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Whistleblowing - Select Committee and Francis Reports

Two recent reports into Whistleblowing in the healthcare sector underline the need for cultural and practical changes in the NHS and beyond to ensure that patients are protected. Will politicians and Two recent reports into Whistleblowing in the healthcare sector underline the need for cultural and practical changes in the NHS and beyond to ensure that patients are protected. Will politicians and the NHS grasp the nettle?

Select Committee Report

The House of Commons Health Select Committee ("the Committee") recently published this parliament's last report on Complaints and Raising Concerns about healthcare service(s). The report analysed (and was most critical of) the handling of complaints and whistleblowers by the NHS, but it made specific comments on healthcare regulators' approaches and the development of these since 2011, and particularly the 2013 Francis Report.

Several healthcare regulators and representative professional bodies made submissions to the Committee's inquiries regarding the handling of complaints made against health and social care professionals. This included, particularly, oral evidence from representatives of the General Medical Council ("GMC"), Care Quality Commission and the Nursing and Midwifery Council ("NMC") in June 2014. The Committee discussed the regulators' evidence in a specific section of its report[1].

The Committee noted commitments by the GMC and NMC to give greater assistance and support to members of the public making complaints against medical professionals. The regulators had given evidence on the importance of clarifying their respective roles and statutory powers to protect the public, and the limits to these. The Committee was particularly interested in the GMC's confidential helpline (established in December 2012) for medical staff to raise clinical concerns about practitioners; it noted that over half of these had been made by people who wished to remain anonymous, despite the helpline being confidential. This concerned the Committee, which felt that "medical professionals raising concerns about poor practice via a confidential helpline are under a professional duty to provide as much information as possible to enable the matter to be investigated and to put patients first". (It could, arguably, be said to be irrelevant to the practitioner's duty as to whether they were providing information in confidence or not).

The GMC gave evidence detailing the tension between retaliatory referrals of whistleblowers. The report welcomed that the GMC has announced that a review led by Sir Anthony Hooper will look at the handling of practitioner complainants who raise concerns in the public interest, which is due to be published in early 2015, in order to ensure that such complainants are protected from retaliatory action and "counter-referrals". The Committee expected the review to promote the establishment of an "open reporting culture"[2]. The GMC otherwise maintained that its approach to investigating and progressing such complaints was and had to remain "evidence-led".

The Committee recognised that professional regulation is "not formally part of the complaints system" but that holding professionals to account for "failings" is an important component of patient protection. The Committee closed this chapter of its report by stating that "Linking together professional regulation, system regulation and the complaints system is essential. Progress towards this goal is another issue [which will need to be monitored] in the next Parliament"[3].

Freedom to Speak Up

The report was shortly followed by Sir Robert Francis QC's Review of Whistleblowing Process in the NHS ('the Freedom to Speak Up review'). Sir Robert found that this is a serious issue within the NHS that needs to be addressed and recommended the implementation of 20 'Principles' in order to guide the development of a consistent approach to raising concerns throughout the NHS.

The Principles are arranged under the following themes:

  • Culture change: the report emphasises the need for a culture of safety and learning rather than one of blame, where raising concerns is seen at all levels of the organisation as a positive activity. This requires a culture free from bullying, of visible leadership, of reflective practice, and which values staff who raise concerns.

  • Better handling of cases: this includes changing structures to deal with how concerns are raised and resolved, blame-free investigations (which have achieved substantial success in parts of the US) to establish the facts, as well as deploying mediation and dispute resolution;

  • Measures to support good practice: A crucial part of the report is the requirement to support those who raise concerns, whether that is in training staff about the need to raise concerns, instituting transparent systems for how complaints are dealt with and, where necessary, ensuring external reviews of complaints-handling processes;

  • Particular measures for vulnerable groups: The report highlights the need in certain cases for additional support for locums, support staff, BME staff, students and trainees;

  • Enhancing legal protection: Sir Robert makes a number of points about the limited efficacy of the current legislative protection for whistleblowers, highlighting that it is often remedial rather than preventative and does not cover a sufficiently wide constituency.

The report is lengthy and sits alongside Sir Robert's report into the Mid-Staffordshire scandal. The Secretary of State for Health has indicated that he accepts all of the recommendations of the report.

Whistleblowing has become a lightning rod issue in regulation and it health & social care, particularly during the lifetime of this parliament. These reports may represent the best opportunity yet to maximise patient safety and ensure that lessons are learned when mistakes are made. With a general election in the offing and ongoing changes to the way healthcare is delivered and funded, the crucial question is the extent to which their recommendations are followed and cemented in practice.

[1] Section 4 – Professional regulators and complaints, page 34

[2] Conclusions and Recommendations, para 17

[3] Section 4 – Professional regulators and complaints, page 38

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