Speaking up and speaking out: "Freedom to Speak Up" Review

Yesterday afternoon, Robert Francis QC published his independent review into creating an open and honest reporting culture in the NHS, "Freedom to Speak Up" and the government has already issued its initial response – including announcing new 'whistleblower guardians'. Furthermore, whilst the recommendations set out in the report are aimed at the specific challenges which face the NHS, its themes are also relevant to independent sector providers across the health and social care sector, and, indeed, any sector where safety is in issue. 

Whilst yesterday's review acknowledged that improvements have been made since the 2013 Francis Report, it highlighted that there is still much work to be done.  The government has said that it accepts all the review's recommendations in principle and will consult on a package of measures to implement them. What does this mean for the NHS and other organisations which have responsibility for public safety?

Yesterday's review builds on the work which was begun following the publication of the Francis Report into failings at the Mid-Staffordshire Hospital – and a key aspect of that report was the difficulties around the implementation of an effective whistleblowing policy.

• Please click here to read our summary of the workforce aspects of the Francis Report.
• Please click here for background information on whistleblowing and a summary of the changes to whistleblowing following the Francis Report.

Members of Bevan Brittan's Legal Advisory and Risk team highlight five key themes which emerged from yesterday's review and their practical impact.

Impact at board / managerial level – shifting from blame to learning

Mirroring a key theme of the 2013 Francis Report, yesterday's review zeroes in on responsibilities at board / executive level. 'Principle 1' in the review is 'fostering a culture of safety' and this sets out that boards

"must devote time and resource to achieving this change". 

Jeremy Hunt is writing to every Trust Chair to underline the importance of a culture where frontline staff feel able to speak up about concerns without fear of the repercussions. In addition, Monitor and the Trust Development Authority will write to Trust Chief Executives and ask them to make sure that all managers discuss these issues as a matter of urgency with those who report to them. The review  identifies some key actions for boards, including the following.

• Ensuring that a safe learning culture is measured and monitored on a regular basis (action 1.1).
• Considering and implementing ways in which raising concerns can be publicly celebrated (action 5.1).
• Ensuring that there are a variety of personnel to support staff who raise concerns, including a 'Freedom to Speak Up Guardian' (action 11.1).   This was publically endorsed by Jeremy Hunt in his statement to Parliament yesterday.
• Ensuring that responsibility for raising concerns policy and practice rests with the executive board member who has responsibility for safety and quality, rather than human resources.
• Assessment of whether someone meets the new 'fit and proper person' test should include an assessment of any role participating in or permitting conduct contrary to the fair, honest and open raising, receiving and handling of concerns (action 3.3).
• Visible leadership, particularly at board level, in respect of valuing and sharing the raising of concerns (paragraph 39).

CEOs / designated board members to be involved with, and regularly reviewing, all formal concerns, to ensure they are being dealt with appropriately and swiftly.

Policy and procedural change

Although yesterday's review focuses in large part on the importance of cultural change, Robert Francis also recommended that NHS England, NHS TDA and Monitor produce standard integrated raising concerns policy and procedure.  However, having appropriate documentation is only the beginning; the emphasis in the review is on the importance of promoting a general culture of encouraging whistleblowing - research undertaken as part of the review highlighted the distinction between a strict procedural approach to whistleblowing and a more open-minded, less rigid approach which focussed on resolution. 

The review also focusses on the difficulties around investigations and suggests that disciplinary / performance action associated with a concern should be put on hold while the concern is investigated. In addition, the review stresses  the importance "that investigations are seen to be done properly and that appropriate resourcing is provided".  That said, the review also highlights that systems need to be simple, swift, and free from bureaucracy – a difficult balancing act to get right.

Legislative change

Several of the issues highlighted in yesterday's review will require legislation, although it was acknowledged that cultural change should take priority over introducing yet more formal regulation. 

• A key issue highlighted by the review was the potential blight on the careers of those who raise concerns, because of the monopoly-like position of the NHS job market.  The Government has announced that it will legislate to protect whistleblowers who are applying for NHS jobs from discrimination by prospective employers – and it hopes to push this through before the election.
• It is proposed that the list of 'prescribed people' to whom protected disclosures may be made should be extended to include all relevant national oversight, commissioning, scrutiny and training bodies including NHS Protect, NHS England, NHS Clinical Commissioning Groups, Public Health England, Healthwatch England, Local Healthwatch, Health Education England, Local Education and Training Boards and the Parliamentary and Health Services Ombudsman.
• It has also been suggested that the scope of whistleblowing legislation is extended to cover all students working towards a career in healthcare (in addition to the recent change which brought student nurses and student midwives within the scope).

Interestingly, the review has rejected an American-style system of financial incentives for those who raise concerns.

Settlement agreements and transparency

As part of a drive to improve transparency in relation to the raising of concerns, it has been recommended that

• CEOs should personally review all settlement agreements.
• All such settlement agreements should be available for inspection by the CQC.
• Confidentiality clauses should only be included if they are in the public interest (paragraph 69).

In addition, the Government will consult further on options to ensure that where hospitals are found to have knowingly withheld information from patients, the NHS Litigation Authority can impose financial sanctions, such as reducing the indemnity it offers against litigation awards.

Training and awareness

The review recommends that every NHS organisation should provide training to every member of staff on how to receive and act on concerns (principle 10).  As part of this, bearing in mind issues highlighted in the recent Rotherham Report it is essential that concerns should be taken seriously, regardless of who is raising them. The review also specifically recommends that all leadership and management should be given regular training on how to address and prevent bullying

How we can help

Having acted for one of the core participants in the Francis Inquiry which reported in 2013, we have been actively advising clients on practical ways in which the Inquiry's recommendations may be implemented.  We are able to assist with

• Practical training for board members, senior management and staff on responding to concerns, equalities, anti-bullying and harassment and running investigations.  We can also offer bespoke training according to your requirements, whether in seminar or workshop format.
• Specialised support on the management of investigations to ensure they are conducted fairly and robustly, particularly in circumstances where the outcome of the investigation may be published.
• Audit and, if needed, updating of your policies and procedures and practical advice on how that documentation may be embedded in a positive 'raising concerns' culture.
• Review and advice on your standard Settlement Agreements and whether they are 'Francis-compliant'.