CRC0074

Written Evidence submitted by the Department of Health

Introduction

There have been a number of reports in recent years that have made recommendations about how the handling of complaints in the NHS might be improved. We have now set out the necessary actions to tackle the issues raised by these reviews in Hard Truths, the Government response to the Francis Inquiry, published in November 2013. 

The Department of Health has put in train a series of individual projects to deliver improvements to the way health and social care complaints are handled to enable the care system to identify issues of poor care sooner and to learn lessons. These projects are overseen by a ‘cross-system’ Complaints Programme Board, which has a single, agreed work programme, and a shared ambition to ensure complaints are handled effectively, with learning from them shared and acted upon locally and nationally for the benefit of patients, users of services, the public, their carers and relatives. We recognise this will only happen with substantial change across the complaints system to the culture of the way complaints are considered. Our aim is to implement as much as we can by March 2015. 

Summary

The Government agrees with Robert Francis QC when he said that

“A health service that does not listen to complaints is unlikely to reflect its patients’ needs. One that does will be more likely to detect the early warning signs that something requires correction, to address such issues and to protect others from harmful treatment.”

In their report A Review of the NHS Hospitals Complaints System: Putting Patients back in the Picture, Rt Hon Ann Clwyd MP and Professor Tricia Hart stated:

“If standards of care were better and patients felt they could raise concerns on the ward and see them dealt with at the time, many would not feel they have to complain at all”.

Locally and nationally, in line with what has been said in the Francis Inquiry and Clwyd/Hart, we want to ensure that:

• all forms of feedback help to improve care for patients
• when things do go wrong, the complaints system is clear, fair, and open
• at every level, the NHS  scrutinises and learns from mistakes  to improve care for patients

To achieve this, we need to continue to promote an open and transparent culture across the NHS, driven by strong and effective leadership, where patients’ views and complaints are welcomed and addressed sensitively, and the organisation seeks to learn from complaints. Whilst some organisations might be good at dealing with individual complaints, we need Boards to learn from the complaints they receive to make improvements across their organisations and to the services they provide.

As we said in Hard Truths, improving that the way in which the NHS manages and responds to complaints will be critical in shaping a culture that listens to and learns from patients, and ending a culture of defensiveness, or at worst, denial about poor care and harm to patients, and it is our ambition to deliver this.

Handling of complaints made by patients and families about care received in the health and care sectors, including both primary and secondary care providers.

Complaints are an important source of insight which, if handled correctly, can provide a catalyst for improvements in patient care. A number of NHS organisations have shown how to use complaints in this manner, but we are aware that others need to improve.

In their report A Review of the NHS Hospitals Complaints System: Putting Patients Back in the Picture, the Rt Hon Ann Clwyd MP and Professor Tricia Hart found that:

• People are reluctant to complain, and staff can be defensive and reluctant to listen to or address concerns
• Organisations do not always deliver their legislative responsibilities on complaints handling
• Vulnerable people find the complaints system complicated and hard to navigate
• There is a low level of public awareness of the NHS Complaints Advocacy Service

The Government agrees with Clwyd/Hart that a number of NHS organisations have shown how to use complaints effectively as a driver for improvement, and as a warning light in relation to poor practice. But we accept there remains a general issue over the handling of individual complaints in the health and social care system. 

We believe that improving the way in which the NHS manages and responds to complaints will be critical in shaping a culture that listens to and learns from patients and service users, and ends a culture of defensiveness. The Government remains committed to empowering individual patients, and agrees it is important that NHS organisations view and manage complaints in a positive manner, and use the information obtained to improve service delivery.

For too long, we believe the handling of NHS complaints has been considered in isolation, often seen as a technical issue not linked to the wider aspects of care, compassion, or leadership – important issues raised by the Clwyd/Hart report. Our response to the Francis report deliberately linked the handling of complaints to the importance of hearing the patient voice, learning lessons and a focus on providing quality services.  

However, we believe it important not to focus solely upon the handling of complaints from patients and the public. In its response to Hard Truths, the Government stated that:

“All feedback from patients, whether it is concerns voiced on the ward at the time, or complaints made once they are back home, should make a difference.”

In many respects, we consider the distinction between a ‘concern’ and a ‘complaint’ to be artificial. Both indicate some level of dissatisfaction and require a response. Patients or their relatives will often feel more comfortable in raising a concern than in making a complaint, but a concern may be just as likely to indicate a potential patient safety issue. It is important that concerns and complaints are handled in accordance with the needs of the individual case, and investigated.

We firmly believe that all forms of feedback have the potential to help to improve the standard of care for patients. Acting quickly and effectively on a concern voiced on a ward provides appropriate remedy without the need to make a complaint. Equally importantly, evidence[1] shows that a significant number of people who are, in some way, dissatisfied with their care remain reluctant to complain. In not taking a more welcoming approach to concerns and general comments, an organisation is potentially missing important information that has the potential to improve the way services are delivered within that organisation. Clearly, if it is not possible to resolve a concern on the ward, patients must feel able to complain about their care in a way that feels fair, open, and respectful.

The next sections provides examples of the actions we have set out in Hard Truths to make this a reality

The extent to which the findings of recent inquiries have been incorporated into the complaints process.

The Government received the second report from Robert Francis into the events at Mid Staffs hospital in 2013. This report made a number of recommendations about improving complaints handling in the NHS. Subsequently, the Government commissioned Rt Hon Ann Clwyd MP and Professor Tricia Hart to conduct a more detailed review of complaint handling in NHS hospitals and to make recommendations for action and improvement. This review was published on 28th October 2013. Before then several different reviews of complaints handling, including the Health Select Committee report of 2011, have made recommendations for improvements. The Government has sought to combine the necessary actions from these reviews into a single response - Hard Truths - to provide clarity about what we are doing.

