Independent National Whistleblowing Officer for NHS Scotland engagement event: outcomes

4 How the Independent National Whistleblowing Officer Should Consider Cases

Whistleblowing Champions

4.1 When considering cases a small number of delegates held the view that there should be strong links between the Non- Executive Whistleblowing Champion and the INWO. These delegates also felt that when cases were still at the internal stage, that the Non-Executive Whistleblowing Champion should be the direct contact for staff who wish to raise concerns and that they should have that contact with them throughout their case. In its current assurance role they felt that staff could not put their trust in this and did not see it as independent.

4.2 Many delegates had concerns that if the role did have that contact with the whistleblower then that would potentially provide a conflict. The role is predominantly an assurance role focussing on ensuring Health Boards comply with that responsibility and systems are in place and working effectively. It is clear that as it is currently set up, the role should have no involvement in the application of the policy and that by having direct contact with individuals, this does start to raise conflict with what the role was set up to do.

4.3 The counter argument to this, by those delegates who held the view that champions should have that direct contact, raised concerns about the accuracy of information being provided to Whistleblowing Champions. They held the view that without this direct contact they will only have one side of a picture about how cases are being handled.

4.4 For the delegates who held the view that there should be strong links between the Whistleblowing Champions and the INWO, they also felt the links should be extended to any intelligence that could be gathered from the Whistleblowing Alert Line. These delegates also stated they were not clear about how Whistleblowing Champions were appointed and that this should be very clear and transparent along with robust processes for the appointments with the INWO being responsible for these appointments. In considering cases some delegates felt that there should be some form of arrangements for consulting and involving current or former whistleblowers in the case process to provide that additional perspective.

Management of distinction between whistleblowing (public interest) matters and grievance/bullying and harassment (private employment) matters

4.5 A number of delegates shared the view that there should be some form of independent scrutiny early in the process to ensure concerns were not being turned into private employment matters. These delegates stated if this was not the role of the Whistleblowing Champion then there should be some way of raising an alert about this and escalating the concern to the INWO under exceptional circumstances. In addition, these delegates also felt where there was some organisational history and evidence of poor practice and concerns being turned into employment matters, this should also fall under exceptional circumstances allowing concerns to be raised direct with the INWO. This correlated with some of the views from the consultation that stated in principle, internal processes should be exhausted first. However, where there was knowledge of poor history or culture in this area, then there was no merit letting a case run through the internal processes and it should be allowed that in these circumstances cases can be passed to the INWO to allow for early intervention under exceptional circumstances.

4.6 In order for there to be safe disclosure of the concern all delegates gave the view that more support and protection for whistleblowers was required. Delegates felt it was important for the INWO to consider this issue. An example that was given was that if internal processes were exhausted and the raising of concerns had been turned into employment matters, the lack of early intervention had often led to reputational and psychological damage. The impact of this was often long lasting and therefore early interventions or mechanisms to support this was required as part of the case consideration.

4.7 Some delegates, particularly amongst whistleblowers participating within the workshops had concerns around the interaction with Human Resources and the fact that some concerns were being wrongly classified as employment matters. Therefore, in setting the standards and any associated guidance, it felt the INWO would not only have to be clear about the difference, but also about the interaction where one leads into the other. These delegates felt that once this guidance was established, it was critical for anyone who would lead such investigations to be trained and have the appropriate expertise, knowledge and understanding of the relevance of the interaction. This was critical to Health Boards but also critical for the INWO where there could be a number of investigations running parallel under different processes and ensuring terms of reference of each did not undermine or counteract against each other.

How the INWO could investigate the treatment of the whistleblower

4.8 Timescales are often an issue for whistleblowing cases and the length and how protracted this can become was also a factor raised by many who had whistleblown. It was proposed therefore that within the standards, the timescales the SPSO currently used for complaints (5 and 20 days) would be used as a guideline. There were mixed responses from delegates regarding this. From a staff perspective delegates agreed the proposals would be welcome. From a management and staffside perspective, although delegates again felt in principal the quicker the situation could be dealt with the better, there was some real challenges to achieving these timescales. The challenges they cited included investigations were often undertaken by individuals who still had a main role to deliver within the Board and availability of representatives to accompany witnesses.

