleblowers to apply.

 Please also advise why CQC advertised the National Guardian post, with a supporting position specification, before a consultation had taken place about this post.

 Yours sincerely,

 Minh Alexander

Fiona Bell

Sharmila Chowdhury

David Drew

Narinder Kapur

Gary Walker

Maha Yassaie

 cc House of Commons Health Committee

      Secretary of State for Health

      Shadow Secretary of State for Health

      Sir Robert Francis QC, CQC NED 

      Professor Louis Appleby CQC NED and Chair of CQC Regulatory Governance Committee 

Response from CQC:

27th October 2015

Dear Dr Alexander,

Your email of 22 October deals with CQC’s recruitment processes, and, specifically, the use of NHS Jobs. I am responding to you on behalf of  David Behan, Chief Executive.

We attempted to deal comprehensively with your concerns in our letter of 10 October.  Your email of 22 October nevertheless expresses a concern that CQC has imposed a restriction that excludes whistleblowers from the recruitment process.

First, as we have already made clear, the recruitment process for the appointment of the National Guardian role has been the subject of full and open competition.   Further, as we explained in our letter of 10 October, the intention is for the National Guardian to establish a secretariat on appointment.  Recruitment to those posts will, as with the National Guardian post, be by way of an open competition.

Because the National Guardian is not yet appointed, and there is a need for work to be undertaken in the interim, a temporary role has been advertised for a “start up manager” on NHS jobs.

This temporary role has been made available to staff within certain areas of the civil service and public sector, a practice which CQC and similar organisations will frequently use for short term appointments such as these.  This is because secondments can be offered that maintain continuity of service for staff, and at the same time provide a benefit in terms of development and knowledge both for CQC but also the wider public sector.  A decision could be made to widen the recruitment exercise further in the event that suitable candidates are not identified.

CQC is a public body, and its recruitment practices reflect the standards of fair and open competition applicable to the civil service and arm’s length bodies, in line with the civil service recruitment principles.

Finally, the National Guardian consultation asks for views on proposals for the scope of the role to be performed by the National Guardian, the principles underpinning it, and operational arrangements for performance of the function.  Proceeding with recruitment in parallel with the consultation means that the appointee will be able to rapidly implement the results of the consultation, and ensure that their role is shaped by its outcome.  We see no conflict between the recruitment process, which is not a matter of public consultation, and the proposals for implementation, which, quite properly, are.

Yours sincerely,

Jackie Jackson

Head of HR Operations and Business Partners

 

Please send us your views on this response from CQC – Thank you    

 

NHS whistleblower: There’s no protection for those who have already spoken out

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The Independent 14 February 2015   Charlie Cooper

Dr David Drew says Sir Robert Francis’ report sends exactly the wrong message to staff considering raising concerns
Dr David Drew
Dr David Drew said that by offering ‘no help to those who have suffered’ the report would in fact have a ‘further deterrent effect on staff raising concerns’

 

A landmark report into NHS whistleblowing failed to help medics who have already suffered for speaking out, and sends out “exactly the wrong message”, a prominent whistleblower has claimed.

The report, compiled by the respected lawyer Sir Robert Francis, recommended a string of reforms including the appointment of a new national officer for NHS whistleblowing, as well as whistleblowing “guardians” at every hospital.

However, paediatrician Dr David Drew said that by offering “no help to those who have suffered” the report would in fact have a “further deterrent effect on staff raising concerns”.

A former clinical director at Walsall Manor Hospital, Dr Drew was dismissed in December 2010, having previously raised concerns about what he said were poor standards of care.

He lost an employment tribunal appeal of unfair dismissal in 2013, but maintains that he was sacked for his whistleblowing activities.

In an open letter to Sir Robert published on Independent.co.uk, Dr Drew also questioned how the culture change the report said is needed could be achieved on a “foundation of injustice”.

Reforms set out in the Freedom to Speak Up report received a cross-party welcome last week. The Health Secretary Jeremy Hunt said they could be fast-tracked into law before the general election.

The report was ordered in the wake of several prominent cases, including Dr Drew’s, in which NHS staff were allegedly victimised by their employer after speaking out about patient safety fears. Many have lost their jobs or suffered ill health as a result. Sir Robert said that the treatment of some of whistleblowers had been “truly shocking”.

While recommending that staff be protected from discrimination on the grounds of whistleblowing and calling for a new support service to get whistleblowers back into work, the report steered clear of adjudicating on individual cases and acknowledges that some whistleblowers would feel “their own personal issues have not  been addressed”.

In his letter Dr Drew writes: “…at the end of your report you tell us that you can recommend no help to those who have suffered such atrocities for doing nothing but what was required of them by their professional ethical codes….

“You have sent out exactly the wrong message. Whistleblowers are pawns who will not receive help, even from you. You have left us to our fate. This will have a further deterrent effect on staff raising concerns. The managers who have victimised us will feel more secure than they already were. They remain unaccountable. Patients who depend on our freedom to speak up will be less safe.”

“…You call for a just culture in which we learn from honest mistakes and do not punish those who make them. But how can a just culture be built on the foundation of injustice which is laid down by your failure to address the victimisation so many have experienced?”

He said that NHS chief executives who had victimised whistleblowers should be “despatched” and urged a public inquiry into whistleblowing.

Sir Robert’s report concluded that some individual cases had “endured over such a long time, and the issues have become so complex, that the most rigorous inquiry devoted to each such case would not have been able to resolve matters for those involved”.