Health Committee
Oral evidence: Complaints and raising concerns, HC 1080
Tuesday 18 March 2014
Ordered by the House of Commons to be published on 18 March 2014.
Written evidence from witnesses:
– Staffordshire and Stoke on Trent Partnership NHS Trust
Members present: Mr Stephen Dorrell (Chair); Rosie Cooper; Andrew George; Barbara Keeley; Charlotte Leslie; Mr Virendra Sharma; David Tredinnick; Valerie Vaz; Dr Sarah Wollaston
Questions 68 - 172
Witnesses: Dr Kim Holt, Patients First, Helene Donnelly OBE, Ambassador for Cultural Change, Staffordshire and Stoke on Trent Partnership NHS Trust, and Cathy James, Chief Executive, Public Concern at Work, gave evidence.
Q68 Chair: First of all, I welcome all three witnesses this afternoon. This is an important inquiry, and it is important to us for two reasons. The first is that we issued a report, as a Committee, early on in this Parliament on the way the health service responds to, reacts to—or doesn’t—individual patient complaints, how those are handled and how the system learns from them. Secondly, of course, the publication of the Francis report just over a year ago raised all the issues around the role of individuals with concerns about the service and how they are treated by the system. It is an important inquiry.
If I may, I would like to ask each of you to introduce yourselves very briefly so that we know who we are talking to and where you come from.
Helene Donnelly: Hello. I am Helene Donnelly. I am Ambassador for Cultural Change at Staffordshire and Stoke on Trent Partnership Trust.
Dr Holt: Hello. I am Kim Holt. I am a consultant paediatrician and I blew the whistle on health care failings in Haringey, as a result of which I founded a campaign group called Patients First.
Cathy James: Hello. I am Cathy James. I am chief executive of the whistleblowing charity Public Concern at Work.
Q69 Chair: Thank you very much. I referred in my introduction to the Francis report. After Robert Francis published his report, there was virtual unanimity—and a huge amount of talk—about the need for culture change in large parts of the health and care system, and the need to introduce a culture for health and care providers that encouraged as routine business those working in those providers to raise concerns where they felt there were examples of failures of care or shortcomings in the quality of care.
I would like to begin the session by asking each of you whether you think anything has changed in the last 12 months, and whether the aspirations that were virtually unanimously endorsed 12 months ago have been reflected on the ground in any tangible sense.
Helene Donnelly: I think there is a shift beginning; the very fact that we are sitting here today demonstrates that. But when it really filters down to the front‑line staff, no, there is very little change. There is a greater awareness now in terms of raising concerns, and perhaps of staff understanding their responsibility to do so; but understanding that and then actually doing it are two very different things. That is the bridge that we need to build now, to make sure that when they are in that position they really are supported and encouraged and it is not just words.
Dr Holt: In terms of the contacts we have through Patients First, there are now so many people coming forward to us telling us stories of poor responses from their employers that, sadly, I do not think we have moved on in any significant way at all. We are so busy with people contacting us that we are now at the point where we are having to think about whether we become a charity or a foundation. It should not really be down to a bunch of volunteers like us to be supporting health professionals who have raised concerns. Clearly that should be happening within the organisation where they are employed.
The sorts of things that we are hearing about are people collapsing at work, being unable to speak; people traumatised through severe experiences of bullying; people summarily dismissed, such as Sharmila Chowdhury, who was dismissed from Ealing; people not getting their jobs back; people being blacklisted; and people being referred to the regulators in response to raising concerns. I even heard recently of a consultant who said that her revalidation was being put on hold, and that that immediately followed, within a very close time scale, her having lodged a complaint about bullying.
So, no, we are not seeing any significant change. The fact that we are sitting here, yes, is encouraging. We are now talking about the issues and beginning to disentangle what has been happening, but we do not yet have full understanding of the extent and severity of what is happening on the front line.
Cathy James: I would echo that this whole process is a very good sign. We have seen a big increase in calls to our advice line from the health and care sector, so there is a sense of awareness, perhaps.
I think the other factor that is perhaps showing a change to some extent is the approach of the Care Quality Commission, the main regulator in health and social care. The fact that they are looking not only at the way that whistleblowers have raised a concern but at the way that individual has been treated is the most powerful thing. If the hospital senses that the regulator is going to ask lots of questions around how whistleblowers have been treated, then—guess what—the board starts to listen, and some action and work gets done on the ground, filtered from the top down to the ground in terms of staff awareness, bringing that change in culture, that sense that, “Actually, if I speak up I will be listened to and I am not at risk.”
The danger is that, if we endlessly talk about how bad it is and where it goes wrong all the time, people will think it is too scary to speak up, and that is really dangerous for patient safety. Having a role like Helene’s, and Patients First campaigning in the way they have, has, I think, shifted things to an extent, but there is clearly a lot of work still to be done.
Q70 Chair: I guess you have offered one answer to the next question, which flows pretty naturally out of the three responses: what are the effective steps that need to be taken to quicken the pace of change? I think all three responses used at one point the phrase “beginning to change.” The consistent theme is recognition that there is an issue and that something is beginning to happen, but it sounds like a geological time scale, so what are the steps that can be taken to quicken the pace of change? You referred to CQC interest and focus on the issue. First of all, do Dr Holt and Helene Donnelly agree with the points you made about the CQC, and, secondly, are there other obvious steps that can be taken to quicken the pace of change?
Helene Donnelly: I think that my role as Ambassador for Cultural Change—I know there is one similar: Delilah Hesling at Brighton as a patient ombudsman—is real and tangible. While I am not in any way dismissing a lot of the Government responses post-Francis and a lot of the initiatives that are beginning and being put in place—they serve a purpose—they do not filter down to the front‑line staff, which is really where we have to get, and to middle management as well in terms of leadership.
That is where my role comes in. I am visible and tangible, and I actually go out and seek issues and concerns. I do not just wait for people to come to me. I am proactive rather than reactive. I go to them and understand, and I have a voice to raise issues at the highest level. By doing so, we actually nip things in the bud as well. Rather than wait for things to escalate and become a massive problem, we want to resolve them at a very informal local level. Equally, if that is not possible and it needs to go further, I will help them navigate the system and give confidence so that they feel they can do that.
That is one role that could be implemented in all trusts with a relatively standardised format. It would need to be tailored, I appreciate, but it could report, as a network, to the CQC, and also relate soft intelligence, themes or common trends. Again, we could highlight and pinpoint the hot spots before they escalate and become a massive problem for patients.
Q71 Chair: Have you in your trust had any exposure to the CQC interest in this issue?
Helene Donnelly: Yes. Very early on, David Behan asked for my job description, which he has had, and I have spoken to him at length on many occasions, and also to David Prior, to discuss whether it would be possible for them to inspect the role as part of routine inspections, because I really worry that the role would be taken on and it would just be a tick-box and be paid lip service. The very wrong people could be appointed to the position—the bullies, the people who would not get it, who would not be tenacious enough to take things further. I want to see that it is inspected and monitored, again to give staff confidence. David Behan and David Prior do not see a problem with that.
Dr Holt: This role would be a very positive thing to have in every trust. However, Helene points out in her evidence—and I am sure she agrees—that it is the attitude and the membership of the board, and the leadership from the board, that makes the real difference. Things went wrong in Stafford where the leadership on the board was inadequate.
We have made a proposal for an early intervention statutory process, open to staff and to NHS employees in the Department of Health, which is something that will come in before relationships within teams become destroyed, and which can address the patient safety issues much earlier. Our belief and our evidence is that taking patient safety issues to tribunals is not doing anything for patients and is wasting a huge amount of money as well as destroying health professionals who get into those situations—destroying their lives.
I am one of the very few whistleblowers who have actually kept hold of their job, but I did have four years not in my job, which was clearly very stressful. In the meantime, what happened to the patient safety issues? I think it would be worth looking at, if possible, the proposal we put forward to the Department of Health, so that we can resolve issues at an early stage, where there is disagreement, and we can focus on patient safety, everyone can get back to work and things do not deteriorate into an employment issue.
Q72 Chair: One of the related issues this Committee has regularly recommended—though not yet acted on by the Government—is that the prime responsibility for monitoring patient safety should rest with the CQC rather than NHS England. Is that something on which you have a view?
Dr Holt: We feel quite strongly that the prime responsibility should be within the organisation and should be held by the board. I think at the moment in lots of places it is front‑line health professionals who are carrying the anxiety around patient risk, and it is not being appropriately picked up by senior leaders within the organisation. We need to get away from that, because it is extremely stressful for people to be working in chronically understaffed wards, for example, or in areas where systems are failing and the staff are left there. That needs to change, and that is why we want the early intervention process to be made available, so that people can go there and seek some support.
Cathy James: I would echo Helene’s concern. Helene’s role is really important, but I think it needs board support. If it does not have board support, there is a danger that that individual has an incredible amount of pressure on their shoulders. In Brighton it has been quite a challenge for the individual doing it, albeit a successful trial; it has been a challenge at times to get listened to. The role of the board is really important.
Looking back at past experience, of course, Public Concern at Work ran the advice line for the Department of Health for a considerable number of years and have provided advice during the time since the Public Interest Disclosure Act came on to the statute books. We are always saying that the Public Interest Disclosure Act is not the driver for these policies; it is not why you have good whistleblowing arrangements; it is not why you have senior people able and trained in thinking about how they deal with staff who come to them, how they deal with issues around confidentiality and so on. The Public Interest Disclosure Act is where it has gone wrong. Every time anybody has to use it, it is a sign of something that has gone wrong. It needs to be strengthened as well, but that is a separate piece.
Having worked as the advice service, and on reflection, I think we did not have enough profile in each trust that we were meant to be promoted in. It was a bit of a sticking‑plaster approach. Every time we reported back to the Department of Health we were saying we wanted to do more in‑depth work, a kind of road show, really getting some sensible messaging out there across the staff. It is reflected in the numbers coming through to our advice line.
Only 30% of people come to us before they have raised anything. Most people come to us at the point at which things are starting to go wrong; that is when they say, “Okay, I have a problem. Now I need some advice.” People are not aware of the support that there is. Looking through some of the submissions that have been put through to the Committee from the Department of Health and particularly from NHS England, they are incredibly Public Interest Disclosure Act focused. That is coming at it from the wrong end of the stick.
Helene Donnelly: Exactly.
Q73 Rosie Cooper: Following on from that, you have partially already answered my question. The Committee has taken the view that health care professionals have an unambiguous duty, a professional duty, to raise with the relevant authorities concerns they have about safety and quality of patient care, and that similar duties fall on managers. The duty on trusts and care providers is to provide that environment, but you have just said to us very clearly that the stress should not be held by the front‑line clinical staff, and that the attitude and leadership of the board in those cases is inadequate. Almost conflating that, how would you address it? How would you, if the problem stems from board level, get the board to address it, or NHS England, the Department of Health or wherever? How would you address that board issue?
Dr Holt: I think it is around selection of who is on the board, and I am not au fait with how that works—I believe the Department of Health have something to do with it. It is about looking at the attitudes and experience of people on the board, and that people on the board who possibly have been involved in, say, misdemeanours in the past should not be appointable to a new board. We support the statutory duty of candour, which we think would help and would also put an additional obligation on the organisation.
