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

5. Prescribed powers of the INO

Background

The Scottish Government considers that the INO should have the ability to provide independent challenge and oversight for the most complex of whistleblowing cases for it to be publicly credible. It is also felt that for the role of INO to be effective, and perceived in that way, it needs to be able to ensure that Boards take forward any recommended actions that it makes, and have the ability to follow-up on and enforce recommendations when required.

It is suggested that the INO role be further strengthened to include:

• Giving the INO power, where necessary, to compel a public body to provide evidence to the INO to allow it to reach a decision and make appropriate recommendations.
• Giving the INO sufficient power to ensure that the recommendations it makes are acted upon and, where necessary, to enforce the recommendations if required.

Question 3: Do you agree that consideration should be given to the INO having prescribed powers?

Question 3a: If yes, do you think that these powers should be:

To compel a public body to provide evidence only?

To enforce recommendations only?

Both?

Views on whether consideration should be given to the INO having prescribed powers

Of the 52 respondents who addressed the issue, 49 agreed that consideration should be given to the INO having prescribed powers and three did not agree.

The most common reason given in support of considering prescribed powers was that without these the INO would be ineffective and "toothless":

"To ensure that the role of INO is effective in its aims, it is essential that there should be prescribed powers. This will be the only way that proposals and recommendations which are deemed necessary are definitely implemented. The overall aim is always to improve patient safety and care, and having prescribed powers is essential for this" (Individual).

Another common view was that prescribed powers would provide the INO with credibility and generate respect:

"Without any prescribed powers, the role of the INO is likely to be disregarded and bypassed by both Boards and Staff" (Royal College of Physicians of Edinburgh).

Other reasons to support prescribed powers were provided each by one or two respondents:

• To equip the INO with insight.
• To encourage people to speak up.
• To fill gaps in existing policies and mechanisms.
• To reflect the national significance of cases coming before the INO.

A few respondents emphasised that any prescribed powers should not duplicate or undermine existing regulatory and quality assurance frameworks.

The view amongst the minority who did not agree with considering prescribed powers for the INO was that sufficient powers already exist elsewhere, for example, the PIN Policy for Scotland could be used as the vehicle for requiring evidence to be provided to the INO.

Views on what these powers should be

Of the 48 respondents who addressed the issue, 44 considered that the INO should have powers to compel a public body to provide evidence and also to enforce recommendations and four argued only for powers to compel public bodies to provide evidence.

A recurring view was that it would be illogical to have one of these powers without the other as both were seen as contributing to the effectiveness of the role of the INO.

The shared view amongst the four respondents who supported INO powers to compel a public body to provide evidence only was that a range of existing legislation and accountability mechanisms already exist and there is no need for what was seen as an additional and unnecessary layer of accountability. The notion of trust and building good relations between the INO and local organisations with their existing processes was highlighted as important, with enforcement perceived as a last resort and something best left to the appropriate scrutiny and regulatory bodies:

"The priority will be for the INO to build positive and constructive relationships with Boards, and for Boards to be seen as fully and voluntarily co-operating with any cases" (Healthcare Improvement Scotland).

Suggestions for other powers for the INO

The consultation invited suggestions for other powers for the INO which produced the following:

• To refer issues to other regulators as appropriate.
• To compel other relevant agencies to engage fully with them whilst investigating cases.
• To compel all NHSScotland bodies to put in place recommendations if these are generalisable and have wider applicability.
• To levy fines against employers as appropriate.
• To sanction employees who make vexatious claims.
• To request that evidence be provided under oath.
• To publish the outcome of investigations and actions resulting.
• To compel organisations to provide evidence to show that they have complied with appropriate processes.