The Report by Robert Francis QC, following the Mid Staffordshire NHS Foundation Trust Public Inquiry ('the Inquiry'), is due to be issued to the Secretary of State imminently. The features of good governance which will emerge from the Inquiry are likely to provide valuable learning beyond the NHS and across the entire health and social care sector in a range of areas, including key workforce issues.

Whilst the Inquiry's detailed findings and recommendations are awaited, an examination of the evidence identifies a range of themes to which the sector should have regard in anticipation of the final report and beyond. This is the second of two articles in which Jodie Sinclair, Employment Partner at Bevan Brittan LLP, looks at some of the workforce and employment law themes arising in the Inquiry, including the management of and protection of individuals who raise concerns, the prevention of a bullying and harassment culture and the implementation of a robust performance management regime.

Other issues likely to be addressed in the final report will include:

  • a focus on training and regulation of healthcare assistants
  • a call for a review of recruitment and training of nursing staff; and
  • the need to embed compassion in providing and assessing high quality patient care.

Read our first article The Mid-Staffordshire NHS Foundation Trust Public Inquiry - staff recruitment, standards and engagement which focuses on the Inquiry and workforce issues.

You might also be interested in our most recent article regarding the Inquiry: The Mid-Staffordshire NHS Foundation Trust - Organisational Culture and Quality Governance.

Protection of whistleblowers

Whistleblowing was a key theme that emerged during evidence presented to the Inquiry; and the circumstances and environment in which staff can effectively raise concerns without fear of reprisals or criticism (whether real or imagined) is of central importance not only throughout the NHS, but for all healthcare providers.

Whilst ‘blowing the whistle’, in a lay context, might refer to anyone who raises concerns about practices at work; there is also a specific legal definition of a ‘whistleblower’. A ‘whistleblower’, in this context, is someone who in good faith makes a ‘qualifying disclosure’ to specific people or bodies – for example, an employer, a regulator, or other ‘prescribed person’ - about a dangerous or illegal activity or omission. The wrongdoing can be past, present, prospective, or even merely alleged.

In March 2012, as part of a series of measures intended to highlight the importance of whistleblowing in the NHS, the NHS Constitution was amended to include:

  • an expectation that staff should raise concerns at the earliest opportunity
  • a pledge that NHS organisations should support staff when raising concerns by ensuring their concerns are fully investigated and that there is someone independent, outside of their team, to speak to; and
  • clarification of the legal right to ‘blow the whistle’.

In October, 2012, NHS Employers launched the “Speaking up Charter”, to highlight that, in order to enable a cultural shift in the NHS, it is vital that leadership comes from national organisations to promote a culture in the NHS where staff are supported and can report concerns with confidence and without fear of retribution.

Guidance on raising concerns about patient safety has also been published by a number of regulatory bodies, such the Nursing and Midwifery Council, the Health and Care Professions Council and the General Medical Council.

Under the current statutory scheme, an employer is required to refrain from subjecting whistleblowers to any detriment, including dismissal, should they seek to ‘blow the whistle’ in relation to any type of malpractice. In 2013, it is expected that Enterprise and Regulatory Reform Bill will curtail the type of disclosure that will attract protection for employees, by requiring that legal protection for whistleblowers will only arise if the relevant disclosure is ‘in the public interest’. It is very likely, however, that the disclosures relevant to the Inquiry (i.e. those relating to failures in patient care) will come within the remit of any ‘public interest’ requirement for whistleblowing.

Whilst the current legislative framework sets out a skeleton set of requirements and protections, how does an organisation achieve a real cultural shift in the way in which whistleblowing is dealt with? Mid Staffordshire had a whistleblowing policy in place, but the evidence presented to the Inquiry raised concerns that the policy was ‘in paper only’ and not backed up by a working environment in which employees felt ‘safe’ to raise concerns, without fear of repercussion.

Whistleblowing policies and procedures, produced in consultation with employees, will be all important but will only be a starting point. Embedding and promoting an open and honest culture amongst all of the workforce, from the Board downwards, sharing information and publicising organisational learning from issues raised, maintaining confidentiality, clear communication channels, robust mechanisms of support and changing behaviours will be important features of a more comprehensive scheme.

Clear and complete information regarding the whistleblowing procedure should be rolled out and embedded in an organisation, including the:

  • existence, purpose and a clear explanation of how the procedure works • who receives reports when a concern is raised
  • if any individuals are named, confirmation that they will have a right to see any relevant information, and rectify or erase any information that is agreed to be inaccurate; and
  • clear assurance that the whistleblower's identity will be kept confidential if at all possible.

