Whistleblowing – recommendations

Sharmila Chowdhury

NHS whistleblowing – Recommendations

All organisations within the NHS must have an open and transparent culture, where any underlying issues or concerns are encouraged by management to be brought to their attention. These issues are then investigated and the problem rectified. So keeping both patients and staff safe. Less wastage of money on legal costs, litigation and severance payments from the public purse would mean these funds can be used towards patient care. This would also prevent drain of expertise from the NHS as the staff member would not be victimised and removed from the organisation as a result of speaking up.

Unfortunately, this is not the case and we are far from the ideal.

Note:  

  1. The items are not in order of importance. They are all important for bringing about an effective change to the current NHS whistleblowing process
  2. The term ‘Trusts ’and ‘organisation’ is interchangeable

 

  1. Is the individual really a whistle-blower?

 

Often determining whether someone has genuinely raised a concern or is simply using this as an explanation/excuse for their own failure and subsequent trust process, can be hard to achieve. This however, needs to be determined on first instance.

 

  1. Need to look at any documented evidence(s). Alternatively, follow up any verbal concerns
  2. The timing of the raised concern i.e. was the concern raised before any ‘persecution’ or counter allegations?
  3. Who/which staff member did the concern involve? Although care needs to be taken here as frequently counter allegations or victimisation may not come directly, e.g. close colleagues, senior trust managers who the concern may effect indirectly. Often counter allegations/victimisations can be done maliciously to avoid direct link.
  4. Has anyone else within the organisation raised the same concern?
  5. How many times has the individual raised this concern? Is there any paper trail? It could be they are becoming a ‘pain’ and so individuals in the organisation may want a way of getting rid of them
  6. Are there any witnesses to the either the raised concern or the individual raising concerns?
  7. Can anyone within the organisation be willing to be interviewed with regards to the concern? Care needs to be taken as response may not be a true reflection, either because they are worried about their own safety or could be colluding with the organisation or even with the whistle-blower.
  8. Need to look at the concern itself:

 

Best way would be to get 2 independent staff with same jobs from outside the organisation to evaluate whether if they were face with the same situation would they have raised concern?

 

Care needs to be taken when selecting these individuals. Specialities from one organisation frequently know or have contacts with another organisation. So, need to exclude bias where possible. Perhaps selecting individuals as far remote from the organisation in question would minimise this risk. Also by having 2 is better than 1. Although may have to consider what to do if the 2 are in dispute.

 

  1. Early intervention

This is essential but is not as easy as it sounds. Most whistle-blowers raise concern in good faith. Many do so without being aware that they are placing themselves at risk. Most raised concerns are solvable but often ignored as it may effect individuals within the organisation, reputation of the organisation may be at stake if openly disclosed, or may involve costs and targets need to me met.

Unfortunately in most cases, a whistle-blower realises that they are in trouble due to raising concerns and need external help is when they are either suspended or dismissed. They would not in most cases consider contacting any external authority until the situation becomes an employment dispute.

This is when a whistle-blower normally looks for help. Usually by contacting the unions, Care Quality Commission, CQC and Department of Health, DH.

I have yet to see any union, CQC or DH intervene and stop an ongoing case. Responses from CQC and DH in nearly all cases advise that they are unable to get involved due to ongoing legal process.

Yet, this is exactly the time when someone must intervene. Failing to do so, means that these cases are dragged out over several years, with huge costs to the public and individual. Not to mention career losses and loss of expertise from the NHS. A solution needs to be found to remedy this current situation.

 

  1. Finance

Money is normally one of the biggest obstacle faced by the whistle-blower. Once dismissed, there is no source of income. On top of which, they face the prospect of funding legal expenses.

In cases where there is strong evidences of raised concerns, the whistle-blower can apply for Interim Relief Hearing. This is before an Employment Tribunal, an option available for those dismissed for whistle blowing to have their contract reinstated. Unfortunately, there is a time limit of only 1 week from the time of dismissal to make an application. Most whistle-blowers are unaware of this. Also, in many cases, it’s hard to prove in court that unfair dismissal had been a result of whistleblowing.

Even if a whistle-blower is successful at an Interim Relief Hearing, (only a handful have ever won), they will still need to find funds to cover legal costs. These are the options currently used by whistle-blowers:

  1. Union – I have not known any union to help with legal funding of a whistleblowing case
  2. Legal costs covered by household insurance – many have used this. However, many have insurances have opt out clauses where if an individual is part of a union, they won’t cover. Additionally, even if legal costs are covered, with loss of job, individual still need to find money to cover living expenses.
  3. Re-mortgage home. Although this is unlikely, without any source of income. However, it could be based on a spouse’s salary. So incurring more outgoing household costs with less money coming in.
  4. Selling their home, as is the case for many. In fact many whistle-blowers have had their homes repossessed as do not have funds to pay for their mortgage.

 

Financial help must be available to a whistle-blower. However, it is hoped that if they are found to be a whistle-blower, then any ongoing employment case can be stopped.

