New Changes Within NHS Trusts That Protect Whistleblowers

The NHS is an institution that the British public is very proud of and should be lived up to. Everyone involved from doctors to nurses and other professionals within health care perform a tremendous service looking after and caring for those who are injured or ill. As of this year, in order to improve confidences within NHS, there are new policies and procedures guidelines that support whistleblowers that each National Health Service had to review.

Deliberations were concluded in May of 2016 and the final guidelines were released this year. The new policies were introduced after an intense period of discussions and after reviewing the reluctance of NHS staff to step forward with their concerns regarding the safety of patients and inadequate funding.

Many of the leading healthcare workers have long believed that speaking up had many consequences including:

They worked within a small team and feared the backlash they would get from their colleagues. They were also afraid of losing their jobs if they raised any concerns to their employer. Workers in ancillary and non-clinical positions felt they had fewer options because they did not have access to a prominent group of leaders or a union.

The National Health Service Director for Patient Experience strongly believes that in order to have the safest health system takes listening to their staff and taking action where needed. Should a staff member discover something that is putting patients at risk, they should feel safe in expressing these concerns without repercussions.

The new guidelines have been put in place to create good practices, provide primary care staffers more options in order to share their concerns, and allows employers to handle these concerns correctly. In order to have a safe NHS, there must be open and honest communication in order to routinely learn from their past mistakes. They should take these mistakes and learn how to improve their patients’ safety.

Whistleblowing can help point out bad practices going on within an organisation. That said, these claims must be honest because the final outcome could lead to criminal actions against an organisation while unveiling cover-ups that are dangerous and not in the best interests of patients.

In 2014, an independent review board, chaired by Sir Robert Francis, revealed that whistleblowers within NHS were intimidated, bullied, ignored, and, in many cases, fired. During an interview, Sir Francis stated that approximately 30% of those raising concerns felt unsafe after speaking up.

He went on to point out that 18% of staff employees did not trust the system and therefore would not speak up. Another 15% stated they were afraid of being victimised if they were to say anything at all. This climate of fear was created by a number of people losing their jobs because they chose to speak up. These people have lost their jobs, their livelihood, and have found it very difficult to find new employment. Sadly, some cases have felt suicidal tendencies or became seriously ill in the aftermath. Before releasing his report, Sir Francis said nurses, in particular, had raised many concerns regarding intimidation and bullying within NHS Trusts.

A survey conducted in 2013 of 8,262 nurses revealed that 24% had been warned against making any public statements regarding their concerns. Approximately 45% of the participants said their employers took no actions regarding their concerns and 44% were very concerned about suffering from repercussions or being fired. Other threats made them think twice about whistleblowing about dangerous or negligent practices they had witnessed.

Based on the recommendations of Sir Francis’s report, the foundation for establishing a new NHS guideline regarding whistleblowing was born. The new policies offer steps to protect the safety of NHS employees who speak up.

Each NHS Trust should appoint a Freedom To Speak Up Guardian. This individual should not be within the chain of command management group. He or she will provide support to staff members who have genuine concerns. There should be further steps taken to prevent inappropriate behaviour including harassment, discrimination, or bullying toward staff members who speak up.

All NHS primary care providers were required to review and update their policies and procedures by March of 2017. The principles of the agreed upon guidelines were then incorporated.

Last year in 2016, Dr. Henrietta Hughes, medical director for NHS England’s North Central and East London region, was named National Guardian for Safeguarding of Whistleblowers. Paraphrasing a statement after her appointment, she believed it takes a lot of courage, honesty, and selflessness to be a whistleblower. She also said that no one should ever be afraid to come forward for fear of punishment when speaking up for the safety and care of patients.

Along with her office, their national partners, and anyone who wants to support and protect staff members who speak up will help her drive a new agenda of openness. “Ultimately, these new policy guidelines will make for a safer NHS.” Staff members will have a great deal of support and gain confidence in speaking up especially for the public’s interest in safety.

The Case Of Dr. Hayley Dare – Feb 11, 2015:
Dr. Dare had a perfect 20-year reputation for helping patients and excellence within her field. Her entire career was damaged when she chose to speak up about concerns for patients’ safety to the CEO of the West London Mental Health NHS Trust. Absolutely no one should ever have to go through such a horrific experience like she did.

The NHS Trust spent £130,000 fighting Dare’s accusations, even though they understood that her claims were accurate. She was harassed, called “A Very Disturbed Women”, bullied, and then fired. After losing her job, based on a legal technicality, the Judge said her disclosure was not made in good faith (which did not exist at the time) and a provision that no longer has to be satisfied. The NHS Trust went after Dr. Dare for £100,000 in court costs.

In Conclusion:
Things have changed thanks to Sir Francis’ report, the creation of the Freedom To Speak Up Guardianship, the network of Freedom to Speak Up Guardians in NHS Trusts, and others who support and protect those who speak up. No one should ever go through this again.

About Sir Robert Francis:
He is a British barrister who specialises in medical law, treatments for mental and medical issues, clinical discipline and negligence. He has chaired various independent investigations.


employment law

Things to consider regarding employment Tribunals for employers.