Other practical considerations may include:

  • a clear message that the organisation wants to hear from staff about malpractice, wrongdoing or serious risk without fear or repercussions or retribution for raising concerns
  • reassurance that raising concerns will not have an adverse impact on their careers or their working life generally
  • an ‘open door’ policy, whereby employees are actively encouraged to raise concerns and are made aware of improvements that have come about as a result. The Inquiry heard evidence that this is an improvement that came about at Mid-Staffordshire after 2009: staff were told “as a result of you raising concern X, we have done Y.” 
  •  local accountability, but also ‘safe alternative’ lines for reporting concerns (e.g. to a line manager / senior manager / chief executive or non-executive director)
  • reassurance emphasising that safeguards are in place for staff who raise concerns
  • use of ‘plain English’ language, rather than legalese
  • managerial guidance kept separate from the whistleblowing policy
  • whistleblowing training for staff and managers.

It is also worth noting that the Health Select Committee, in the report of its most recent annual accountability hearing with the Care Quality Commission has recommended that CQC should assess the professional culture of organisations providing health and social care; with a key element of this assessment being “a judgement about the ability of professional staff within the organisation to raise concerns about patient care and safety issues without concern about the personal implications for the staff member concerned”.

Having considered the important protections for employees who blow the whistle, how should employers ensure that they are protected against potential abuse of these protections by colleagues, managers or senior staff? It is important that a whistleblowing policy (and surrounding culture) makes it clear that concerns must not be raised maliciously and that disciplinary action may result if this is the case. That said, employers should not go too far. The relevant policy in place at Mid Staffordshire during the period under investigation was criticised for placing undue weight on employees’ legal duty of fidelity to their employer. Wording of this nature may lead to a real danger that staff are deterred from raising their concerns through fear of jeopardising their jobs.

A separate, but linked, issue is that of appraisals, performance management and maintaining quality. Where concerns raised by whistleblowers relate to staff capability, this needs to be followed up as part of a wider effective appraisal and performance management system. The Inquiry heard how, historically (before 2009), appraisal rates at Mid-Staffordshire had run at 70-80% in the medical division and less than 50% in surgery. Like many employers, the Trust had struggled following up on appraisals with effective discussion with the employee concerned; but if undertaken properly, this can, however, have a positive effect on maintaining quality of care – as the Government no doubt hopes to see as a result of the medical revalidation process.

As we highlighted in our previous article, there is some concern regarding the extent to which information is shared between healthcare providers regarding healthcare workers whose fitness to practice is called into question. This month, Independent Healthcare Advisory Services (IHAS) and NHS Employers have published ‘Guidance Principles for Sharing Information on Healthcare Workers’ which sets out principles to be introduced within and between healthcare organisations to ensure that, where a healthcare worker’s conduct or performance has been investigated and a substantial risk to public and / or patient safety has been identified, appropriate action is taken to ensure that any other organisation, in which the worker also practices or moves to, is made sufficiently aware so as to prevent further risks to safety. The Guidance also contains a process map and a template for sharing information.

Preventing bullying and harassment

Bullying and harassment of employees who raise concerns may amount to a detriment for the purposes of whistleblowing. It is important to have in place procedures to prevent bullying and harassment of employees as part of the organisation’s general support of employees. Evidence was presented to the Inquiry that the culture at Mid Staffordshire was not conducive to raising concerns without fear of repercussions. For example, a nurse in A&E reported feeling unsafe walking to her car alone after work because her physical safety was threatened by her colleagues after she had raised concerns about malpractice.

A working culture, in which employees are free from fear of bullying or harassment from peers or managers, will have a knock-on effect on quality of care, increased morale and employee engagement; these factors in turn will lead to a reduced likelihood of some of the patient care issues which were highlighted during the Inquiry.

There is no simple answer to preventing or tackling bullying or harassment within workplaces but the underlying principle is about embedding a culture that does not tolerate or condone such behaviours. A well drafted and workable anti bullying / harassment / dignity at work policy is a good starting point but merely that. Other initiatives may include, for example:

  • dignity at work forums
  • dignity at work champions
  • training and support for managers • board level championing of dignity at work initiatives.

Conclusion and next steps

It is very likely that the Inquiry will make recommendations to address some of the issues outlined above, and will require healthcare providers to take steps to deal with these issues as a matter of urgency. Whilst the detailed report from the Inquiry is awaited, there is much that healthcare employers can do now to ensure that their workforce policies, procedures and practices are in accordance with best practice. If you require any advice or assistance in this regard, or wish to discuss the issues highlighted in this article, please contact Julian Hoskins, John Moore or Carlton Sadler.

Once the report is issued all colleagues will need to reflect on what its findings and recommendations mean for them. To help consideration of this, Bevan Brittan is hosting a series of seminars in February and March 2013 to consider the implications following its anticipated publication. The scheduled dates for these seminars are as follows:

Bristol: 20 February 2013

Birmingham: 26 February 2013 London: 1 March 2013Please click on the above dates and locations to view further details and to register for the seminars.

We have also looked at some of the themes outlined in this article at our Workforce Forum event in November 2012. Building on that, we are hosting, in association with the Healthcare People Management Association (HPMA), a Developing Workforce Leaders Forum, at our offices, on 18 April 2013.

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