Q74 Rosie Cooper: Would there be a statutory duty to listen?
Dr Holt: The other thing is to have training. Sometimes, when there is a problem, with resourcing particularly, and somebody comes along and says, “Look, I am really worried because there is not enough staff,” the immediate response is, “Well, we haven’t got enough money.” But actually the answer is to have more training, especially for middle managers, and to say, “It may not just be about putting in additional nurses. It might be about working differently.” It is also to look at the cost savings. I have spoken recently to Umesh Prabhu, who is a medical director in Wigan, and he was saying that by getting rid of agency staff they saved millions within their trust. Just by looking at how you can work differently you can make things happen, but you need to engage with the clinicians.
Q75 Rosie Cooper: How would you address that problem in the following example? A CQC report was issued recently where they inspected 10—I will call them—domains. The trust failed all 10. There are enforcement notices in two, with bullying as a prime reason. How would you address that? Who and what do you think should deal with that situation? The CQC have the report and will go back, but how does the board—this is a crisis—
Dr Holt: Yes, it is a crisis; it is an emergency. When there has been shown to be any cover‑up or dishonesty, there has to be accountability, and that is one of the things that we feel is lacking at the moment. There is no accountability. We find that the front line are the ones who are getting regulated, appraised and revalidated, but it is not being mirrored by people at more senior levels being held to account for wrongdoing. That is an injustice, both to staff, but mainly to patients.
Helene Donnelly: The difficulty, when it gets to a crisis point like that and the CQC are in and find it is almost systematically failing, is, “What do we do now?” I think this is where prevention comes in better than cure. If we can try to create cultures and environments that enable staff to raise concerns, and they are acted on before it even gets to that, we will not get to that crisis point. I know we are in that now, but with long‑term thinking—
Q76 Rosie Cooper: Do you think you can really change the culture while retaining the same people who have maintained that culture for a number of years?
Helene Donnelly: I think in some cases you can and some you cannot. You have to just go on the individuals. There are some people who are failing not through any want of trying, and are working to their best ability under the pressures that are placed on them; they are failing for those reasons. There are other people who are failing because they are the wrong sort of people in the wrong sort of job; they are not patient focused or even staff focused, and those people should be out. We do not want them in health and social care. Until people have the guts to face up to that and act upon it, we will not change the culture.
Q77 Rosie Cooper: Who would act? That was really my question.
Helene Donnelly: I think the CQC are in the prime place to go in and certainly identify that there is a problem.
Q78 Rosie Cooper: Could they get rid of boards?
Helene Donnelly: I think potentially, yes, they should be able to.
Cathy James: On the failure to act on those who victimise whistleblowers, if there was a sanction against somebody who was proven to have victimised a whistleblower, it might start to change behaviours more than anything else. It is something that, as a charity dealing with these issues for 20 years, we have never seen happen. You see the whistleblower get victimised, you see them enforce their rights and you see the patient safety issue or the public interest issue perhaps get ignored. You do not see the flip side. It is very difficult to get the good news out there. I think it is there. Most organisations are not set up to do bad things. We have to have a bit of trust in our systems, but all too often it is the bad news that gets reported.
We have done some research on our advice line, and failure to listen is a big factor in making people feel that it is all too unsafe and difficult. Three out of four people who have come to us said they were coming because nothing had been done about their concern. The failure to listen needs to be addressed, and there has to be some really intensive training around that. I also think that it is not necessarily always the bad organisation out to ignore. It might be because they have so much else on their plates, or there may be very benign reasons; they simply do not know how to handle it, or there is not a system that they can escalate up through to the board, and the board have not been listening in the past. Really looking at all the systems might make a difference, and some really intensive training on it for middle managers.
Helene Donnelly: Yes.
Q79 Charlotte Leslie: I want to move on a bit from Rosie’s point and ask for your response to an odd symmetry that you seem to see. Someone who raises a concern tends to be victimised and then not get a job. I would like your views on whether that is the case or not. But, often, those they may raise a concern against, or those responsible for not fulfilling their duty of care towards patients and staff, happily go on to another job that is often better paid. The oddity is that I can only think of one case recently where a manager has been held to account, or was being attempted to be held to account, and that is because they are still registered as a GP, and the body that oversees that discipline, if you like, is the GMC. Do you recognise that description? Let me go back to what kind of disciplinary process it should be. Does there need to be a GMC equivalent for managers and do you recognise the picture I have just presented?
Helene Donnelly: Yes, I certainly recognise it. From my own personal experience, that is exactly what happened. The people I was raising concerns about went on to get promotions. Yes, I recognise that, and, yes, I think there needs to be some sort of regulation for managers and leadership, because it is very hit and miss. There are some really good ones and some that are not. There needs to be a code for them just as there is for other professionals.
I also think they need support, because I think middle managers in particular get a lot of bad press and they are in a very unenviable position, sandwiched in the middle. They get squashed from both sides and often cannot really effect change. They feel quite impotent; they don’t feel empowered. If they cannot resolve the problem that is coming up from below and they take it further and say, “I am sorry, I cannot do this,” they are considered a failure because they have not been able to sort it, so they themselves can be dismissed. Even the most well‑intentioned of those managers cover things up, or do not escalate them and do not take any action because they are afraid themselves. But obviously the net effect of that is still that patients and staff are suffering at the end of it, so absolutely, they need support and regulation.
Cathy James: All too often ruthlessness is rewarded. In the target culture you do as you are told, “Do as I say,” and when you achieve that, that gets rewarded rather than the caring patient‑focused NHS that we would like to see, and that we all love and support.
Dr Holt: I would like to talk about the nurses who are registered with the NMC and the doctors who are registered with the GMC because, theoretically, they could be referred to one of those regulators and could be held to account through their professional regulatory body. What we are finding, particularly with the GMC, is that, where a doctor is in a medical management role, there seems to be an issue with them being held to account for making decisions that impact significantly on patient safety. In my own particular case, the medical director who was involved in trying to enforce a confidentiality clause on me, for example, was excused.
Q80 Charlotte Leslie: Are you saying, in layman’s terms—it is not that you are being unclear, but I am being slow—that the GMC, in a sense, is softer on doctors if they are in management positions?
Dr Holt: Yes. That seems to be the case. I definitely think there is an issue with professional regulation, how they function at the moment, particularly with regard to those in managerial roles, that needs to be looked at. We have some case studies, which we have offered to share with the GMC and the NMC, which show that actually whistleblowers are at risk of being referred and punished through the regulatory system.
Q81 Charlotte Leslie: Have they taken you up on that offer?
Dr Holt: We are just at the point of presenting those cases. They have been quite difficult to engage with in that regard.
Charlotte Leslie: I am sure you will not find any barriers, but, if you did, perhaps the Committee could recommend that they welcome your offerings. I am sure they will, but hopefully you will not have to use that.
Q82 Chair: Before the Committee endorses those, it might be interesting to see some of the evidence.
Dr Holt: We would be very happy to submit that to you.
Q83 Chair: If you could send to the Committee—share with the Committee—some of the cases, that would provide us with further and better particulars.
Dr Holt: Anonymised, yes.
Cathy James: The GMC code of practice was recently reviewed, or in the last couple of years, and they are one of the only professional regulators, in their defence, to have management issues in their code of practice around the raising of concerns. There are not many professional regulators that have said what the duty is on somebody in a management role who receives concerns. Whether it is then acted on in practice is another matter, but they are along the way in thinking about it as a duty that is as important as the professional duty to protect patient safety—to deal with concerns that are raised with you when you are in a management role. There probably has not been very much training around that, though.
Q84 Charlotte Leslie: I have been doing some work with a member of a medical royal college looking into a potential teaching royal college. In teaching there is a national college for school leadership, which is more of a managerial professional body. This member of a medical royal college said, “Goodness me, I wish we had something like that in medicine.” Do you think there is a place for professionalisation—a GMC equivalent, if you like, for managers but also to provide support—a royal college equivalent for managers to provide that kind of professional ongoing tuition and support that you talk about, perhaps not a royal college as such but a professional body to support, inform, teach and lead? You are nodding.
Cathy James: Yes, it sounds—
Q85 Chair: Can I offer a slightly different view, if I may, exercising the Chair’s prerogative? Before we go too far down the road of creating a specialism of health managers, is it not also sometimes said that the health service suffers from being too much of an island from other forms of good management practice, and if we are seeking to define the role of a health service manager, with a whole structure of royal colleges and regulation around it, does that not further entrench the sense that the health service is an isolated beast with no access to the management expertise that prevails either elsewhere in the world or elsewhere in the UK economy? Is that not a danger?
Dr Holt: If it worked, I do not think we would mind too much. But there has to be clarity around what are the expectations of good managers because, at the moment, it seems to be very variable.
Cathy James: It is the lack of accountability in those positions. There is some accountability with the ability to refer people to the GMC around victimisation and whistleblowers, but I am not sure that is a well‑trodden path. As Kim said, it has been the case that people have been victimised using that as a process, but there is not accountability for the management role.
Q86 Charlotte Leslie: Do you know of a manager who has ever been struck off?
Cathy James: No.
Dr Holt: They cannot be struck off if there is not—
Cathy James: No, but even in the GMC that process is not a well‑trodden path—that kind of accountability.
Charlotte Leslie: Even in the GMC, there is no chance of being struck off, and if you are not in the GMC and you are a manager, happy days.
Chair: Shall we move on?
Q87 Dr Wollaston: I want to start with a question for Cathy James, please. Most of the attention has focused on those who are seeking to raise concerns about patient care within a hospital setting. Is it any more straightforward in other health care settings, such as the community or social care? What is your experience from people who contact you?
Cathy James: We get calls from across all sectors, but a third of our calls are from health and social care, so we see the challenges as equally difficult; in social care, it can be particularly around knowledge of professional duties, or perhaps putting a duty on to staff without the corresponding support. That is one of the challenges; you are stuck between a rock and a hard place when you put a duty on somebody.
We have certainly seen, in the care sector, that being used as a weapon against individuals. Having been told in their induction that they have to raise a concern when they see one, if they delay in reporting because they are unsure and they are scared, and there is perhaps a very unpleasant culture, when one brave soul does speak up and others then follow because they see that something is done about the issue after the abusive person has been disciplined, those who did not speak up quickly enough are also disciplined. That is a really unintelligent approach to how to inculcate a good culture.
Q88 Dr Wollaston: That is interesting, isn’t? We are trying to change a culture so that people actually feel responsible if they do not report it, and it should be just as much a failing. How do you get round that?
Cathy James: That is a dangerous road. When the NHS constitution was amended, we responded to the consultation around that, because originally there was a duty to raise concerns. If you are putting a duty on everybody to raise concerns without support, you are going to be in a worse position. We very strongly lobbied the Department of Health to change that to an expectation, because that is less of a “Damned if you do, damned if you don’t” position, where you have such a large number of people not being listened to and positively suffering. In our research, 60% of people who come through to our advice line are not saying they suffer, so it is not that everybody who raises a concern suffers. That does mean that 40% do, and that was across all sectors. We did a bit of looking across health and care to see how the two compared, and it was broadly the same.
Q89 Dr Wollaston: It is interesting; the point that was raised from the Francis inquiry was that it was an issue, particularly with some doctors just looking the other way when things were going on. You think the balance is right if you say there is an expectation. You would not agree with what the GMC are saying—that doctors should be disciplined if they do not raise concerns.