Q: What is stressful, time consuming and expensive?
A: An Employment Tribunal hearing.
You may be wondering about my out of the blue answer, and justly so. I am convinced that an Employment Tribunal Hearing can be one of the more stressful situations you can come across, and this isn’t some passing observation. I was actually a witness in such a hearing, and I got to know the ins and outs of the whole process. You are probably not familiar with an Employment Tribunal Hearing (Although anyone can see them), and that’s why I am here to break down the process for you.

My involvement with the case didn’t start with me being a witness. In fact I was the lead investigating officer on a case of gross misconduct against one of my client’s employees. In fact, I was knee deep in related documents and was interviewing witnesses at that time to actually check whether there was a case to be made. I found the evidence quite compelling (Though not decisive), and informed my client, and they had a disciplinary hearing which resulted in the employee being summarily dismissed. The decision continued to be upheld in an appeal, which resulted in the employee contacting the Advisory, Conciliation and Arbitration Service  for early conciliation.

The employee’s demands were not agreed upon by my client’s company, and all negotiations fell apart, leading to an Unfair Dismissal case that had its first hearing in early 2015. Due to me being an investigating officer in the case, I was asked to appear as a witness.

Document Mountain
In the months before the hearing, the company’s lawyers dropped off a surprise: Two huge bundles of documents that I had to familiarize myself with, since they were to be presented to the judge. I had my work cut out for me. In addition to working through this pile of documents, I had to work on my witness statement, which had to favor the company while being the truth (I actually had to swear a legal oath involving the lines ‘the truth, the whole truth and nothing but the truth’, so you can imagine how serious the whole thing was.)

Indeed, these two tasks alone took two whole days, and we hadn’t even entered the meat of the proceedings: The Court.

In Court
On the day of the hearing, I set out early in order to reach the Court in time. Tribunal Hearings, contrary to what the name might suggest, actually involve a proper court with a qualified Judge and due process being followed. Very rarely are three-person panels appointed, and for cases like ours, a lone judge presides over us.

What surprised me was that the building where it was all supposed to go down was nothing remarkable. I was running around in circles looking for it, and then I realized I had been driving around the building itself. Outside, there was a small queue of people and some even had small suitcases. The whole thing could pass off as a scene at some holiday destination if it were not for their formal suits. We were allowed through at 9AM, instructed to wear identification badges at all times.

I waited along with the company’s other witnesses and the lawyers, in order to revise what he had to do. Witnesses of the Defendant and the Claimant would come first and second respectively, with all witnesses requiring to sign the witness statement on the witness table in front of the judge. Then, the witnesses had to truthfully answer questions posed by the Claimant’s attorneys.

My biggest mistake was assuming that my job would be done before the end of the day, and that’ll be that. It went on a lot longer and was a lot tougher than I ever imagined.

The Grilling
We all watched occasional Courtroom Dramas on Television, and going by them, we would expect lawyers to be  eyeballing and intimidating you every step of the way. While the actual behavior wasn’t like that, the intimidation was there, whether intended or not. It was induced by the calm yet endless stream of questions from the Claimant that was downright unnerving and exhausting. It wouldn’t end there. If we hadn’t done a fine job up on the stand, the defendant’s lawyers would come in to ask questions to save the day.

The process was so time-consuming that it took a whole day to get to the first witness, which was a stark difference from the minutes  I gave to each witness

The next day came with my turn on the witness stand. The Claimant’s representatives’ sole purpose was to make the other side look bad. Any evidence be brought up had to be undermined from their perspective, and so the job called for over-analyzing every single detail, and using it against us. I was asked to support my claims, justify them and made me question myself. It was that relentless. A single word could bring the whole thing crashing down. Leading questions, the things I witness, the words I used, nothing was left our.

The questions were so detailed that I didn’t know answers to some of them, and I felt as if I was lying to myself. That’s what a day in court does to you. It makes you doubt yourselves.

By the evening, I was an absolute mess, and I didn’t think before answering questions. I may well have jeopardized the case, and it does goes to show that being in Court isn’t as easy as it is touted to be. I was later free to go, but felt a bit sorry for the other witnesses who had to wait days just to get grilled like that.

Who wins?
It doesn’t tale a genius to figure out who would win the case before the judgment is actually announced. However, while it legally would be a win, financially, it won’t be that big of a win with the legal fees alone eclipsing the win. Lot of time too would have been wasted for what amounts to essentially nothing.

Last resort option
Before the hearing, I had gone to a related seminar, where an employment solicitor gave me some very important advice: A Tribunal Hearing should be a last option, and mutual settlements are the best way to settle any disputes. Of course, you can take the chances and take your employee up in Court, and you may very well win. But you are sacrificing significant time and money towards a small win, and in the long run, a settlement is the much better way to go. You need to choose what is best for your business, and if you have to sacrifice a bit for your previous employees in order to move forward, so be it.

Contact Hadaway & Hadaway for advice and help regarding employment law: