Public Concern at Work Suite 301 16 Baldwins Gardens London EC1N 7RJ Tel. 020 7404 6609 Is whistleblowing working in the NHS? The Evidence May 2003 Executive Summary and Recommendation Findings in Context Section 1 Background to Whistleblowing in the NHS Section 2 HSC 198/199 Section 3 Analysis of calls to Public Concern at Work’s helpline from health sector workers Section 4 Public Concern at Work’s Summary of Cases under PIDA Section 5 UNISON and the Duty of Care Section 6 CHI: Emerging Trends from 175 Clinical Governance Reviews For a copy of the survey questionnaire and/or survey results please contact Public Concern at Work on 020 7404 6609. Executive summary and recommendation The public hear about whistleblowing in the NHS when it all goes wrong - either when a public inquiry reveals that staff concerns had been stifled or ignored or when the media report claims that a whistleblower has been victimised. But with one million staff across the NHS, what is the picture day in, day out? Is there a culture of silence or cover-up in your local hospital? Have things improved at the coalface? As part of its Duty of Care Campaign, UNISON the public service union, teamed up with the whistleblowing charity, Public Concern at Work, to conduct the first survey of its kind and asked 2000 NHS staff is whistleblowing working? The key findings are that 90% had blown the whistle when they had a concern about patient safety 50% did not even know if their Trust had a whistleblowing policy 33% say their Trust would want them to blow the whistle even if it resulted in bad publicity 2 30% say their Trust would not want to be told there was a major problem and 25% say the culture is improving Of those who had blown the whistle on a patient safety concern One-third said they suffered some personal comeback One-half said their concern was dealt with reasonably Where a whistleblowing policy was used, no staff reported reprisals and two in three said the concern was reasonably dealt with. These findings suggest that, whilst substantial improvement is still needed, NHS staff are increasingly willing to speak up for patient safety, even at some personal risk. However across much of the NHS it seems that this welcome change is in spite of, not because of, management action or encouragement. The survey demonstrates beyond doubt the value of whistleblowing and its importance has been underlined by government policy over the past decade. Ministers have demonstrated commitment to making whistleblowing work, and have sought to communicate reassurance on reprisals to all staff. Yet somewhere along the line, this information is not getting through. It appears that where staff are responding to central government policy, too many Trusts are not. This is simply unacceptable. Introducing a whistleblowing policy makes sense and whistleblowing must be promoted across the entire NHS including Trusts, executive agencies, private contractors, and PFI schemes. Public Concern at Work and UNISON call on the Government to remind all NHS health care providers - public and private - of the need to introduce and promote a whistleblowing policy to their staff. Findings in context Ninety percent of staff who had a patient safety concern blew the whistle. All raised their concern internally, with two-thirds reporting no reprisal and half stating that the concern was dealt with reasonably. The survey canvassed the views of almost the entire NHS team including nurses, therapists, caterers, IT managers, clerical staff, porters, and scientists. Whether medically trained or not, staff are telling their managers when they think something is going wrong. This is great news for patients. The Government and the public should be proud of the high level of commitment demonstrated by NHS staff. Whistleblowing is beginning to work on the ground and staff are increasingly prepared to take the risk to speak up when it comes to patient safety. A third of staff who raised a concern reported some form of reprisal or grief. While there is nothing in the data or the responses to suggest that the reprisals were serious or lasting enough to warrant complaint, this is contrary to the new culture of openness Ministers promote, and may well stop some staff from raising concerns. From a patient perspective, the key is that despite the grief, the majority of staff are not deterred and will speak up when the concern is about patient safety. Half of those who blew the whistle said that, in their assessment, the concern was dealt with reasonably. This is a positive finding showing that in those Trusts, their concerns are valued and valuable. Public Concern at Work know from their helpline (i), that it is simply not realistic to assume that every time the whistle is blown there is, in fact, a serious problem. What is important is that each concern is assessed on its merits and that staff are not victimised for raising it. For the 50% of staff who said their concern was not addressed effectively, a whistleblowing policy would have told them where they could have pursued the concern, if they thought that justified. 