Consultation on proposals for the introduction of the role of an Independent National (Whistleblowing) Officer for NHSScotland Staff

Background

Over the past few years there have been a number of high-profile cases involving tragic incidents in the NHS across the UK. Investigations into these and other incidents revealed that, in some cases, staff who had concerns about what was happening were unsure about whether or how to raise these concerns, or had raised the issue only to be ignored. This led to policies being developed to promote, support and encourage whistleblowing and whistleblowers in NHSScotland.

The Scottish Government and NHSScotland are committed to ensuring that all employees 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, as this makes our health service better.

Through a whistleblowing policy, employees are encouraged to raise any valid concerns they may have and are guaranteed to have their concerns taken seriously and investigated appropriately. Employee concerns can relate to a wide range of matters, examples of which include, amongst other things, issues on child protection, adult protection, financial malpractice or health and safety issues.

What is whistleblowing and how is it addressed?

Whistleblowing has no legal definition, but we tend to associate the term with a worker - the 'whistleblower' - who reports suspected wrongdoing at work. This is sometimes referred to as 'making a protected disclosure', or, 'qualifying disclosure'. Workers who make a qualifying disclosure receive statutory protection from detriment. There are provisions in the ^[1]Employment Rights Act 1996, amended by the ^[2]Public Interest Disclosure Act (PIDA) 1998, which protect workers who make a disclosure in the public interest (whistleblow) from detriment. But any worker can report things that they genuinely feel aren't right, are illegal, or, if anyone at work is neglecting their duties.

A whistleblowing concern usually involves an employee raising a concern, as a witness, relating to a risk, malpractice or wrongdoing that affects others and which they reasonably believe it is in the public interest to raise. This may be something which adversely affects patients, the public, other staff or the organisation itself.

All NHSScotland Boards are required to have in place a local whistleblowing policy based on the model national ^[3]'Implementing & Reviewing Whistleblowing Arrangements in NHSScotland' PIN Policy. This provides the minimum standard which must be adhered to. The national policy was developed in partnership between Employers, Staffside representatives and the Scottish Government, and ensures a consistent approach across Boards. The PIN policy provides guidance on, amongst other things, legal protection for whistleblowers; the handling of whistleblowers and the concerns they raise; record keeping; and, audit and review of whistleblowing matters.

Boards also have a role in building trust and confidence across their organisation which supports whistleblowing and in turn helps promote a healthy workplace culture built on openness and accountability. It is recognised that encouraging staff to raise any valid concern they may have about patient safety, malpractice, or serious risk, as early as possible, and responding appropriately, is integral to achieving this. Importantly, it will help Boards deal with problems before any damage is done. This is why removing barriers and encouraging an honest and open reporting culture that supports whistleblowing is vital.

However, concerns about the way in which whistleblowing cases are handled have persisted, and it appears that some staff remain reticent about reporting concerns.

Freedom to Speak Up Review

The ^[4]Freedom to Speak Up Review, announced on 24 June 2014 by Jeremy Hunt MP, Secretary of State for Health and chaired by Sir Robert Francis QC, offered independent advice and recommendations aimed at creating an open and honest reporting culture in NHS England.

The Review was set up in response to continuing disquiet about the way NHS organisations in England deal with concerns raised by NHS staff.

The evidence presented to the Review was comprehensive and not limited to those employed by NHS England. Over 600 individuals and 43 organisations submitted written responses; over 19,500 people responded to staff surveys sent out by independent researchers; and, the Review met with over 300 people through meetings, workshops and seminars.

We are aware that evidence was also presented from current and former employees of NHSScotland and considered as part of the Review process.

From the evidence presented, the subsequent ^[5]Report detailed 5 emerging themes. The need for:

• Culture change
• Improved handling of cases
• Measures to support good practice
• Particular measures for vulnerable groups
• Extending the legal protection

Whilst the Report and its recommendations relate entirely to NHS England, the Scottish Government welcomed the Review and was clear from the outset that it would consider its findings to inform thinking on policy development to further support, encourage and promote whistleblowing.

