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

Section 1: The role of the INO

As a starting point, it is key to establish what the role of the INO should be, as this informs all other aspects considered in this paper.

Largely in line with the model described in the Freedom to Speak Up Report, we envisage the key features of the role in NHSScotland as:

• Reviewing the handling of concerns raised by NHS workers, and/or the treatment of the person or people who spoke up, where there is cause for believing that this has not been in accordance with good practice.
• Advising NHS organisations to take appropriate action where they have failed to follow good practice, or advise the systems regulator to make a direction to that effect.
• Acting as a support to local policy contacts.
• Providing national leadership on issues relating to raising concerns by NHS workers.
• Offering guidance on good practice about handling concerns.
• Publishing reports on the activities of this office.

Based on the above, and having considered the types of complaints we are aware of in NHSScotland, we consider that there are three main areas, as described in the Freedom to Speak Up Review Report that an INO could potentially consider when investigating whistleblowing complaints. These are:

Process

• Has the local whistleblowing policy been followed correctly?

Decision making/Outcome

• Is the Board's decision and resultant outcome reasonable?

Treatment

• Has the person/people who raised the complaint been treated fairly?

As outlined previously, we are clear that the INO must add additional value and not duplicate or interfere with the role of any existing body.

The role of the INO cannot impinge on an individual's contractual arrangements as governed by the ^[17]Employment Rights Act 1996, including claims of detriment suffered by a whistleblower, as this remains the exclusive jurisdiction of the Employment Tribunal.

With this in mind, it is considered that there are two options on the types of complaints which the INO could investigate, outlined in more detail below.

Option 1: INO considers application of Whistleblowing Process only.

Under this option, the role of the INO would be to consider whether the processes outlined in the relevant Health Board's local whistleblowing policy had been properly followed.

The possible findings and response following investigation are as follows:

INO Finding	Potential Response
Flaw found in application of process outlined in local whistleblowing policy.	Complaint upheld Recommendation to the Board that it re-run aspects of the investigation process. Board asked to provide assurance on any required systemic changes.
Significant flaw found in application of process outlined in local whistleblowing policy.	Complaint upheld Recommendation to Board that it re-run the investigation process in its entirety. Board asked to provide assurance on any required systemic changes.
Flaw/significant flaw found in the established process outlined in local whistleblowing policy.	Complaint upheld Recommendation to Board that it partially re-run/fully re-run investigation process. Board asked to fully review the local whistleblowing policy and to provide assurance that required changes are made.
Elements of process not followed but not likely to have had a bearing on the investigation outcome.	Complaint upheld. Feedback provided to complainant and Health Board.
All elements of process applied correctly in line with the local whistleblowing policy. Policy found to be sound.	Complaint not upheld. Feedback on the reason for the decision fed back to complainant and Health Board.

It is recognised, however, that although a process could be applied perfectly by a Health Board, the decision that the Health Board reached could potentially be flawed. With this in mind, a second option, which we feel is more robust, has also been considered.

Option 2: INO considers process, including examination of decision making and outcome.

As with Option 1, the INO would consider whether a whistleblowing concern had been investigated in compliance with the Health Board's local whistleblowing policy, but the INO would also consider how the Board came to its decision, and the subsequent outcome.

This would therefore include an additional element to that illustrated in Option 1, as follows:

INO Finding	Potential Response
Investigation decision considered to be flawed and case needs further investigation.	Complaint upheld or not upheld. Depending on the severity of the issue the case could be referred to the Board for re-investigation; the relevant scrutiny body (e.g. Healthcare Improvement Scotland (HIS); Audit Scotland; NHS Counter Fraud Services; or, Health and Safety Executive.

We consider that with our preferred option - Option 2 - the INO could also have the discretion to make additional recommendations and/or provide guidance to Boards. Examples could include:

• Suggesting mediation, where this had not already been considered;
• Recommending to a Board that they conduct an independent investigation;
• Recommending changes or reviews of policies, procedures or systems in line with good practice;
• That the Board offer an apology to the complainant.

Illustrative Example

A nurse raises a concern about staffing levels within a clinical ward in their Health Board claiming staffing levels are insufficient and jeopardising patient safety. The nurse raises the concern in line with their local whistleblowing policy.

The Health Board investigates the claim fully in line with the established whistleblowing policy and finds that the concern raised by the nurse is not having an impact on patient safety. The Board did not, however, use the national workforce planning tools to determine whether staffing levels were safe.

Having exhausted the local process the nurse remains unhappy with the outcome of the investigation. The nurse also feels that they have been victimised by the Health Board for raising the complaint as they feel they have missed out on career opportunities. The nurse contacts the INO.

With an INO set up under Option 1, the only role would be to consider the Board's application of process outlined in the local policy. In line with the illustrative example, as the complaint was investigated fully in line with the established whistleblowing policy, the complaint would not be upheld as the application of the process would not be deemed to be at fault. However, had the INO found the process outlined in the established policy to be flawed, it could ask the Board to re-run/partially re-run the process and review its local policy.

With an INO set up under Option 2, whilst the application of process would not be deemed incorrect, the INO could potentially determine that the decision was flawed as the national workforce planning tools had not been used to inform the Board's decision. Whilst the nurse would have been entitled to have raised the issue with HIS directly, the INO could refer the case to HIS, as the appropriate scrutiny body, for further investigation.

As discussed earlier, the treatment the nurse feels they have been subject to as a consequence of raising the concern forms part of the nurse's contract with their employer (i.e. it is a private issue). If the nurse feels that they had been treated unfairly as a result of raising a concern, they could, at any point, raise this through their local Grievance policy. If the nurse remains unhappy, it would be for an Employment Tribunal to determine whether they had suffered detriment in consequence of making a qualifying disclosure (whistleblowing).

Whist we feel that it is helpful to provide an illustrative example to help clarify the scope and outcomes of potential complaints for the purpose of this consultation, we are of the view that within the parameters outlined, it will ultimately be for the INO, once established, to determine the final methodology used.

Question 1: What should the role of the INO be?
Option 1 - To consider complaints about the application of the local whistleblowing process only. OR Option 2 - To consider complaints about application of the local whistleblowing process, including examination on the decision making and outcome of the whistleblowing complaint. Please explain your answer.