3 Making whistleblowing work in the NHS requires a conscious effort - encouraging staff to raise concerns, and considering each issue on its merits. Anything less and patients are at risk. The potential value of whistleblowing in the NHS is massive; for morale, patient safety, and saving public money. Yet it is clear that the public still has to rely on the bravery of individual staff members to take the risks because so many Trusts either do not have whistleblowing policies or keep them secret. Twenty-five percent of staff say the culture is better now than it was three years ago. At the same time, the majority of staff say their Trust would want them to raise any serious concern which could affect the service and half of these said this would still be the case even if it resulted in bad publicity. Again, this is welcome news. But a third of staff believe their Trust would not want to know about a serious problem affecting services. In light of all the work that has been done at the central level, this is a damning reflection of local culture and requires urgent action. Fortunately, the evidence is that when it comes to patient safety, few staff are now willing to stay silent. But what about other issues? Staff said they would worry most about raising concerns about unsafe staffing levels, government targets/waiting lists, risks caused by other staff, and a bullying culture. Clinical governance, which is central to the improvement of health care standards, is not just about direct patient care but includes all aspects of health service delivery. This is a view endorsed by the Commission for Health Improvement (CHI) which specifically tests the level of staff awareness of and confidence in whistleblowing during its clinical governance reviews. It is clear that some Trusts are doing it properly, encouraging staff to blow the whistle on anything that might put patients, colleagues or the service at risk. Other Trusts appear to be doing nothing at all. After conducting 175 Clinical Governance Reviews, CHI highlights staff fears of reprisals if they reported something going wrong as a key emerging trend which causes them concern (ii). This finding reflects a serious lack of commitment of many Trusts to manage risk effectively - a key component of clinical governance. Government can no longer reasonably rely on those enlightened Trusts who know whistleblowing helps deliver high standards and must drive the message through the NHS. It is simply unacceptable that fifty percent of staff do not know if their Trust has a whistleblowing policy. This is evidence of a communication breakdown between central government policy and Trusts that mirrors that between so many Trusts and their staff. When the Public Interest Disclosure Act (PIDA) came into force in 1999, the NHS Executive issued practical guidance to all Trusts in England and Wales (iii)stating that they should implement whistleblowing policies. Since 1993 there have been three separate NHS whistleblowing initiatives. Government commitment, ministerial statements, public inquiries to learn the lessons when things go wrong, are all in vain if 50% of staff do not even know if their Trust has thought about or addressed whistleblowing. Those Trusts who have a policy but have failed to promote it should realise it is not worth the paper it is written on. Public Concern at Work’s experience on their helpline confirms that staff are most reluctant to ask about a whistleblowing policy when they have a concern they are worried about raising. The Government needs to ensure that all Trusts and NHS health care providers have introduced a policy and are promoting whistleblowing to their staff. When a whistleblowing policy was used, no staff reported reprisals and two in three said the concern was dealt with reasonably. Staff are more likely to seek advice from their UNISON representative when there is a whistleblowing policy in place (50%) than when there isn’t (33%). These findings suggest that where a whistleblowing policy is implemented and promoted to staff, concerns are more likely to be raised and addressed effectively. 4 Section 1: Background to whistleblowing in the NHS (iv) 1 Overview Whistleblowing in the NHS was first addressed by the NHS Executive in 1993, and then by the Audit Commission in 1994. Its significance was given strong endorsement by the 1995 Nolan Report which observed that the result of failing to provide an effective system for raising concerns of wrongdoing ‘is ironically to encourage anonymous disclosures’. Subsequent recommendations of the Nolan Committee (and the Government’s acceptance thereof) provided a standard of good practice for whistleblowing policies by the 1997 election. That September, the new Government reminded NHS Trusts of the need to have effective local procedures and of forthcoming legislation on the issue. This referred to Mr Richard Shepherd’s Public Interest Disclosure Bill, which - with strong support in and outside Parliament - was enacted in July 1998. The legislation came into force in July 1999 and in September the Department of Health supplied all NHS Trusts with a Policy Pack (produced by Public Concern at Work) which contained practical guidance on the new legislation, promotional material and a model policy. Additionally, UNISON produced a guide to whistleblowing for its members called Speaking Out Without Fear. By 1997 it was accepted good practice that a whistleblowing policy should include a clear signal of what external disclosures could properly be made, that it should be well promoted and that it should be of a different character from a grievance procedure. By then, an early confusion between confidentiality (where the identity of the whistleblower was known but respected) and anonymity (where the whistleblower did not identify him or herself to anyone) had been clarified. 2 Sources for the policy The 1993 NHS Guidance Published on 5 June 1993 and sent to Trust Chief Executives, this Guidance was the first concerted attempt by a UK employer to address the issue of whistleblowing. While the approach was cautious (in part because there had been some political and protest whistleblowing against the NHS reforms), the Guidance was a welcome development. It stressed that there should be full local consultation on any policy and it set out an option for designated officers as an alternative to raising the issue up the management line. The strong and justified emphasis the Guidance gave to raising concerns internally was, however, coupled with warnings of the risks of making outside disclosures. This and the absence of any clear or safe line of outside accountability led to criticism of the Guidance in and by the media as a “gaggers’ charter”. Following criticism from the Select Committee on Public Expenditure, the Chief Executive of the NHS wrote on 7 September 1993 to all Trust Chief Executives clarifying that the Guidance does “not prevent staff from seeking the advice and guidance of their MP, as a constitutional right, at any time.” The Nolan Committee: 1st report The First Report of the Committee on Standards in Public Life (v)addressed the issue of whistleblowing in Quangos and the NHS. Commenting of the 1993 NHS Guidance, the Committee noted that the Audit Commission had found that none of 17 NHS bodies they visited had promoted a whistleblowing scheme and that a third of NHS staff they interviewed would not raise a serious concern because of fear of losing their jobs. The then Chief Executive of the NHS, was quoted as recognising that ‘a sustained effort is required to ensure that these guidelines are properly carried through, both in spirit and detail at local level’ (vi). The Committee recommended that each NHS body “that has not already done so should nominate an official or board member with the duty of investigating staff concerns about propriety raised confidentially. Staff should be able to make complaints without going through the normal management structure and should be guaranteed anonymity (vii). If they remain unsatisfied, staff 5 should also have a clear route for raising concerns about issues of propriety with the sponsor department.” (viii) Nolan and Audit Commission recommendations In late 1997 the second Nolan Report was published which included its full recommendations on whistleblowing (ix). The specific points were that an effective whistleblowing system should include: a clear statement that malpractice is taken seriously in the organisation and an indication of the sorts of matters regarded as malpractice respect for the confidentiality of staff raising concerns if they wish, and the opportunity to raise concerns outside the line management structure penalties for making false and malicious allegations an indication of the proper way in which concerns may be raised outside the organisation if necessary. Public Concern at Work developed a whistleblowing policy checklist which was endorsed by the Nolan Committee and the Audit Commission. In Ensuring Probity in the NHS (x), the Audit Commission had recommended that Trust “Boards should periodically review attainment in their organisation of [this] good practice.” The checklist included the advice to “Remind [staff] of external routes if they do not have the confidence to raise the concern internally, such as District Audit or the police.” For completeness it may also be noted that the Nolan Committee subsequently recommended that a whistleblowing policy should allow access to the district auditor and, separately, to some other external body such as an independent charity (xi). Finally, in 1997 the Committee stressed that “It is important that all Departments, executive NDPBs and NHS bodies should institute codes of practice on whistleblowing, appropriate to their circumstances, so as to enable concerns about malpractice to be raised confidentially inside and, if necessary, outside the organisation. It is important that these arrangements are well publicised within organisations so that staff are left in no doubt about the avenues open to them” (xii). Government initiatives The Policy refers to the White Paper - The New NHS - of December 1997 which cited to the steps being taken to “to make sure that staff can speak out when necessary, without victimisation”. We understand that this refers to the letter of 25 September 1997 from Alan Milburn - then Minister of State - to Trust Chairs entitled ‘Freedom of Speech’. This mentioned the Government’s support for the draft legislation and urged Trusts to act in advance of it to ensure that NHS staff feel “able to raise their concerns about health care matters in a responsible way without fear of victimisation”. The Minister looked to Trust Boards “for assurance that the [1993 Guidance is] incorporated into your local employment policies and practices”. Public Interest Disclosure Act The legislation, known as the “whistleblowers law” came into force on the 2nd July, 1999. The aim of the