After fully considering the recommended actions identified within the Report, the Scottish Government are confident that in NHSScotland many of the actions or similar are already in place or being developed. This includes:

• ^[6]The NHSScotland Staff Governance Standard, which requires employers to ensure that it is safe and acceptable to speak up about wrongdoing or malpractice.
• ^[7]The 'Implementing & Reviewing Whistleblowing Arrangements in NHSScotland' Partnership Information Network (PIN) Policy. A national whistleblowing policy which sets out minimum standards to which all NHSScotland Health Boards must adhere.
• ^[8]The NHSScotland Confidential Alert Line (NCAL) - a bespoke whistleblowing helpline for NHSScotland staff.
• Training sessions for key staff within NHSScotland Health Boards.
• Removal of the standard inclusion of confidentiality clauses and derogatory statement clauses from settlement agreements across NHSScotland, ensuring that staff entering into such an agreement are clear that this does not compromise their right to whistleblow.
• Development of guidance for NHSScotland employees and employers on the appropriate use of confidentiality clauses and derogatory statement clauses in settlement agreements (formerly known as compromise agreements). This is due to be published shortly.

The Report did, however, highlight a number of practical actions which the Scottish Government recognise will further enhance and add value to existing and developing national policies of NHSScotland

It also recognised that there is a gap in mechanisms 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 and the impact on the individual where there is legitimate cause for concern.

Scottish Government response to the recommendations from the Freedom to Speak Up Review

That is why, in response to the Report and its recommendations, Shona Robison MSP, Cabinet Secretary for Health, Wellbeing and Sport announced in June 2015 that:

• Non-executive whistleblowing champions would be introduced in each NHSScotland Board;
• Further national whistleblowing events would be provided to designated policy contacts within Boards, with a view to roll out locally;
• The Cabinet Secretary would write to all NHSScotland Boards to draw attention to relevant local actions identified within the Report, and ask that Health Board Chairs and Chief Executives consider how these recommendations can be implemented locally;
• The Cabinet Secretary would write to Healthcare Improvement Scotland (HIS), as the relevant scrutiny body in NHSScotland, to ask it to consider and feedback on how the Report's recommendation on scrutiny may be implemented.

Additionally, the Cabinet Secretary committed to:

• The development and establishment of an Independent National (Whistleblowing) Officer (INO), to provide an independent and external review on the handling of whistleblowing cases.

The Scottish Government recognise the benefits of introducing this role for NHSScotland employees. We are keen, however, to ensure that the INO role does not stand alone nor duplicate roles. The intention is that the INO role will complement and interact with current or developing policies in order to achieve the desired outcome of an open, honest and transparent culture in NHSScotland.

It is felt that an INO would add an element of external review which currently doesn't exist and provide assurance and a possible means of closure to difficult whistleblowing cases.

The INO could also act as an enabling role to encourage good practice, and, where appropriate, advise and assist Boards in their approach to handling whistleblowing cases.

This could provide added value to NHSScotland by ensuring a holistic approach to the application of local whistleblowing policies.

This consultation also offers the opportunity to seek views on the role of the INO extending to staff delivering integrated services. This is discussed in more detail later in this paper (Section 5: Health and Social Care Integration).

The current landscape

At present stakeholders have raised concerns that there is a need for an independent and impartial mechanism to review the way in which patient safety or malpractice issues raised by NHSScotland staff members are handled by their Health Board.

We are aware that in some cases individuals feel they have been victimised as a result of whistleblowing and can find it difficult to achieve closure on their whistleblowing experience. This is often relayed through negative perceptions of how their case has been handled, or how they feel they have been treated. These concerns were echoed by the material considered in the Freedom to Speak Up Review Report. In the NHSScotland context, this often results in Scottish Government intervention being sought. However, the Scottish Government has no locus to review the handling of cases.

