Independent National Whistleblowing Officer for NHS Scotland engagement event: outcomes

3 Definition of Whistleblowing and Whistleblower for Purposes of the Independent National Whistleblowing Officer Investigation

3.1 Delegates discussed whether the legal definition of whistleblowing should be used as access criteria for staff who want to raise a concern to the INWO . Most delegates felt that this is a legal test and too difficult to prove outside a non- legalistic process and that the current definition of whistleblowing was open to interpretation. In addition, many delegates felt the Public Interest Disclosure Act 1998 ( PIDA) definition wasn't wide enough to cover the health sector and risked excluding issues which were in the public interest but not reflected in the PIDA criteria. For many delegates they felt NHS staff viewed whistleblowing as the end of the process when staff had to escalate it beyond the organisation and it going public or external to the organisation in some way.

3.2 Delegates felt language was very important. The Royal College of Nursing had drafted a 'Raising Concerns' document and this was cited as good practice by some delegates and concerns being viewed as the right language to use to align with this document in the Principles and Standards. Some delegates raised the concern that PIDA also placed the burden of evidence on the employee and required them to find the evidence/information before whistleblowing. The delegates who raised this felt this was a complicated test and did not align with their duty under their codes of conduct as healthcare professionals, which is to raise any concerns they had even if they did not have evidence to be absolutely sure. There was a view from these delegates that having to meet this complex legal test under current arrangements before raising any concerns, was the factor that led to the concerns being turned into employment matters.

3.3 There was general consensus therefore by many delegates that 'whistleblowing' or 'complaints' were not good terms and 'concerns' was more understood by staff and meant more to staff. A small number of delegates however felt the term whistleblower should not be avoided and should in some way be reflected that anyone who does whistleblow, should be commended as this being a positive thing to do.

3.4 Overall delegates felt there should be no distinction between raising concerns and whistleblowing. Most delegates felt that to demonstrate they were right before raising an issue placed the onus and burden of investigation on them. They considered that it should be the responsibility of the organisation to investigate the concerns raised regardless.

Distinction between whistleblowing and employment human resource issues

3.5 There were many delegates who felt it was important for the definition of whistleblowing to distinguish clearly between raising concerns and employment issues such as grievance, bullying and harassment. Several delegates felt that if the concerns related to a clinical issue, then the remit and oversight of the investigation should not sit with the Human Resources function. Their concerns were that if Human Resources had oversight of this, then it was more likely to be linked with other policies such as grievance, capability, bullying and harassment leaving the initial clinical concern to get lost amongst those processes. Some delegates also raised that when the concern got split into areas of human resource policy along with whistleblowing policy, it meant individuals were required to go through many investigations and the differing outcomes of those investigations made the situation and overall outcome much more complex. These delegates also stated that where bullying and harassment matters were raised, it was important to assess what the underlying issues for the bullying and harassment were. If this pointed to the raising of the concern, then the scope of that should be able to be dealt with under the auspices of the whistleblowing process and investigation and not as a separate bullying and harassment process.