In summary:

• The Government wants every hospital to promote a culture of openness and encourage feedback, making it clear to patients, their families and carers – for example through a sign on every ward and clinical setting – how they can complain, how to get independent local support and informing them of their right to complain to the Ombudsman if they remain dissatisfied.
• Trust Chief Executives and Boards will be expected to take personal responsibility for complaints, for example by signing off letters and through an update at each board meeting.
• Detailed information on complaints and the lessons learned will be published quarterly. This will include the number of complaints received as a percentage of patient interventions; the number of complaints the hospital has been informed have subsequently been referred to the Ombudsman and the lessons learned and improvements made as a result of complaints.
• The Care Quality Commission will look closely at how well a Trust deals with complaints.
• The Government welcomes the commitment of the Ombudsman to significantly expand the number of cases she considers.
• The Government will explore with NHS England and other key partners the introduction of a regular and standard way of asking people who have made a complaint about whether they were satisfied with the way it was handled- to enable comparison across hospitals.
• The Parliamentary and Health Service Ombudsman, Healthwatch England and the Department of Health will work with the Patients Association, patients, regulators commissioners and providers to develop universal expectations for complaints handling. 
• We will work with the Health and Social Care Information Centre to put complaints data into the existing NHS electronic data collection system, better enabling comparison between hospitals.  
• We believe it is appropriate to review the PALS service, and will undertake to begin that review in 2014.

Our aim is for this work programme to be substantially complete by March 2015. However, some of the deliverables operate on a longer time frame. Changes to the HSCIC’s data collection processes including frequency and categorisation will take effect from April 2015. The CQC inspection process is being piloted this year, and will be fully rolled out in the acute sector by October 2014. Discussions about potential alignment of data sets may come to fruition this year but with an implementation date in 2015.

Standards for handling complaints

In its 2011 report on Complaints and Litigation, the Health Select Committee found that:

“…in the absence of clear national standards for complaints handling, and with no one organisation taking the lead on assessment of performance, it is extremely difficult to ascertain which organisations are performing well on complaints. There is significant potential for duplication by different regulators and for failing organisations to be overlooked. (Paragraph 86)”

The Government, in reply, stated that it believed:

“…there is a need for meaningful, comparable complaints information, which can be used to help drive improvement in healthcare and to strengthen the quality of services for patients and the public.”

Recommendation 113 of the Francis report stated that:

“The recommendations and standards suggested in the Patients Association’s peer review into complaints at the Mid Staffordshire NHS Foundation Trust should be reviewed and implemented in the NHS.”

The government response accepts that, at present, standards of complaints handling are judged on the basis of the 2009 regulations and the Health Service Ombudsman’s Principles of Good Complaints Handling. Both of these remain important, but we believe a more formal statement of standards is likely to be of benefit across the health and social are system, whether complaints managers and Trust Boards at local level, or regulators.

The Clwyd/Hart Review of the Handling of Complaints in NHS Hospitals reached a similar conclusion, recommending that: 

“Commissioners and regulators establish clear standards for hospitals on complaints

handling. These should rank highly in the audit and assessment of the performance

of all hospitals.”

We have asked the Parliamentary and Health Service Ombudsman and Healthwatch England, working with the Department of Health, to develop a patient-led vision and expectations for complaints handling in the NHS. The Parliamentary and Health Service Ombudsman, Healthwatch England and the Department of Health will work with the Patients Association, patients, regulators, commissioners and providers to develop universal expectations for complaints handling. These will be used across the NHS to drive improvements in patient satisfaction with complaint handling. The measurable vision for complaint handling across health and social care will:

• develop universal expectations for complaints handling to drive improvements in patient satisfaction with complaint handling, and
• inform:

o   people about what to expect when they make a complaint;

o   the work of the Healthwatch network in challenging local providers to improve their practices;

o   providers and commissioning bodies about what they can do to use concerns and complaints to improve services, and how they can measure progress

o   regulatory assessment of complaint handling;

o   PHSO investigation of complaints brought to them by people and their families

Support for patients, the public and staff who wish to make complaints or raise concerns.

As we indicated in Hard Truths, people making complaints can feel isolated and intimidated when in meetings with complaints managers and trust representatives. Some patients, relatives or friends remain deeply affected by their experiences. It is important that support is available, particularly where there may have been a serious failing in care, not only to help them navigate through the process but also for someone to be there to speak for them.

Within this context, the Clwyd/Hart report makes reference, rightly, to: 

• vulnerable people finding the complaints system complicated and hard to navigate; and
• a low level of public awareness of the NHS Complaints Advocacy Service

The Government wants to see every Trust make clear to every patient from their first encounter with the hospital which they can turn to for independent local support if they want, and where to contact them. A sign in every ward and clinical setting would be a simple means of achieving this and we are working with partners to explore how to do this

We agree that patients should be offered independent advocacy and support as they go through the complaints process, particularly if the case is complex and about a serious care failing. Local authorities currently commission advocacy services, but we see a role here for HealthWatch England, working with Department of Health and others to help set the standards for good advocacy. The Department of Health will begin an evaluation of the current arrangements for commissioning NHS complaints advocacy services in 2014.

The Government wants to see patient advice and liaison services well-sign posted, funded and staffed in every hospital so patients can go and share a concern with someone else in the hospital if they do not feel confident talking to their nurse or doctor on the ward. The Department of Health believes it appropriate to review the patient and advice liaison services service, and will undertake to begin that review in 2014.

Openness about complaints and concerns, and accessibility of information.

