In this article, Rita Nissiphorou and Rebecca Pallot of DAC Beachcroft provide an overview of the recently published ‘Freedom to Speak Up – a review of whistleblowing in the NHS’ and examine some the workforce implications of the report.
On 11 February 2015, Sir Robert Francis QC published his report on the Freedom to Speak Up – A review of whistleblowing in the NHS. It contains Sir Robert's advice and recommendations to ensure that NHS staff in England feel safe to raise concerns and confident that their concerns will be listened to and acted upon.
The report recognises that many concerns are handled well by NHS organisations but identifies that a large proportion are not. It is critical of the deficiencies in NHS organisations dealing with concerns and of staff not utilising the option to raise concerns appropriately.
As a means of addressing the concerns he found, Sir Robert identifies five overarching themes, and a number of underlying principles, which need to be implemented in order to encourage those who wish to raise concerns and to enable NHS organisations to deal with the concerns appropriately.
• Culture change to a culture of safety, visible leadership, reflective practice and free from bullying.
• Improved handling of cases with a system and structure for handling concerns promptly and with positive outcomes.
• Measures to support good practice such as training on how to raise and how to handle concerns; transparency, accountability and identifiable persons to whom concerns can be raised.
• Particular measures for vulnerable groups such as locums, agency staff, students, trainees and staff from BME backgrounds.
• Extending the legal protection currently available by extending the scope of the legislation.
One of the most important recommendations of the report is the appointment by each NHS body of a Freedom to Speak Up Guardian who would have access to anyone in the organisation and who would act as an independent and impartial source of advice to staff. The role would include ensuring that concerns are handled appropriately, investigated promptly, issues are addressed and there are no repercussions for the person who raised the concerns.
The review also recommends the appointment of an Independent National Officer, who will review the handling of concerns, advise organisations, offer guidance and publish reports.
Next steps for NHS organisations
Standard whistleblowing policies and procedures will be published and employers will be expected to implement them without delay. Trusts will need to:
• Keep an eye on the timescales and plan for implementation
• Make budget provision for training of both managers and senior staff in the standard procedures and how they are to be applied
• Consider holding ‘listening events’ and roadshows whereby staff are actively invited to raise any concerns they may have
• Consider the recruitment of the Freedom to Speak Up Guardian – it will need to be someone who is tenacious, recognised as impartial and independent, has authority, is expert in all aspects of raising and addressing concerns, and has dedicated time to perform the role. If there is no one internally who fits the bill, Trusts will need to consider training-up someone to do the post or appointing externally
• Review the support currently in place for staff who raise concerns
• Make sure that all settlement agreements comply with Department of Health guidance and include a provision whereby it is made clear that any obligation of confidentiality does not extend to preventing the individual from raising concerns.
Following the production of the standard policies, Trusts should:
• Implement a broad range of training for all staff in how they ought to raise concerns and for managers in how to deal with those concerns effectively and fairly
• Consider the application of the principles which will be embodied in the standard procedures. In particular, what can be done at a practical level to make investigations prompt, swift, proportionate, fair and blame-free
• Review how the new policies will impact on those identified as belonging to vulnerable groups, such as trainees, students and those with disabilities or ethnic minority backgrounds.
Whilst a number of the recommendations made by Sir Robert may take some time to be considered and implemented, we can be reasonably confident that they will be implemented in due course. It would be advisable for NHS organisations to begin reviewing and auditing their existing practices now. That will mean that they are in the best position to act on proposals and introduce the standard policies as soon as they are required to do so. Taking a proactive approach at this stage is likely to reflect well on NHS organisations, will be appreciated by staff and will make any future changes easier to manage.
Rebecca Pallot, Associate and Rita Nissiphorou, Solicitor, Leeds Employment Team,