This paper has been prepared in January 2015 on behalf of the campaigning organisation Patients First in order to provide answers to “frequently asked questions” in relation to speaking up or whistleblowing in the UK National Health Service and UK health care sector generally. 

It is intended to provide helpful guidance and to enable readers to access more detailed guidance, advice, help and support from other sources and organisations.  It does not in any way constitute legal, financial or other advice of any other kind and any reader is strongly advised to seek and rely on his or her own legal, financial and other advice having regard to the particular circumstances of his or her individual case. 

Whilst efforts have been made to ensure that the contents of this paper are not misleading in any material respect, it should be recognised that the law in this area is subject to scrutiny and may change and accordingly no guarantee can be given that the legal position as stated is necessarily fully up to date and no warranty or representation is given to that effect.  Neither Patients First nor any director, shareholder, steering committee member nor any other person who has contributed to this paper shall be liable by virtue of contract, tort or otherwise howsoever for its contents.

The law protects whistleblowers
In theory the law should protect employees if they raise concerns about something generally provides a remedy after suffering a detriment rather than preventing such detriment. Moreover parts of the NHS are unfortunately not receptive to whistleblowers.

Employers will often argue that the information disclosed was not disclosed to the correct person, was not made in good faith, or in the public interest or that their behaviour of the staff member was not reasonable. Employers do not always accept that the whistleblower is protected by the law or indeed that the disclosure is a whistleblowing disclosure at all. In the current climate many employers will actively try and distance themselves from acknowledging receipt of a qualifying disclosure.
Turning directly to the law for support can be problematic. The protection afforded by the law (such as it is) is very much after the event and retrospective. Interim relief (under s.128 ERA) is only available after dismissal – itself far too late – and in the sample of 70 cases, was obtained in only 2 cases. It can be very expensive to obtain and there is great inequality of financial resources between whistleblower and employers.

Source: Submission by Patients First to the Freedom to Speak up Review being conducted by Sir Robert Francis QC (September 2014)

So, whilst it may be important to get legal advice you should not assume that your original concern can be resolved through the courts and you should be aware how difficult using the law may be.

No. There is no evidence of this.

The evidence from our Thematic Review of 70 cases presented in evidence to Sir Robert Francis is that there was a predominance of those staff with significantly greater expertise or experience.

The vast majority of staff who raise concerns, whether they are labelled as “whistleblowers”, just want to do a good job and see others doing a good job too in a system without unnecessary mistakes or errors. However employers are regularly known to victimise those raising concerns and one way they do this is to focus on the person raising a concern rather than on the concern itself… Too often we hear of staff who raise concerns finding themselves under scrutiny or even being disciplined, or by referral of the individual to a professional regulator.

Raising concerns can be easy and well received in a good employer or very challenging and met with hostility in a bad one. It is likely that because you have contacted us for advice you might have found that your concerns have not been listened to, and this has caused you concern.

An individual healthcare professional or manager may have concerns which are not shared by all colleagues, or equally commonly colleagues might be fearful of raising concerns even if they have witnessed them. In some departments where standards may have slipped or resources are chronically short, it may be seen as the norm to follow a certain practice, and so you may feel very alone with raising of the concern. Often new people in a team spot things much sooner than those who have been working there for some time. In particular student nurses and junior doctors can be very good identifiers of problems, but equally they can find themselves disempowered.

Simply because colleagues are unwilling or afraid to raise concerns does not mean you should not raise a concern, but in this case you should be particularly clear that patients are at risk (or there is a qualifying concern). Indeed, if you do not raise such concerns it is theoretically possible you could well be held accountable should harm result.

Adapted from: The Duty of Care Handbook (section 4 How to raise concerns?)http://www.publicworld.org/files/Duty_of_Care_handbook_April_2013.pdf (accessed 24/10/14)

We recommend you read the Duty of Care Handbook which gives practical advice on the duty of care of healthcare professionals and their employers and what we must do to help protect patients and staff.

To qualify for possible protection as a whistleblower, a worker must follow the procedure for making a disclosure outlined in the legislation. However, as we suggest, we are currently of the view that the law is not working as was hoped for and this is now evidenced by a number of cases. Disclosures qualifying for protection Include:

“any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

We strongly believe that the responsibility for ensuring that patients are safe and that learning takes place from near misses or mistakes rests with the employing organisation, and as such they should always encourage and support staff who come forward with information. The law should be a last resort.