Feedback of any kind, but particularly from concerns and complaints, is important; it enables things to be put right for the complainant and it drives the improvement of hospital services. But there is evidence[2] that not everyone who would wish to make a complaint does so. This can be for a number of reasons, of which ease of access to the complaints arrangements is an important one.

The overall framework for complaints handling is laid down in regulation and it is important that the overall process is consistent across the NHS and clear to patients. Additionally, the Government wants to see every Trust make clear to every patient from their first encounter with the hospital:

• How they can complain to the hospital when things go wrong
• Who they can turn to for independent local support if they want it, and where to contact them
• That they have the right to go to the Ombudsman if they remain dissatisfied, and how to contact them; and
• Details of how to contact their local HealthWatch.

We believe a sign in every ward and clinical setting would be a simple means of achieving this and the Department is discussing with partners the best means of ensuring this becomes standard practice in all NHS hospitals in England. We would expect these posters to set out how to complain about hospital, how to seek support from local Healthwatch and how to refer a complaint to the Health Service Ombudsman.

The Department of Health wants to see detailed information on complaints and the lessons learned published quarterly. This will include the number of complaints received as a percentage of patient interventions; the number of complaints the hospital has been informed have subsequently been referred to the Ombudsman and the lessons learned and improvements made as a result of complaints.

We also want to see patient advice and liaison services (PALS) well-sign posted, funded and staffed in every hospital so patients can share a concern with someone else in the hospital if they do not feel confident talking to their nurse or doctor on the ward. Nonetheless, we agree this is an appropriate time to review the policy behind, and effectiveness of, patient advice and liaison services. This work will be undertaken in 2014/15.

The Clwyd/Hart review makes two very good recommendations on good practice to support patients who have some dissatisfaction with their healthcare that would assist in the delivery of this recommendation, and which we will work with partners to deliver:

• Trusts should provide patients with a way of feeding back comments and concerns about their care on the ward, including simple steps such as putting pen and paper by the bedside, and making sure patients know who to speak to if they have a concern – this could be a nurse or a doctor, or a volunteer on the ward;
• Hospitals should actively encourage and use volunteers to support patients in expressing concerns or complaints. This is particularly important where patients are vulnerable or alone, when they might find it difficult to raise concerns at the time the problem arises: volunteers should be regularly refreshed.

Overall, Boards and Trusts need to make clear that a change in behaviour and culture must come from the top of the hospital. We are also clear that Boards should be getting regular updates on complaints and considering action taken, and complaints will be an important part of the new CQC hospitals inspection process.

The role of commissioners, system regulators and professional regulators with regard to complaints and concerns.

As we said in Hard Truths, we accept that commissioning bodies play an important role in ensuring that the organisations from which they commission services are delivering effective and open complaints arrangements, and delivering their legislative responsibilities.

Complaints contain valuable information that commissioners should be aware of. We  consider that commissioners, as performance managers, and system regulators have an important role in reinforcing best practice and encouraging local behaviour change. This aspect has several components:

• gathering and sharing best practice happening in the system now;
• promoting what should be happening locally in line with statutory duties on local organisations; and
• encouraging the action at local level set out in Hard Truths.

The Clwyd/ Hart report confirmed a problem with hospitals not adhering to their legislative duties regarding the handling of NHS complaints; for example, offering complainants a conversation at the start of the process; and keeping complainants informed, as far as reasonably practicable, of the progress of the investigation. We consider all parts of the health and social care system have a role to promote the need to adhere to these duties and to ensure that, where this does not happen, the CQC is able to identify it and take appropriate action.  The system also needs to seek to ensure such breaches do not happen.

We believe it is also important for all parts of the health and social care system to reinforce best practice for handling complaints and to encourage local behaviour change. This has several components. Hard Truths identified a range of additional local actions which will improve complaints handling. We consider there is a cross-system responsibility to articulate and promote best practice to encourage the local behaviour change required.

CQC is currently piloting a methodology to access provider complaints handling as part of its regular inspection regime. This is one of the cornerstones of our complaints improvement work. CQC is developing clear expected standards in how provider organisations should learn from complaints and other sources of feedback and equip people with information on how to complain and access advocacy services. The approach aims to promote good practice and reinforce this through evaluation during inspections. Pilots in the acute sector are currently underway. CQC is working with the Patient’s Association to develop this methodology which includes surveying recent complainants and talking to patients about their experience of using the complaints system.

Prior to an inspection, CQC will also analyse complaints information to identify any themes, trends or areas of concern to inform lines of enquiry during the inspection.

Going forward, CQC will also incorporate in its inspections an assessment of how providers listen to and handle concerns raised by their own staff (including ‘whistle-blowers’).”

The Department of Health has initiated work with the Health and Social Care Information Centre to move to a quarterly cycle of gathering complaints data, and to bring more granularity to the existing data. We believe additional granularity is needed because, within the existing 25 complaints subject categories nationally collected for hospitals and community services, none allows the identification of whether there were complaints about serious or untoward incidents (SUIs). Through our unfolding work on data, the Complaints Programme Board has identified a wider goal for which to aim in the longer term - a single taxonomy for all complaints data gathered within the system. We believe this will better facilitate the sharing of data between organisations, enabling them to identify trends across, for example, system boundaries and specialties. We have started exploring the scope to align data sets across the system. There is no easy way to achieve this but through our partnership approach within the Programme Board, we hope to be able to move collaboratively. 

Whilst not a system regulator per se, we also believe it is important that local Healthwatch, as the patient and public champion for health and care services, should be as strong and effective as possible so that it can speak up for patients and provide independent support on complaints. The Department of Health supports Healthwatch England in their plans to coordinate a consumer-facing complaints campaign with their partners. This will help ensure there is better quality information for patients about how to raise a concern and the standards they should expect if they make a complaint. Healthwatch England is also working to ensure that the needs, experiences and ideas of consumers are at the heart of improvement and reform in health and social care complaints handling and advocacy.

Future plans for improvements in this area.

The Department of Health believes it is important to join up the complaints system across the health and social care system to deal more effectively with poor care. To support this work, we have set-up a Complaints Programme Board (CPB).  This was established in December 2013 to bring together a range of partners across the care system to implement actions which will lead to improvements in complaints handling as set out in Hard Truths, and assist member organisations (for example, the Care Quality Commission) to deal with poor care. Whilst the focus of the Board is on delivery of Hard Truths commitments, there is unanimous agreement within the Board that it will look more widely across health and social care to consider complaints in other health and social care settings and to bring about improvements.

The Terms of Reference for the CPB are:

• To implement the Government’s commitments detailed in Hard Truths.
• To deliver the bulk of the Board’s Hard Truths work programme by March 2015, with organisational lead responsibility for delivery of each project to be agreed within the group.
• To update the Secretary of State for Health on progress, as appropriate.
• To look more widely across health and social care to consider complaints in other health and social care settings, so as to seek to align complaints handling across care services.

The aim is to complete the work programme by March 2015, although some of the deliverables will not be realised within this time-frame.  This programme to improve NHS complaints handling comprises the following individual projects:

Work started in 13/14; and completed or considerably advanced by March 14

Setting of standards for complaints advocacy   [Lead HWE & DH; Working with LGA]

• To develop national standards for delivery of independent NHS complaints advocacy services to provide service users with realistic expectation of what to expect from these services and to enable individual LAs better to manage the performance of advocacy providers
• To work with stakeholder groups to develop and test these standards
• To work with the LGA and LHW to determine how best to ensure delivery of services to these standards
• To raise awareness of NHS complaints advocacy services    

NHS Constitution supplement   [Lead DH; Working with HWE, NHSE, LGA, PHSO, LGO]

• To develop an easy to understand narrative to provide service users with information on how to raise a concern or to make a complaint if they are dissatisfied with the service they have received from the NHS
• This narrative to become part of the NHS Constitution website

Litigation issue   [Lead DH; Working with AvMA]

• Issue jointly-agreed revised statement  of how to handle complaint cases where litigation threatened

Work started in 13/14; Completed September 2014

Complaints data into NHS electronic data system  [Lead NHSIC; Working with DH & HWE, PHSO, CQC]

• To develop a system that enables trusts to publish accurate, detailed quarterly data on the number of complaints received, and to enable comparison across hospitals 
• To move from an Excel sheet collection to a web based collection tool for the collection of centralised data on the number of complaints received in both Hospital and Community Health Services and Family Health Services
• To collect data by service area, breaking it down further into areas such as:

• gender;
• age;
• ethnicity (this was tried previously but poor data quality was received and have never been published);
• similar information (i.e. gender etc.) about the staff member the complaint made against

Transparency, governance and good practice [[Lead:DH/HWE/NHSE/CQC]

• Boards to see regular data on complaints; Directors with patient safety responsibility updating on complaints at every Board meeting;
• Detailed information on complaints published quarterly;

Signage in every ward and clinical setting publicising complaints processes, PALS and advocacy arrangements 

Work started in 14/15; Completed March 2015

Review of PALS   [Lead DH; Working with HWE, NHSE, and wider stakeholders]

• To consider the effectiveness of Patient Advice and Liaison Services within the wider NHS, having particular regard to their:

• non-statutory role
• independence (PALS staff are employed by the NHS)
• relationship with complaints teams
• relationship with external organisations providing advice and information
• funding

• To make recommendations to Ministers on the future of these services

Evaluation of NHS complaints advocacy arrangements   [Lead DH; Working with HWE, LGA]

• To consider the effectiveness of NHS complaints advocacy services, with particular regard to the delivery of services following a shift to localised commissioning and performance management
• To work with stakeholders and service users
• To make appropriate recommendations to Ministers  

Regular and standard way to survey complainants   [Lead HWE, NHSE; Working with DH]

• To explore the introduction of a regular and standard way of surveying people who have made a complaint to find out whether they were satisfied with the way it was handled, and to enable comparison across hospitals
• To consider whether some form of financial incentive might be attached to the survey to act as a driver to improve local complaints handling

Compliance Issues   [Lead NHSE; Working with HWE, DH, CQC, PHSO]

• To drive a shift towards Trust Chief Executives and Boards taking personal responsibility for complaints handling
• Better to ensure that duties and responsibilities in the legislative framework for handling NHS complaints are delivered; this to include in particular offering the patient a conversation at the start of the complaints process, and ensuring anyone making (or thinking of making) a complaint is aware of the independent role of the Health Service Ombudsman in the process
• To ensure that individual cases are appropriately handed; for example, all serious untoward incidents are investigated by someone from outside the trust
• Greater use of clinical involvement in the investigation and resolution of complaint cases

Building complaints into CQC regulation and inspections [Lead: CQC]

• To strengthen CQC inspection activity to assess provider systems and processes in relation to complaints and staff concerns handling, including roles and responsibilities, and their ability to learn and improve.
• To increase evaluation of how transparent a provider is about their approach and learning from complaints and concerns;
• To contribute to improving understanding of the experience of complainants, and capturing good practice.
• To evaluate, and roll out this methodology across all sectors CQC regulates.

