Whistleblowing arrangements: NHSScotland PIN policy

2 Main Report

2.1 Key Principles & Values

2.1.1 Distinction between grievance & whistleblowing concerns

Whistleblowing concerns generally relate to a risk, malpractice or wrongdoing that affects others, and may be something which adversely affects patients, the public, other staff or the organisation itself. A grievance differs from a whistleblowing concern as it is a personal complaint regarding an individual's own employment situation. A whistleblowing concern is where an individual raises information as a witness whereas a grievance is where the individual is a complainant. Grievances are addressed using the Dealing with Grievances in NHSScotland PIN policy⁶ .

2.1.2 Raising a concern openly, confidentially, or anonymously

In many cases, the best way to raise a concern is to do so openly. Openness makes it easier for the organisation to assess the issue, work out how to investigate the matter, understand any motive and get more information. A worker raises a concern confidentially if they give their name on the condition that it is not revealed without their consent. A worker raises a concern anonymously if they do not give their name at all. If this happens, it is best for the organisation to assess the anonymous information as best it can, to establish whether there is substance to the concern and whether it can be addressed. Clearly if no-one knows who provided the information, it is not possible to reassure or protect them.

2.1.3 Malicious claims & ulterior motives

There may be occasions when a concern is raised either with an ulterior motive or maliciously. In such a case, and as set out in the model policy at Appendix 1, the organisation cannot give the assurances and safeguards included in the policy to someone who is found to have maliciously raised a concern that they also know to be untrue. Such situations should be handled carefully. The starting point for any organisation is to look at the concern and examine whether there is any substance to it. Every concern should be treated as made in good faith, unless it is subsequently found not to be. However, if it is found that the individual has maliciously raised a concern that they know is untrue, disciplinary proceedings may be commenced against that individual.

2.1.4 Key principles for Local Policy

The whistleblowing policy should make the following points clear:

• The organisation takes malpractice seriously, giving examples of the type of concerns to be raised, so distinguishing a whistleblowing concern from a grievance;
• Staff have the option to raise concerns outside of line management;
• Staff are enabled to access confidential advice from independent bodies;
• The organisation will, when requested, respect the confidentiality of a member of staff raising a concern;
• When and how concerns may properly be raised outside the organisation (for example, with a regulator); and
• It is a disciplinary matter both to victimise a bona fide whistleblower and for someone to maliciously make a false whistleblowing allegation.

The model policy at Appendix 1 has been drafted with these principles in mind and should help to reassure staff that it is acceptable and safe to speak up.

2.2 Legal Framework

The Public Interest Disclosure Act 1998 ( PIDA)⁷, amended the Employment Rights Act 1996⁸, to protect the public by providing a remedy for individuals who suffer a detriment by any act or any deliberate failure to act by their employer for raising a genuine concern, whether it be a risk to patients, financial malpractice, or other wrongdoing. These are called "qualifying disclosures". A qualifying disclosure is one made in good faith by an employee who has a reasonable belief that one of the following is being, has been, or is likely to be, committed:

• A criminal offence;
• A miscarriage of justice;
• An act creating risk to health and safety;
• An act causing damage to the environment;
• A breach of any other legal obligation; or
• Concealment of any of the above.

The Act's tiered disclosure regime promotes internal and regulatory disclosures, and encourages workplace accountability and self-regulation.

Under the Act, workers who act honestly and reasonably are given automatic protection for raising a matter internally. In NHSScotland, an internal disclosure can go up to the highest level. Protection is also readily available to individuals who make disclosures to prescribed regulators such as Audit Scotland.

In certain circumstances, wider disclosures (for example to an MSP, an MP or the media) may also be protected. A number of additional tests apply when going wider, including:

• Whether it is an exceptionally serious concern;
• Whether the matter has already been raised;
• Whether there is good reason to believe that the individual will be subject to a detriment by their employer if the matter were raised internally or with the appropriate regulator; or
• Whether disclosure was reasonable given all the circumstances.

The Act covers all workers including temporary agency staff, persons on training courses and self-employed staff who are working for and supervised by NHSScotland. It does not cover volunteers. PIDA also makes it clear that any clause in a contract that purports to gag an individual from raising a concern that would have been protected under the Act is void.

To enable a whistleblowing policy to work in practice and to avoid unnecessary damage, it is important to ensure that policies authorise all staff, not just health and medical professionals, to raise a concern, and identifies who they can contact.

Legal protection is very important if staff are to be encouraged to raise a concern about wrongdoing or malpractice. However, it is vital that employers develop an open culture that recognises the potential for staff to make a valuable contribution to the running of public services, and to the protection of the public interest.

Where an individual is subjected to a detriment by their employer for raising a concern or is dismissed in breach of PIDA, they can bring a claim for compensation under PIDA to an Employment Tribunal. Awards are uncapped and based on the losses suffered.

