Health and Sport Committee

Meeting date: Tuesday, June 13, 2017

Official Report 673KB pdf

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NHS Governance

Agenda item 13 is NHS governance. Today, we are going to look at whistleblowing. I welcome to the committee Sir Robert Francis QC; Cathy James, who is the chief executive of Public Concern at Work; Kirsty-Louise Campbell, who is senior manager of strategy and insight at the City of Edinburgh Council, and Laura Callender, who is the council’s governance compliance manager; Robin Creelman, who is a non-executive director at NHS Highland; and Morag Brown, who is a non-executive director, co-chair of the staff governance committee and whistleblowing champion at NHS Greater Glasgow and Clyde. She will need a big business card to get all that on it.

We have around an hour, so I appeal to people to keep their questions and answers short. I will ask the first question. Is the whistleblowing system in Scotland fit for purpose? I am sorry—I should also have said that it is not necessary for everyone to answer every question.

I am happy to kick off. The whistleblowing system is not yet fully developed or fully in place, and to judge it in isolation would be to judge it wrongly. To me, a whistleblowing system is basically a lifeboat for the culture of the national health service. If the rest of the culture is in place, we should seldom require the lifeboat, but we must have the lifeboat.

I am comfortable with where we are. In NHS Highland, we are still refining and making changes to the system, but I am generally comfortable with the direction of travel. I think that our work in the area is very worthwhile.

I agree that this is a journey that the NHS in England and the NHS in Scotland are on. Many of the necessary parts are being put in place, but some progress is quite slow—for example, the national officer role is not in place yet, but it is coming. Thought is being given in Scotland to the structure of that role and to giving it a statutory footing. That is in stark contrast to what is going on in England, where the role has been put in place as a test to find out what best practice looks like. That approach has its problems. Slower progress is being made in Scotland because planning is being done.

The work on whistleblowing will never be finished. It will always need adaptation, review and consideration, which is why it is vital that we have a national role that is responsible for whistleblowing. Otherwise, it will get lost among all the other requirements that are put on local organisations.

Robin Creelman talked about the whistleblowing system being a lifeboat. I know from experience of dealing with constituents who have come to me that when some of them have tried to clamber aboard that lifeboat, they have been booted back into the water. Do you recognise that?

I recognise that every system can fail, but we must start from a position of recognising the differences between the Scottish and English systems. Whistleblowing really took off in Scotland after the first set of events at NHS Ayrshire and Arran, roughly four years ago. Learning had not been shared and there was a lack of transparency in the system.

As a result of that, Healthcare Improvement Scotland introduced the adverse events programme, which is a national standardised system for dealing with adverse events. That filled a huge gap in the system and it greatly affected the culture. As a non-executive director at NHS Highland, I was very comfortable to see an increase in the number of adverse events following the introduction of that programme, because I felt that it demonstrated a more transparent and open culture, in which people were less afraid to speak up.

We have other things coming in next year such as duty of candour and being open. All those things contribute to the culture of the organisation being to have whistleblowing as a lifeboat.

There is also initial confusion about the difference between what are just grievances and things that really require whistleblowing.

11:30  

What would be the consequence of adverse events not being investigated? There have been a number of cases: I have one in which serious adverse events were reported but there is a culture of cover up and of not investigating adverse events. The person who reported them was hung out to dry.

That is the perfect storm or disaster scenario. Mid Staffordshire NHS Foundation Trust got to where it got to because nobody thought it could happen, so I will never say that it cannot happen in our system—although I would be absolutely astonished if it did.

Adverse events usually initially come out through clinical governance and then, depending on the size of the event, there is a convention of four or five different experts. It is difficult to hush up something like that.

You raised a question about people who have lived through whistleblowing having a harmful or damaging experience. We need to recognise that we are at an early stage of a journey. We will seek to improve our arrangements and support to staff. The national officer role could be of great assistance in that.

We must also recognise that people are concerned about being the subject of victimisation. They are also concerned that something be done about that, so we have to work hard over the coming period to earn the trust of staff and to earn public confidence.