Progressed post-discussion with Cabinet Office on the future of the Public Services Ombudsmen

A measurable vision for complaint handling across health and social care [Lead PHSO, LGO & HWE; Working with DH et al]

• To develop universal expectations for complaints handling to drive improvements in patient satisfaction with complaint handling.
• To inform:

o   People about what to expect when they make a complaint;

o   The work of the Healthwatch network in challenging local providers to improve their practices;

o   Providers and commissioning bodies about what they can do to use concerns and complaints to improve services, and how they can measure progress

o   Regulatory assessment of complaint handling;

o   PHSO investigation of complaints brought to them by people and their families

Whistleblowing

Handling of concerns raised by staff about care given in the health and care sectors

Since the Francis Inquiry into the Mid Staffordshire NHS Foundation Trust in 2010, the Department has made it clear that whistleblowing has an important part in ensuring patient safety and that improvements in, and awareness of, whistleblowing procedures are a priority.    The Secretary of State for Health has made it clear that all health and social care organisations must have policies in place to enable staff to raise concerns and to help employers to respond appropriately. 

The handling of concerns is best dealt with at a local level, which is why employees are encourage to raise any concerns they have, internally with their employing organisation first.    The Department expects all NHS organisations to have in place whistleblowing polices that are compliant with the Public Interest Disclosure Act 1998 (PIDA), which follow best practice, enable and support staff who wish to raise concerns.

The role of the commissioners, system regulators and professional regulators with regards to complaints and concerns

If staff feel their concerns are not dealt with by an internal disclosure at a local level, they can make an external disclosure to the appropriate prescribed person.   The Prescribed Persons list was amended last year [SI 2013/2213] and as of the 1st October 2013 the health and social care professional regulatory bodies were added to the list, increasing the list of organisations to which staff can blow the whistle.

The professional health and social care regulators (for example, General Medical Council, Nursing & Midwifery Council, General Dental Council) are responsible for fitness to practice issues, and the system regulators of health and care (Care Quality Commission (CQC), Monitor) are responsible for how services are delivered,  and both of these groups are described as prescribed persons.  We believe it is right and proper that the organisations which have the legal remits to investigate and act where necessary are best placed to take concerns from staff.   All the regulatory bodies have informed us that they have guidance in place which clearly explains how staff can raise concerns with them and they maintain helplines to offer advice. 

Under the current system, all professional health and social care regulators, including the Care Quality Commission and the Health and Care Professions Council, have codes of practice and standards that must be adhered to by registrants. For example, Skills for Care has published Manager Induction Standards for employers, including how to manage complaints, and Common Induction Standards for staff, including how to recognise and handle comments and complaints.

Professional regulators reviewed their standards in 2013-2014 to ensure that raising concerns and the importance of openness are emphasised and that the right guidance and support is available for those wishing to raise concerns.

Professional regulators have fully engaged with the Professional Standards Authority to consider how to address the recommendations of recent inquiries and are developing information sharing arrangements with the system regulators CQC, Monitor and the NHS Trust Development Authority.

The NHS Trust Development Authority is not a prescribed person, but has a responsibility to ensure that NHS trusts have effective systems in place for handling complaints, which it monitors through its accountability framework.

The regulatory bodies are aware of the need to share data and information with each other and streamline the transfers of cases where appropriate.   For example a Memorandum of Understanding was developed between the Care Quality Commission and the Whistleblowing Helpline, to streamline transfers of callers who wish to make a disclosure on to the CQC. 

Although the Department does not have the legal powers to investigate concerns, to ensure that any whistleblowing correspondence we receive is handled appropriately, a dedicated team within the Department’s NHS Business Unit assesses and flags each case and refers the complainant to the relevant regulatory body which has powers to conduct further investigation.

The extent to which the findings of recent inquiries have been incorporated into the complaints process

The professional regulators have acted on the messages from the Francis Inquiry and the Government to make their Fitness to Practise processes more efficient in order to avoid putting patients at risk.

In light of the findings from recent inquiries, which mentioned the need to review the handling of concerns, the healthcare professional regulatory bodies and system regulators have reviewed their policies for whistleblowing to further embed good practice. For example:

• The General Optical Council has amended Fitness to Practice Rules which will come into force in April 2014, designed to make the process faster and fairer, reflecting legal developments and recent changes to best practice. A new post of case examiner is being set up and this will reduce the duration of the average case by at least three months.
• The General Osteopathic Council is running a campaign in 2014 to raise patient awareness of the regulation of osteopaths and to highlight the role of the GOsC in dealing with patient complaints, using an ‘I’m registered’ mark and associated publicity materials.
• The Code of Conduct published in March 2013 by Skills for Care and Skills for Health encourages workers to use whistleblowing procedures to report any suspected wrongdoing.

The NHS Employers have engaged with and supported employers in the NHS on addressing the recommendations of recent inquiries, in particular the Francis inquiry, Cavendish report, Keogh report, Berwick Report and Clwyd-Hart report, around raising concerns and the need for openness and transparency.   This has been through running series of events, making tools and resources available on their website, publishing top tips on raising concerns as a pay slip flyer to support employers to raise the profile of raising the concerns.    NHS Employers will continue to focus attention on raising concerns through media, such as publishing podcasts on current issues and hosting regional events with input from legal experts.

The Department, as part of the improvements following the inquiry into Mid-Staffordshire NHS Foundation Trust, has been encouraging a culture of change and since 2010, and made a number of improvements for whistleblowers and those working within the NHS who would like to raise concerns:  These include:

• In July 2010 guidance was issued to the NHS on supporting and taking action on concerns raised by staff.