Unless there is a good reason, the concern should always be raised with the employer first.

This is something that many potential whistle blowers are concerned about as they would prefer to speak with an independent person, especially if they have already experienced some hostility.

If the worker reasonably believes that they will suffer in some way if they make a disclosure, they may be justified in making a disclosure to other individuals set out in the legislation, most notably the CQC or Health and Safety Executive or one of the other bodies listed in the Public Interest Disclosure Act such as:
• to a legal adviser in the course of obtaining legal advice;
• in good faith to a Government Minister;

In the recent past it was a requirement that the disclosure must be made in good faith and not for the purposes of personal gain. That means that the motivation must be that this is about trying to protect patients. However a change in legislation from June 2013 means that under Enterprise and Regulatory Reform Act (ERRA) the requirement that disclosures be made in “good faith” is removed and instead they must be made “in the public interest” to qualify for protection. In the public interest means something you reasonably believe the public needs to be aware of.
How an issue is defined as being in the public interest is clearly of concern. When there is little if any access to legal advice regarding these matters, then individuals will naturally become very anxious.

Here’s a useful guide from Roger Kline (Co-Author of the Duty of Care Handbook )

12 steps to blowing the whistle safely:
1. Gather your evidence: stick to the facts and be specific about the particular risks you are concerned about.

2. Get the tone right: express yourself in a low key, professional manner, however angry and distressed you might be.

3. Use a risk assessment framework: identify the particular policies, protocols and guidance you believe are being compromised.

4. Specify your duty of care: relate it to your particular professional code if you are covered by one.

5. Be positive: state what you think should be done, as well as pointing to what should not be happening.

6. Follow procedures: make sure you know how you are supposed to raise a concern.

7. Create a paper trail: keep notes of all relevant conversations and keep a file of all written communication sent and received.

8. Work with others: you might have no choice but to go alone, but you will be more effective and less vulnerable if you can raise concerns collectively.

9. Pose potential solutions: if possible, set out what you think should be done as well as highlighting the problem.

10. Keep it on the record: if you receive assurances of action in response place these on the record. If you are met with silence or receive threats in response, place that on the record too, always professionally and in a low key.

11. Be balanced: how quickly and in what ways you escalate concerns should depend on how urgent or serious they are.

12. Seek allies: look for friends and allies to share the burden with.

You do not have to use your employer’s formal whistleblowing procedure for your concern to be a protected disclosure, as long as you have a reasonable belief that it is a matter covered by the Public Interest Disclosure Act and you have drawn your concern in writing to an appropriate person.

There is evidence to suggest that informal “blacklisting” is taking place within the NHS following raising concerns.

To obtain further information on whether you consider you have been blacklisted you need to write to the Data Protection Officer of your last NHS employer and request your Electronic Staff Record [ESR] in full via a Subject Access Requested [SAR]. Seek further advice on whether the data within your ESR may be causing you detriment in obtaining future employment within the NHS. There may be a charge for this.

If your last NHS employer has now dissolved (e.g. PCT, SHA) you need to write or email to the Department of Health requesting a Subject Access Request for your ESR. Contact details are:
Reviews and Information Team
Legacy Closedown Team
Information and Group Operations Directorate
Department of Health
Richmond House
79 Whitehall
London
SW1A 2NS

Reviews and Information Team: reviewsandinformationteam@dh.gsi.gov.uk
Any Subject Access Request via the DH is free of charge.
ESR Subject Access Request Letter
Subject Access Code Of Practice

You can contact the CQC if you want to raise a concern about health or social care services that are registered with the CQC. As the health and social care regulator the CQC have a duty to respond to concerns about patient safety and will consider what regulatory action to take, this may include an inspection.  The information you provide will be included in the data pack provided to the inspection team.

You have the option of making a formal protected disclosure to the CQC. If you make the disclosure openly to CQC you will be formally noted as a whistleblower. This may mean that going forwards as part of future inspections the inspectors will follow up on how you are being supported by your employer. It is our experience that by the time people make disclosures to the CQC, they may have experienced some hostility inside their team or Organisation. If you are bullied after raising a concern, either by colleagues or senior managers, you may wish to use this template letter to make a formal complaint to your employer.