On the process, my understanding is that when someone blows the whistle often, the issue goes to the board that they work for and can find its way to the manager on whom they might be blowing the whistle. Is that your experience or does that not happen? Someone in the organisation where the whistleblower works has to investigate.

The process is defined in the whistleblowing policy, which contains a range of options for the staff member. The policies are based on the code of practice that has been produced by the whistleblowing commission, which is Public Concern at Work. The initial point of contact can be the line manager or a manager in a different place—it can be one of a variety of people. If it had to be done through line management, the process would be devalued.

The City of Edinburgh Council has a unique arrangement around governance of whistleblowing disclosures. We have an independent hotline provider that oversees the disclosures and the reports that come in through whistleblowing, and it reports directly to our scrutiny committee. In terms of ensuring that the whistleblowing report or disclosure is taken seriously and the investigation is carried out in full, that is our check and balance.

Two weeks ago, when we first discussed the topic in committee, there was a heated discussion about the spectrum that lies between raising concerns and whistleblowing. There was a view that, in the majority of cases, NHS staff feel empowered to raise concerns, but whistleblowing feels like a different threshold. Could we have the witnesses’ reflections on that spectrum? At what point does it become harder for staff to direct criticism against, say, a colleague or set of practices, over and above the normal day-to-day intervention of “This doesn’t feel right—maybe we should do things differently”?

Perhaps I can speak from my overall experience. As you might know, I am keen to get away from the term “whistleblowing”, because it covers a huge range of things, including some that not even well-meaning people would think appropriate. It implies a barrier to speaking up. In an ideal world, everyone should be able to speak up, be listened to and see action being taken, but unfortunately that is, as we know, not the position.

Any division between what one might call speaking up and whistleblowing is likely to be counterproductive, and it seems to me that what we should be looking at is the reaction to someone who speaks up. Does it result in, at one end of the spectrum, victimisation and no action being taken or, at the other, positive end, the raising of the issue being welcomed and investigated, action being taken and the person who raised the concern being thanked? If what happens in one’s organisation lies at the former end of the spectrum, alarm bells should be ringing about the culture in it.

That is a general answer. There is, of course, a spectrum, but it is all about speaking up. Some people become victims as a result of speaking up, while others become the champions of the issue that they have spoken up about.

I agree. The terminology is really crucial, and there is a lot of confusion. However, the danger of getting rid of the term “whistleblowing” altogether because of its being fraught with difficulty is that we would end up endlessly entrenching the negative view of it. We were not named “The Whistleblowing Charity” when we were set up 25 years ago; we were named Public Concern at Work because of the sense that to be a whistleblower is to take a risk.

I do not have a view about what the process should be called, but, internally, it should be about a process of escalation in an organisation that is very clearly set out and which people receive training on. In fact, that is what is starting to change. Training around whistleblowing is really gaining momentum in the health sector and the financial sector—which, interestingly, are the two sectors in which there have been huge scandals.

There is also, of course, also an external element to this. Sometimes that is seen as the whistleblowing aspect, while everything that happens internally in an organisation is soft and fluffy and works. However, according to our advice line, that is not the reality. Most whistleblowers try once or twice internally and then give up. If we want to see this as something that is in the interests of the NHS in Scotland, because it shows where the problems are, we need to capture those people, listen to them, act on their concerns and ensure that they are protected.

To be honest, I do not think that the terminology matters much. Perhaps I can give a fairly simple example. If, in a clinical setting, a member of staff sees a nurse or doctor not washing their hands, the staff member will normally record that sort of thing on a system known as Datix, which then goes to clinical governance in the health board and is acted on. However, if the member of staff records that occurrence, but nothing happens and the offender still does not wash their hands, day after day, week after week, there needs to be some outlet for raising the profile of that. Currently, that would be whistleblowing.