• In September 2010 we introduced a contractual right to raise concerns in NHS staff terms and conditions of service handbook.  In conjunction with this, unequivocal guidance was issued to NHS organisations that all their contracts of employment should cover staff whistleblowing rights.
• The NHS Constitution was updated in 2012, as part of a series of measures intended to highlight the importance of whistleblowing in the NHS, adding:
• an expectation that staff should raise concerns at the earliest opportunity;
• a pledge that NHS organisations should support staff when raising concerns; and
• clarity around the existing legal right for staff to raise concerns about safety, malpractice or other wrong doing without suffering any detriment

• The Department continues to fund the Whistleblowing Helpline which started in 2009, providing free, independent and confidential advice to staff who want to raise a concern but are unsure how to do so.  In 2011 the contract moved to Mencap the current service providers, and the helpline was made available to social care staff and employers as well.  

Care Quality Commission – new roles:

Following the Robert Francis Report on Mid Staffordshire, the CQC has introduced the roles of Chief Inspectors for Hospitals, Social Care and Primary Care. The new Chief Inspectors will:

• Make authoritative judgments about the quality of care and recommend that action is taken when they identify failing providers.
• Spearhead inspections based on risk, not frequency and more in-depth where quality is poor.
• Be the public face of CQC to their respective professions or sectors and the lead communicator with the media.
• Produce a single rating of providers.

Professor Sir Mike Richards has been appointed as the first Chief Inspector of Hospitals. He is the lead for the CQC on the regulation of all NHS Trusts and Foundation Trusts, including Mental Health Trust as well as independent providers of NHS Secondary Care contracts.

 CQC has appointed Andrea Sutcliffe as Chief inspector of Social Care.  On the 15 October 2013, Andrea set out her plans and priorities in ‘A Fresh Start for the Regulation and Inspection of Adult Social Care’. These plans include making more use of people’s views and by using expert inspection teams involving people who have personal experience of care.  New inspections in adult social care services will be structured around five key questions that matter to most people – are the services safe, caring, effective, well-led and responsive to people’s needs.

Professor Steve Field has been appointed Chief Inspector of General Practice. He will oversee the monitoring, regulation and inspection of GP Practices (Including out of hours services), general dental practices, mobile doctors and remote clinical advice services (including the 111 service). He will also be responsible for specific responsibilities CQC holds to work with other inspectorates (such as OFSTED and Her Majesty’s Inspectorate of Prisons) and for the safe management of controlled drugs and the safe and effective use of medicines.

Professor Sir Mike Richards has an important role in ensuring hospital inspections are not just seen as a ‘tick box’ exercise.  CQC inspections will ensure that not only is the organisation complying with the law and putting policies into place; but that the culture of the organisation actively promotes the benefits of openness and transparency; encouraging the raising of concerns by staff with whistleblowing seen as a positive step to improving public and patient safety through the quality of the services provided. 

Whistleblowing is being embraced by CQC as part of their inspection methodology. As the regulator of health and care, CQC is using staff surveys and the whistleblowing concerns it receives as part of the data in its new intelligent monitoring system (staff survey data/CQC whistleblowing concerns/complaints).  This data will guide CQC about which hospitals to inspect.  Since September 2013 CQC’s new inspection system includes discussions with hospitals about how they deal with, and handle, whistleblowers.

Support for staff who wish to raise concerns

The Government has made it clear to NHS organisations that they should have policies and procedures in place that support and encourage staff to raise legitimate concerns, and these concerns should be acted upon.

To support staff and employers the Department funds a free, confidential whistleblowing helpline which offers advice to health and social care staff

and employers about how to raise concerns.     The Whistleblowing Helpline are currently refreshing the guidance ’Speak up for a healthy NHS’ to bring it up to date with current legislation. Unlike the current guidance which is aimed at NHS employers, the refreshed guidance will be for staff and employers in the NHS and social care. This is expected to be published shortly.

A number of the regulatory bodies have let us know they are reviewing or have reviewed their process around how they deal with concerns raised and have clear whistleblowing procedures in place which are easily accessible to staff through written guidance and online help. A number of programmes are being run by the regulators to improve their measures. For example;

• the General Optical Council has published guidance for staff who may have to act as a witness in fitness to practise processes.
• The General Medical Council (GMC) are conducting a pilot scheme, the results of which will be published in Summer 2014, in which they talk with patients and relatives who have complained about a doctor whose fitness to practise is under investigation. In April 2014 the GMC will introduce a more effective system for dealing with complaints at local level which do not reach the threshold for an investigation, by asking the doctor’s Responsible Officer to taken any necessary action.
• Monitor is continuing to review how to ensure its accessibility to people who want to complain or to raise concerns.

The consequences of complaints for care providers and of raising concerns for the employment prospects of staff

The 2012 NHS Staff Survey highlighted the need to help a greater number of staff to feel safe to raise concerns and to feel confident that their organisation would address concerns. The survey suggested that although 90% of staff knew how to raise concerns, 72% of staff felt safe to do so and only 55% felt confident that their organisation would address concerns.

The Department therefore commissioned the Whistleblowing Helpline to run a campaign with the aim of improving these numbers.    In January 2013, the Helpline ran the ‘Bridging the Gap’ Campaign which aimed to raise the profile of Whistleblowing and increase awareness of the benefits of speaking up.  They worked with organisations to help them make simple, practical changes to their policies and arrangements, so that speaking up becomes ‘the norm.’

The recommendations from their report will be incorporated into the current refresh of the whistleblowing guidance “Speaking up for a healthy NHS” which was published in 2010.

Vicarious liability:   

Those who choose to bully and harass individuals in respect of their whistleblowing, should be held accountable for their actions, which is why the Department welcomed the BIS proposals to introduce vicarious liability into employment law to provide even greater whistleblower protections, this was introduced through section 19 of the Enterprise and Regulatory Reform Act 2013, and came into effect on 25 June 2013. This change should encourage individuals to take responsibility for their actions in respect of another’s decision to blow the whistle and the addition of this protection will allow an affected individual to seek redress.  

This measure means that an individual who has blown the whistle has the right to expect their employer to take reasonable steps to prevent or stop any detriment to the individual from a co-worker. Where this does not happen, they will be able to bring a claim in the Employment Tribunal against both their co-worker and employer, in respect of any detriment, bullying or harassment from a co-worker in the course of their employment.  An employer held to be vicariously liable for the actions of its employee, will be responsible for paying any compensation awarded by the Tribunal to the whistleblower.

To address the consequences of raising concerns for the employment prospects of staff, the Department updated its guidance in March 2013 to make it clear that where compromise/settlement agreement is used it must include an explicit clause making clear that nothing within the agreement prevents an individual from making a protected disclosure under the Public Interest Disclosure Act (PIDA).

Confidentiality clauses:

We have also consistently made it clear through guidance to NHS employers that where confidentiality clauses are used, they should go no further than is necessary to protect an employer’s legitimate interests, including matters such as patient confidentiality and commercial interest, and that local policies should prohibit the inclusion of confidentiality clauses in contracts of employment and compromise/settlement agreements which seek to prevent an individual from making a disclosure in the public interest in accordance with the Public Interest Disclosure Act (PIDA).  In any event where such clauses are used they are deemed void and cannot be legally enforced.

We accept that some confidentiality clauses may make some people feel as though they are being gagged.  Such clauses, although not illegal, may have what is known as a ‘chilling effect’ on some people. 

However, we accept that even with independent advice (which is a statutory requirement for a compromise/settlement agreement to be effective) some employees may not fully understand their rights.  

This is why we updated our guidance in March 2013 to make clear that where a compromise/settlement agreement is used it must include an explicit clause making clear that nothing within the agreement prevents an individual from making a protected disclosure under the Public Interest Disclosure Act.  This helps to mitigate the ‘chilling effect’ that some confidentiality clauses may have and makes absolutely clear to the individual that they have a legal right under PIDA to whistleblow, if they choose to do so, regardless of what other clauses are included in the agreement they have signed.

We also worked with the Treasury, Monitor, the NHS Trust Development Authority and NHS England to ensure business case templates used by NHS bodies for special severance (non-contractual) payment applications are amended. From April 2013 special severance submissions have included a specific section asking for confirmation that where a compromise/settlement agreement is used it includes a clause to say that nothing in the agreement can prevent the individual from raising a legitimate concern under PIDA.  Business cases will not be supported for onward HM Treasury approval without this confirmation.

The NHS Employers organisation issued guidance ‘The Use of Compromise Agreements and Confidentiality Clauses’ in April 2013.  It suggests some model confidentiality clauses and also offers model wording for the explicit clause now required in NHS compromise/settlement agreements.

Openness about complaints and concerns, and accessibility of information

The Department has made clear that improvements in and awareness of whistleblowing procedures are a priority.  We have also made it clear to commissioners of health and social care that they must have due regard to whistleblowing law and policies.

It is absolutely critical that all staff working within the NHS and social care feel able to speak up and raise concerns and these concerns are taken seriously and acted upon on.   The more people that raise a concern the more it becomes ‘normal’.

We are supportive of a culture where this is part of the norm and contributes to the development of greater transparency and openness, driving up a safer NHS where patients can be confident of receiving high quality care.  An open culture is not limited to discussions about failure. Learning can also take place from sharing good practice and addressing near misses.

We understand the critical importance of fostering and sustaining an open culture in which concerns about care can be raised, investigated and acted upon without fear of retribution. It is for local organisations to establish a culture that promotes openness, removes blame and provides appropriate opportunities for staff to raise concerns. Those who do raise concerns should be supported to do so and should not face retribution.

The responsibility for an open culture within an organisation rightly sits with the board but the government and other arms lengths bodies have also taken action to support this in the wider system, these have been detailed above. 

Future plans for improvements in this area

‘Hard Truths’, the Government’s response to the Mid-Staffordshire NHS Foundation Trust Inquiry, set out a range of measures to revolutionise the care that patients experience: rooting out unacceptable care, tackling failure promptly and effectively, and ensuring all hospitals drive for continuous improvement.   Building a supportive, open culture where patients and staff can raise concerns is key to ensuring safe care for patients, treating patients as partners and supporting staff to care.

Commitments which will support an open culture:

Openness -

• Transparent monthly reporting of ward-by-ward staffing levels and other safety measures.
• All hospitals to clearly set out how patients and their families can raise concerns or complain, with independent support available from NHS complaints advocacy services, Healthwatch or alternative organisations.
• Quarterly reporting of complaints data and lessons learned by Trusts, and the Ombudsman to significantly increase the number of cases she considers.
• Statutory duty of candour on providers, and professional duty of candour on individuals through changes to professional codes.

Staff engagement -

• There is a wealth of evidence which shows clearly that the key to providing safe, effective and compassionate care to patients is supporting and valuing staff. Staff wellbeing is not just a matter of culture. It depends on tangible elements such as good management, effective job design, education, training and appropriate resources. But alongside these tangible things, leaders need to create environments of psychological safety.
• To support staff to act consistently with openness and compassion, teams need to be given time and space to reflect on the challenging emotional impact of health and care work. Many organisations are already finding ways to do this through initiatives such as Schwartz Rounds.
• It is vital that attempts to change culture do not simply focus on surface-level observable behaviours. Meaningful change is only possible if deeply ingrained beliefs and assumptions are brought into the light and discussed. This is necessarily an uncomfortable process, and requires courageous, authentic leadership.