Cathy James: Where it is a professional duty, where you are a professionally trained doctor, perhaps nurses as well, I do not have so much of a problem. The problem is when it is put across the entire work force, without the corresponding training around what your responsibilities and duties are. I do not have the same argument around a professional duty such as in a medical profession. Of course, that is front and centre—it should be—and that is why you are a doctor: to protect patients and to do right by your patients.
Q90 Dr Wollaston: You think there is a different standard that you would apply. Take Winterbourne View, for example, where there were members of the care staff who were clearly aware that there were awful abuses going on. Where would you draw the line? Is it a matter of the degree, the severity of what they are witnessing, or is it whether or not they are supported?
Cathy James: That is a really interesting case, because the whistleblower in that case did not see—he was a qualified nurse—what the “Panorama” journalist filmed. He did not see that because he was prepared to challenge. It really shows how important it is to champion whistleblowers and people who will speak up. He did not see that. He saw a chaotic environment; he saw alarms going off all the time; he saw an unpleasant and unsafe environment for those very vulnerable individuals. He did not see the type of terrible behaviour that a journalist who sat there and did nothing saw. There were some professional people in that film, and I hope that they were disciplined if they did not take seriously what they had seen. It made me cry when I watched that programme; it was absolutely appalling. But the whistleblower did not see the same stuff—
Q91 Dr Wollaston: In other words, challenge protects.
Cathy James: Those people would not behave in that way around somebody who took their professional duty properly, and dealt with them and questioned things when they came up. It is a really clear example of why we should all be championing whistleblowers and people who speak up.
Q92 Andrew George: On the issue of whistleblowing—in fact moving on from that very point—I particularly wanted to explore whether we are able to differentiate between issues of fitness to practise versus issues of resource, and where a whistleblower is raising matters of competence, professional capability or callousness and so on, as opposed to those whistleblowers who are saying, “There just are not enough of us,” or “There is not enough resource here for us to be able to care for patients.” Is that a reasonable disaggregation, or do you think that the two go hand in hand?
Cathy James: It becomes more difficult when it is about those more challenging issues that there is not a ready answer to. If somebody who witnesses abuse reports it, you would expect action to happen. Where it is about resources, it becomes more difficult. When we are advising people on the advice line, we talk about trying to link that to the risk to patients that you are seeing as a result—the low numbers of staff, the kind of things that are missed because there are not enough staff on duty or the kind of stress that has resulted on the remaining staff, the amount of sickness absence there is.
The person who speaks up is another safety net for highlighting other factors that are bound to be clear where there are dangerously low levels. I do not think anybody has the answer. It would be great if there was some indication of the level of safe resources that are needed for particular types of care, and I know that is a challenge across the entire health service. We would not say to somebody that there is an absolutely clear whistleblowing case when it is not so clear where the line is in relation to right and wrong; it is one of the more challenging areas for people to speak up about. Linking it to the things that are going wrong as a result of the low resources is how we would help somebody to raise that issue.
Helene Donnelly: If they have to whistleblow, though, that could indicate that there is a problem with both and they are going hand in hand. If the only problem is a resource issue, you go to your line managers or above and say, “We have a real problem with staffing,” or whatever, and then you would expect the response to be positive, proactive and help you look at ways of addressing that issue. If those are ignored, and it then goes hand in hand with people who are bullying, showing poor behaviour, misconduct and a lack of care, it will escalate and the resources will still be failing, poor and inadequate. That will just get worse and the poor behaviours will also get worse. That is where it goes hand in hand. If it is just a resource issue, it should not need to get to a whistleblowing level, because you should raise it and it should just be addressed.
Q93 Andrew George: But it was not in Mid Staffs, in your case.
Helene Donnelly: Certainly not. In my personal case, there were both. It was the fact that we were trying to raise issues around poor staffing and so on, which linked to the falsification of the breach times. The reason we were not hitting the breach time was that we did not have enough staff and beds, not enough basic things. But then it got confused because we were bullied to keep that quiet. Rather than recognise that fact and address the resources to help patients, we were bullied and the lack of care and compassion ran all the way through, because, let’s face it, if you care and you are compassionate at whatever level you will not want to see patients suffering like that. Whether you are a front‑line member of staff or an executive, you will see where there is a problem and think, “Goodness me, that could be my mother on that trolley. Let’s get the problem sorted.”
Q94 Andrew George: But why would a line manager, to whom you, in these cases, complained, reject or deny such concerns? Is it because of resource pressures placed on them by senior managers—in other words, “You must meet these financial targets and therefore you must turn a blind eye to the consequences”?
Helene Donnelly: Yes, it is targets. I have said before that, in essence, I agree with the notion of targets. Nobody wants to go back to the days of patients being on trolleys for 12 hours-plus. However, where you are not able to meet that target because you physically do not have the resources to do it, that should be acknowledged and recognised, and the staff should not be punished as a result; and you should not necessarily be fined as a trust because that is just going to exacerbate the problem.
It should have been recognised that there was a massive understaff, medically and in nursing and so on, and it should have been addressed, but actually managers, right the way down, were being pressured. The notion of lying to cover it up and make it look like they were hitting targets was good, because it meant that the trust was going to get foundation status and not be fined. That pressure then filtered down to staff lying about it.
Q95 Andrew George: I want to carry on asking Helene, if I may, about the issue of your Datix report saying there was insufficient staff, and that it had not been acted on. On the issue of resource, I often hear of cases—I guess it was the same with yours, although I do not know in your case how the bullying came—where staff complain that the bullying arises in the form of placing it in the context of the environment in which everyone else is working. In other words, “Well, everyone else seems to manage with this level of staff, so why can’t you? We will have to look at your competence.”
Helene Donnelly: Absolutely.
Q96 Andrew George: You would describe that as bullying.
Helene Donnelly: Yes, definitely. In fact that is what happened, because it was by no means just me alone raising these issues. One of the sisters who would not lie about the breach times and would put patient safety and care above the target of the four hours was literally told that it was actually her failure, and that the reason she had more breaches was that she was failing to run the Department properly, and she was performance-managed as a result. The two sisters who were routinely lying and bullying others to do the same, both medical and nursing staff, were rising up the ladder.
Q97 Andrew George: If that is the case, surely it is not just a question of having robust whistleblowing procedures in place; you must have some kind of benchmark against which you can judge the resource. If you do not have the benchmark—
Chair: It is a rather more basic benchmark than that, is it not, which is that if you are filling in a form you have to tell the truth?
Helene Donnelly: Absolutely.
Q98 Andrew George: Okay, but in this case you can bend the truth. It is all very well having procedures in place, and wanting everyone to behave properly, but if you do not have benchmarks against which you can measure the resource going in, if it is a resource issue, there will be people who will try and bend the truth, surely. Is that not the case? You need to have the two coming together, don’t you? You need these whistleblowing procedures—grievance procedures—and you also need a benchmark against which you can measure whether the resource is safe and sufficient.
Helene Donnelly: Yes, you do, definitely, otherwise you cannot compare.
Q99 Andrew George: But that is not contained in any of the recommendations you are making in respect of complaints and whistleblowing.
Helene Donnelly: Because the complaints and whistleblowing go beyond that, you would like to hope, as has just been said, that people would do the right thing and just tell the truth. But obviously we know that that is not happening. You can have as many benchmarks as you like—obviously they serve a purpose—but, equally, if you are not going to have staff who will step outside that and say, “Hang on a minute. The king is wearing no clothes. Somebody is lying about this and we have a problem”—
Q100 Andrew George: Okay. What is contained in your proposed national standard—the NHS raising concerns strategy? I know you have met a large number of people, including the Secretary of State. Is that something you have discussed with them?
Helene Donnelly: In terms of benchmarking?
Andrew George: No, in terms of the national NHS raising concerns strategy, which is your proposal.
Helene Donnelly: Yes, I have. I have discussed it at length.
Q101 Andrew George: What is contained in it?
Helene Donnelly: In terms of my role and how I see it?
Q102 Andrew George: No, your proposed standard for raising concerns.
Helene Donnelly: The code of practice?
Andrew George: Yes.
Helene Donnelly: Again, one of the major things is just for people to tell the truth, but obviously when that is not happening you need to support and facilitate people to raise concerns, ideally not even at a whistleblowing stage. It should just be going to line management, or, if that is not effective or appropriate because they are perpetrators themselves, going above that, and above that.
This is where my role again comes in, because I have complete autonomy. I report directly to the board. I bypass managers and take it to the board so that they are aware. Clearly, they do not necessarily get involved in sorting the issues, but they are aware it is happening and, obviously, if it does not get sorted at that level I go back to them. I have not had to, fortunately, in my trust at the moment, but I have made it very clear that if we get to the problem that we had at Mid Staffs—that even the board are wilfully dismissing it, not tackling the real issues and also preventing people speaking out in turn—it needs to go elsewhere, and that is when the CQC comes in. You can have as many targets and benchmarks as you like, but unless people have the resources to deal with those issues, and unless you give them the courage and confidence to speak out and raise it where that is not happening, we are not going to get anywhere and the culture is not going to change.
Dr Holt: I am desperate to say something. This is exactly where the early intervention proposal would come in. If you are working in a dysfunctional team or in an organisation that is not listening, this brings an external expert in and links with the CQC. It means that the system is then opened up to scrutiny at a much earlier stage.
The problem is that where these issues fester, such as happened in Helene’s situation, the bullying starts to have an impact on team relationships, the patient safety issues get left and we end up with the very poor standards that we got. We need some way to call in a statutory process much, much earlier. If your organisation happens to be one that is not listening, it means you have another avenue to go to. That is why we are advocating that quite strongly.
Q103 Andrew George: Cathy James, in the Public Concern Whistleblowing Commission, you are proposing what I suppose must be a nationwide policy. Certainly your code is one that you are advancing at the moment. How far have you got in terms of being able to roll it out to get trusts to take it on?
Cathy James: We did a detailed piece of work. We commissioned eight independent whistleblowing commissioners to look at several pieces of evidence and research from our advice line, a piece of research that looked at business practices, a YouGov survey of public awareness and attitudes, as well as a public consultation with various questions.
Some of the questions were related to the law and some were related to attitudes and awareness of whistleblowing, and we came up with some recommendations. The main one was a statutory code of practice. That is a code of practice that is intended to be relevant for those that end up in the unfortunate position of having to fight a case in the employment tribunal. It is at that point that it becomes measurable by a court, for example. Prior to that it is something that organisations can measure themselves against, or that regulators can measure those about whom they regulate across all different sectors. There is not only a process around a written procedure for whistleblowing but also then an audit and review.
For many organisations, the numbers game presents many challenges. Does the fact that nobody has used the formal process mean that we have a very good informal process and our line managers are dealing with things all the time, or is it actually a sign that we have a culture of silence? How do we look at other areas in normal management controls, in management information systems, and so on, to really sense-check whether the whistleblowing arrangement is effective? That needs independent oversight by the board—having a champion at board level in all organisations that looks at how whistleblowing policies are put into place, how individuals are trained and made aware, how trust and confidence in the system operates—and then publication of those results.