Sir Robert talked about the two ends of the spectrum—either being victimised for whistleblowing or being thanked at the end of the process and helping things to improve. It also strikes me that at the more negative end of the spectrum there is the situation that we know from the NHS and other walks of life of complaints that go upwards being met with disbelief or inaction. How can we mitigate the two significant barriers to people taking action and putting their heads above the parapet and blowing the whistle—concern about victimisation, which we know happens, and cynicism about whether they will be believed or even listened to? What is in place to deal with those things just now, and what could we put in place that we do not currently have?

I will start from a general perspective. If someone raises an issue that is disputed, there must be a process to sort out the facts. You might think that I would believe that, because I am a lawyer. Often when people speak up, the matter immediately descends to the personal level and the question becomes who is to blame for the issue that has been raised, and if there is no one to blame it must be the fault of the person who raised it. We have to get used to the idea that there will be disagreement about what is right and what is wrong. However, we then need to sort out what is right in an authoritative, fair and proportionate manner. Until we do that, we will never proceed very far either in improving the service or in looking after the person who raised a no doubt genuine concern.

We have to recognise that not every issue that staff raise will turn out to be correct, but they must not be discouraged from raising those issues. If it is thought that the staff member is not correct, they should be given a proper explanation, which makes sense to everyone, as to why there is a difference of view.

Is that the process?

What happens must depend on the facts, but there must be a process of authoritative investigation. If the issue is potentially serious, it must be investigated by people who have the authority to investigate and are trained to do so. Often, things are looked into in an entirely impressionistic way. When that happens and no action is taken that satisfies the person who raised the concern, we begin to get trouble. The longer such sores are left unhealed, the more likely it is that there will be victimisation and, perhaps even more important, a failure to correct the issue that was raised in the first place.

I absolutely agree with that, but my concern is a little bit further upstream. I am thinking of the adage, “Culture eats strategy for breakfast”, and my concern is the people who do not get into the process because the culture around them prevents them from having the confidence to raise a complaint, or even intervenes to prevent them from making a complaint or raising something important.

A way to address that is to ensure that you have mechanisms to collect data about what staff feel about things. The NHS staff survey is becoming a very instructive tool in relation to staff telling the system that they do not believe that they will be treated fairly if they raise a concern, that they are not being listened to, and matters of that nature. The figures can be looked at on the basis of individual organisations. We need to get out of a culture in which 51 per cent is thought to be a good result.

I agree with that point—those numbers have prompted the committee to take on the issue. However, although we can measure it, I am not convinced that we are actively doing something to address the problem.

Would anyone else like to make a brief comment on any of the points that Alex Cole-Hamilton has raised?

We introduced our whistleblowing arrangements in 2014 and from our experience the point about culture is absolutely critical. Over that period, we have built a position in which people feel that they can contact our whistleblowing hotline and service and be heard and listened to. If the person’s concern is not a matter of whistleblowing within the policy or legislation, the matter is still investigated and they are given proactive feedback in a positive way. It is the same for people who make a disclosure, whether that is done anonymously or not. Building confidence through the good process that you have put in place allows colleagues and staff to feel that their views are being heard more appropriately.

Alex Cole-Hamilton asked what we were doing about the problem and the point about culture is very important. I co-chair the staff governance committee and we have recently established a subgroup to consider culture, because we wanted to address some of those issues and concerns in feedback from surveys and other areas. We are committed to reshaping and refocusing our culture so that one of our core principles is that the NHS is a good, safe place to work. That is very important.

We are developing a plan for our new modular approach to culture. It is also important to learn lessons where that has worked well. We will look at places such as Salford Royal NHS Foundation Trust, where there have been significant improvements and cultural change.

11:45  

On whistleblowing, we have taken forward information sharing and encouragement through staff news and inserts in payslips. In the future, we want to extend that through roadshows and further training.

A couple of measures that are well worth exploring are how we share good practice—how we share the good news when people have reported concerns and we have acted on them. That is important. We have heard of two examples of good practice from my review of our whistleblowing cases this year, and we are looking at how we can best share them.

In addition, we need to give consideration to systems and processes that are open and helpful for supporting staff. We need to consider whether a buddy system would be helpful for people whether or not they already have a supporter, because of the impact on the individual who takes a very serious concern through the whistleblowing process.

