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

Section 4: Where should the INO role be hosted?

When considering different options on where the role of INO could be hosted, it was felt that where the role was hosted was fundamental to the credibility and ultimately success of the role. It is vitally important that the role is viewed as independent and truly impartial when considering all cases.

At the same time, we are clear that the role must offer added value, both in terms of a service for NHSScotland employees and Health Boards; and, in the current financial climate, in terms of set up and on-going costs. With this in mind, when considering options, careful consideration was given to a range of different factors, including:

• Costs associated with establishing the role;
• Costs associated with maintaining the role;
• Estimated volume of caseload;
• Staffing/employment considerations (including seniority of grade, levels of staffing required to support the role, accommodation; training and recruitment; and, all associated costs);
• Legislative requirements;
• Mechanisms required to access the right type of specialist HR, financial and clinical advice.

When considering numbers of cases which may be raised, we estimated different potential caseloads based on the following:

Low level: 10 cases per year (this is based on an average level of whistleblowing cases the Scottish Government has been informed of that have been formally investigated in NHSScotland each year).

High level: 95 cases per year (this is based on the number of whistleblowing calls made to the NHSScotland Confidential Alert Line in the 2013/14 financial year).

Medium level: 52 cases per year (this is based on the mid-point between the low level and high level of cases).

When considering options, the Scottish Government's commitment to achieving more effective public services for Scotland, which includes consideration of unnecessary duplication, was also taken into account. This includes the Scottish Government's previous undertaking to simplify the public sector landscape, and not increase, unnecessarily, the number of Scottish public bodies under its control.

With the above in mind, the Scottish Government gave careful consideration to 3 options on where the role of the INO could potentially be hosted, taking into account the functions described in this paper. In all cases, legislative changes would be required to either confer powers to an existing body to undertake the role; or, to set up an entirely new body.

These options have been discussed and considered with a range of internal and external stakeholders, including Partnership representatives, and are outlined in more detail below.

Option 1 - INO hosted within NHSScotland - Healthcare Improvement Scotland (HIS)

Staff can already raise whistleblowing complaints with HIS and have this investigated either directly, or via referral from the NHSScotland Confidential Alert Line. HIS is also currently listed as a prescribed body under the Public Interest Disclosure Act 1998 for the purposes of staff making a protected (whistleblowing) disclosure. However, the HIS function has typically been to investigate the patient safety aspects, rather than the Board's handling of the complaint itself - which is the perceived role of the INO.

HIS already has a scrutiny function which provides effective and impartial external quality assurance to support service improvement within the NHS and beyond. This role already includes the assessment and investigation of concerns raised by whistleblowers. It could therefore appear a logical host for the INO role bringing benefits of their wide experience and resources.

Option 2 - INO hosted within existing external organisation - Scottish Public Services Ombudsman (SPSO)

The SPSO currently acts as the final stage in the complaints process for service users relating to a range of public authorities, including Health Boards. The SPSO has power to compel the body under investigation to produce information and documents and has the same powers as the Court of Session in relation to the attendance and examination of witnesses, and the production of documents.

The SPSO may also apply to the Court of Session where a person obstructs an investigation, and the court may in turn inquire into the matter and deal with the person in the same way it would with a person who had committed a contempt of court in relation to the Court of Session. The SPSO has powers to prepare reports and may prepare 'special reports' where there is an apprehension that the injustice or hardship which has been identified has or will not be remedied. All SPSO reports are published and laid before the Scottish Parliament.

It appears that there is a synergy with our ideas about the INO role and the SPSO in view of its complaints handling methodology. SPSO already investigates complaints of service failure or maladministration relating to NHSScotland Boards and therefore already has access to relevant expertise.

SPSO is a distinct corporate body completely independent of Scottish Government, and as such is more likely to be seen as an impartial and credible option. It is also perceived by many as a credible and independent body for investigating complaints and has established procedures, skills and expertise that could be adapted to fit complaints under the INO function.

Clear consideration would need to be provided to ensure the INO role if hosted within SPSO did not duplicate or contradict existing scrutiny functions of other bodies. SPSO would also need to be able to take on the other proposed functions for the INO which go beyond or differ from SPSO's current investigatory functions.

Option 3 - INO created as a new Public Body

Consideration was also given to the option of setting up a new Public Body to carry out the role of the INO. The creation of a new public body would offer the opportunity to create a body with bespoke structures and functions, but the general national policy direction indicates a presumption against the creation of new public bodies in an already cluttered landscape.

This would also be likely to be the most expensive option as the costs would be significantly increased to take account of costs for accommodation, IT and likely additional employment costs.

Also, depending on how the body is set up and to whom it is accountable, it may still not be seen as independent of the Scottish Government, whereas the other options discussed provide established routes of governance and accountability.

With this in mind we do not propose Option 3 as a viable option. It is felt that costs to create a new public body would be disproportionate to the anticipated level of complaints which may arise.