Q104 Andrew George: Could I ask all three of you this, but certainly Cathy? As far as the code of practice is concerned, can you reassure me and the Committee that putting in new whistleblowing, and indeed grievance, procedures to enable staff to raise issues cannot be simply abused? How do you distinguish between genuine whistleblowing and, if you like, a vexatious member of staff who is seeking to pursue a personal grievance against a fellow member of staff?
Cathy James: That is one of the things that came out in the recent change the Government put into the law—the misuse of the Public Interest Disclosure Act for private employment disputes. There was a sense that, because the law is drawn very widely around the types of wrongdoing that it covers, somebody who is complaining about the way they have been treated may be using it defensively in an existing dispute against the employer, and that is why a public interest test has been put into the legislation.
But one of the challenges for the legislation is that it does not require organisations to do anything; there is no guiding principle around how organisations should operate a whistleblowing procedure or whistleblowing arrangements. There isn’t benchmarking, the ability to review against peers, particularly in the health sector, to be able to understand what other organisations are doing, and for the regulator to be able to look at what other organisations are doing and ask questions about how those arrangements are tested in practice—“What is the board doing to make sure that it is not just a policy that is stuck in a drawer and nobody knows anything about it?” That is exactly what was happening at Mid Staffs. They had a policy; it was long, it was legalistic and it put the duty of fidelity above all else, and the board were not looking at anybody who used it, so it was completely pointless. Exactly the same was happening around patient complaints, as I understand it. The two mechanisms in that trust that would have given the board an idea of where things were going wrong were completely ignored. This is a safety net. I do not want to live in a country or go to a hospital where the safety of the system is reliant on a few brave individuals speaking up. It is a safety net. But we should be championing those who do speak up and really inculcating a culture where it is encouraged.
Q105 Andrew George: Are you both content that it is possible to put in place a system that empowers the whistleblower responsibly to raise issues and that you can distinguish between that and the vexatious individuals who are simply seeking to settle a score?
Dr Holt: Definitely. You can definitely distinguish, because the individuals that come forward to us are often high achieving and have had unblemished records. Then they raise a concern and suddenly they are being marched out of the office, or they are being shouted at or treated in some other horrendous way. You can tell that through their history.
What we have to do is get away from whistleblowing being about employment disputes. The code of practice is fine if it is being followed, and that is one of the things I think the CQC could be looking at, but there needs to be an avenue where people can go externally and get proper support. At the moment there is not the support out there. The reason Patients First exists is that there is not the support, even from the trade unions. One of the things we are hearing from nurses in particular is that, if they seek support from the RCN, they are very unlikely to get legal backing to pursue cases.
Q106 Andrew George: Is this right, Helene?
Helene Donnelly: It is, actually. That is what I am hearing as well from people in my trust. As I put in my evidence, I am being contacted by people all over the UK coming to me because they have nowhere else to go. In some of those cases, they have been failed by the RCN in the past, which is why they have not gone back to them. There is no role like mine in place in their own organisation and they do not know who to go to. Some have phoned helplines such as Cathy’s, and the Department of Health, but they perhaps need to speak to somebody a little bit further down the line and they need some advice.
I think the issue around some of the unions is absolutely right. What is really concerning is that not only do some of those who genuinely need support not get it—I am not saying they should not have support because you pay your subs and are entitled to a defence—but there seems to be a disconnect between defending potentially the indefensible, in some cases, with appeals, which are quite a lot of money, and those individuals who do not get a defence at all.
Dr Holt: That is because whistleblowing cases are extremely difficult to win. What happens is that the unions will weigh up the cost. They will do a cost appraisal of the chances of winning, so quite often people have a very strong case, but because of the legal challenges in the way the union will say, “We are not going to support it.” But we should not even be getting to that stage. We have very good examples of people vindicated as whistleblowers who have won their cases but still lost their jobs, and that is wrong.
Q107 Rosie Cooper: You talked about the culture of silence. Are you aware of community trusts where they use HR not as in employment law, but in restructuring—making people disappear—and disciplinaries? People are using restructuring or reorganising to get rid of the people who ask the difficult question, who say, “This is not safe,” and that kind of thing. That culture of silence is reinforced—in fact, is established—by the rule: “If you speak out you will lose your job,” and everybody then shuts up.
Dr Holt: In my own personal case, HR changed the outcome of the grievance that I lodged against a manager for bullying me, so HR was directly involved in modifying what actually happened. I have that documented. We also have as a member of Patients First the ex-HR director of the Christie hospital. She has revealed a number of strategies that have been used against whistleblowers, and that is one of the reasons why we have written to the Secretary of State and asked him to intervene in that particular case. Monitor, I understand, are now investigating that particular hospital. Misuse of redundancy, I understand, is one of the issues.
Cathy James: Change management—to use that unpleasant term—is basically looking at restructuring and losing jobs, and in those circumstances people are far less likely to speak up if they sense that, if you do, you will suffer; you will be marking your card and then in the redundancy you are the one that gets picked out. It certainly is not an unknown tactic in organisations that are getting this wrong.
Q108 Rosie Cooper: How would you measure it? How would anybody focus on that? How would we see that?
Cathy James: It is an unfair dismissal. In the end, unfortunately, those are the cases that end up going through to the employment tribunal with a big fight for the individual not only to get justice around the public interest issue that they have raised potentially, but also their own battle.
Q109 Rosie Cooper: The trust I am thinking of has also just paid people off—got a compromise agreement, paid them off and away they go.
Dr Holt: Calling it redundancy, when it is actually to move someone on.
Rosie Cooper: Yes, and in fact I would very much like to talk to you later.
Cathy James: One of the things that we are talking about in the code of practice is that we expect trusts or organisations to publish the litigation that they are subject to, so PIDA cases are published, and in health that would end up getting some information around the types of case that are being brought against trusts.
Q110 Rosie Cooper: Do you think each trust, community or acute, should publish the amount of money they pay off in redundancy, or whatever?
Cathy James: They should be transparent around the spending of our money, yes, definitely.
Dr Holt: You may be aware that I am trying to help the CQC look at how whistleblowers are treated. One of the things that we are drafting involves looking at the HR standards in terms of how disciplinaries are managed, what payments are made to people and how people are treated when they are identified as whistleblowers.
Q111 Rosie Cooper: But if a trust does not publish the number of disciplinaries they do a year, and the amount of money, it is like a closed shop, and you never see it.
Cathy James: Yes, and that is one of the arguments that we have about the publication of the information on how many Public Interest Disclosure Act claims there are, and access to that information. At the moment, the only public information about the operation of the law is at the time it gets to a judgment. That is the only public information about the types of issues that are raised, the types of concerns, the way that people are treated and which sectors these cases are coming from.
We have had a 10‑year lobbying campaign around getting early information, when the claim is presented, because there is nothing on public record about 70% of cases that are settled where they are bringing a Public Interest Disclosure Act claim. I personally do not have any problem with an individual who has tried to do the right thing, and has suffered and ended up fighting for their job, being paid compensation. That is what PIDA is doing. It is trying to put someone back in a position as though they had not suffered. But we should know about it.
Q112 Charlotte Leslie: I have a very quick question, just to Cathy. Your code of practice or code of conduct that you have put together and helpfully attached for us is very interesting. Obviously a good organisation would actively want the kind of people who are going to speak out. What kind of response and interest have you had from, first, the private sector and, secondly, the public sector to your code of practice?
Cathy James: We have a campaign to try and get sign‑up of 100 organisations—just 100—to say that this code of practice is something that is operable. There will be many organisations that are doing much of what we are suggesting. It is not reinventing the wheel. It is building on the British standard code of practice that is already there, and putting it into a much simpler, shorter format.
We have around 30 or 40 organisations that have said that they can sign up to it. Interestingly, it is on the publication piece that we are getting a bit of a sense from organisations that that might be where they are slightly worried, particularly the litigation. I do not know whether the private sector may have more problems about that; perhaps there is a Daily Mail factor in publishing those cases where they are being sued. But we think in health, particularly in the public sector, that should not be an issue. It is public money that is being spent. There should be really open and transparent publication of how whistleblowing is being reviewed and the information that comes out of that.
Q113 Charlotte Leslie: Is there any difference in the level of interest between public and private sector, or is interest at about the same level?
Cathy James: I only know that there are about 40 organisations. It is a mix of different organisations. We certainly have had some health trusts coming forward. We did a campaign where we wrote to all chief executives and heads of governance across the entire NHS and we have had some interest from organisations that we have not been working with; obviously we work with some organisations as well. Some sign up to a subscription with Public Concern at Work and are putting us in their system and then doing a bit of work around actively promoting that.
Q114 Barbara Keeley: You have probably already started on this—it is mainly to Cathy but also to the others. The figures you have related to “Changes to wrongdoing at the first attempt to raise a concern”—clearly it might go on—show that there is a difference between care and health sectors, and that in 74% of cases in the health sector whistleblowers considered no action had been taken. The first part of the question is to what extent do you think any of that is lack of communication, or really are whistleblowers being ignored?
Cathy James: I think some of it is lack of communication; I think it is a training issue. When we did the survey across all organisations—we did a survey with Ernst & Young—that asked businesses what they were doing around whistleblowing, 50% said they were doing no training at all. Bear in mind that these were individuals who had an interest in whistleblowing, who perhaps had a responsibility for whistleblowing in those organisations, so I think there is a gap in the listening. It is listening to the concern and identification of the public interest issue in what the individual was saying, because often by the time they go to a senior person, by the time they have tried a couple of times to raise the concern, they are frustrated and perhaps their own position is being affected, so that gets mixed in with what they are saying.
One of the things that we think is a clear benefit of the service that we provide is that we try to draw the individual back from what is happening to them personally, to present the issue as the public interest concern that they are raising and to really highlight that it is in the organisation’s best interest to deal with something that is a clear sign of a problem. I do not think that for the three quarters of people who come through to us that the organisation is necessarily doing nothing, but they are not feeding back. The shutter comes down, and they are not prepared to communicate with you. They may not be confident about the rights and duties that they owe to the person who is raising the concern, and to the individual who may be accused. There is lack of training around the investigation process, and so on.
What also comes out from our research—it was into 1,000 cases across the advice line, across all sectors—is that people will try once or twice to raise a concern with their line manager and middle management, which is what you might expect because people feel that is a safe thing to do, and then they will give up. What is also interesting is that it is at the third or fourth time when they actually start to get some information back from the organisation about the concern, so there is a huge missed opportunity and a lack of communication. Organisations that do not listen will not know about their problems. In the end that is why whistleblowing matters; it is about preventing and deterring, and protecting the public interest, but preventing damage.
Q115 Barbara Keeley: It seems ridiculous to compare because they are not great figures, but the care sector figures are a little better. It seems pathetic to say that in a way, because it is not substantially better. Was there any indication when you looked at those 1,000 cases why the care sector is a little better? In fact, I suppose I have a second question. Is that something related to the bodies that do the investigation? Is there more investigation done by, for instance, local authorities?
Cathy James: I wish I could answer that in a positive way, but I am not sure. It may be because the care cases are perhaps about abuse and more serious issues and safeguarding has been an area—the safeguarding of children and vulnerable adults—where there has been a lot of training and work done. It may be that since all the inquiries into care, social care and child protection, perhaps professionally it is getting through on the safeguarding issue in a way that it is not generally across patient safety in health. There is the sense that you have to do something if it is a vulnerable person, and people will act even though they are worried and scared about it, and then the investigation might be better.
