Image: Ian Alexander

“On high death rates, failing hospitals and whistleblowing, we are calling time on the cover-up culture, and ushering in a new era of transparency”[1]

So promised Jeremy Hunt in February this year.

However, Hunt’s latest moves have shown that his rhetoric is not to be matched by real protection for whistleblowers.

Instead, he’s plumped for local ‘Freedom to Speak Up Guardians’, and a ‘National Guardian’. [2] [3] [4] This is very bad news for whistleblowers and for transparency. There is no evidence base for the Guardian model [5], and in our opinion it has been designed to fail.

The plan now adopted by Hunt was first presented in February’s Freedom to Speak Up Review into NHS whistleblowing. It was published by Sir Robert Francis QC – the man previously hired to report into the failings of care at Mid Staffordshire and to devise a plan to ensure they never happened again.

One of the key findings of the landmark 2013 Francis report into Mid Staffs was that staff were too scared to report poor care. Francis pressed for criminal sanctions against whistleblower suppression. [6]

But disappointingly in his new whistleblowing review, Francis rejected criminal sanctions.

Despite evidence submitted to Francis by hundreds of whistleblowers about determined suppression and “lives being destroyed”, he neutered the Freedom to Speak Up Guardians. In particular the National Guardian, purported back stop for failure of local mechanisms, will not have its own statutory powers, merely an advisory role. Nor will it investigate individual cases, nor review past cases to learn from history.

A further crucial weakness of the National Guardian is that it will not intervene in employment disputes.

…“should not actively intervene in ongoing provider processes or employment disputes” [7]

A key strategy used against whistleblowers is to engineer employment disputes. So employers will easily put cases beyond the reach of the National Guardian.

Employers typically create employment disputes by mistreating whistleblowers to provoke grievances, inventing grounds for disciplinary action or smearing whistleblowers’ mental health and performance. Employers can then proceed to dismissal for misconduct, incapability or break down of relationships (under the “some other substantial reason” clause). Alternatively, employers may rely on redundancy as an exit strategy.[8] [9]

A National Guardian that by design will not investigate or intervene in this highly damaging strategy against whistleblowers is designed to fail. It will provide no meaningful protection. The most that the National Guardian will be able to do is report failing employers to central bodies that have been part of the problem: the Care Quality Commission, Monitor, the Trust Development Authority and NHS England.

The National Guardian would not have protected Raj Mattu, a whistleblowing heart surgeon.

An employment tribunal ruled last year that Dr Raj Mattu was unfairly sacked by the Walsgrave hospital in Coventry after he voiced concernsabout poor patient care, including overcrowding and higher than expected death rates.

The trust’s campaign against Mattu was ferocious, according to Andrew Smith in the Guardian:

“Soon, the single complaint against Mattu had become 35, then 200, ranging from questions over his qualifications to charges of serious criminal conduct outside of work. These were sent to the GMC, CQC, the Strategic Health Authority and three different police forces; by 2009, all had been investigated and found to be false. Mattu was also subject to three separate tax inquiries, despite having undertaken no private work. In 2010, ill and suffering from depression, he was finally sacked by managers who questioned the validity of his ailments and found him “unmanageable”.”[10]

Mattu was vindicated by the employment tribunal which described him as blameless. His lawyer commented “it was tragic that his pursuit of safety and the highest standards in care led to him being vilified, bullied and harassed out of a job he loved."

But the Trust’s pursuance of this protracted and costly employment dispute would have put Mattu firmly beyond the protection of the National Guardian.

The problems don’t stop there. Whilst the office is nominally “independent”, the National Guardian will be hand picked and overseen by the Care Quality Commission, who are firmly under the Department of Health’s thumb. As the National Guardian will not be in post until April 2016 at the earliest, more whistleblower cases will be consigned to the dustbin category of “historic”, and sealed away.

This is all a far cry from an equivalent USA office (Office of Special Counsel). This can independently investigate, remedy employment detriment whilst a whistleblower is in post and litigate if necessary.

