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

Section 2: Principles and process for raising concerns with the INO

In order to assess whether or not a complaint should be considered by the INO, we feel that it is important to have in place principles to determine the process for raising concerns. It is proposed that each complaint must comply with each of the following principles when assessing whether or not the INO should investigate it. The proposed principles are as follows:

• The INO should add value and complement the work of existing regulatory or scrutiny bodies. Rather than duplicate existing functions, the INO will provide a final stage and outcome to complaints raised by whistleblowers (and potentially Health Boards) on whistleblowing cases. The INO would have the ability to refer a case to a relevant body for further investigation, but would not duplicate existing scrutiny functions of other bodies involved in this area.
• The INO should not consider historic cases. We consider that in normal practice the INO would only consider cases brought to its attention within 12 months of the conclusion of a case being investigated by a Health Board under their local whistleblowing policy.
• The INO would not normally consider cases that have yet to be investigated by the Health Board, or are still under local investigation. Health Boards should retain the primary function for investigating complaints raised about the services they are responsible for delivering. However, there may be exceptional circumstances where the INO may wish to investigate a complaint at an earlier stage where the INO has sufficient concern, and evidence, that the case is not being handled by a Board in line with established procedures and good practice.
• The INO would not investigate or make assessments on employment matters, or issues relating to an individual's terms and conditions, or contract of employment. These are legal responsibilities of the Health Board as employer, and there are existing mechanisms - including the Employment Tribunal - which allow these matters to be addressed.
• A member of staff would need to have raised a concern that met set criteria (outlined on page 27), for their concern to be valid for consideration by the INO. This is to ensure the INO is only looking into complaints that have been through the employer`s internal protected disclosure (whistleblowing) process and that it does not become an alternative avenue for employee grievances.

Based on the above principles the following flowchart sets out how, and at what stage, the INO would become involved in investigating whistleblowing complaints.

Proposed INO whistleblowing complaint criteria

In order to prevent complaints which should be considered under a Health Board's internal staff grievance policy or by an Employment Tribunal being referred to the INO, we feel that the complainer would need to explain why they consider that the INO has jurisdiction to consider their complaint.

We propose that this is best done by the complainer providing a statement to the INO which confirms or explains:

i. The reasons for referring the complaint to the INO, which must concern a (perceived) failure/error in the employer's investigation process or decision making which they reasonably believe the INO should investigate.

ii. The reasons why they believe their complaint to be in the public interest (see Public Concern vs Private Concern)

iii. The reason why their original issue/complaint tends to show that, in line with the Public Interest Disclosure Act, one of the following has occurred, is occurring, or is likely to occur:

• A criminal offence
• Breach of any legal obligation
• Miscarriage of justice.
• Danger to the health and safety of any individual
• Damage to the environment
• The deliberate concealing of information about any of the above

The referral should not relate to the treatment of the individual at work following the concern raised.

Again, we are of the view that within the parameters outlined above, it will ultimately be for the INO, once established, to determine the final principles and process used when considering whether a complaint should be investigated.