 

If the case cannot be stopped, then there must be help for living and legal expenses.

There should be separate legal funds available for the whistle-blower.

No one should lose their home or not have access to justice because they have raised concerns.

 

  1. Support

There are 3 types of support needed:

a. Emotional support.

Many whistle-blowers feel abandoned, humiliated, vilified, bullied and often threatened. To top it all they have to deal with possible loss of career, earnings with legal costs. As a result, this frequently has a knock on effect on their families and relationships. Many have faced family breakdown, suffer from depression and in extreme cases have resorted to suicide.

 

Currently, there is no recognised support for whistle-blowers. Their external support comes from contacting other whistle-blowers, who are not trained to deal with psychological issues. However, sharing experiences is helpful to some extent but frequently professional help is needed.

 

b. Advisory support

There is no effective advisory body for a whistle-blower to go to. PCAW have been ineffective in helping in nearly all ongoing whistleblowing cases.  Unions are not effective in giving advice. Trusts on the other hand are given access to legal advice. They are also given advice from DH with regards to a whistleblowing case and settlement. Currently, however, DH fail to support the whistle-blower when asked they for help, stating they cannot get involved. But they do – just not on the side of the whistle-blower.

 

There needs to be an independent advisory body for whistle-blowers, who can be readily accessed and are able give legal and other forms of advice. For example, advising such options as Interim Relief Hearing, where applicable. Many legal firms can charge up to £400 per hour for advice, which a dismissed whistle-blower can ill afford.

 

Trusts have free access to legal advice and funds at tax payer’s expense. Whereas whistle-blowers are left fending for themselves, with nowhere to turns to.   There is currently imbalance of justice.

 

c. Financial

Discussed in sections 3 & 6

 

  1. Accountability

 

Accountability is key to making improvements to current whistleblowing. Without accountability of individuals there is no deterrent. Frequently these individuals, leave their organisation to work elsewhere without being questioned or held responsible.

 

Often the hospitals that individuals turn to for work are often the very same hospitals that a whistle-blower may also apply for posts as they are both looking for jobs within the same catchment area.

 

  1. There needs to be accountability of Chief Executives, HR Directors and other staff members when they persecute whistle-blowers. To date this is yet to happen. Senior trust managers are left to their own devices and so do as they please, no questions asked.

 

It’s not sufficient having policies and documents when advise and recommendations are ignored. There needs to be an effective, independent body to ensure that recommendations are practically implemented and any deviation from this is answered for.

 

Huge sums of public money is being wasted in litigation and getting rid of staff which should have been spent on patients. There also needs to be accountability of these sums of money.

 

  1. Where applicable, there also needs to be accountability of the individual, about whom concerns have been raised. In many whistleblowing cases, these serious issues are ignored. For example, inadequately trained staff, fraudulent behaviour.

 

 

  1. Income & careers

 

Nearly in all cases, where a whistle-blower is dismissed, they are unable to work again in the NHS. They face career and pension losses. They lose their means to any source of income.

 

  1. It’s vital that an alternative job is found of same stature and within reasonable travelling distance, where the individual is able to work. The ability to work may depend on the psychological impact the whole procedure has had on them. By finding appropriate jobs will help to get back to some normality and realisation of self-worth. In addition, it means that vital skills are not drained from our health service. The job must be a substantive post and not a temporary quick fix. Argument that the temporary post is a ‘stepping stone’ does not hold.

 

Question is who should look for alternative posts? It could be the Trusts themselves. They should be given some responsibility to remedy their actions. However, this may not be suitable as communications and trust may well have broken down between the whistle-blower. CQC and DH are also not suitable in finding jobs. It will need an independent body to look at vacancies and matching them with relevant skills.

 

Note: due to blacklisting (8) and the fact that a whistle-blower may have had a break in service, maybe in excess on months or even years, it may be hard to find jobs following normal processes of applications, interviews etc. So, consideration needs to be taken in relation to this.

 

  1. On settlement, if alternative work of same standing is not found, then the whistle-blower must be paid their normal salary and have their pension reinstated until retirement.

 

  1. Pension losses

 

It’s vital that the whistle-blower does not incur any pension losses. If there is a break of 12 months in the NHS, continuation of the same pension is stopped.  Many whistleblowing cases last in excess of 12 months and so the pension contribution is decreased and the final pension available on retirement is subsequently reduced. A way needs to be found of continuing with the same pension scheme.

 

 

  1. Early retirement

 

If after settlement, the whistle-blower is unable to work either due to health reasons or due unavailability of jobs, there should options for them to take an early retirement where pension is not reduced and the whistle-blower penalised due to actuation costs.

 

  1. Legal costs

 

On winning a case or where case has been settled out of court, all of legal costs must be paid by the organisation. It is only appropriate that organisations who have taken inappropriate action are liable for all legal costs. Whistle-blowers must not be left with the burden of expenses which has resulted directly from organisations’ mishandling and wrongdoing.