Q116 Barbara Keeley: Dr Holt is shaking her head.
Dr Holt: There are massive problems in social care.
Cathy James: I am not suggesting there are not. It is just a very small difference.
Dr Holt: In terms of investigation, there are massive problems in social care. A lot of it is around the empowerment of the staff. When I am talking to colleagues at work now and I say, “We need to complete an incident form or we need to highlight this as a risk,” there is still a real reluctance. There is a lot of empowerment of front‑line staff that needs to be done in terms of training and supporting them, and showing them ways that they can raise concerns. It may be that they raise it in the one way that they are used to raising it, but there are other ways that you can raise it. It is also about the tone of how you say things and the nature of the correspondence.
As you rightly pointed out, at times people can become quite emotional and it is important to focus very significantly on what the actual issue is, because sometimes it can get confused. There is a huge amount of training, but we cannot ignore the context in which the health service is operating. At the same time as having austerity we also have restructuring and reforms going on, and that makes people anxious. It makes people less secure than before; it is a very difficult time at the moment for people to feel that they can speak up.
Q117 Barbara Keeley: It would be my view, and it would be interesting to see if the figures in future show it, that there is a kind of pendulum thing. You talked about Winterbourne View, and obviously there are some important lessons to be learned there, but I think austerity is starting to bite, and lack of resources. I have had a very bad case in domiciliary care and I think that is down to the pressure of poor staffing practice.
The danger might be with care staff—say, in a domiciliary setting, but in homes as well—that it is very much easier to pin a complaint on a particular person. It is very hard for whistleblowers, I think, because they are very closely identified with who they are looking after. If you are looking after someone at home, it is often you that is the person that is looking after them and doing all their visits and, if there are any complaints about that, I have a real worry that—
Cathy James: No, I am not suggesting it is a rosy picture in social care at all. It is why we did a piece of research before we did the “Inside Story,” which was the 1,000 cases. We had a look at vulnerable adults because they were the types of cases that were coming up again and again—not very structured work forces and actually perhaps a vulnerable work force as well as the vulnerable individual. We were picking out from that that the safeguarding piece is perhaps something where there is more understanding. It was the medication. Abuse perhaps does get dealt with in a way, in that people listen when there is an abuse issue. I think Winterbourne View and the work that has followed might be driving that, but I am not at all suggesting that there are not still challenges in that sector.
Q118 Barbara Keeley: No, and I was not either, in drawing attention to those figures. Where you compare health and care sectors with employees in other sectors, do you think there is good practice that you could point to elsewhere that the health and care sector should be learning from? We have talked quite widely, but could you point to a sector that you have looked at and say they seem to be really developing good practice there?
Cathy James: It is a challenge, isn’t it? These cases are people who are coming to us for advice, so it is a skewed proportion of the work force. It is not a reflection of every UK work force, or even every health or social care provider. This is where somebody is either feeling challenged or worried, or actually is suffering. It is very difficult to get that picture about where the good practice is.
We certainly work with organisations who do a lot of work around promoting the principles that they put into their policies, making sure that their policies are understood, and in clear English and not legalistic, making sure that senior managers are aware of when people may come to them, and when they may need to be bypassed, so that managers understand that it is totally acceptable if there is a whistleblowing policy saying, “Here are some senior people you can go to,” that staff might do that, and it is not a reflection of a bad sign on their management. It might be for all sorts of reasons. We do a lot of training around that. But we train a very small number of people, and we work with a really small number of organisations in the context of the UK business sector.
Q119 Barbara Keeley: I know that you felt that using the legislation is a sign that something has gone wrong, because if they had good policies they would not have to rely on the legislation, but there are even gaps there, are there not? I recently discovered that Ofsted is not a prescribed person. It is surprising that the other bodies are and Ofsted is not and that you might get disclosure cases in colleges. It is quite likely.
Cathy James: I thought Ofsted was prescribed now. It certainly was not for a while, but when it took over a certain number of duties there was a transfer of the prescribed person with the duty. In education there is certainly some confusion around where individuals can go, and it is an area that is highlighted a lot on our advice line. It is one of the top sectors for people not knowing what to do or where to turn, because the sector is difficult to navigate in terms of the regulatory piece.
Q120 Barbara Keeley: Somebody else needs to do a piece of work on where the good practice is. It is the opposite of what you are hearing, is it not?
Cathy James: There are organisations that get this right; they do listen and they do want to know, and that is the sign of a well engaged and properly focused board. I think where an NED has responsibility for this and asks the questions, that trickles down and work starts to be done to make sure it works.
Helene Donnelly: We need to learn from other industries, such as the aviation and oil industries, which absolutely put safety at the top and make that very clear to all staff, and truly empower them to come forward. They train their staff very regularly in terms of how to raise concerns, and hail them as champions when they do, rather than saying, “It is your fault. It is obviously a failure on your part.” We need to learn from that. We need to learn from the training aspect of it.
We do not train all staff in the NHS and care sectors in terms of raising concerns. It needs to be mandatory. It is as important as infection control, moving and handling, and fire safety regulations. Why on earth is raising concerns not included at all levels? It needs to be in inductions, in curriculums for all education in nursing, medicine and the allied health professions, and it needs to be regularly updated so that it is not something where somebody has a one‑off and forgets about it.
It needs to be quite frequently revisited so it puts it at the fore and makes it absolutely clear that it is not just, “Oh, we have a policy on a shelf or on a hard drive somewhere,” but, “We are actually living the values and showing and demonstrating the importance of raising concerns, and we are empowering you to do it. We are telling you this is how,” and also, “We are telling you how to go outside the organisation if you need to. We don’t want you to do that, and let’s hope we get it right so you don’t need to, but if you are in a position where you need to, this is how to do it.”
Cathy James: We would rather you raise it than do nothing. That is the key to the policy approach that we have had.
Dr Holt: But then again when you go external, the external places need to know how to respond. It is a whole‑system issue. Many of us went externally and there was not the support that we needed, and we are still hearing that to a certain degree. We are hearing of some shift within the CQC but not necessarily elsewhere. There is a big problem. It is a system‑wide problem.
Q121 David Tredinnick: Good afternoon. I would like to ask you some questions about the Public Information Disclosure Act and its operation, or failure to operate in some instances. Both Patients First and Public Concern at Work note that the Public Interest Disclosure Act 1998 only comes into play when a staff member’s rights have already been adversely affected and does not—I know you know this but I am asking the question anyway—in itself encourage more open engagement. Does that mean that, if the Public Interest Disclosure Act is being brought into use in a given case, that organisation has already failed, to an extent?
Helene Donnelly: Yes. Basically, very briefly, I think PIDA serves a purpose, but it is closing the stable door after the horse has bolted; it is too late for that individual. It may offer them some compensation further down the line, but in terms of encouraging people to come forward in the first place and changing culture, it is not. It is actually going to silence people more, because they think, “Oh, my God, it is there if I need it but I would really rather it not happen in the first place.” We all know that there is a law, clearly, against murder. We know it goes on and we hope that people will be held accountable if it happens and there will be some justice for those involved, but actually people would just rather it did not happen in the first place.
Dr Holt: A surgeon actually said to me that it is a bit like having an operation that goes wrong. You then suffer the consequences of that surgery and you cannot really rectify it. Similarly, if your career is destroyed and the patient safety issues have been long forgotten, you cannot rectify that. It is there in the very last resort. The other thing to mention again is that nurses, midwives, health care assistants and care workers do not have access to the law, in that they do not have the funds.
Q122 David Tredinnick: Care workers do not have access?
Dr Holt: No, because they do not have the funds to take a case. It is very expensive to go to court, so a lot of people—
Q123 David Tredinnick: Lack of support is an issue.
Dr Holt: Yes.
Cathy James: I would have a slightly different view from Helene’s. If we did not have the law we would be in a different position, in the sense that it does signal a change in the culture in the UK around the protection of whistleblowers. If you look worldwide, there are very few countries that have the kind of comprehensive legal protection that affects every worker that we have in the UK. I think it is a really important operating factor. But, of course, when it is being used it means somebody has said, “I have questioned something and I have suffered and I need recourse to law.”
In one sense, that is when the damage has been done, and we should not be in the position in our public services that people feel that they have to have recourse to the law. There is a real imbalance in the employment tribunal as well around the representation of whistleblowers. We, as an organisation, do not have the resources, and we were not set up to represent whistleblowers through the tribunal process. That is a real challenge, because finding good representation for whistleblowers at an affordable rate is really difficult. A trust will have access to the best lawyers there are.
Q124 David Tredinnick: And you will not. Do you think that the Public Interest Disclosure Act needs to be amended, or do you think there should be another vehicle for your concerns?
Cathy James: There is definitely a role for earlier conciliation around whistleblowing cases. We have a list as long as your arm of areas where the Public Interest Disclosure Act should be amended, particularly around the scope of worker. I know that the Department of Health said that they have changed the law around the protection of health sector workers; I looked at the provision that has been changed, and I challenge anyone to understand what this piece of legislation means. It is absolutely incomprehensible.
Q125 David Tredinnick: The Act?
Cathy James: It is the extension that DH have put in their submission to you around the protection of health sector workers. It is incomprehensible. As to student nurses and student doctors, I have no idea whether they are protected or not. There is a whole raft of legislation that is referred to.
Q126 David Tredinnick: Just to be quite clear, we are not talking about the Public Interest Disclosure Act. We are talking about—
Cathy James: We are. We are talking about the protection, section 43K, which is one of the things the Minister—
Q127 David Tredinnick: We are talking about the Act, not necessarily the interpretation. The Department might issue guidelines based on the somewhat turgid prose that has been used in the Act. I do not know whether they do or not.
Cathy James: I think it needs another look, personally. I would challenge any lawyer to understand that, let alone any kind of worker who is not au fait with the law. In other words, there are areas where PIDA could be strengthened, and support for whistleblowers could be made clearer through the legal process. We made a number of strengthening provisions in the recommendations of the Whistleblowing Commission.
Q128 David Tredinnick: I want to ask you a couple of other questions. It is my understanding that it is often the case that what starts out as a staff member raising a concern ends up as an employment dispute—is that right?—or a professional conduct dispute, and the original issue is then overtaken by events? If that is the case, what can be done to try to make raising a concern and the actions that flow from it less adversarial?
Cathy James: The approach that we have always had in relation to whistleblowing is not to put PIDA front and centre in the way an organisation talks about encouraging their staff to speak up. If the Public Interest Disclosure Act is the driver, then of course people will not really understand it because the law is very complex; it is trying to strike a balance between the interests of employers and the public interest.
That is not a mechanism for making our health service safe and for encouraging people to speak up. It is a vehicle for protection that is not really about protection but about looking back at the damage that has been done. We have always said when working with organisations, and in the model policy that we talk about, in all sectors, but particularly in health, that the Public Interest Disclosure Act is not mentioned until probably the last line of the policy: “If you are worried about your rights, you can look it up.” It is the way somebody is going to sue an organisation, not the way an organisation encourages its staff to speak up. What they should be doing is giving very clear assurances on the position of the individual, clear assurances on confidentiality and clear assurances around not tolerating victimisation, and acting on it where people have meted out reprisal.