4.9 The SPSO explained that these timescales were a guide and an aim to work towards. However, as with complaints there were often occasions these timescales needed to be extended. It was explained that within this process as long as there was a good explanation of why, and that clear communication had been passed back to the whistleblower in explaining the reasons for any delays, that would be taken into consideration. In principle delegates accepted this would be a good aim to work towards as part of the standards. A small number of delegates felt that if delays for good reason were to be accepted there should be some form of advocacy support for whistleblowers which included checking they were okay from a well-being perspective and discussing any support needs which were required in the meantime. In addition to the fact that Sir Robert Francis had identified that some groups could be more disadvantaged when raising concerns the advocacy role could ensure that fairness and equity was being applied and no discrimination on any grounds was taking place.

4.10 In terms of the duty of care organisations have for staff, a number of delegates felt it was important the INWO assessed as part of the case the support put in place by organisations to ensure there was no impact on health, which included from a psychological aspect.

Role of INWO in organisational culture

4.11 In this discussion the issue of historic cases again came into the equation Some delegates felt it was critical these were reviewed and investigated by the INWO. However, a number of other delegates raised the fact that in reality this would be so difficult to do and not feasible for such cases to be included due to the lapse of time, potential volume of cases and significant changes in staffing where many key individuals may have moved on to different organisations. Delegates remained divided on this. The ones who felt they should be included felt key learning from these cases would be missed as a result and an opportunity to inform future management of cases and changes to culture that would be required lost.

4.12 With regards to the proposal that cases should be brought to the INWO within 12 months of the conclusion of a case investigated by a Health Board the majority of delegates felt that was a reasonable and achievable proposal

4.13 Questions had been asked if it was possible to raise concerns anonymously with the INWO. Some exploration with delegates was therefore undertaken to explore how this would work in practice. On further exploration delegates mainly had the view that it should be possible to do so but that this would severely limit the effectiveness of the INWO to be able to investigate. It was felt the only potential benefit of this was potential intelligence regarding data and that potential patterns that may exist may come to light. Therefore anonymous concerns should not be disregarded.

4.14 A small number of delegates felt it was important that a national database of whistleblowing incidents was kept to again inform key culture changes that was required.

4.15 A majority of delegates felt for there to be a major change in perception and culture there should be some form of public recognition for whistleblowers who had been courageous enough to raise concerns and brought system or patient safety changes as a result. It was felt that the INWO could have a key role in this. This could assist in changing the perception of whistleblowing or raising concerns being a negative thing to do.

4.16 In addition the majority of delegates would like to see the INWO working with organisations in a positive problem solving way to identify improvements for raising concerns as themes develop from the cases they review. This concurs with comments from the consultation that intelligence gathering and the sharing of intelligence should be part of the principles to identify themes and trends that need addressing with other NHS bodies.

4.17 A small number of delegates raised that they felt that some data and information reported was not always accurate and therefore there had be some sort of process where the individual who had raised the concern got the opportunity to check the information reported for accuracy before any decisions were made by the INWO on the case. Ideally they felt this should be undertaken before any information was submitted to the INWO but if factual accuracy was disputed ideally there should be some form of independent arbitration. If this could not be achieved then there had to be some form of record that a dispute over the accuracy of the information existed when it went to the INWO to ensure some trust in the process.

4.18 Many delegates felt it was important to obtain some further clarity on cases where recommendations were made by the INWO and how these recommendations would be monitored and recorded to ensure they were implemented. In addition, if common themes were constantly raised how these could be shared to build into lessons learned and change systems or culture going forward as appropriate.

4.19 Many delegates felt that any case management system used by NHS bodies should record when the concern was raised and then solved from their perspective. Even if there is a dispute between the whistleblower and organisation regarding this as it would demonstrate that the internal process had been exhausted. However, because of the many different routes for raising concerns currently within some NHS bodies, this further highlighted the need for a 'Once for Scotland' system for doing so. Many delegates felt that key fields within such a system would include the root cause of the concern and when it was raised so there could be some analysis and scrutiny about if it had been appropriate for these to become employment matters if they had done so.

4.20 Despite the concerns raised by delegates over Datix, with regards to culture change, some delegates still felt there was a role for both Boards and the INWO to review data and intelligence from such a system. However, it needed to be looked at alongside other intelligence from the same areas on staffing levels, absence, disciplinary, grievance and turnover.