2.3 Developing Policy & Handling Whistleblowing Concerns

Managers can lead by example, by being clear to staff as to what sort of behaviour is unacceptable, and by practising what they preach. They should encourage staff to ask them what is appropriate if they are unsure before - not after - the event. If wrongdoing or a potential risk to patient safety is found, it should be taken seriously and dealt with immediately.

2.3.1 Developing & Implementing Local Policy

It is important that all Boards are committed to the principles set out in their whistleblowing arrangements and can ensure that it is safe and acceptable for staff to speak up about wrongdoing or malpractice within their organisation. To achieve this, it is necessary to ensure buy-in and leadership from management, and staff-side engagement. Within each Board, an appropriate senior manager should be appointed to take responsibility for ensuring implementation of the whistleblowing arrangements. This could be the clinical governance lead, the nursing or medical director, or responsible officer.

Once local whistleblowing arrangements are in place, it is important to ensure all staff are aware of them, and this can be achieved in a number of ways: through hard copy correspondence with staff, communication by email and/or via organisation's intranet sites, through team briefings and inductions, or the message appearing on payslips. It is also important to ensure that the policies are accessible.

2.3.2 Advice for Managers Responding to a Concern

• Thank the staff member for raising the concern, even if they may appear to be mistaken;
• Respect and heed legitimate staff concerns about their own position or career;
• Manage expectations and respect promises of confidentiality;
• Discuss reasonable timeframes for feedback with the member of staff;
• Remember there are different perspectives to every story;
• Determine whether there are grounds for concern and investigate if necessary as soon as possible. If the concern is potentially very serious or wide-reaching, consider who should handle the investigation and know when to ask for help. If asked, managers should put their response in writing;
• Managers should bear in mind that they may have to explain how they have handled the concern;
• Feed back to the whistleblower any outcome and/or proposed remedial action, but be careful if this could infringe any rights or duties which may be owed to other parties;
• Consider reporting to the Board and/or an appropriate regulator the outcome of any genuine concern where malpractice or a serious safety risk was identified and addressed; and
• Record-keeping - it is prudent to keep a record of any serious concern raised with those designated under the policy, and these records should be anonymous where necessary.

2.3.3 Briefing & Training Designated Contacts & Managers

Many concerns will be raised openly with line managers as part of normal day-to-day practice. Good whistleblowing arrangements should do nothing to undermine this. It is important that this is made clear to both staff and managers.

All managers and designated contacts should be briefed on:

• The value and importance of an open and accountable workplace;
• How to handle concerns fairly and professionally;
• How to protect staff who raise a genuine concern and where staff can get help or refer a concern;
• How to manage expectations of confidentiality;
• The importance of an alternative to line management if the usual channels of communication are blocked; and
• How to brief their staff on arrangements.

Senior managers and designated contacts who are given a specific role in the whistleblowing arrangements should be trained on how to handle a concern at a senior level.

2.3.4 Audit, Review & Refresh

A well-run organisation will periodically review its whistleblowing arrangements to ensure they work effectively and that staff have confidence in them. The following points can sensibly be considered to assure the Board that the arrangements meet best practice. Monitoring the arrangements in line with this checklist will also help the Board to demonstrate to regulators that their arrangements are working:

• Arrange regular feedback sessions with Area Partnership Forums to evaluate progress and collect data on the nature and number of concerns raised;
• Check the procedures used are adequate to track the actions taken in relation to concerns made and to ensure appropriate follow-up action has been taken to investigate and, if necessary, resolve problems indicated by whistleblowing. Is there evidence of constructive and timely feedback?
• Have there been any difficulties with confidentiality?
• Have any events come to the Board's attention that might indicate that a staff member has not been fairly treated as a result of raising a concern?
• Look at significant adverse incidents/incident management systems or regulatory intervention - could the issues have been picked up or resolved earlier? If so, why weren't they?
• Compare and correlate data with information from other risk management systems;
• Find out what is happening on the ground - Boards should consider including a question about awareness and trust of arrangements in any future local staff surveys. See below for suggested questions;
• Boards should seek the views of trade unions/professional organisations, as employees might have commented on the whistleblowing arrangements or sought their assistance on raising or pursuing a whistleblowing concern;
• Boards could also consider other sources of information, including information from exit interviews, and PIDA or other legal claims;
• Key findings from a review or surveys should be communicated to staff. This will demonstrate that the organisation listens and is willing to learn and act on how its own arrangements are working in practice;
• Refresh whistleblowing arrangements regularly. Regular communication to staff about revised arrangements is also recommended;
• Although volunteers are not covered by PIDA, it may be wise to consider extending the protection of the model policy to all those who work for or with the Board, including volunteers and the self-employed; and
• Think about reporting good news - success stories encourage and reassure everybody.