Whistleblowing in the NHSBMJ 2015; 350 doi: https://doi.org/10.1136/bmj.h2300 (Published 01 May 2015) Cite this as: BMJ 2015;350:h2300
All rapid responses
Why Jeremy Hunt's promise to protect whistleblowers is nothing but hot air
By Minh Alexander and David Drew
"On high death rates, failing hospitals and whistleblowing, we are calling time on the cover-up culture, and ushering in a new era of transparency”
So promised Jeremy Hunt in February this year.
However, his rhetoric is not matched by real protection for whistleblowers.
Instead, he’s opted for local ‘Freedom to Speak Up Guardians’, and a ‘National Guardian’.    This is very bad news for whistleblowers and for transparency. There is no evidence base for the Guardian model . In our opinion it is bound to fail.
The plan now adopted by Hunt was first presented in February’s Freedom to Speak Up Review into NHS whistleblowing by Sir Robert Francis QC – the man previously hired to report into care failings at Mid Staffordshire and to devise a plan to ensure they never happened again.
A key finding of Francis’s landmark Mid Staffs report was that staff were too scared to report poor care. Francis pressed for criminal sanctions against whistleblower suppression. 
But disappointingly in his new review, Francis rejected criminal sanctions.
Despite evidence submitted to Francis by hundreds of whistleblowers about determined suppression and “lives destroyed”, he neutered the Guardians. In particular the National Guardian, purported back stop for failure of local mechanisms, will not have its own statutory powers, merely an advisory role. Nor will it investigate individual cases, nor review past cases to learn from history.
Another crucial weakness of the National Guardian is that it will not intervene in employment disputes.
…“should not actively intervene in ongoing provider processes or employment disputes” 
A key strategy used against whistleblowers is to engineer employment disputes, so employers will easily side step the National Guardian.
Employers typically create employment disputes by mistreating whistleblowers to provoke grievances, inventing grounds for disciplinary action or smearing whistleblowers’ mental health and performance. Employers can then dismiss whistleblowers for misconduct, incapability or break down of relationships (under the “some other substantial reason” clause). Alternatively, employers may rely on redundancy. 
A National Guardian that can not intervene in this highly damaging strategy against whistleblowers will provide no meaningful protection. The most that the National Guardian will do is report failing employers to bodies that have been part of the problem: the Care Quality Commission, Monitor, the Trust Development Authority and NHS England.
The National Guardian would not have protected Raj Mattu, a whistleblowing cardiologist. An employment tribunal ruled last year that Mattu was “blameless” and unfairly sacked after voicing concerns about patient safety.
An astonishing campaign was waged against Mattu:
“Soon, the single complaint against Mattu had become 35, then 200, ranging from questions over his qualifications to charges of serious criminal conduct outside of work. These were sent to the GMC, CQC, the Strategic Health Authority and three different police forces; by 2009, all had been investigated and found to be false. Mattu was also subject to three separate tax inquiries, despite having undertaken no private work. In 2010, ill and suffering from depression, he was finally sacked by managers who questioned the validity of his ailments and found him “unmanageable”.”
This protracted, costly employment dispute would have put Mattu well beyond the protection of the National Guardian.
Moreover whilst the National Guardian is nominally “independent”, the postholder will be hand picked and overseen by CQC, who are firmly under the DH’s thumb. As the National Guardian will not be in post until April 2016 at the earliest, more whistleblower cases will be consigned to the dustbin category of “historic”, and sealed away.
This is all a far cry from an equivalent USA office (Office of Special Counsel). This can independently investigate, remedy employment detriment whilst a whistleblower is in post and litigate.
The worst NHS organisations ignored good practice guidance for years. The National Guardian office is an irrelevant addition and wastes public funds. However, it provides a smokescreen for suppression by government. Central bodies chant the mantra “protect whistleblowers” whilst still authorising settlements with super gags, which hide even the existence of settlements.
Last year, some whistleblowers were too scared to participate in the Freedom to Speak Up Review because they were subject to confidentiality clauses.
Hunt pays lip service to aviation-style safety. This requires properly independent investigations, but Francis ignored many calls for a truly independent mechanism for whistleblower governance. His review report is totally silent about the grave nature and scale of the disclosures reported to him. We have learned that Francis ignored even Simons Stevens, who on behalf of NHS England called for independent investigation, safe harbour and an Ombudsman.  Similarly, it is evident that DH ignored the CQC’s suggestion that the National Guardian could be located with the proposed NHS independent patient safety investigation service (IPSIS).
Independence and full transparency are plainly resisted by government. Francis’ complaisance is very disappointing. Last October, we attended a Freedom to Speak Up seminar at which Francis openly stated that he would only make recommendations that would be accepted. Francis’ review is a comprehensive failure in terms of duty of care to staff and patients. However, it suits the DH very well.
The stream of victimised and sacked whistleblowers has been undiminished. Cases continue to be raised in parliament. However, when whistleblowers approach Jeremy Hunt and DH for safe haven, they are still told that DH does not intervene in “employment matters”.