We are looking at a number of areas, as well as others that we can take forward for the future.

There is a lot of work to be done to review internally. Just looking at the numbers is not enough, because the numbers will not be comparable across organisations. An organisation that has a culture of very high reporting may well not have much end-game whistleblowing. An organisation that has a low number of reports should be questioning why that is, or it might have got the balance about right.

You need to look at the survey work and at what is happening in other incident-reporting processes, and you need to speak to staff and have focus groups. All too often, quite a lot of resource is involved in doing those things. When pressures are on the NHS to deal with all sorts of other priorities, internal review work can go to the bottom of the pile, but it is where you will find out where the problems are, so it needs to be given priority.

One thing, convener—

Be very quick.

Okay. With regard to governance, as soon as a whistleblowing incident occurs, I am notified. I get a monthly statement that covers progress on incidents, who the investigating officer is, outcomes, and good practice and how it is shared.

Sir Robert, your freedom to speak up review referred to an NHS England staff survey in 2013, which showed that only 72 per cent of respondents were confident that it was safe to raise a concern. We had a lower figure here in Scotland. Do you think that things are improved? Would you expect that result to be better now, with the national confidential alert line?

You are testing my memory on what the result in the staff survey was in March this year. I do not think that it was much better, frankly—the process was still at an early stage.

The impression that I got at the time of my report was that the level of staff lack of confidence in the system was pretty dire compared with some other sectors. That is slightly surprising, but it seems to be the case. A lot of positive work needs to be done.

One issue that I found quite surprising was how difficult it was for me to find examples of good practice, which were seen as being successful, to put in my report. The reason for that cannot be that there were no examples; it is that in the good places, people just shrug their shoulders and think that what they do is a matter of routine, so they do not bother to collect data about it. We need far more leaders at a local level recognising the value of what they hear from their staff. That will encourage not only their institutions, but others.

You suggested that we have to stop people becoming victims of speaking up, and blacklisting has been raised as an issue. What protections would you like to see put in place?

I recommended that legal protections should be extended outside the particular organisation in which the individual is working, so that people who are applying for jobs elsewhere in the national health service should be protected. They should not be discriminated against when applying for a job because they have a history of speaking up somewhere else.

In response to the draft regulations on that, our national guardian has suggested that such protection should be extended to include all employers. In other words, whistleblowers who are going through the non-NHS world should also be caught within the regulations. Doing that would be more complicated, obviously, but I think that it would not be a bad thing.

I also recommended that the protection under the Public Interest Disclosure Act 1998 should be extended to trainees and students. That has been done, in part, in the sense that people who are the equivalent of an employer where the trainee is working are covered by the law. It is not clear that the bureaucratic central organisations—Health Education England and so on—are similarly covered. Those are technicalities that apply to England; I do not know whether they apply to Scotland.

There seem to be specific key differences with the City of Edinburgh Council model, which seems to be a positive one. Are members of the panel aware of what is going on in Edinburgh? Should the national confidential alert line have further powers to investigate cases?

The national confidential alert line is an advice line for staff. It is one part of the jigsaw. Edinburgh has a reporting line, rather than an alert line. It enables the individual to report something to Expolink, which is the private company that runs the—

It is not—

It has an investigation arm as well, has it not?

It is not that organisation. We have an independent hotline that colleagues are able to contact directly. It is run by a company called Safecall. Where there is a major disclosure—for example, an issue that involves a PIDA matter, a breach of health and safety legislation or a matter of significant concern—that independent organisation can step in to investigate and report via the corporate leadership team, chief executive and the scrutiny committee.

The alert line that we run is an advice line, so it is legally privileged. It works on a basis of consent. If the individual wants us to report something for them, we can pick that up on their behalf. However, ultimately, we are trying to help them to report it themselves and give them some independent advice. They are not making a disclosure to Public Concern at Work or the alert line; they are seeking advice in an absolutely confidential space. That is a very different model, and it is complementary to the reporting line service that Edinburgh has.