legislation was to promote and protect responsible whistleblowing by making it clear to staff that there were safe alternatives to silence and by making it clear to organisations that they should not deter or discourage staff from raising concerns about wrongdoing. While the legislation takes up the approach of the Nolan recommendations it also closely follows the jurisprudence on public interest disclosures under the law of confidence. Briefly it encourages NHS staff to raise concerns internally or with the Department of Health as there they have the strongest protection. It also protects disclosures to prescribed regulators such 6 as the Audit Commission and Health and Safety Executive where the worker has good evidence to support his/her concern. It also protects wider disclosures where they are justified by one of four circumstances and the particular disclosure is reasonable. One of these circumstances is where the worker reasonably believes he will be victimised if he raises the matter internally or with a prescribed regulator. In considering whether the disclosure was reasonable, regard is had - inter alia - to the identity of the recipient, the seriousness of the matter, patient confidentiality and whether a whistleblowing policy should have been used. These disclosures are only protected if they are made in good faith. The legislation also discourages anonymous disclosures in that to invoke the protection the whistleblower must show that he was victimised by his employer because he had blown the whistle. If the disclosure was anonymous then to win any claim the individual will additionally need to prove that his employer knew it was him. In September 1999 the Policy Pack was sent out to all Trusts in England with HSC 1998/198 which stated that all Trusts should implement local whistleblowing policies and procedures. In the wake of the Inquiry into the baby heart deaths at the Bristol Royal Infirmary(xiii) John Hutton, Minister of State, restated the government commitment saying “Ministers expect a climate of openness and dialogue in the NHS which encourages staff to feel able to raise concerns about healthcare matters sensibly and responsibly without fear of victimisation.” Clinical Governance and whistleblowing In the wake of a number of serious health care scandals - most notably the Bristol baby deaths case (xiv) - and in a welcome desire to drive up standards and promote a more open and learning NHS, the Department of Health made clinical governance central to policy development and clinical practice. Clinical governance is defined as, “a framework through which organisations are accountable for continuously improving the quality of their services and safeguarding high standards of care by creating an environment in which excellence in clinical care will flourish.” (xv) An effective whistleblowing policy is key to ensuring effective clinical governance. This is reflected time and again in CHI Clinical Governance Reports (xvi) where staff confidence in raising concerns is tested on the ground and found seriously wanting in too many instances. Whistleblowing ensures that where there are clinical governance problems, staff have an alternative route to flag up serious concerns so that they can be addressed effectively. t is in this context, for example, that UNISON has, and will continue to, support members like senior manager Julia Wassell who recently highlighted concerns over the treatment of patients at Broadmoor Hospital. Ensuring staff can speak up for patients and are heard is also an important motivating force behind UNISON’s Duty of Care Campaign(xvii). Section 2: HSC 198/199 To see a copy of Health Service Circular 198/199, please click here. Section 3: Public Concern At Work’s helpline clients working in the health sector - 1993 to 2002 Between the start of the helpline in late 1993 through to the end of 2002, Public Concern at Work received 3,310 public concerns. Of these, 448 were from people working in health (e.g. nurses, doctors). The table below breaks this down by year. Year Number of clients As % of all clients 7 1993/94 1995 1996 1997 1998 1999 2000 2001 2002 61 16 18 36 24 63 70 87 73 11% 5% 8% 17% 17% 16% 14% 14% 13% The figures for 1993/1994 reflect all calls received by the helpline, both public and private concerns. The following graphs show these figures over time. Section 4: Public Concern at Work’s Summary of PIDA Cases(xviii) Bright v Harrow & Hillingdon NHS Trust (2000) Qualifying disclosure: nun wearing a habit not a PIDA concern; Media disclosure unreasonable & no substance to concern Bright, a consultant psychiatrist, raised a concern internally about a nun who visited psychiatric patients in the community while wearing her habit. Bright did not think the Trust took the concern seriously and went to the national media, asserting that it was for her, not the Trust, to decide what was in the public interest. Bright’s contract was not renewed and she brought a PIDA claim. ET held the concern about a nun wearing a habit was not a qualifying disclosure, and that in any event [a] Bright did not believe the risk to the nun was substantially true or genuine, and [b] her disclosure to the media was not reasonable in the circumstances. Hittinger v St Mary’s NHS Trust & Imperial College (2001) Worker with two employers Hittinger was the clinical