PROPUESTA DE MEJORA

7.6.1 This section considers two issues:

• whether there is a need for a ‘body’ to carry out external review of individual staff concerns

• whether there is a need for a ‘body’ to carry out external review of the process of handling an individual staff concern and any detriment experienced.

An independent body to consider concerns

7.6.2 There was considerable discussion in the written contributions about the potential role of an independent body to manage disclosures by whistleblowers. Some contributors were supportive of this option, others were unsure but thought it at least worthy of consideration. Most of the reasons given in support of this idea were related to mistrust of managers and internal processes which led to concerns that treatment of whistleblowers would be biased and prejudicial.

“ Trusts cannot be left to mark their own homework.”

7.6.3 We were also told about the risks associated with establishing such a body. In particular, removing responsibility for dealing with the concern from local level to a more remote organisation could create delays, affect local ownership of issues, and require the establishment of potentially bureaucratic systems to allow the external organisation to investigate concerns. Equally importantly, there would be a real risk that serious patient safety issues may not be addressed sufficiently quickly locally, if someone reported them to an external body for investigation rather to their own organisation.

7.6.4 These risks seem to me to be powerful arguments. It is certainly not my intention to propose anything which could in fact make the practical handling of patient safety concerns more complex rather than less so. I am therefore not minded to propose establishment of an external body to consider and investigate concerns. Primary responsibility for investigating concerns should remain with the local organisation taking into account the good practice set out in 6.4.

An independent body to review local handling of concerns

7.6.5 It became apparent during the course of the Review that there is a gap in the mechanisms for oversight of how an NHS body deals with concerns raised by staff. The Government concluded in its response to the ‘Whistleblowing Framework Call for Evidence93_{’ that since neither the Employment} Tribunal nor the legislation specifically deal with concerns raised that: ‘the regulators are ultimately viewed by the whistleblower as the solution to addressing their concerns. This expectation of the ‘prescribed persons’ role is often not lived up to leading to a lack of confidence in the role of these bodies.’ I therefore believe there is merit in having a mechanism for external review of how concerns have been handled at local level and the impact on the individual where there is legitimate cause for concern.

7.6.6 CQC can investigate through inspection whether a registered organisation is safe and well-led. In doing so it can take into account any deficiencies it finds in relation to the treatment of whistleblowers and systems for addressing concerns in general. Monitor and the NHS TDA can then direct trusts to correct systemic issues identified.

7.6.7 In addition, as prescribed persons for the purposes of the 1998 Act, CQC, Monitor and the NHS TDA are expected to take action on protected disclosures made directly to them. They can, and do, investigate, and if necessary intervene, if they are made aware that there may be on-going risks 93 Whistleblowing Framework: Call for Evidence – Government Response, Department for Business Innovation and Skills, 25 June 2014

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to patient safety that have not been adequately addressed. However, such interventions would not generally consider how an organisation managed any local investigation of a staff concern or review it to see if it was properly carried out. Nor would they necessarily look at how the person who raised the concern or others involved in it had been treated. The focus would generally be on systemic patient safety issues to resolve, and whether the NHS body had breached the terms of its regulatory obligations.

7.6.8 None of these bodies really has a remit to consider the process by which a specific concern was handled, or to consider the treatment of an individual member of staff after raising a concern. The Parliamentary and Health Service Ombudsman (PHSO) has the power to look at certain aspects of maladministration relating to the handling of concerns but cannot look at the employment or personnel aspects, that is to say the way an individual was treated by their employer after raising a concern.

7.6.9 This means that the only route by which an aggrieved member of staff can seek redress for ill-treatment or discrimination as a consequence of raising a concern, other than through the

organisation’s internal grievance process is to take a claim to an Employment Tribunal and navigate the multiple complexities of the 1996 Act. It was clear that contributors did not think this a satisfactory solution, either for individuals or for employers. Often whistleblowers do not want to take legal action – the great majority just want to be assured that patients are safe and get on with their jobs. Legal action also diverts attention and resources of employers away from the care of patients to defending themselves.