Some individuals feel that current procedures do not allow a line to be drawn under cases where a member of staff is unhappy with the outcome of their case or if they feel the concern raised has not been appropriately investigated. The introduction of an INO could provide a further independent mechanism to help provide a final resolution to such issues.

NHSScotland Health Boards are autonomous employers and, as with any other concern raised by a member of staff, concerns about patient safety, behaviours which may lead to harm, and malpractice, are, in the first instance, investigated locally.

Boards may invite varying levels of external input from existing Regulators/Scrutiny bodies, as appropriate, to the concern raised, and staff may, at any time, raise their concern directly with the appropriate Regulator/Scrutiny body. These include:

^[9]Healthcare Improvement Scotland (HIS)

Healthcare Improvement Scotland is a statutory body, part of NHSScotland, that works with healthcare providers to drive and support improvements in the quality of healthcare, and empower patients and the public. HIS do this through a combination of evidence-based standards and guidelines, a scrutiny and assurance approach, and quality improvement implementation support . These functions include:

• furthering improvement in the quality of healthcare;
• supporting, ensuring and monitoring the quality of healthcare;
• evaluation and provision of advice to the health service on the clinical and cost effectiveness of new and existing health technologies including drugs;
• supporting, ensuring, monitoring and encouraging public involvement and equal opportunities within each NHS Board;
• involving users in the design and delivery of HIS functions;
• co-operation and co-ordination with other organisations;
• spreading good practice through advice and guidance; and,
• provision of advice to Scottish Ministers.

Other statutory duties include:

• scrutiny of medical certificates of cause of death as stipulated by the Certification of Death (Scotland) Act 2011; and,
• support to the Controlled Drugs Accountable Officers Network in Scotland to improve and strengthen governance systems for the safe and effective use of controlled drugs for patients as stated in The Controlled Drugs (Supervision of Management and Use) Regulations 2013.

In addition to these activities HIS, in conjunction with the Care Inspectorate, develop and carry out joint inspections of health and social care services provided for older people living in the 32 local authority (council) areas across Scotland.

HIS is also responsible for regulating independent hospitals, voluntary hospices, and private psychiatric hospitals. HIS will also be responsible for the regulation of independent clinics from April 2016.

^[10]Health and Safety Executive (HSE)

The Health and Safety Executive (HSE) is the regulator for health and safety at work in Great Britain.

HSE leads the health and safety system and, in partnership with local authority co-regulators, secures compliance with the Health and Safety at Work etc. Act 1974 (HSWA) and regulations made under it. HSE's mission is to prevent death, injury and ill health to those at work and those affected by work activities. In summary, HSE's functions under HSWA are:

• Standard setting and making regulations
• Enforcement
• Research
• Guidance and advice
• Ministerial advice

HSE's main aims are to:

• lead others to improve health and safety in the workplace
• provide an effective regulatory framework
• secure compliance with the law
• reduce the likelihood of low frequency, high-impact catastrophic incidents.

^[11]NHSScotland Counter Fraud Services

Counter Fraud Services work in partnership with all of the NHS in Scotland. Their job is to protect Scotland's health from the impact of financial crime.

They provide a comprehensive counter fraud service through a centrally based, professionally qualified team of experienced specialists, dedicated only to counter fraud work.

They provide counter fraud guidance and advice, raising awareness of fraud, ensuring that robust systems are in place and analysing data to identify risks.

Working in partnership to share information and develop proactive approaches to countering fraud, where fraud is identified NHSScotland Counter Fraud Services ensure that relevant sanctions are applied wherever appropriate.

^[12]Audit Scotland

Audit Scotland help the Auditor General and the Accounts Commission to make sure organisations that spend public money in Scotland use it properly, efficiently and effectively, including:

• 75 central government bodies (Scottish Government, NDPB's, Police Scotland, Scottish Fire and Rescue Service and others)
• 22 NHS bodies
• 32 councils
• 21 further education colleges
• Scottish Water

Audit Scotland staff and firms of auditors appointed by Audit Scotland carry out the audits to check whether organisations manage their finances to the highest standards, and, achieve the best possible value for public money.