Q129 David Tredinnick: Fine. It does not protect whistleblowers but it may compensate them.
Cathy James: It is the use of the word “protect.” It provides protection in a way that is looking back at the damage that has been done.
Q130 David Tredinnick: How much compensation has been paid out under the Act? Do you have any idea? How effective is the compensation? How much of an inducement to take a chance and go to a tribunal is this compensation? Is it derisory? Is it generous? What is it?
Cathy James: It is unlimited. Like discrimination law and—
Q131 David Tredinnick: What is the largest amount that has been paid?
Cathy James: The highest amount paid out that we know of was £5 million under the Public Interest Disclosure Act.
Q132 David Tredinnick: How many £5 millions have been paid out?
Cathy James: I do not know.
Q133 David Tredinnick: It is a huge sum of money. Is it ring‑fenced?
Cathy James: That was, I think, a settled case rather than a case that went to tribunal, and it was in the financial services sector so it involved an individual who was claiming huge amounts of money over a long period of time in terms of their lost job.
Q134 David Tredinnick: So it may not have fallen under the Act anyway.
Cathy James: I think it did. It was a Public Interest Disclosure Act claim. There are uncapped damages. If you suffer to the extent—
David Tredinnick: It would be useful to know really—
Chair: It is because it applies way outside public service. It is wherever there is a disclosure in the public interest. That is the point about it.
Q135 David Tredinnick: May I ask one further question? This is really for you, Ms James. I understand that you provided expert input to a Council of Europe feasibility study for a legal instrument on the protection of whistleblowers, and that you are an invited expert for a European Commission‑funded study on whistleblowing run by Transparency International.
Cathy James: Yes.
Q136 David Tredinnick: What have you learned from that, and what bearing does it have on the domestic UK situation, please?
Cathy James: As I said earlier, the Public Interest Disclosure Act is one of the only examples in Europe; there are only three other countries that have comprehensive whistleblowing protection legislation. From all the work that we do, we feed that expertise into what we are lobbying and campaigning on to improve the law, so we look at whistleblower protection in the United States, and we look at whistleblower protection in other parts of the world.
Actually, the main part of our expertise comes from advising individuals day in, day out. We are using that expertise, the gaps and the problems that people face in raising concerns, in lobbying for change across all sectors, not only in Government but also with organisations. Organisations have a key part to play, because they employ the individual; they have power over the individual, so they are really a key part of our public education work.
David Tredinnick: Thank you very much.
Chair: Could we go to Sarah on the role of professional regulators?
Q137 Dr Wollaston: Yes. Perhaps I could come to Dr Holt to ask what you feel the role should be of professional regulators, like the GMC and NMC, and also the system regulators, the CQC and Monitor, in supporting people to raise concerns and make complaints. How could they strengthen their role in this?
Dr Holt: With regard to whistleblowers, I think there is definitely an issue, as I said before, in terms of ensuring that they are not punished through being referred to the professional regulator. This is something that needs to be scrutinised and looked at. As I said, we have some case studies where people who are, in our view, definite whistleblowers have suffered several years of unhelpful investigation, and then have that thrown out, but they have suffered huge stress and obviously it has an impact upon their personal life and their professional life. A lot of work needs to be done there.
If somebody reports a surgeon, a medical professional or a nurse to the professional regulators, and they are whistleblowers, the very least that we can expect of the regulator is that they should interview the person who makes that disclosure. I know of examples where a doctor was referred, the actual whistleblower was not met with and the story was not heard directly from that person, which seems to me a little bit strange, because if you are taking the big step of reporting someone, that is quite courageous and you would hope that somebody wanted to hear what you have to say. There are still challenges for the regulators in terms of listening to whistleblowers themselves. That is another issue.
In terms of looking at what has happened when things have gone badly wrong, there needs to be a lot more work done, I think, in terms of understanding the system issues and individual professional issues. For this reason, it becomes very confusing between the CQC, the GMC and the NMC, and they need to be much more closely linked together, because it is very easy for issues of patient safety to be passed from organisation to organisation and then nothing ever seems to happen as a result.
Q138 Dr Wollaston: They go through several disciplinary processes.
Dr Holt: It is just that the CQC will be looking at the system issue and then the GMC or the NMC will be looking at the individuals involved, and it is quite easy for things to be passed from one to the other and for there to be a very poor understanding of what went on, and then there is no resolution. We are representing health professionals, but we are always hearing from patients who say to us, “This doctor was not honest, and yet there was no accountability.” That is very hard to understand. Something is not working within the regulatory system—personally, I believe, within the GMC in particular. I do not know what you think about the NMC.
Helene Donnelly: I think the NMC are making strides to improve. I am quite encouraged by what they have done in the last year. They have basically relaunched their guidance on raising concerns to make it more understandable and accessible to their members, so that it is easy to understand and it is not so daunting. They have also looked at improving the witness experience. When somebody has bravely taken the step to refer a colleague to the regulator, it is extremely stressful and intimidating to go through the process of appearing as a witness. I think the NMC did not necessarily understand that they just needed very simple processes to make sure that that was being addressed. They have listened, and they are making amendments to that. I think they are making strides to improve it.
But I also agree with Kim in that I think there needs to be much greater and much more robust sharing of intelligence between all the regulators. It is very easy for things to slip through the net; somebody may have been referred to the NMC or the GMC, but that does not necessarily get filtered through to the CQC or vice versa. If you do not look at the whole thing in context and take all the evidence into account, things can very easily be missed—
Q139 Dr Wollaston: I am sorry, I did not mean to cut across you. How much is time—delay—an issue as well?
Helene Donnelly: Yes, definitely.
Dr Holt: The time involved in investigating referrals is far too long, yet we hear of cases thrown out very quickly. There is a big contrast. Some will get thrown out very quickly and others take years and years to resolve, and that is quite hard to understand. In Patients First’s experience I know there are cases, particularly of midwives, who have suffered incredibly through being referred to the NMC. Again, that is where we have a number of cases which we could share but did not put into this particular submission because of the limitations. I think it is about having consistency. There obviously clearly needs to be regulation, but it needs to be seen to be fair.
Cathy James: We know of cases where the referral process is used as a weapon. One of the big public cases was that of Margaret Haywood at Brighton. She was a bank nurse and, okay, the trusts were not happy that she went to “Panorama” and did secret filming, and I am not suggesting people should be using that as a method to raise concerns, but she was not employed by the trust and they used the NMC referral as a way to get at her. It is used. That was some time ago and you would hope that that was not the approach now, with all the work that has been done post-Francis, but I am sure it has not completely stopped. There is definitely a sense of that.
You also have to understand that the NMC or the GMC have to investigate referrals of cases brought to them. It needs to be quick, competent and fair to both sides so that, if it is being used by a trust, that comes out in the evidence as quickly as possible, because there will be evidence that the individual has raised things and questioned things beforehand. A long and slow process is not helpful to anybody. In other professional regulatory bodies, there is often an ethics line, so that if you are thinking of reporting something you have a professional body to support you in doing that. They are looking at that in the engineering profession, and I think they have done it in the accounting profession.
Where you get the very difficult ethical decisions, when somebody might be thinking, “I am not sure if what I have seen is enough to report it. I do not know what you would do if I reported this. What about my own position?”, there is the sense that you get some advice from the regulatory body. That would be a really powerful additional piece of help and advocacy for professionals, because professionals can find themselves in difficult positions.
Q140 Dr Wollaston: Do you think that is perhaps a role for the medical royal colleges or the Royal College of Nursing as opposed to the GMC‑type regulators?
Cathy James: The challenge for a professional regulator is that they have a disciplinary process as well. It would need to be—as in other organisations, in other professional bodies—ring‑fenced as an absolutely confidential place for somebody to take some advice that does not put into motion a reporting process, because of course, as a regulator, with your regulatory hat on, you have to act on information. There needs to be some real thought about how to put that into practice. If there could be something that was jointly put into place for the entire profession, that would be helpful, I suppose.
Q141 Chair: The key issue surely is that, in the case of the GMC and the NMC, professional people should understand it as part of their professional obligation to raise concerns within their place of work without it ever going anywhere near either the NMC or the GMC.
Dr Holt: Yes.
Cathy James: It came out in Shipman. Dame Janet Smith in the Shipman inquiry said that the ability of one professional to raise a concern about the behaviour of another is more powerful than anything else. It was one of the really powerful things she said in that inquiry.
Dr Holt: But they need to be listened to, wherever you go.
Helene Donnelly: Yes.
Q142 Charlotte Leslie: You made some criticisms, Dr Holt, about the medical royal colleges’ inspection. What would you like to see done differently in terms of the invited review process?
Dr Holt: The consensus among Patients First is that at the moment we have lost confidence in terms of the college reviews and that what we would prefer is a Keogh‑style multi‑disciplinary, open, transparent assessment in these situations, because there are examples where college reviewers have been gagged; they have been forced to sign confidentiality agreements that they will not share their findings. There are examples where college reviews have been edited and suppressed.
Q143 Charlotte Leslie: By trusts?
Dr Holt: By trusts. At the moment we feel there are a lot of questions over how college reviews are conducted, and that is not protecting patients.
Q144 Charlotte Leslie: I suppose the devil’s advocate counter-argument would be that the college might say, “If the trusts thought that our review was going to be open to the papers, they would not feel ready to invite us in and get the sort of warts-and-all look. It is better that it is private between the trust on the assumption the trust acts responsibly.” What would you say to that?
Dr Holt: Possibly the reviewers have assumed that the trust might act responsibly, but unfortunately our experience has been that, in a number of cases, it has been too tempting to suppress the information and—
Cathy James: And only the good news is reported. What is the point of doing a review if you do not actually have the warts-and-all report?
Dr Holt: Yes, we have to learn.
Q145 Chair: It then becomes a professional responsibility issue for the people conducting the review, doesn’t it?
Dr Holt: Exactly. One would hope that they would feel they had to speak up if they thought information was suppressed. My own particular case, which I only learned about subsequently, was that the people carrying out the review had no idea that the information had been suppressed until years later. They carried out the review and assumed that the organisation would use that, but various bits of it were removed and it was only many years later that it came out. They will not be monitoring what is happening to the review. I suppose, in a simple way, they probably took it on trust at the time that that would be fully shared. I think it needs to be explicit that reviews are open and transparent, and that the purpose of the review is learning. The other big thing for these sorts of reviews is that they need to be shared with the professionals working in the departments where the review is being carried out. One of the things we have heard is that people who are working in the departments do not even get a copy of the review themselves. How can you learn from it if you have not actually got a copy of it?
Q146 Chair: I do not really get this, I am afraid. If a doctor conducts a review under the auspices of a royal college, surely part of their general obligation to raise concerns if they see things going on that do not meet professional standards is to satisfy themselves that action is taken. It is no good just sending the report to the royal college and saying it is their problem.
Dr Holt: They may be told by the trust—and maybe things will be changing now—“Yes, we are going to put things in place,” but it is not their job to go back. That is why we think it needs to be the CQC, because the CQC can go back and monitor, and it needs to be fully open.