 

As discussed in section 3, there should be separate funds available for whistle-blowers. This will ensure balanced footing. Organisations have ready access to legal funding from the Treasury, approved by DH. Whistle-blowers, need similar arrangement.

 

10. Blacklisting

 

Blacklisting in whistleblowing cases is a serious problem and needs to be addressed. Individuals who previously would have had no problems finding another job, find that their job offers are withdrawn, posts withdrawn and interviews cancelled on the day.

 

Although it’s not known exactly how blacklisting takes place, it is thought that it stems from the Electronic Staff Register (ESR). This holds staff details. When an individual leaves an organisation, reason for departure is entered by Human Resources. Reasons entered by the organisation may raise alarm bells to a different organisation, where the whistle-blower has applied for a job.

 

ESR is used widely within the NHS and is readily accessible to any HR department within the NHS.

There are very good reasons why ESR are used as a pre-employment check. It ensures safety for patients and organisations. Any unsuitable staff can be identified readily. However, in whistleblowing cases, reasons entered for their departure can also send raise alarm bells to another organisation who won’t have access to full facts, and who would feel loyalty to another HR department, and so would not think of questioning the entered details.

 

Blacklisting in whistleblowing cases is a serious problem and needs to be addressed.

 

11. Investigating raised concerns

 

Frequently raised concerns are ignored. This is despite the whistle-blower having risked their career and their livelihood. To many, raising concerns is a pointless exercise. All that seems to happen is that the whistle-blower gets victimised and bullied. There is no investigation or subsequent changes as a result of raising concerns. There needs to be thorough and serious investigations into raised concerns. It could be that the whistle-blower has got it wrong. However, by not openly examining concerns, it sends out signals to others that it’s pointless to report concerns and this is to the detriment of patients.

 

 

12. Protection for supporting staff

 

It isn’t just the whistle-blower that need protection. Frequently other staff who voice their support of a whistle-blower also face detriment.

Supporting staff frequently subjected to the same treatment as the whistle-blower.

Although, they themselves may not have raised concerns, they too however need protection available to them.

 

 

13. Setting example to other staff

 

By watching a whistle-blower being bullied and victimised sends out warning signals to the rest of the staff. This needs to change as it’s detrimental to patients and to the service.

Positive message and example needs to be set, where raising concerns is welcomed, concerns are investigated and there is no longer need for protection of the staff who raises concern in good faith.

 

Undertaking 1-8 will help achieve this.

 

 

14. Gagging

 

Gagging is used by organisations where vast sums of tax payer’s money is given to whistle-blowers to keep quiet about their concerns. Many whistle-blowers in their desperation to settle, unable to continue with legal costs or in many cases pressurised by their legal team especially in ‘no win, no fee’ arrangement are forced to settle. Not only is this no longer legal, more seriously, it means that by covering up raised concerns, some of which are serious patient issues remain hidden. This means there is no subsequent investigation and there is no remedy. So placing patients in potential risk.

 

Gagging is still in use. Although thankfully, is becoming less common. It however, needs to be completely banned in whistleblowing cases.

 

 

15. Unions

 

Nearly all unions are ill-equipped to deal and support whistle-blowers. Yet, union is normally the first port of call for most whistle-blowers. In most cases whistle-blowers who are full of hope, are badly let down.

Unions have yet to support a whistle-blower throughout the whole ordeal. This could be due to whole range of issues: lack of knowledge in dealing with whistleblowing cases, lack of available funds or it could be that they want to simply wish to remain on good terms with the organisation.

Strangely, in some cases, unions have even turned on their own members.

There needs to be advice given by unions regarding their limitations.

 

16. Truth and Reconciliation

 

This can only work if the organisation has investigated the raised concerns and have not retaliated against the whistle-blower.

It cannot be implemented where whistle-blower has already been victimised and have gone through employment process. In these instances, trust between both parties have broken down.

Unless there is accountability of senior managers/individuals who have persecuted the whistle-blower, a whistle-blower would feel unsafe to return in fear that history may repeat itself.

 

There is only one example of where a whistle-blower has taken legal action against their Trust and they have returned to their place of work. He was however, was left with £120,000 in legal fees.

 

In most instances, this is not a practical remedy.

 

 

17. Review of the recommendations and effective implementation

 

Any recommendations from the Review into whistleblowing must be followed up to ensure implementation, identify bottle necks, look at perhaps a different strategy or progress to the next level.

 

Like PIDA, the recommendations from the Review is pointless if it’s not acted upon. It would have been a costly, pointless exercise for the taxpayer with staff hopes falsely raised if these are not acted upon.

‘We have tried’, won’t be a satisfactory response.

 

In order to ensure implementation, special teams must be set up, who review and monitor the progress at regular intervals. Any deviation must be tackled and addressed.

 

 

 

I hope the above recommendations have been helpful. If you need further clarification/discussion, I may be contacted at:

 

Sharmila.chowdhury@hotmail.co.uk

 

Tel: 07801 076 845

 

Good luck with the review & thank you.

 

 

 

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