Key themes & practical steps
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.
Members of Bevan Brittan's Legal Advisory and Risk team highlight five key themes which emerged from yesterday's review and their practical impact.
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.
CEOs / designated board members to be involved with, and regularly reviewing, all formal concerns, to ensure they are being dealt with appropriately and swiftly.
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.
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.
Interestingly, the review has rejected an American-style system of financial incentives for those who raise concerns.
As part of a drive to improve transparency in relation to the raising of concerns, it has been recommended that
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.
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
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