It is the employer’s responsibility under the law to prevent such victimisation of staff raising concerns

The CQC legal obligation is to protect the identity of individuals’ making disclosures to them .Their guidance states that information you give the CQC will be dealt with in confidence and they will not disclose your identity without your consent, unless there is a legal requirement for the CQC to do so, e.g. in a Public Inquiry or court of law.

You can raise concerns anonymously with the CQC.

The CQC have told us that they expect all organisations to have effective arrangements to handle concerns raised by employees, and that the CQC take very seriously any employer that victimises a member of staff for raising a concern about safety and quality of care, and will want to know at the next inspection how you are, and whether you are still in this employment or not. In order to be protected by employment law & protect staff raising concerns it is essential that you seek advice and follow your employer’s policy closely in order to protect and strengthen your position.

The CQC ask that you ensure you have seen and read your employer’s whistleblowing policy on raising a concern.  If you cannot find such a policy this is something that the CQC do need to be made aware of and this can be raised, anonymously if you wish, via CQC’s website or helpline (03000 616161) .
That CQC has a responsibility to investigate patient safety concerns. When someone makes a disclosure to the CQC the system will forward it to the relevant inspector who will make a judgement regards how to respond. We would expect calls relating to areas where there is an immediate safeguarding issue to be actioned quickly by the caller and the CQC.

There have been problems with how investigations into patient safety concerns  have been carried out. Therefore clinical expertise is essential as part of the CQC team if they are going to really understand the potential patient safety issues being highlighted. This is not yet right in too many examples we hear about. Patients First will continue to monitor this and give feedback to the CQC to help them improve.

In practice the CQC are inundated with people contacting them and are currently reviewing how they deal with whistleblowing. As a result there may be no discernible immediate response, something which whistleblowers find very difficult. However at the time of the next inspection any disclosures should be taken into account alongside complaints. We have asked the CQC to help us clarify this process in an attempt to set whistleblowers’ expectations appropriately (December 2014).

The CQC can be contacted by:

Email: enquiries@cqc.org.uk

Phone: 03000 616161

Writing to: Care Quality Commission, Citygate, Gallowgate, Newcastle upon Tyne, NE1 4PA

Once you have contacted the CQC please ensure you inform them of any changes to your address and contact details.

Following lobbying from Patients First, the CQC have said that they will monitor the treatment of whistleblowers and have changed their procedures. The CQC advice on whistleblowing is currently under review. To date (December 2014) the CQC haven’t published analyses of disclosure data, or details their recent whistleblowing review process, but we hope that soon this will be released more generally, and clarity regards changes to their process will be shared.

Although the CQC is a ‘prescribed body’ to whom whistleblowing concerns may be raised, staff should not assume the CQC can protect them personally if details of their disclosure lead to victimisation by the employer. The CQC may be able to subsequently hold the employer to account but that does not mean it can currently protect individual staff against victimisation. They cannot prosecute under PIDA as they are not the employee.

The CQC have already helped identify and expose bullying in a number of organisations including the William Harvey Hospital, Ashford, Kent and Barts NHS Trust.  Patients First continue to challenge the CQC when there is evidence of poor performance in relation to whistleblowing, and are working to enable transparent collaboration.

A particular area of concern is that of whistleblower victimisation overtly linked to the behaviour of Boards, and how CQC will act on this with reference to their responsibilities to enforce Regulation 5, Fit and Proper Persons test. Patients First will continue to lobby the CQC about all the reported instances of omission. It is hoped that this will help resolution of issues in individual cases. How this will work in practice is yet to be determined and may rely on test cases, as well as the initial interpretation of the law.

If you are thinking of referring a Board member to the CQC under the Fit and Proper Person test category, you may find this checklist helpful:

We understand that the CQC will be able to prosecute under the Health and Safety at Work Act from April next year (a power which formerly sat with the Health and Safety Executive).    We have asked the CQC for clarification on exactly how they see the new laws will work (December 2014).

We are working to enable transparent collaboration, and we urge CQC to proactively and effectively address issues of workplace bullying and whistleblower suppression in their regulatory activities.