Accordingly, whistleblowers will continue to press for proper learning through a public inquiry, and real measures to protect those who speak up in future. The NHS is under increasing pressure. Staff have many concerns that they need to raise. It is unjust to expect them to sacrifice health and livelihood simply for standing up for patients.
Minh Alexander is a whistleblower and was formerly an NHS consultant psychiatrist
David Drew is a whistleblower and was formerly a NHS consultant paediatrician. He is the author of Little Stories of Life and Death. @nhswhistleblowr
 Hunt: Sweeping reforms to end NHS “cover up culture”. Laura Donnelly & Patrick Sawer, Telegraph 7 February 2015
 Report of Freedom to Speak Up Review by Sir Robert Francis QC, 11 February 2015
 Learning Not Blaming, The government response to the Freedom to Speak Up consultation, the Public Administration Select Committee report ‘Investigating Clinical Incidents in the NHS', and the Morecambe Bay Investigation. 16 July 2015
 National Freedom to Speak Up Guardian, CQC board paper 29 July 2015http://www.cqc.org.uk/sites/default/files/CM071506_Item_6_Freedom_to_Spe...
 Critique of Francis’ model of trust appointed Guardians, Minh Alexander 4 June 2015 http://sharmilachowdhury.com/2015/06/21/critique-of-francis-model-of-tru...
 Francis calls for new protection for whistleblowers. Shaun Lintern, Nursing Times, 11 February 2013
 CQC’s submission to DH consultation on implementation of Freedom to Speak Up Review http://twitdoc.com/view.asp?id=211107&sid=4IW3&ext=PDF&lcl=DH-Consult-CQ...
 21 Ways to Skin a Whistleblower from Shoot the messenger, Private Eye Special, Andrew Bousefield and Phil Hammond 2011
 Thematic Review of 70 cases, by Patrick Green QC et al, submitted on behalf of Patients First to Freedom to Speak Up Review, September 2014
 “There were hundreds of us crying out for help”: the afterlife of the whistleblower. Andrew Smith. Guardian 22 November 2014
 Letter from Simon Stevens CEO NHS England to Sir Robert Francis QC, 22 September 2014 http://twitdoc.com/view.asp?id=211953&sid=4JJL&ext=PDF&lcl=Simon-Stevens...
Competing interests: No competing interests
Why is bullying rife in the NHS? Are doctors and nurses any nastier than comparable professionals? Can you regulate for better standards of behaviour?
II believe the answer lies not in the mix of people but in the way the NHS is organised. It is essentially a monopoly employer divided up into quasi autonomous ‘business’, each with their own interpretation of the disciplinary and regulatory frameworks and little or no effective oversight. Advancement in the managerial sense is often tied to meeting targets at the behest of the executive. The system suppresses those that challenge and promotes those that comply.
If one looks at the case of doctors that have suffered detriment at the hands of their employing Trust a common pattern seems to emerge. They struggle to show association between actions such as raising concerns or whistle blowing with their subsequent treatment. They are subject to a series of unwarranted internal investigations, they get unwell, they submit grievances that are not upheld and finally they leave.
It should be, after the disaster at Midstafforshire Hospital and the Francis report that bullying and victimisation is reducing but, at least anecdotally, the problem is actually worsening. (This seems to be supported by a study undertaken by the Nuffield Trust).
Much is said about how the culture of organisations determines the success or safety of their business. Nevertheless, bullying, bureaucracy, and failure to encourage innovation seem still the predominant culture at the top of most NHS organisations.
Why is bullying so common? I would suggest, for the following reasons, because it’s so easy.
1) Difficulty making clear association between ‘whistle blowing’ and subsequent detriment.
Firstly it is rarely whistle blowing in any dramatic sense. More commonly we are talking about clinical leads, doctor, nurse or therapist raising concerns about erosion of standards of care. It is much more likely that a person will be perceived by the senior management as a persistent complainant, frustrating what they consider is their reasonable demand to reduce costs. Blowing the whistle on such things as the BRI scandal will be rare.
Secondly the temporal relationship between any act of raising concerns and subsequent detriment can be long. Organisations have memories.
I cannot see that an anonymous reporting system will really address this.
2) The disciplinary and investigative framework
The Maintaining High Professional Standards framework was well intentioned but recognised from the outset that it was removing two important safeguards for doctors; oversight by the Special Professional Panel (the three wise persons) and right of appeal to the secretary of state.
The only safeguard put in place was the need to appoint a Non-Executive Member of the Board to oversee the conduct of the process.
It was recognised that remediation was more desirable than punishment and so established a relationship with the National Clinical Advisory Service. Whilst its intentions might be laudable, a referral to it is generally viewed negatively. It is supposed to be confidential but in practice prospective employers often ask if a practitioner has been subject to a referral.
NCAS’s means of initial assessment and advice comprises solely a discussion, over the telephone, with the executive medical director who, in many cases will have both instigated and be case managing any investigation.