The worst NHS organisations have been ignoring good practice guidance for years. The National Guardian office is an irrelevant addition and a waste of public funds. However, it will serve as a smokescreen for suppression by government. Central government bodies chant the mantra “protect whistleblowers” whilst still authorising compromise settlements with super gags, which hide even the existence of settlements.

Last year, some whistleblowers were too scared to participate in the Freedom to Speak Up Review because they were subject to confidentiality clauses.

The Secretary of State pays lip service to aviation-style safety. This requires properly independent investigations, but Robert Francis ignored many calls for a truly independent mechanism for whistleblower governance. His review report is totally silent about the grave nature and scale of the disclosures reported to him. We have also learned that Francis ignored even Simons Stevens, who on behalf of NHS England called for independent investigation, safe harbour and an Ombudsman. [11] Similarly, it is now evident that the Department of Health ignored the Care Quality Commission’s suggestion that the National Guardian could be located with the proposed NHS independent patient safety investigation service (IPSIS).[7]

Independence and full transparency are plainly unwanted and resisted by government. Francis’ complaisance is very disappointing. Last October, at a Freedom to Speak Up seminar that we attended, Francis openly stated that he would only make recommendations that would be accepted. Francis’ review is a comprehensive failure in terms of the duty of care to staff and patients. However, it suits the DH very well.

Over the period of Francis’ review, and since its publication, there has been no diminution in the stream of victimised and sacked whistleblowers. Cases continue to be raised in parliament. However, when whistleblowers approach Jeremy Hunt and the Department of Health for safe haven, they are still told that the Department does not intervene in “employment matters”.

Accordingly, whistleblowers will continue to press for proper learning through a public inquiry, and real measures to protect those who speak up in future. The NHS is under increasing pressure, and staff have many concerns that they need to raise. It is unjust to expect them to sacrifice health and livelihood simply for standing up for patients.

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[1] Hunt: Sweeping reforms to end NHS “cover up culture”. Laura Donnelly & Patrick Sawer, Telegraph 7 February 2015

[2] Report of Freedom to Speak Up Review by Sir Robert Francis QC, 11 February 2015

[3] Learning Not Blaming, The government response to the Freedom to Speak Up consultation, the Public Administration Select Committee report ‘Investigating Clinical Incidents in the NHS', and the Morecambe Bay Investigation. 16 July 2015

[4] National Freedom to Speak Up Guardian, CQC board paper 29 July 2015http://www.cqc.org.uk/sites/default/files/CM071506_Item_6_Freedom_to_Speak_up_National_Guardian.pdf

[5] Critique of Francis’ model of trust appointed Guardians, Minh Alexander 4 June 2015 http://sharmilachowdhury.com/2015/06/21/critique-of-francis-model-of-trust-appointed-guardians/

[6] Francis calls for new protection for whistleblowers. Shaun Lintern, Nursing Times, 11 February 2013

[7] CQC’s submission to DH consultation on implementation of Freedom to Speak Up Review http://twitdoc.com/view.asp?id=211107&sid=4IW3&ext=PDF&lcl=DH-Consult-CQC-20150603-FTSU-DH-consultation-response.pdf&usr=Minh_Alexander&doc=272545800&key=key-8O60eydHWtpxxMI8vznp

[8] 21 Ways to Skin a Whistleblower from Shoot the messenger, Private Eye Special, Andrew Bousefield and Phil Hammond 2011

[9] Thematic Review of 70 cases, by Patrick Green QC et al, submitted on behalf of Patients First to Freedom to Speak Up Review, September 2014

[10] “There were hundreds of us crying out for help”: the afterlife of the whistleblower. Andrew Smith. Guardian 22 November 2014

[11] Letter from Simon Stevens CEO NHS England to Sir Robert Francis QC, 22 September 2014 http://twitdoc.com/view.asp?id=211953&sid=4JJL&ext=PDF&lcl=Simon-Stevens-toRobertFrancis.pdf&usr=Minh_Alexander&doc=272974968&key=key-NEY87NHor4PDtvGrRsyk