Following the high profile of whistleblowing in the media, and a variety of measures to increase awareness of raising concerns by the department, the whistleblowing helpline and regulators as discussed above there is now a higher awareness of safeguarding issues and procedures.  

To deliver the culture change, every individual, every team and every organisation needs to reflect with openness and humility on how they use the lessons from Mid Staffs to drive a meaningful difference for people who use their services and their staff, and on how they are transparent and honest in demonstrating the progress they make to the public.

Duty of candour:

In ‘Hard Truths: the journey to putting patients first’ we reiterated our belief that patients are best served by a spirit of candour and a culture of humility, openness, honesty and acceptance of challenge. Things do go wrong, but when they do we must learn from mistakes, not conceal them.

 The public rightfully expect openness, and for this reason we are introducing a statutory duty of candour on providers.  The duty of candour will place a requirement on providers of health and adult social care to be open with patients and service users about failings in care. Providers should establish the duty throughout their organisation. The new statutory duty will complement and support the existing contractual duty for NHS organisations to be candid.  In conjunction with the development of the statutory duty of candour on providers, the professional regulators are working to strengthen references to candour in professional regulation guidance.

 The duty of candour will work alongside whistleblowing and complaints systems – all are vital parts of an open and transparent culture, helping to improve public and patient safety in the quality of services provided.  

 Our work to date has focused upon raising awareness - we cannot say it is 'easier' to whistleblow. However, the results of the 2012 NHS staff survey demonstrate an ongoing improvement in the numbers of staff saying they know how to raise a concern. 

Future plans: some examples from regulators:

We asked professional regulatory bodies and system regulators to let us know their future plans, in addition to the activities identified above, to create an open and supportive environment which is conducive to enabling staff to raise concerns in the public interest.  A number got back to us with examples of their work, for instance:

• Monitor is committed to reviewing its internal and external whistleblowing policies annually to ensure that it incorporates all relevant changes in legislation and best practice.
• The General Osteopathic Council is supporting the development of online reporting and learning tools for adverse events.
• The Nursing & Midwifery Council is working with stakeholders to obtain views about the potential benefits of introducing regional liaison officers to support local arrangements for resolving complaints more speedily.
• The CQC is implementing a new approach to inspections, examining the approach they take to complaints and whistleblowing to effectively assess quality, improve people's experience with CQC, and encourage improvement in the wider system. An external independent review will also be conducted looking at how CQC handles protected disclosures made to it as a ‘prescribed person’, under the Public Interest Disclosure Act by staff of care providers. It is anticipated that the reviews will be completed by Spring 2014. The CQC has also made a commitment to inspect the way hospitals listen and respond to complainants and whistleblowers and is developing a methodology that will enable this across health and social care. 

Mencap, as the Whistleblowing Helpline provider funded by the Department, is committed to working with the Department, NHS Employers and the NHS and social care sectors to change the culture to one in which whistleblowers feel confident to raise concerns at an early stage.

The operation of the Public Interest Disclosure Act 1998 in relation to health and social care

The Government has strong whistleblowing legislation in place, having further strengthened the existing legislation in 2013. The Enterprise and Regulatory Reform Act 2013 (“ERRA”) inserted additional measures into the Employment Rights Act 1996 (“ERA”), to supplement those previously inserted by the Public Interest Disclosure Act 1998 (“PIDA”), namely:

• amending the extended definition of the term “worker” in section 43K of the ERA so that it now includes all health professionals with NHS contracts.  We had identified that, following several additions to the NHS Act 2006, due to the nature of the contract they hold, a number of health professionals were not afforded the protections of PIDA.  The extended definition of the term worker at S43K of the Act includes all health professionals with NHS Contracts.

• The Department welcomed the introduction by the Department for Business, Innovation & Skills of vicarious liability protection through ERRA, giving workers specific protection from suffering a detriment by a co-worker for making a protected disclosure. This was done in light of both case law, which indicated the existing protections may not be sufficient, and evidence which came through the Public Inquiry into the Mid Staffordshire NHS Foundation Trust, leading Government to conclude that the law in this area should be strengthened. As a result of this change, workers who suffer a detriment by a co-worker for making a protected disclosure can bring claims at the Employment Tribunal against both their co-worker and employer, in respect of that detriment.

The Government  further extended the protection for whistleblowers by adding the health and social care professional regulatory bodies to the Public Interest Disclosure (Prescribed Persons) Order 1999 (SI 1999/1549) (which includes a list of the bodies to whom protected disclosures may be made) so that, in addition to the Care Quality Commission and Monitor, health and social care concerns may be raised with the professional regulatory bodies responsible for investigating the fitness to practice of staff.

We submitted evidence to the Whistleblowing Framework Call for Evidence from the Department for Business, Innovation & Skills in 2013.  We made suggestions to improve the timeliness and flexibility for updating and amending the list of prescribed persons in the Public Interest Disclosure (Prescribed Persons) Order 1999.

The Department has made it clear that we expect all NHS, health and social care organisations to have in place whistleblowing policies that are compliant with PIDA which gives legal protection to all NHS employees and workers who make protected disclosures in the public interest to a body prescribed under the Act.

The Department updated its guidance in March 2013 to make clear that where a compromise/settlement agreement is used it must include an explicit clause making clear that nothing within the agreement prevents an individual from making a disclosure in the public interest in accordance with PIDA.  This helps to mitigate the ‘chilling effect’ that some confidentiality clauses may have and makes absolutely clear to the individual that they have a legal right under PIDA to whistleblow, if they choose to do so, regardless of what other clauses are included in the agreement they have signed.

11 March 2014