governance manager for the Trust and had been introduced and supplied to do the work by Imperial College. On a preliminary point, both respondents had said Imperial College had determined her terms of engagement and hence it alone was the employer for PIDA. 8 ET held both respondents were Hittinger’s employer within PIDA, as section 43K(2) expressly states employer ‘includes’ not ‘is’. Kay v Northumberland Healthcare NHS Trust (2001) Public disclosure: reasonable to go to media with NHS concern, role of whistleblowing policy, Human Rights Act Kay managed a ward for the elderly. Kay internally raised concerns about bed shortage but was told there were no resources. The problem worsened and some elderly patients were to be moved to a gynaecological ward. Kay wrote a satirical open letter to the Prime Minister for his local paper. With Trust’s agreement, Kay was photographed for local press. When letter published, Trust gave final written warning for totally unprofessional and unacceptable conduct. Kay won as the disclosure was protected because [a] 43G, balanced with freedom of expression in the Human Rights Act; [b] Kay did not know of Trust’s whistleblowing policy; [c] no reasonable expectation of action following earlier concerns; and [d] it was a serious public concern. Llewelyn v Carmarthenshire NHS Trust (2002) Interim relief: no reasonable prospect Llewelyn, a consultant at the Trust, became concerned at the increasing use of nurses in his care to deliver expert services to GPs. A panel was set up to review the relevant services. This concluded in May 1999 finding that Llewelyn was primarily responsible for the irretrievable breakdown in his unit and should be replaced. Meanwhile a second panel had been set up under the auspices of the Royal College of Physicians. In November 1999 this concluded that Llewelyn was unsuitable to function as a consultant. After a period off sick, Llewelyn was suspended in June 2000 and dismissed in March 2001. In November 2000 Llewelyn had contacted the Audit Commission about his own position being a waste of public money and about other concerns. Llewelyn brought a claim for interim relief which failed. The ET held that on the level of evidence available to it, Llewelyn had no prospect of being able to dislodge the causal connection that his dismissal was due to the findings of the two reports rather than to his disclosures. Mounsey v Bradford NHS Trust (2002) Public disclosure: reasonable to go to media to defend colleague against unfair media coverage. Mounsey was medical secretary to a consultant, P, who was concerned about quality of breast cancer services. Mounsey shared and adopted these concerns through and from 1999. In 2001 Mounsey was interviewed on Yorkshire TV and said that in her view P had been made a scapegoat. For giving this interview, the Trust instigated disciplinary proceedings and Mounsey then resigned. At the ET once the Trust learned that Mounsey had agreed to do the interview to counter media coverage about P which she thought had been unfair, the Trust conceded that Mounsey had made a protected disclosure. Award to be decided. Section 5: UNISON’s duty of care campaign UNISON commissioned Public Concern at Work to undertake this whistleblowing survey as part of its “Duty of Care” campaign. The campaign was launched because of members’ concerns that a clear framework was needed to address excessive workloads, inappropriate delegation of work, unsafe working practices and a bullying culture within parts of the NHS. The campaign was also launched to provide a positive and safe framework to address the modernisation of health care services. The campaign has so far produced a widely read manual The Duty of Care, a dedicated web page at www.unison.org.uk/healthcare/dutyofcare and is intended to provide an authoritative framework for discussion locally on safe working practices within healthcare, including advice on what to do if concerns do arise. 9 The campaign builds on UNISON previous work such as its “Be Safe” campaign and UNISON’s previous handbook on whistleblowing “Speaking out without fear” (UNISON 1999). Section 6: CHI - Emerging themes from 175 clinical governance reviews (xix) An analysis of CHI’s first 175 clinical governance reviews, the bulk of which have been of acute trusts, has found that hospitals in the north and midlands have better working arrangements to care for patients than those in the south and London. Specifically, trusts in the north and midlands have fewer ‘areas of concern’ highlighted in their CHI reports, and higher overall clinical governance scores. Because there have been fewer reviews in Wales it is not possible statistically to draw comparable geographical conclusions. The findings do highlight some concerning trends that can be seen in both England and Wales. In more than 80% of NHS organisations reviewed the following themes emerged: NHS organisations are reactive rather than proactive - they respond to problems when they happen rather than anticipate them and so potentially avoid them There is a lack of organisation wide policies. In many cases, where policies do exist, they are not implemented or different departments have different policies on the same issue Learning is not shared between and across organisations Communication is not effective and there is a lack of sharing from strategic