The NHS Constitution and Whistleblowing - A paper for consultation

COMMENTS ON DEPARTMENT OF HEALTH
THE NHS CONSTITUTION AND WHISTLEBLOWING - A PAPER FOR CONSULTATION

The Royal College of Physicians of Edinburgh (the College) is pleased to respond to the Department of Health’s consultation on The NHS Constitution and Whistleblowing. 

Responses to the consultation questions are set out below.

General comments

1. Do you agree the NHS Constitution should be changed to highlight the rights of staff to raise legitimate concerns in the public interest?

The College agrees that NHS staff should be encouraged to raise legitimate concerns.  The proposed amendments offer some clarification and support for staff. 

Whistleblowing focuses on raising concerns after harm or damage has occurred.  It is considered that NHS employees need to be encouraged to raise concerns where patient safety is at risk.  This should be highlighted more explicitly in the proposed amendments.

In addition, the amendments should be accompanied by additional measures to engender change towards a culture of openness within the NHS.  One possible option is the introduction of mandatory training for management and staff which enhances safety awareness and “speaking up” as well as being required to formally raise concerns.  This broader strategy is critical. 

In 2009, following a survey of 3034 consultants, staff and associate specialists and junior doctors in England and Wales, the British Medical Association recommended a number of measures including the following:

• the pooling of clinician concerns to identify trends;
• the provision of examples of the types of concerns to be raised in the Staff Handbook;
• improved guidance on how staff are to manage any conflicts between their duties regarding patient safety and implied duty of confidentiality and loyalty to their employer;
• the provision of positive recognition for people who have raised concerns; and
• the use of a model disclosure policy for adoption by Trusts produced by the Department of Health and the wide advertisement of such policies by Trusts1.

Consideration should be given to such measures in addition to the proposed constitutional amendments.

New expectation on staff to raise concerns

1. Do you agree there should be an expectation set out in the NHS Constitution that staff should raise any genuine legitimate concerns around safety, malpractice, wrongdoing, or other risks at the earliest reasonable opportunity?  If not, why not?

Some categories of medical staff, for example, doctors, already have such an obligation and are held to account by the General Medical Council for failure to raise concerns.  However, there is some concern that the insertion of an expectation upon staff may be viewed as prescriptive and represent a shift of responsibility away from management.  To balance this it is considered that the creation of an obligation upon staff must be well supported by measures to encourage openness within the NHS.

The explanatory text in the Handbook states that concerns should be raised first with a line manager or lead clinician.  It is noted that, in the health setting, some concerns have an element of immediacy that may this render impracticable.  For example, there have been incidences where the removal of the wrong leg or kidney was recognised by staff who felt unable to speak up.  It is important therefore that staff are encouraged to raise concerns immediately, regardless of whether their line manager or lead clinician is available.

The creation of an expectation on staff to report may mean that they are more likely to report concerns to ensure that they have fulfilled their obligation.  It is therefore important that staff are made aware of the responsibility not to make malicious allegations and understand that broader constraints that may impact upon an organisation.  For instance, resource issues or logistics may prevent or inhibit optimal care but there may be a clear plan or process for improvement in place. 

Consideration should also be given to how Trusts will deal with increased numbers of concerns being raised.

1. Do you agree with the proposed wording of the new expectation on staff?  If not, can you suggest how the new expectation should be worded?

Whilst it is noted that the wording of the expectation and supporting information is based around the terminology used in the Public Interest Disclosure Act 1998 (‘the PID Act’), it may be appropriate to include additional references to patient safety to improve relevancy.

It is noted that the definition of “genuine legitimate concerns around safety, malpractice, wrong doing and other risks” needs clarification and/or supporting examples.

Pledge to support for staff who raise concerns

1. Do you agree that the NHS Constitution should include a pledge that NHS organisations should support staff when they raise legitimate concerns as defined by PID Act, in the public interest? If not, why not?
2. Do you agree with the wording of the pledge?  If not, can you suggest how the new pledge should be worded?

The inclusion of a pledge on behalf of NHS organisations to support staff who wish to raise concerns is supported by the College.  However, as the consultation document acknowledges, whilst legal protection for staff who wish to raise concerns is strong, “implementation on the ground has not always been consistent or effective” and that “all too often staff who have spoken up for patients have found themselves punished rather than celebrated”.

Amending the Constitution should be just one of a number of measures to address this.  For example, there is a need to promote a culture of excellence and frankness.  Public Concern at Work found that where a Trust promoted whistleblowing well, 81% of nurses said they suffered no reprisal from raising concerns and 67% said the concern was handled well.  In Trusts where whistleblowing was not promoted, this latter figure reduced to 16%2.

In addition to support for whistleblowers, consideration should also be given to support for those against whom whistleblowing is directed.  False allegations can negatively affect the reputation of individuals, departments and Trusts.  It is important to ensure an investigation and the after effects are handled appropriately to minimise and address damage in such cases.

Staff right to raise concern

1. Do you agree that the NHS Constitution should be amended to make it clearer that staff are able to raise any concern with their employer, whether it is about safety, malpractice or other risks, in the public interest without fear of detriment?
2. Do you agree with the wording proposed for inclusion in the NHS Constitution? If not, can you suggest other wording to use?

The College agrees that the Constitution and accompanying Handbook should be amended to refer in detail to legal rights conferred on staff by the PID Act.

Miscellaneous

N/A

One of the most difficult barriers relates to staff in more junior positions who may feel that their opinion is not valued. 

In addition, there may be difficulties where complaints relate to Trust management, as management may be in the conflicting position of having to self-assess.

N/A

1. Previous questions have asked about the specific changes to the Constitution.  Is there anything else you would like to add about these changes, in particular, in relation to their impact?
2. Are there any barriers to achieving equitable protection for staff who wish to raise concerns about safety, malpractice, or other risk from the perspective of ethnicity, gender, disability, age, sexual orientation, religion/belief, socio-economic or rural/geographical considerations?
3. What proportionate measures could address those issues?
   Education and awareness programmes may assist in empowering all members of staff to speak out.

   Where conflicts of interest exist at a Trust management level, there may be a need to remove any assessment and/or investigation process from local control.  It may be preferable to have a central or regional reference group which is separate from the Trust itself.

4. What are the positive impacts that might result from implementing this policy from the perspective of ethnicity, gender, disability, age, sexual orientation, religion/belief, socio-economic or rural/geographical considerations?
   N/A
5. What proportionate measures might we implement that could enhance this positive affect?

 

1. BMA Survey; Speaking Up for Patients, May 2009
2. Legal Protection for Whistleblowers, Mar 2010.