7.6.10 The deficiencies in the way concerns are investigated, and subsequent victimisation of individuals have been addressed in 6.4 and 7.5 respectively. What seems to be missing is any sort of external review mechanism, not to take over investigation of the concerns, but to provide a non-legalistic option to review what has been done

locally, and make recommendations for further action as appropriate. This is to be compared with the more legalistic position adopted with regard to whistleblowers in the financial sector in the USA by the Securities and Exchange Commission through its Office of the Whistleblower. Under the Exchange Act 1934 section 21F1 the Commission takes action against companies which discriminate against those who provide the Commission with information. In June 2013 the Commission took enforcement action against a company requiring it to pay

$2.2million to settle charges of retaliation94_{. While I} do not see the need to go as far as this, certainly at this stage, I do see a need for some form of external review mechanism.

Independent National Officer

7.6.11 To achieve this, I propose that an Independent National Officer (INO) should be jointly established and resourced by the CQC, Monitor, the NHS TDA and NHS England, so that it is clear that the officer operates under the combined aegis of these bodies.

7.6.12 The INO should be authorised by these bodies to use his/her discretion to:

• review the handling of concerns raised by NHS workers where there is cause for concern in order to identify failures to follow good practice, in particular failing to address dangers to patient safety and to the integrity of the NHS, or causing injustice to staff

• to advise the relevant NHS organisation, where any failure to follow good practice has been found, to take appropriate and proportionate action, or to recommend to the relevant systems regulator or oversight body that it make a direction requiring such action. This may include:

– addressing any remaining risk to the safety of patients or staff

– offering redress to any patients or staff harmed by any failure to address the safety risk – correction of any failure to investigate the

concerns adequately 94 2012 Annual Report to congress on the Dodd-Frank Whistleblower Program, Office of the Whistleblower, November 17 2014

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– correction of any non-compliance with good practice identified

– appropriate recognition of the contribution of the worker who raised the concern to improving patient safety and quality of care – suggesting support and remedies for

former employees including referral to the employment support scheme to get staff back to work referred to in 7.3 and Principle 12 – act as a support for Freedom to Speak Up

Guardians referred to under Principle 11 – offer guidance on good practice about

handling concerns

– publish reports on the activities of the office, including any findings in relation to non-compliance with good practice, advice offered, and recommendations for action.

7.6.13 I want to emphasise that I am not proposing an office to take over the investigation of concerns. As I have already said, this needs to remain the responsibility of the local organisations. Nor is it my intention that this officer should be, or become, a means to circumvent existing authorised processes for raising and addressing concerns where these have been used fairly and appropriately. Where an individual has genuine fears about using their local structures to raise concerns I have made clear elsewhere in this report that local procedures should always include arrangements that encourage staff to use other options such as the range of prescribed persons. The INO should not be tasked with

reviewing, let alone investigating, historic cases.

7.6.14 This new INO is someone who could consider how a case was handled, including any negative impact on the individuals concerned. Individuals could go to the INO where they have raised concerns through the proper processes and:

• have evidence or reason to believe that how their concern has been handled or the way they have been treated is not in line with the good practice as set out in this report and eventually the standard policy and practice recommended under Principle 2 Action 2.1; and/or

• are worried that the safety or other issues raised have not been properly addressed and

are unable to resolve this locally. It is not, however, a means of appeal for the results of an investigation that an individual disagrees with.

7.6.15 It is not my intention that the INO should have binding powers. I do not see this role as strictly comparable to that of an Ombudsman. Instead they would advise relevant organisations on any actions that should be taken to deal with the issues raised. The officer would need to operate in a timely, non-bureaucratic fashion, with the capacity to act quickly in the event of serious safety issues coming to light. He or she would need to have sufficient authority to ensure that reviews and any recommendations coming from them are taken seriously and acted upon quickly.

7.6.16 The intention of my proposal is to provide an officer with the widest discretion to decide whether or not it is appropriate to become involved in a particular case, and, if so, what measures of intervention may be appropriate. Thus in one case the INO may decide to recommend to an employing trust that it arrange for an independent investigation of a concern. In another he/she may suggest that some form of mediation is attempted to repair fractured relationships. In a third it may be decided to signpost advice or guidance in an organisation’s policy and procedure. In a fourth he/she may suggest that the treatment of a person who has raised a concern justifies either the organisation, or another stakeholder offering discretionary support.

7.6.17 The INO would in essence fulfil a role at a national level similar to the role played by effective Freedom to Speak Up Guardians locally. They would not take on cases themselves, but could challenge or invite others to look into cases which did not appear to have been handled in line with good practice or where it appeared that a person raising a concern had experienced detriment as a result of raising the concern. The INO could also provide a resource for the system as a whole by supporting Freedom to Speak Up Guardians and by offering guidance on good practice informed by developing experience from the cases considered.

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