An investigation line is different from a reporting line, but you probably need both models. I would not say that one is better than the other. In financial services, many organisations are considering having reporting lines as well as advice lines. The advice line is one part of the jigsaw, as opposed to being an exclusive approach that is taken on the basis that one model is better than the other.

That might be why we have a petition before Parliament calling for a hotline rather than a helpline.

The two things are very different, but they are complementary.

I agree that having both models is a good idea. Other industries, in the commercial sector, tend to have an external hotline to enable someone to speak to somebody in complete confidence, with a better guarantee of anonymity. Whether that is the best solution in the health service depends on various things. You would think that it would be possible to place the service within something as large as the health service in England, but that is a matter of opinion.

I am a member of the pharmacy profession, which is regulated by the General Pharmaceutical Council. Until I was elected last year, I worked for 20 years in NHS Highland. During the time in which I worked as a clinical pharmacist, I saw the culture in the NHS transformed into a much more open one, with much more emphasis being placed on the duty of candour. When I raised that point a couple of weeks ago, one of my colleagues said that that was perhaps because there are now more things to be concerned about, but I do not agree. I think that, because of some of the huge and terrible scandals that have hit the NHS, there genuinely was a culture shift in people’s understanding of just how important it is for professionals to speak up when they have concerns.

What will be added by extending the duty of candour to all NHS staff? The professions already have a duty of candour. Are the professions not speaking up?

My understanding of the duty of candour, which I think will come in in April 2018, is that, although the legislation talks about a “responsible person”, that is not actually defined as an individual. In a specific case, it would be NHS Highland rather than an individual employee who would be the responsible person. It is about members of the public getting total honesty from the organisation that they have an issue with.

Of course, I recommended a legal duty of candour. There was already, and had been for decades, a professional duty of candour, but I am afraid that that did not help the patients in Mid Staffordshire. I remember that I met a senior consultant who would see me only in the confines of his own home and in secret because he was so afraid of what he had to tell me but, actually, I already knew what he had to tell me, because other people had told me it.

Another point is that the professional duty of candour puts the entire burden on the individual whereas, actually, an organisational response is often required to a particular issue.

We need to be careful in what we are talking about. The legal duty of candour is about candour to a patient on something that has gone wrong. However, I also recommended a duty on the part of the organisation to be open and transparent about its work generally, which is just as important. In other words, we should not be told by the board of a hospital only the good news; there should also be a recognition of any problems that the board needs to solve. If there is that sort of culture among the leadership, it becomes much easier for people elsewhere in the organisation to talk about and raise issues of concern.

I agree entirely. With the advice line, we sometimes see that the duty to report is used against the whistleblower or adds to a culture of silence. When people are a bit worried or, more than that, scared about reporting and there is a bad culture in an organisation, if one brave soul speaks up, others then follow when it is clear that the organisation is listening. However, we have seen cases in which, because of a duty to report that is put into a contract, perhaps in the care industry, individuals have been disciplined for failing to report, in the context of a really bad culture. We have to be careful of unintended consequences, because the duty can be used as a stick. I agree that professionals definitely should have a duty, but we should be careful about imposing that on all staff across the system.

Thank you—that has clarified things for me. I am interested in the idea of not just reporting to the patient when things have gone wrong but reporting up the way. What system will be in place to collect and gather information? I imagine that, with some of the really bad scandals, people were speaking about the issues and concerns were raised but, somehow, the big picture was not put together.

That is absolutely correct. In Mid Staffordshire, many staff were reporting incidents and attributing them to, for instance, a lack of staffing, and then the pushback would be to discourage them from using that as a reason. We can seek to deal with the issue only by using some sort of process of audit inspection or oversight because, unless we get under the bonnet of the relevant organisation, we will never find the truth. We need transparency so that we can see not only that the organisation is receiving reports but what on earth it is doing about those reports. That is a board responsibility in most places.