I believe there is a straight forward reason why it seems the most common tactic of bullying organisations is to accuse a practitioner of themselves being a bully. Most practitioners under attack are clinical leads of one kind or another. It is very hard to lead a department without having ruffled some feathers and there is almost invariably a colleague who stands to gain from the practitioner’s demotion or removal.
It is usually the medical director who case manages an investigation and the practitioner has no right of appeal to anyone outside of the organisation.
I believe the framework, in its current form, is one of the principle reasons that bullying of medical practitioners is so prevalent. It lacks external oversight, effective safeguards against its misuse and the relationship with NCAS is easily exploited.
3) The system of regulation
Key to more effective regulation has been the requirement for annual appraisal, and a five yearly cycle of multisource feedback and revalidation.
Inevitably the Responsible Officer and Executive Medical Director will be the same. The person case managing an investigation is also recommending or not revalidation. The potential for abuse is obvious but NHS England does not recognise this as a reason for appointing an alternative RO.
4) Failure of organisations to recognise the characteristics of bullies.
Although much is written about work place bullying it is, as with most sociopathic behaviours, difficult to define.
From the literature some common themes emerge. It is generally recognised as a repetitive or serial behaviour. It is said that the bully will seek to isolate their victim. This occurs in two senses; firstly to isolate the victim from their colleagues by fermenting discord or promises of gain and secondly to engineer circumstances where the victim is alone with the bully. The oft repeating of unsubstantiated allegations is common, until the invention becomes its own reality. Micromanagement and continual unjustifiable criticism are also frequently used devices. A disparity of power or status is common. A tendency to escalation with each negative event more threatening or undermining than its predecessor. Attributed intent (looking for problems) is also said to be a common finding.
Bullying must be considered a behaviour not simply the bullies ability to justify any individual act.
I believe until we view bullying in the same light as we view sexual impropriety or racism, and look for evidence to support the victim rather than discredit them, it will persist. The grievance mechanism employed by most organisations to address accusations of bullying is generally not effective and often counterproductive. With each failed grievance the bully’s status, and confirmation of the rightness of their position, is only enhanced.
A public enquiry might indeed be the only way to move things forward.
Stephen Novak, Consultant in Rehabilitation Medicine, Sussex Community NHS Trust.
1. BMJ 2015;350:h2300
Competing interests: No competing interests
The only group of professionals within the NHS without a regulatory body are non-clinical hospital managers. Whilst clinical hospital managers are professionally accountable to their regulatory bodies (e.g. GMC, NMC etc), non-clinical managers are not.
Regulation 5 of the CQC (http://www.cqc.org.uk/sites/default/files/20141120_doc_fppf_final_nhs_pr...) sets out standards for "Fit and proper persons" for Hospital Directors, but no such standards exists for the vast cohort of senior and middle grade management, who are not Board members. Hence, one wonders what sanctions might exist for hospital managers, who repeatedly ignore issues about patient safety.
Concerns about patient welfare are usually first raised with departmental managers, who are often non-clinical. If non-clinical managers were bound by a professional accountable body to act always in the best interests of patients, then managers would be more likely to listen and act. Doctors and nurses would have recourse to refer relevant hospital managers to an accountable body, if the reformed NHS whistle-blowing system ignored patient safety.
This regulatory change for hospital managers is long overdue, and would give increased confidence to all, who care for patients.
Competing interests: No competing interests
Kim Holt may need to be more specific that her concern is the misuse of disciplinary action against doctors. I agree there may be benefit from a further inquiry into this issue. I also agree that Robert Francis missed an opportunity to 'clear the air' (1).
Her quote from Hooper is pertinent: "An employer might use the process of making an allegation ... about a doctor’s fitness to practise as an act of retaliation against a doctor because he or she raised concerns, or, simply, as an inappropriate alternative to dealing with the matter in-house.” Some concerns are raised for dubious motives. Trusts do not always react appropriately (2). There may be a lack of independence in disciplinary proceedings (3). There is also evidence of some complacency about medical suspensions (4). The regulatory system has failed in some high profile cases (eg. 5) including Kim Holt's herself.
(2) Clinical governance can become oppressive BMJ 2007; 334 doi: http://dx.doi.org/10.1136/bmj.39150.389919.BE (Published 15 March 2007)
(3) Independence in disciplinary proceedings against doctors BMJ 2012; 344 doi: http://dx.doi.org/10.1136/bmj.e548 (Published 24 January 2012)
(5) David Southall: anatomy of a wrecked career BMJ 2012; 344 doi: http://dx.doi.org/10.1136/bmj.e3377 (Published 16 May 2012)
Competing interests: I have been suspended twice in my career
It strikes me that NHS staff will not feel 'comfortable' to whistleblow until / unless the cases of previous whistleblowers are thoroughly investigated and fairly resolved. Justice must be done and seen to be done.
Competing interests: No competing interests