Patients First will continue to lobby the CQC about all the reported instances of omission and feed this back to the CQC, in addition to highlighting examples of good practice.

At Patients First, we understand how stressful whistleblowing can be, and that you might feel like you need help which is specific to your particular situation. We find that whistleblowers are often in need of extra support (an observation supported by research). Patients First does not have the resources or expertise to provide legal, trade union, HR or psychological support, however, we would encourage you to obtain as much professional advice and support as possible, and many whistleblowers have benefited from this sort of help, sometimes from professionals or organisations offering their services for free.

Very frequently in the current NHS whistleblowing is met with hostility or worse by employers. Employers may choose to “shoot the messenger” rather than fix an issue with resources or organisation of care. As a result, it is normal for our members, in response to the challenges of whistleblowing, to feel worry, confusion, anger, hopelessness, relief, disillusionment, frustration, sadness, regret, fear, disempowerment or empowerment. People often feel different emotions at different stages of the whistleblowing process, and sometimes these emotions come on quite suddenly, perhaps in response to an action or behaviour from a whistleblower’s organisation. For this reason we suggest maximising the informal support you have around from friends and colleagues.

We are also aware that the personal relationships and family members of whistleblowers are often affected. Therefore, we believe it is just as important to look after yourself and get emotional support as it is to obtain practical advice. This may mean scheduling activities into your week which will help take your mind off the whistleblowing. Keeping active with interests outside of work is a very useful distraction technique. As mentioned above try and get support from trusted friends or family members. Accessing professional psychological support through the NHS or privately is also recommended. If you do feel like you are struggling with the emotional impact of raising a concern, it is often helpful to visit your GP to talk through options for extra support. You may wish to print out this information and take it with you.

If you are feeling in desperate need of someone to talk to, you may want to contact Samaritans, which is open 24 hours/day, 365 days/year. They are not a whistle-blowing helpline, but a confidential service for people who are feeling troubled by something.

http://www.samaritans.org/

For some people, the stress of raising a concern can lead or contribute to a mental health crisis or emergency, and based on some of our own whistleblowing experiences, we feel this is very understandable. If your mental or emotional state quickly worsens, it is important to get help as soon as possible. You can call 111 to contact the NHS 111 service and find out where help is available. If you feel that you or someone else are in immediate danger, then call 999.

Patients First was founded by Dr Kim Holt as a direct result of her own experience. Initially there were a few founding members, Dr David Drew, Sharmila Chowdhury, and others, who started to meet and share their experiences.

Kim’s experience of working her way first through every level of management with GOSH, to the CQC, NHS London, and the Department of Health, led her to realise that there was little support for whistleblowers when the employer fails them. She found that for her information regarding the service in which she worked to be acknowledged she would have to speak openly, despite the risks. What she discovered was that by speaking openly it helped to open up the secrecy surrounding the misuse of power against health professionals, misuse of public money, hiding of patient safety issues, and failures of the regulatory mechanisms. Initially the campaign focussed on the removal of the widespread use of confidentiality clauses to silence whistleblowers, and now the campaign has developed as our knowledge has grown.

There is now a larger network of people who are working hard to build a sustainable organisation that can continue to campaign into the longer term, until the culture has been changed.

We aspire to support whistleblowers and create an NHS where it is no longer necessary to take that difficult step and speak publicly.

Our purpose is to reduce death and harm in the NHS by campaigning for the UK Government to create policies and laws that ensure the NHS becomes open and accountable and we will actively support all those who raise concerns about patient safety.

Patients First are nurses, doctors, managers and other staff who have made
patients their first concern by raising concerns about poor standards of
care and unsafe practice and in doing so, have often suffered reprisals in
the workplace for highlighting such concerns.

PF is a network of such health professionals & their supporters.

Those involved in Patients First are not paid, giving their services voluntarily in their own time.

You can donate to Patients First here:

Patients First is primarily a campaigning organisation. See Our Purpose . 

When Patients First began, we would often also provide moral support to new members via telephone or email. However, our membership has since reached capacity, and we are currently unable to do this, as we are staffed entirely by volunteers, many of whom are not in paid employment, and who may still be dealing with the effects of their own whistle-blowing experiences. We have decided that in the coming weeks and months from September 2014, the limited resources that we do have would be best spent on campaigning and raising awareness, as we have had a lot of success in this area to date. We will continue reviewing our role in supporting whistleblowers. If you are a whistleblower or potential whistleblower in need of support, please see our question on further sources of support ‘I feel I can’t do this on my own…’

Since its founding in December 2011, Patients First have heard from many NHS staff where their concerns have been repeatedly ignored, and the situation mismanaged, leaving them unemployed, destitute, traumatised and in some cases contemplating suicide. This situation cannot be allowed to continue, bullying staff is bad for patient safety and harms staff, and their personal lives.

We have heard from nurses, professionals and health care staff, who have raised a concern to their line manager and been hauled in to the ward to answer as to why they raised the concern. This is the level of bullying that is commonplace in too many parts of the health service. It is our view that unless this is acknowledged by the Department, of Health, NHS England and every single Chief Executive in our health services, we will continue to have problems, and staff will remain fearful.

Patients First has been involved in helping the CQC develop their new inspection model, which is beginning to highlight previously uncovered problems with bullying. Through the determination and courage of its members, its supporters and links with other whistleblowers, Patients First has been able to keep up the profile of something many wanted to bury.

Our campaigning work and call for a public inquiry led to the Government Review led by Sir Robert Francis QC. In September 2014 Patients First submitted a comprehensive dossier setting out the need for a zero tolerance approach to bullying and real support and engagement with staff.

We have a number of people now prepared to speak openly about their experiences.

Despite the previous Inquiry Reports from Sir Robert Francis there is little sign of the sea change in culture that patients need. There is a real and continuing problem over the treatment of those who raise concerns (typically as required by the professional duties).  Notably, the divergence between best practice and the norm (and indeed, worst practice) appears to be getting greater.

Evidence from the 2013 NHS staff survey, showed that 44% of staff who raise a concern never hear any response.

28% of staff were unable to answer YES when asked if they felt it was safe to raise concerns, that is over a quarter are still worried.

• 22% of all NHS reported being bullied last year with the figure in some
• hospitals being much higher

In addition a Nursing Times (March 2014) survey found that

• 47% of nurses who did raise concerns felt they suffered negative consequences

These findings complement Public Concern at Work research that identified that staff will raise a concern once or twice but if this is not addressed they are likely then to stop raising concerns

Source: Submission by Patients First to the Freedom to Speak up Review being conducted by Sir Robert Francis QC (September 2014)

Patients First makes 46 specific and constructive recommendations in their submission to the Freedom to Speak Up Review, central to which are:

1. We call for a zero tolerance approach to bullying.
2. This issue is so important for patient care and safety that a Public Inquiry into whistleblowing is warranted and some form of restorative justice.
3. The NHS should adopt an approach of “early intervention” as soon as any serious patient safety or care concerns are raised so that they are dealt with swiftly and fairly and not allowed to drag on, damaging staff and avoiding the concerns raised.
4. It is time to hold to account those who victimise whistleblowers.
5. Trusts Boards must take a series of practical steps to ensure patient safety is a Board priority recognising how important it is that staff feel they can safely speak out, without fear of detriment or reprisals, and be valued for doing so.
6. This Review must take decisive action to protect whistleblowers as all previous attempts have failed.

You may have seen our Patients First twitter feed     (https://twitter.com/patientsfirstuk )   and read some of the articles, facts and figures, and opinions that we have tweeted. We are very keen to give whistleblowers a voice, and for whistleblowers and supporters of whistleblowers to unite. We also know that social media sites can often be a helpful way of reaching out to several people at once.

However we ask that whether or not you agree with what we say, you respond in a respectful, non-discriminatory way. Part of our campaign is to highlight the damaging effects of bullying behaviour towards whistle-blowers, and the last thing we would want to do is replicate that behaviour in our communications with each other. We understand that whistle-blowing can be an incredibly stressful experience, provoking strong emotions and opinions, but please remember that we aim to promote a culture of compassion, mutual respect and honesty among those working for patient organisations.

Patients First is run entirely by volunteers.

You can help us by supporting our campaigns and sharing our materials, additionally if you are in a position to, you can donate to Patients First:

Here’s’ the link: http://www.patientsfirst.org.uk/?page_id=12

Also you can follow us on twitter >>> @PatientsFirstUK