Q147 Charlotte Leslie: As I understand it, sometimes the trust will invite the colleges in and there will be a payment; they will commission them to do the review and the colleges will perform the function that they have been paid to do, which is to do the review, and then that is job done, a bit like a consultancy firm: “We have produced the report.” Off you go.
Dr Holt: Exactly.
Charlotte Leslie: One thing that some surgeons said worked quite well that had teeth in the right place, which inspections sometimes do not have, and seemed to get to the bottom of problems was—before the PMETB, the medical educational training assessments, came in—something called Hospital Recognition Committees. Surgeons or clinicians would go into hospitals, speak to the trainees individually and understand what was going on.
A trainee or a doctor, or a consultant indeed, could raise concerns that they felt were worth raising. Then the team of doctors who were inspecting the hospital would go back, have a very consensual discussion with the clinicians and managers, saying, “Right, you need to sort this out and you need to sort that out,” and then go back a certain amount of time later to see how they got on. If they had not improved, the royal college had the ability to take away the training status of the hospital.
Dr Holt: Yes, they do that.
Q148 Charlotte Leslie: Is that a model that the CQC could adopt, and could it use that sort of specialist clinician method more?
Dr Holt: Yes. There are all sorts of things that the CQC could be doing in order to make sure that actions are implemented. There is a lot of work to be done. We think that the college reviews have not worked very satisfactorily. That definitely needs to be looked at, and it is much better that it is monitored by the CQC.
Cathy James: At the very least, the individual that has triggered the concern and the inquiry should get to see the report. So many times they get to see a redacted version or get to see a two‑page summary, or are even just sat down to read the report, but get 15 minutes to read it and that is it. We have had cases like that. It just feels wrong-headed to commission something independent and then not actually let anybody see it, or to keep it secret and then who knows what is being done around acting on those things.
Q149 Charlotte Leslie: I do not know if the panel can answer this, but were the invited reviews in place when the Hospital Recognition Committee system was in place, or did they come about as a result of clinicians leading inspections? As I understand it, clinicians led inspection of medical education until about 2003. Then the PMETB came in, and suddenly it all got centralised and the Department—planet NHS and DH—began to take a steer on it, which is when professionals, in a sense, were disempowered to lead inspection. I am just wondering whether the invited review was a response to that movement to bring any inspection in‑house, where it was more controllable, in 2003, or whether it was already in existence. I doubt the panel will be able to answer that.
Cathy James: I would not be able to answer that.
Helene Donnelly: No.
Q150 Charlotte Leslie: Going back to something we just covered, the Francis report recommended regulation for managers in the way we talked about before. Have you any idea why there might not be more progress with regulating managers and accountability as in line with the Francis report? Do you have any insights on why we might not be implementing that as quickly as we could be?
Cathy James: Cost? I do not know.
Helene Donnelly: I think there is probably reluctance around the financial aspect of it, and also strategically allowing people to go off and have some sort of leadership training, or going into some sort of regulatory phase in order to be signed off or whatever. It would obviously be quite time-consuming and that would take people out of their day job, as it were. I think all trusts are heavily under pressure as it is, and any prospect of having to do that is one they are probably just trying to put on the back burner, but I think it is something that certainly needs to be taken forward quite quickly.
Q151 Andrew George: Helene, you are the Ambassador for Cultural Change at Staffordshire and Stoke on Trent Partnership Trust. I am going to take on a Paxman‑type role and be rather cynical. Try and persuade me that this is not just a public relations exercise.
Helene Donnelly: Anybody who knows me would know that I would not be involved in a public relations exercise, but I think that the proof is in the pudding. In nearly 12 months—I started the role on 1 April last year—there have been over 87 people who have come to me to raise concerns of varying degrees. That directly compares to the previous 12 months when the trust had instigated their own independent whistleblowing helpline and it had about two or three calls. Where were the 87 people who have suddenly come forward going before?
For a lot of people, the reason they come to me now is that they have already, in fairness, tried to go through the process of raising a concern with their line management but feel they are not being listened to and their concern is not being actioned. Again, as I touched on before, that is for varying reasons. It is not necessarily because the middle managers, the line managers, are deliberately refusing to act. It could be just that they themselves do not feel empowered. But by bringing it to me, and then I take it on, as I said, to the board and to the chief executive and chairman, it exposes the issues and, ideally, if we capture it at an early stage we can take action and implement change to improve.
Obviously one of the biggest things is around staffing; we do not have a magic wand and we cannot necessarily conjure up lots more nurses or social workers—we are health and social care so we have social workers as well. We would ideally love to give people more staff, but that is not always appropriate. We can look at more efficient or effective ways of working and help to implement things, or redeploy people into certain areas to give a better skill mix and that sort of thing. Action is taken and those things are achieved via coming to me.
We also have professional leadership within the trust, and there are various other routes people can take to raise concerns. But again I think some staff feel slightly intimidated. The higher up the hierarchy you get, certainly front‑line staff are quite intimidated and that is the only issue I would take with having somebody on the board. I think we should have people on the board who take on that role and can act very quickly to look at whistleblowing or concerns raised, but I think there also needs to be somebody who is much more on the front line, somebody who can go out. As I said, it is a very proactive role.
I physically go to the wards or out to community staff and introduce myself. I go to team meetings and have a chat with them, because they are so busy; there is a lot of firefighting and blinkers on, and people are so task‑orientated that they do not have time even to write an incident report, or if they do they have to stay behind and do it in their own time. So if I go to them and say, “Hi, I know you’re busy, but have you just got five minutes for a quick chat?”, they say, “Actually, I’m glad you’ve come because there is this, this and this,” and then I can take that away and we can resolve it. A lot of it is prevention.
Q152 Andrew George: You stalk the corridors a little.
Helene Donnelly: I do a little bit, yes. It is at all levels; it is not just the front line. I go to the management as well, all through the management tiers, and hear their voice. I spoke to one of our quite senior chief operating officers just last week and heard her perspective on how things are difficult, and I took that forward so that they can have their voice heard as well, because it is about the whole culture; it is the whole organisation.
Q153 Andrew George: To what extent do you have to anonymise, and, indeed, if the complainant, for want of a better expression, wishes to anonymise, to what extent can you anonymise?
Helene Donnelly: I can. When I go out to speak to people and introduce myself, I reassure them from the outset that whatever they tell me will remain confidential and I will not take it any further unless it is a direct patient safety issue, and then I am duty-bound to raise it. Other than that we will decide between us the best route, and I will only take it forward if they are happy. But obviously the fact that they have come to me, or I have gone to them and they have felt free to share, is part-way there. They already want something to change and if we do not take it forward—sometimes it needs not to be anonymous so that it can be looked into further—they then are given reassurance. A lot of people at that first meeting say, “Oh, but don’t put my name on it,” but then, as we talk further and they understand where and who it goes to and that I will be monitoring it every step of the way, they say, “Actually, I am happy now.”
Q154 Andrew George: The majority are not anonymised.
Helene Donnelly: Yes.
Q155 Andrew George: To what extent do you know of similar posts in other trusts, or are you the only place in the country that you are aware of?
Helene Donnelly: I am the only one specifically doing what I am doing. The only one that is similar, as I said before, is at Brighton and Sussex hospital, and that is Delilah Hesling, who is the patient safety ombudsman. It is different in that she hears patient complaints as well, which is quite exhausting for her because she is obviously trying to juggle both, and I just limit it to staff. The other issue I think she has had—it has been changing—is that she struggles sometimes to get things really listened to at board level. I think that is beginning to change for her but it has been quite frustrating, whereas I am very happy to say, 12 months in, that my chief executive and chairman are very proactive and visible; they want to listen, they want to hear and they will act.
Q156 Andrew George: You are seconded, but seconded from where?
Helene Donnelly: I am not now. It is now a permanent post, but I am a nurse practitioner at a walk‑in centre within the trust, and I was seconded to do this for six months. Now I have taken it on as a permanent role, but I am still keeping clinical as well because I do not want to let that go yet.
Q157 Andrew George: Do you mind me asking you what grade or salary you are on to do this job?
Helene Donnelly: I was band 7 as a nurse practitioner, and I have been seconded, but it has been upgraded slightly, I suppose, to reflect the difference in pay for me because I was going to lose, potentially, my unsocial hours and so on, and also the fact that it is an awful lot of work and I have had to take on additional hours as well to cover it all. It has been upgraded to band 8. But I do not think it necessarily needs to be at that level.
Chair: I do not think we should regard this as a pay review body.
Andrew George: No, but I just wanted to know what sort of level.
Q158 Rosie Cooper: The Committee has taken evidence on a number of occasions about the inappropriate use of gagging clauses in agreements between health sector employers and those who have raised concerns. The Department has said that these clauses now cannot prevent people from raising concerns that are in the public interest. They have revised the guidance to employers to make it explicit. Do you think that people feel any more confident, or less inhibited, about raising concerns?
Dr Holt: If you have got to the point of a severance payment and a compromise agreement, you are in trouble. So again it is a failure. We know that people are still being offered money and compromise agreements, and one of the issues, going back to how raising concerns can become an employment issue, is that, if a trust can argue that they are paying someone off because of redundancy or for another substantial reason, they will say, “Oh, this was not a patient safety issue. This was something else.”
As the individual, if you have taken money, which was the position I was in—I was being offered money—and if I had taken money and then later on said, “Well, actually I had all these concerns,” you lose credibility. It is incredibly difficult for people to take the money and then to say, “Well, actually there were all these patient safety concerns.” The additional issue is that you have to hand back all your papers. If you hand back all your papers you do not have any evidence, so people really are not in a position to be able to take it any further once they have taken the money.
Cathy James: I think there is a difference where somebody has been dismissed. You were not dismissed, so it is a slightly different position. If somebody has lost their job and is offered compensation for having lost their job, I think we need to think very carefully. The anti‑gagging provision in the Public Interest Disclosure Act could be clearer; one of the things we have asked the Government to do is to look at the way that the provision is worded. We have also asked that, when there is a settlement agreement, there is a requirement on the lawyer who advises on the settlement agreement—a requirement that is already in employment law—to explain very carefully how 43J in the Public Interest Disclosure Act works.
The problem, though, is where that conflicts with a non‑disparagement clause and a confidentiality clause. A confidentiality clause is, as we have seen, incredibly draconian: “You will not speak about anything that led up to this agreement. You will not talk to anybody about even the fact that this agreement exists, but this does not affect your rights under section 43J of PIDA.” That is absolutely incomprehensible to somebody, and I have no doubt that most people feel they are gagged in those kinds of agreements. Add to that an automatic indemnity—“If you breach this agreement, you will repay this money. We will not have to take a court case; you will automatically owe this money back to us”—and it is incredibly difficult for an individual to feel in any sense that they have any rights left as a result of that.
Q159 Rosie Cooper: My second part was going to be whether the Government’s guidelines would be an effective defence against a lawyer’s letter alleging a breach.
Cathy James: I do not think they would. I do not think they go far enough. We would really like a working group to consider where those confidentiality agreements come from. Where do those clauses on confidentiality come from? They come from commercial law, from trade secrets, from lawyers peddling and sewing up an agreement and keeping somebody quiet: “Oh, but PIDA still applies.” It does not work, and I would really like to see a rethinking of where those agreements come from, and how we can have a form of wording that does not make the individual feel gagged.
