Independent national (Whistleblowing) officer (INO): consultation responses

2. Introduction

The Scottish Government and NHSScotland are committed to ensuring that all NHS employees in Scotland are encouraged, supported and confident in raising any concerns they may have about patient safety, behaviours which may lead to harm, or malpractice in the NHS.

Such reporting is known as whistleblowing or "making a protected disclosure" or "qualifying disclosure". The Employment Rights Act 1996, amended by the Public Interest Disclosure Act ( PIDA) 1998 protect workers who make a disclosure in the public interest from detriment.

The NHSScotland Staff Governance Standard requires employers to ensure that it is safe and acceptable to speak up about wrongdoing or malpractice and all NHSScotland Boards are required to have in place a local whistleblowing policy based on a national model ^[3] "Implementing & Reviewing Whistleblowing Arrangements in NHSScotland" PIN Policy. The policy, developed in partnership between employers, Staffside representatives and the Scottish Government, provides a minimum standard which must be adhered to.

The Scottish Government wishes to support an ongoing honest and open reporting culture in the NHS in Scotland and has in place, or in development, measures to support the whistleblowing policy and Standard. These include the NHSScotland Confidential Alert Line; training sessions for key NHS staff; removal of the routine inclusion of confidentiality clauses and derogatory statement clauses from settlement agreements; and guidance for NHSScotland staff and employers on the appropriate use of confidentiality clauses and derogatory statement clauses in settlement agreements.

Despite such measures, however, concerns remain about the way in which whistleblowing cases are handled with some staff remaining reticent about reporting concerns.

In England, The Freedom to Speak Up Review was established in 2014, chaired by Sir Robert Francis QC, aimed at providing advice and recommendations for an open and honest reporting culture in NHS England in which NHS staff can feel it is safe to raise concerns, confident that they will be listened to and have their concerns acted upon. The Review was comprehensive, based on widescale consultation with NHS Staff and relevant organisations and produced five themes identifying the need for: culture change; improved handling of cases; measures to support good practice; particular measures for vulnerable groups; and extending the legal protection for whistleblowers.

Whilst in Scotland various aspects of the recommendations were already in place, the Review highlighted a number of practical actions which the Scottish Government considered will further enhance and add value to the existing and developing national policies of NHSScotland. One particular gap identified was for oversight of how an NHS body deals with concerns raised by staff and the merit of having a mechanism for external review of how concerns have been handled at local level.

Key recomendations of Scottish Ministers following the Review were to develop and establish the role of Independent National (Whistleblowing) Officer ( INO) to provide this external review function and offer advice and guidance to NHSScotland organisations on good practice on handling concerns; and to introduce non-executive "whistleblowing champions" in each NHSScotland Board whose role will include oversight and assurance at local level in addition to helping to ensure that internal Board mechanisms are working effectively to support whistleblowing arrangements and staff raising concerns. This role was introduced in each Board at the end of 2015.

The Scottish Government wishes to seek wider views on its proposals for the INO role and remit, in particular its functions and powers, but also on practical and logistical issues such as the INO host location and the process for considering complaints. With the integration of Health and Social Care on the wider agenda, views on the role of the INO in relation to the Social Care sector are also sought.

On 17 November 2015 the Scottish Government published a consultation paper to seek views on these matters with views invited by 10 February 2016.

Consultation responses

The Scottish Government received 58 written responses to the consultation. Table 2.1 overleaf shows the distribution of responses by category of respondent. A full list of the organisations which responded is in the Annex. The respondent category applied to each response was agreed with the Scottish Government policy team.

53% of responses were submitted by organisations; 47% were from individuals. The largest category of respondent amongst organisations was NHSScotland Territorial and Special Boards comprising 16% of all respondents.

All individual responses and most of the organisation responses were submitted via the online system, Citizen Space, established for consultation responses. Others were submitted in emails and were attached to the online system by the Scottish Government to create one complete database of responses for publication.

Table 2.1: Distribution of responses by category of respondent

Analysis of responses

The analysis of responses is presented in the following seven chapters which follow the order of the topics raised in the consultation paper. 14 questions were posed by the consultation inviting a mix of closed and open responses. The analysis of responses to these is based on the views of those who responded to the consultation which are not necessarily representative of the wider population and cannot be extrapolated further.

Throughout the report quotes taken directly from responses have been used to illustrate specific points. These were selected on the basis that they enhance the analysis by emphasising specific points succinctly. Quotes from a range of sectors were chosen where the respondents have given permission for their respective response to be made public. Where respondents have requested confidentiality, the content of their response has been examined and taken into account in the findings, but is not reported explicitly in the text of the report so as to conceal the identity of the respondent.