Three principles guide Audit Scotland's work:

• Auditors are independent of the organisations they audit.
• They report in public.
• They look at more than financial statements.

Audit Scotland support public scrutiny that is fair, equal and open, and that leads to more effective financial management and value for money. They produce a wide range of local and national reports about the
performance and financial management of Scotland's public bodies.

^[13]The Care Inspectorate

The Care Inspectorate regulates and inspects care services in Scotland to make sure that they meet the right standards. It also jointly inspects with other regulators to check how well different organisations in local areas work to support adults and children. It is the Care Inspectorate's job to assure and protect everyone that uses care services and make sure that everyone gets safe, high quality care that meets their needs.

There are around 14,000 registered care services in Scotland. Inspectors from the Care Inspectorate visit every care service that it regulates, with higher risk services inspected more often. The inspectors talk to people using the service as well as staff and managers. The Care Inspectorate also watches what happens in the service to help assess the quality of care people receive.

Care services are given grades when inspected. The Care Inspectorate look at the quality of:

• care and support
• environment
• staffing
• management and leadership.

Each area of each care service is assessed on a scale from 1 to 6, where 1 in unsatisfactory and 6 is excellent.

If care services are found not to be good enough the Care Inspectorate will help them improve. It offers advice, guidance and suggestions to help services reach the highest standards. If a service isn't performing to the levels required the Care Inspectorate will act. It can issue recommendations for improvement and requirements for change and check these have happened. If a service doesn't improve, the Care Inspectorate can close it down. It can also impose conditions on care service meaning they must start or stop doing something specific.

One of the most important ways for the Care Inspectorate to make sure care services improve is by listening to concerns that people have about the level of care they, or someone they care for is receiving. Very often members of staff employed, or recently employed, in care services raise concerns about the level of care with the Care Inspectorate.

The Care Inspectorate want to make sure services safeguard people, that they are managed and led well, and, make a positive impact on people's lives, based on their needs, rights and choices.

Contractual issues and the role of an Employment Tribunal

It is also important to note that legal mechanisms are already in place to determine whether or not a whistleblower has suffered any form of detriment as a consequence of making a qualifying disclosure, for example, raising concerns about patient safety or malpractice.

There is often confusion about the approach to handling a case where a member of staff who raises concerns about patient safety or malpractice which they reasonably believe to be in the public interest (a public concern) subsequently feels they have suffered some form of detriment as a result (a private concern). Although seen as linked, the nature of the two issues i.e. public vs private, dictate the way in which they are addressed.

Public Concern vs Private Concern

A whistleblowing concern is a 'public concern' because the complainer reasonably believes it is in the public interest to make the disclosure of information about which they are concerned. As outlined earlier, whistleblowing concerns can relate to a risk, malpractice or wrongdoing that affects others and may be something which adversely affects or is likely to affect patients, the public, other staff or the organisation itself.

Private concerns relate to matters not in the public interest, for example, an individual's own employment situation, which is governed by their contract of employment. This includes concerns about the way in which a member of staff feels they are being treated by their employer or colleagues, including claims of detriment as a consequence of making a qualifying disclosure (whistleblowing). As private contractual issues, these are governed by employment law, including the ^[14]Employment Rights Act 1996, and remain to be resolved between the employee and their employer.

With this in mind, the INO can have no role in determining whether or not a member of staff has suffered detriment as a consequence of making a protected or qualifying disclosure (whistleblowing). Employment Tribunals have exclusive jurisdiction in such matters as provided for in the ^[15]Employment Rights Act 1996 and amended by the ^[16]Public Interest Disclosure Act (PIDA) 1998 . This reserved legislation falls outwith the legislative competence of the Scottish Parliament.

It therefore must remain the role of the Employment Tribunal to determine if a person has made a protected disclosure and, if so, whether that person has suffered any detriment from their employer in consequence.

The following diagram sets out, from the employee's perspective, how an INO would relate to existing bodies already involved in considering staff concerns and the different roles and functions.