It does not matter what the law says; if the individual feels gagged, and they have lost their job and fought long and hard with an employer to get some form of compensation, why would they take the risk? They have just been through an incredibly painful, awful and stressful situation. Why would they take the risk that all that money gets automatically paid back? Gary Walker is a classic example of that, actually being threatened about going on Radio 4 to talk about his experiences, which were around exactly what was going on at Mid Staffs.
Q160 Rosie Cooper: Absolutely. I find that example a bit difficult because he, as chief executive, actually signed off many of those agreements, and when it applied to him he had a problem. Let us leave him aside.
Cathy James: The flip side is that it shows how difficult it is. If somebody in that position cannot prevail, what hope is there for a nurse?
Dr Holt: Or a health care assistant.
Cathy James: Exactly.
Q161 Rosie Cooper: Yes. Do you think there would be any justification for having a compromise agreement in a redundancy agreement? I was quite shocked last week to find that it is almost standard when the MARS—the mutually agreed terms—were done that, in that legal agreement, there was a compromise.
Dr Holt: It is a standard legal thing, isn’t it?
Cathy James: There is also the other side of this: you want to be able to draw a line under a dispute, so you cannot be in a position where a dispute can never be settled, which is why I would like a group of individuals to look at this—lawyers, business people, chief executives in health organisations and some of the regulators.
Q162 Rosie Cooper: But if I am agreeing to be made redundant, why would I need never to talk about the organisation?
Cathy James: Exactly, I agree with you. It should not be in there.
Dr Holt: I think in health there is a particular case. I do not see any real indication for a confidentiality agreement apart from where there was an issue of protecting patient information. I have spoken to a number of doctors in particular who signed confidentiality agreements under duress and are very distressed that they ended up in that position and would love them to be lifted.
One of them said to me, “When you go for a job and people say, ‘What have you been doing?’, you cannot actually talk about that particular period of time.” There will always be a question mark over your head about what actually happened. Knowing the details of what happened to these people, I know that they were definitely trying to raise patient safety issues, so we would like a total ban on these agreements in health, obviously apart from the people themselves requesting it. I think they are too risky; they can be misused and there should be an audit of confidentiality agreements, maybe over the past five years, to have a look at what was underneath.
Cathy James: The National Audit Office is doing some work on it and the Public Accounts Committee has looked at it. We recently met them to talk about triggering some of this work. Acas is also interested in perhaps doing some of the work. It is a kind of schizophrenic approach: on the one hand you have all your rights, but on the other you can never talk about them. We need some fresh thinking about how to have a form of words that draws a line under the agreement but does not mean that public interest matters are hidden for ever and buried in the settlement.
Q163 Rosie Cooper: Absolutely. I think a quick and easy win would be to remove them from any contract such as a mutually agreed—MARS—contract where it says, “I am going and you are happy I am going.” Just the fact that they are being included automatically now is outrageous.
Cathy James: When we spoke to Acas recently, they said that about 50% of those kinds of settlement agreement do not have any confidentiality clauses in them; people are not asking for them and there is not a reason to keep it quiet. The problem is that they have crept in as standard practice, and in whistleblowing cases they are dangerous. But there is no need for them in many cases. I would really like to have a fresh look at this with a multi‑stakeholder approach to what would work in practice, with employers, unions and other representative groups to look at it.
Dr Holt: A trust should publish—
Q164 Chair: Is that a proposal you made to the Department of Health or to NHS England?
Cathy James: Not to the Department of Health, but we have spoken to the National Audit Office informally about it. I would not like to say they have agreed to do anything. We spoke to Acas and to the National Audit Office.
Q165 Chair: In truth, it is not a very major piece of work to draw up a standard form of contract to apply for a redundancy situation in the health service.
Cathy James: It should be quite quick.
Q166 Chair: It ought to be a relatively simple proposition that the Committee might consider.
Dr Holt: The other point is that it should be published on the trust’s website how many people have been paid and for what reasons, so then if it is wrong it can be challenged.
Q167 Charlotte Leslie: Just to finish off on that, talking about compromise agreements and gagging clauses, do you think there is public distrust in what perhaps the Department of Health says and what it does? In one of the first Select Committees I joined, I remember asking Sir David Nicholson about his claim that he did not know anything about judicial mediation and he said he did not know anything about it until way into 2010‑11 when Francis blew up, and then being given an e‑mail dated September 2009 where one of his financial performance team people talks about e‑mails with lawyers talking about how they had received confirmation from HM Treasury that judicial mediations do not need their approval. Do you think there is a major lack of trust in terms of what the Department of Health says and does?
Dr Holt: I think there is a major lack of trust among health professionals because compromise agreements are often signed off by the Treasury and the Department of Health. In my correspondence with Sir David Nicholson, he said he did not know how many had been signed off, so it is a bit strange.
Q168 Charlotte Leslie: His official Eric Bottrell seemed to know, because he was talking about it in September 2009.
Cathy James: I would have thought it was well known among respondent lawyers and the respondents what was required for signing these things off, but not very well known anywhere else.
Q169 Charlotte Leslie: I am slightly surprised. I remember David Nicholson giving a pledge that he would intervene personally on any whistleblowing case. Do you know of any he has intervened personally on?
Cathy James: No.
Dr Holt: No. I am getting a lot of “no”s.
Q170 Charlotte Leslie: There seems to be a great imbalance between what happens to whistleblowers, what happens to those whom they have whistleblown against and those who have been perhaps hiding patient safety issues, which results in whistleblowers being non‑officially blacklisted so they cannot go on and get jobs.
One idea I had—I would like to know if it is completely bonkers—is whether it might be helpful to have a kind of whistleblower white list, so that, if someone has been vindicated in raising a safety concern, some little flag goes against their name. Any organisation within the same field they then apply to is not required to take them on, but if it does not, it has to provide an objective assessment on why, against the job specification criteria, it did not. The background assumption is that any good organisation would want to take on someone who has the ability not to go native when everyone else seems to think something awful is fine, and who has the moral backbone and courage to speak out against all the odds. It is someone I would want in my organisation straight away. Do you think that idea has any merit or could be worked up into something that might be helpful?
Cathy James: I have to say that, when I first read about Helene Donnelly’s role at North Staffs, I thought it was an incredibly powerful way for the health service to operate. As to whether it would work in practice, I know it was probably quite challenging and difficult to get that approval process and to start saying, “Well, this one is a genuine whistleblower, this one is not a genuine whistleblower, and this one is just trouble.” You might get into a bit of difficulty around that. But if people are asked on exit interviews, and in interviews, questions about what they have challenged and how successful they were, it would give the sense that it is a very positive and powerful thing to be a whistleblower—something to be proud of—as opposed to what it feels like at the moment, which is something to hide away and be secretive about.
We have made some recommendations about blacklisting and job applicants around the Public Interest Disclosure Act, but again that is looking back at when things have gone wrong. I saw that and thought what a fantastic idea. How to make it operate in practice might present some challenges, but that does not mean you should not try.
Dr Holt: It could form part of a restorative justice-type idea, which is something we are pushing. I know a number of cases where I think if people heard the details they would definitely say this person should not be lost to the health service: “This person currently is lost to the health service and they should be back employed in the health service.” One way to bring them back may be to put them in a role like yours, Helene. But to ensure that there is facilitation in terms of putting them somewhere else, yes. Some of the stories you hear are of excellent health professionals, midwives, health visitors and surgeons. In particular, I am thinking of surgeons who are currently applying for jobs and not able to get them, yet they have done nothing wrong. All they have done is raise concerns. We need to have some restorative justice.
Helene Donnelly: We had an event at the CQC a few weeks ago, and there were 12 or 15 people at varying different levels throughout the NHS telling their stories. They were literally heartbreaking. I was sitting there in tears listening to some of it. Even having been through similar elements myself, it never ceases to amaze me just how traumatic it is for people.
I consider myself quite lucky really; I got out before I was pushed, or before claims were made against me, as was threatened. I managed to get out and get another job so I have been very lucky in that way. I put that down partly as well, following on from that, to being able to have my voice heard at the public inquiry. That is an element for those who are genuinely telling the truth because they have patients at the heart of it; they need to be vindicated, and they need to be acknowledged and upheld. We need those very people in the health service. We need to encourage that, and try to give those people their dignity back and in the roles that they are so brilliantly able to do. We are losing them.
Similarly, there are many people who do not necessarily get to the whistleblowing stage but just leave their career, leave the profession to do something completely different or take early retirement, because they are so demoralised and disheartened with the way things are going. We are losing, certainly from a nursing perspective, some exceptionally well‑trained, experienced nurses; they are leaving the profession and they are not able to shine and show by example. What we are being left with is a nursing profession which is falling short in some areas. We need to encourage people to stay in the profession, and we need to encourage people to raise concerns, and celebrate them when they do.
Q171 Charlotte Leslie: You are saying that, because of the culture of not being able to speak out, you are losing some of the best.
Helene Donnelly: Yes. They just go. They do not even raise the concern, because they are so frightened. They just leave. They leave the profession altogether.
Q172 Charlotte Leslie: Finally, since this has become an issue, I cannot imagine how many contacts Patients First must be getting, but in my office I have had to get an intern in to try to deal with some of the stuff that has been coming my way. One thing that seems to come up again and again is that all the while that the truth has not come out, and particularly from a clinician’s point of view and bereaved families’ point of view, all the time that the lessons have not been learned from what caused the tragedy, it is very difficult for people ever to get over what has happened. I am convinced—I wonder what your thoughts are—that that needs some kind of truth and reconciliation.
A truth commission needs to occur looking back over the major—there are so many that it is going to be difficult to find them—whistleblowing cases and things that have gone wrong, condensing out what lessons we can learn, not in a kind of automated announcement, “Lessons have been learned” way, but actually what we can do differently, just to uncover some of the truth. That is obviously very difficult. Have you any thoughts on how historic it could be, how far it would go back and how it might be done? It is an enormous task.
Dr Holt: In terms of a truth and reconciliation exercise, there would need to be willingness on both sides to accept that they will come to the table and that they will be prepared to listen to the other side and learn from those mistakes. That will probably remove some of the individuals, because some people are so upset and traumatised that they will say, “It doesn’t matter what that person says, there is never going to be healing.” But for many of us the key thing is whether lessons have been learned.
Thinking about Don Barrett’s report, it talks about a learning culture. There is a lot of focus on learning from clinical mistakes, but I think we also need to learn from the managerial, HR and leadership mistakes that have led to the situation where many of us, and many of the people we support in Patients First—who are sitting behind me—have suffered incredibly, and at the same time patient safety issues have not been addressed. It could be incredibly positive and help rebuild trust in the health service. It could bring some really good people back into the health service. It could be a watershed moment. From where we are now, it could be a new step forward.
Cathy James: One of the powerful things in having a parliamentary‑led process is that people are not worried about breaching those gagging clauses and the historical side of that, so the parliamentary privilege side of it would probably be very important.
Charlotte Leslie: If the panel have any suggestions as to how practically that might be done—remits and that kind of thing—I particularly would be very interested to see it, and I imagine the Committee might, too. Thank you.
Chair: We will look forward to that and various other bits of evidence that you have promised in the course of the session. Thank you all very much for coming this afternoon.
Oral evidence: Complaints and raising concerns, HC 1080 2