to operational level, for example, between senior managers and those providing services, or between doctors and nurses. The findings also show that of the seven components of clinical governance, four are more likely to stand out as causing concern. These are: Risk management: Many trusts are poor at managing potential risks to patients and many staff would fear reprisals if they reported things going wrong. The risks to patients are made worse by staff shortages and poor attendance on mandatory training courses. Staffing and staff management: Trusts have poor workforce planning, there is a need for yet more creative ways of recruiting and retaining staff and trusts are poor at providing career opportunities. Many staff are working longer hours than recommended, there is poor management of locum and bank agency staff and widespread failure to regularly check professional registration. Patient involvement: Very few trusts are routinely involving patients and relatives in the development of services and policies. There is a general shortage of information for patients on their care and what there is often not accessible. Many barriers still exist to patients and staff making complaints. Use of information: Doctors and nurses often do not have ready access to the information they need to treat patients effectively. There is poor use of information and complaints data and there are too many breaches of confidentiality guidelines. The remaining three components of clinical governance are: clinical audit, research and effectiveness; and education, training and continuing professional development. It has long been recognised that the NHS is far from perfect, but it is by no means all bad news. From the reviews we have carried out so far we have been able to identify a considerable amount of innovative practice. Among the many examples are: 10 Dewsbury Healthcare NHS Trust whose telephone reporting system for serious incidents is convenient for staff to use. Their analysis of serious incidents is also thorough and steps are taken to prevent recurrence. North Bristol NHS Trust whose nurses use a special pen to record the care levels needed by patients on bar codes above their beds, so the trust can adjust staffing levels accordingly. Leicestershire Partnership NHS Trust who use a white board to record discussions between patients and staff on ward rounds. Patients can then receive a printout of the discussions that took place. North Durham Healthcare NHS Trust use an electronic system that enables x-ray images to be accessed by wards and clinics around the trust. These are just a few of the many examples of notable practice that if shared with other NHS organisations could be the solution to common problems. Overwhelmingly, the CHI score received most often in the published reports, across all the components and all geographical areas, was two, the score that indicates worthwhile progress and shows some development of the clinical governance agenda. The allocation of the third score, indicating good implementation of clinical governance, was far less common. Very few trusts have received the fourth score for excellence. These findings show that there is still some way to go. We can also see that real progress is being made and we are moving in the right direction with many examples of good practice existing that could be shared across the NHS. In time CHI will have a database of evidence on individual organisations that will detail emerging themes from its inspections. This will provide an opportunity for the NHS to access information on good practice for research purposes or to learn from the experience of others, within similar fields of work. Until that time CHI will report regularly on what it finds. It is hoped that these findings both good and bad will really help drive change in the NHS so that it is constantly learning and constantly improving. i. Section 3 sets out a brief analysis of calls to Public Concern at Work’s helpline from health sector workers. ii. See Section 6 on CHI’s report Emerging Trends from 175 Clinical Governance Review. For more information on CHI and its work, see www.chi.nhs.uk iii. See Section 2 for the full text of HSC 198/199 iv. Note from Public Concern on NHS whistleblowing initiatives. v. Cm 2850-I, May 1995, page 90-91 vi. Ibid, paras 113 and 115 vii. This confusing reference, for which we are largely responsible, to anonymity when confidentiality was meant was remedied in subsequent reports. viii. Supra, note 6, page 92 ix. Cm 3270 -1 (May 1996), page 22 x. Protecting the Public Purse 2 Audit Commission, 1994 ISBN 011 886 146 8 xi. Cm 3702-I (July 1997), page 49 11 xii. Nolan Review: Fourth Report (Nov 1997), page 23 xiii. Learning from Bristol: The Report of the Public Inquiry into Children’s Heart surgery at Bristol Royal Infirmary 1984-1995. Department of Health, July 2001 xiv. Ibid. xv. A First Class Service: Quality in the new NHS. Department of Health, 1998. xvi. See www.chi.nhs.uk xvii. See Section 5 UNISON and the Duty of Care xviii. These NHS case summaries are excerpted from PCaW’s Whistleblowing Case Summaries: Notable decisions under the Public Interest Disclosure Act, released April 2003 and available at www.whistleblowing.org.uk. xix. This document can also be found on the Commission for Health Improvement’s website www.chi.nhs.uk.