This week, Lord Darzi’s long-awaited report into patient safety in England's health service, reported that as few as 5% of patient safety incidents are reported, often because of staff fearfulness.
And today an influential committee of MPs reproaches the government for its continuing failure to take whistleblowing seriously. A new report by the Public Accounts Committee says MPs are “disappointed by the lack of urgency” the government has shown around whistleblowing, and also “concerned” at the narrow scope.
All this is a further embarrassment to Jeremy Hunt who this week hung out more patient safety tinsel, announcing a raft of initiatives to “end the cover-up culture” and ensure an NHS that has “safe space” for staff and “learns from mistakes”. But behind the soundbites, where’s the detail? I phoned the Department of Health, but they were unable (or unwilling) to put much flesh on the bones.
The rebranded Healthcare Safety Investigation Branch (HSIB) will carry out “no blame” investigations, we’re told – and much fuss is made of legal “safe space” for staff within these. Some have questioned how this will be achieved without primary legislation. The Department of Health insists that it can be achieved, but has no draft directions to share. HSIB will only undertake 30 investigations a year when there are some 10,000 serious incidents, including over 300 Never Events.
The DH admits that there will be no “safe space” provision for thousands of NHS investigations that will take place outside of HSIB’s domain. Neither will HSIB report to parliament. Instead it will be a branch of NHS Improvement, possibly perpetuating conflicts of interest in NHS incident handling that parliament criticised a year ago.
There’s a catchy new “Learning from Mistakes League”. It places the NHS Improvement CEO’s old trust at the top. However this trust (Northumbria) super-gagged 45 staff, a practice criticised by Robert Francis as “draconian” and unhelpful.
But there’s no sign of Hunt learning from his own serious mistakes in relation to how he protects – or doesn’t protect - whistleblowers.
In the Commons this week, Hunt agreed merely to “reflect” on a further call, from a Health Committee member, for review of past whistleblower cases.
And last week – in a highly embarrassing move for Hunt - Dame Eileen Sills resigned as the first “National Freedom to Speak Up” Guardian, before she’d even started the job. The creation of her post was a centrepiece of Hunt’s promises on protecting both patients and whistleblowers, post-mid-Staffs.
Her resignation came ten days after she said defiantly “I won’t be dropping any balls”.
She was responding to criticism that the Guardian post was only two days a week, and established on top of her full time £174,000 commitment as Chief Nurse at Guy’s.
Eileen Sills was purportedly appointed to lead improvement in NHS whistleblowing governance at national level, and to support a network of local whistleblowing Guardians employed by NHS bodies.
But from the start, the majority of whistleblowers and campaigners predicted problems with the National Guardian’s office, pointing out that what is needed is a truly independent body that reports directly to parliament, which has powers to investigate and remedy poor whistleblowing governance, and is properly resourced.
Instead, we got a part-time office implemented by the government’s regulator, the Care Quality Commission (CQC). The CQC’s specification for the post focused heavily on what the National Guardian would not do:
· no remit for hundreds of “historical” cases
· no investigation of the disclosures made by staff
· no assessment of the soundness of local investigations by employers
· no investigation of cases
· no provision of appeal against local decisions by employers
· no statutory powers
All of which – along with the part-time nature - rendered the office merely decorative. Even Eileen Sills herself expressed disquiet to me that “historical” cases were excluded from her remit.
CQC launched a “consultation” about the office after the job had already been advertised. In response to criticism of this pre-determination, CQC claimed that there was still flexibility. This did not seem evident to Eileen Sills, who wrote to me that there was no possibility of deviation from CQC’s advertised specification for her post.
In the wake of Eileen Sill’s abrupt departure, and associated disruption, questions arise about why the great and the good appointed an NHS insider whose own trust has been slow and reluctant to answer questions about past whistleblowing governance. Its response to an enquiry about use of compromise agreements and associated gagging clauses is overdue.
Eileen Sills recently oversaw completion of important national whistleblowing guidance but – to the concern of whistleblowers themselves – they had minimal involvement in the process. Sills chose not to appoint whistleblowers who were put forward by NHS arms length bodies for interim posts in her team. Instead, she made somewhat “corporate” appointments from the DH and other central bodies. Her office has been reluctant to disclose the total number of whistleblowers who were turned down.
The erstwhile National Guardian, whilst still in post, suggested I meet with her – though it was difficult to agree a clear agenda. After the meeting, her interim deputy (who appeared at our meeting without prior discussion) seemed reluctant to agree a record of the discussion, reminding me of surreal past experiences of NHS Human Resources. I was bemused when in our meeting Eileen Sills commented that she was being careful with her answers, because I would “tweet” whatever she said. So much for the National Guardian’s remit for improving transparency.
Nevertheless a record of the meeting was eventually broadly agreed. It notes that Eileen Sills did not yet know how many local Guardians were in place, that she thought it was “too early” to tell if the Public Interest Disclosure Act (in force since 1999) was a success, and that she did not want to say whether harmed whistleblowers should be released from gags for the purposes of defending themselves when applying to the planned NHS re-employment scheme, but agreed to “explore” this. She refused to comment on whether NHS bodies should be barred from gagging staff about whistleblower reprisal.
And it’s even unclear whether staff who make disclosures to the National Guardian can claim legal protection under the Public Interest Disclosure Act (meagre though this is). The interim deputy asserted the National Guardian is not a Prescribed Person under the Act, to whom staff can make “protected disclosures”.
This is despite the fact that the office is located within CQC, which is a Prescribed Person. Eileen Sills agreed with her deputy. If they are right, staff would have weaker grounds to claim against employers for reprisal resulting from disclosures to the National Guardian. I have asked CQC to clarify this important point, and to issue guidance to NHS staff on their rights when disclosing to the National Guardian. It would be a further weakness of the office if staff who inform the National Guardian of concerns are in fact more exposed. Who would wish to embed such a fault into core governance?
In all, there is little evidence of learning from the mistakes highlighted by the National Guardian’s resignation before her post even formally started.
There is no announcement that Francis’ whistleblowing Guardian model will now be reviewed, nor that near unanimity amongst whistleblowers on the need for a truly independent body will be heeded. Neither is there any announced plan to involve whistleblowers in the appointment of another National Guardian. Instead, the CQC assures us that it is full steam ahead for more of the same.
Whistleblowers and patients need a serious venture, not window dressing and part-time figureheads.
Look out for plenty more dropped balls.