One criticism of the Scottish system is that the number of reports to the advice line is used to consider whether the system is working. That is not what should be looked at. It should be the number of reports going to people on the boards, the number of reports that boards get from their staff and the number that managers are dealing with. Sometimes, that can be difficult to track. It is possible to overbureaucratise the approach. Managers need to have discretion to deal with things, but we need to capture the really good business-as-usual organisational operations. That is why a bit of thinking about how to capture that, how to review, how to structure the review and how to ask staff will pay dividends in the long run. Perhaps the national officer will have some influence in helping boards to do that work. It is not about what is going to an external organisation; it is about what is going to the boards.

We get reports to the board quarterly, and we will periodically have a committee session for a deep dive into an individual case to discuss things that cannot be looked at in public.

12:00  

I forgot to mention that our national guardian has started a survey of all the local guardians. She has just received the first set of results; although they have not yet been properly analysed, she has discovered that about 25 per cent of all concerns that have reached the guardians are about patient safety—that is only a fraction of the total level of concerns, one would hope. I understand that she will, in the future, analyse what she hears from the guardians about what has happened about those concerns. I emphasise that she is not a regulator, but she has access to information via the guardian network. That is perhaps less bureaucratic than setting up an inspectorate to get round and look at things.

Bringing together a lot of information to get the whole picture in a complex and large organisation can be a challenge. Careful consideration about how to bring together incident reporting through our Datix system is important; examples are significant clinical incidents, whistleblowing reports, complaints, ombudsman reports and reflections by committees on individual cases. How to bring together the bigger picture—the work on staff governance and clinical governance, which can then be complemented by specific reviews and surveys—is very important.

I have a final very quick supplementary question. You mentioned the Datix system, which I was familiar with when I worked in a hospital. I understand that it is not used in primary care, which has a different system. How do the two systems work together?

My experience is more with the acute sector. Independent contractors have their means and measures to record incidents. We have access to that information through our monitoring of independent contractors for clinical governance. I can ask my colleague who leads on clinical governance to provide information to the committee.

That would be helpful.

Morag Brown spoke about the importance of developing an NHS culture in which folk feel able to speak out. The committee has taken evidence from the Scottish Ambulance Service, in which, according to the staff survey, only 20 per cent of staff felt consulted about changes in their work. Nearly half had not had a staff review in the past year. Most importantly, with regard to whistleblowing, only 31 per cent said that they felt safe to speak up, which was the lowest figure of NHS boards nationally. Are panellists aware of any boards that have been tackled about their staff governance when such issues are flagged up in staff surveys? That is quite a specific example—are you aware of any action being taken on those figures?

Sorry; do you mean action not specifically about the Scottish Ambulance Service figures?

No. Those figures are quite specific for the Scottish Ambulance Service, but there is quite a disconnect with previous evidence that we took from the service. What is the point of carrying out a staff survey if there is no reaction at the end of it?

On staff governance, the information from our staff survey, along with other indicators and drivers, prompted us to set up a sub-group to look at how to reshape and refresh our culture. The iMatter survey has had much higher response rates in our area and other areas across Scotland—we had something like a 64 per cent response rate, which is a much higher response. iMatter is a more responsive survey, because it gives more immediate feedback to the team and it allows a team and management to test the temperature of their culture, to reflect on it and work together to change it. The information from surveys helps us with big-picture, large-scale cultural change and it also helps us to manage and create open, discursive team cultures—iMatter is very important to that.

One of the challenges for a board is knowing the temperature at the front line. That was touched on in Sir Robert’s report. In Highland, we have a thing called the Highland quality approach, which is a full-fat version of lean methodology. It uses phrases such as gemba—it is based on the Toyota working principles. As part of that, the non-executive directors and board members are encouraged to go to the gemba regularly, where they have informal chats with front-line staff and take time to mingle with them and hear what they are saying. That is not the answer, but it helps to give people a feeling of the pressures at the front line.

Is there capacity to use that as an example of good practice and share it with other boards so that folk can learn from it in developing a supportive culture?

I would not claim that we are unique in that regard, although we are probably the ones who have taken it the furthest. We have senior staff trained at the Virginia Mason hospital in the States, and there is an interchange of staff there. We have probably taken it a degree further than others, but I am not suggesting for a moment that other boards are not doing similar things.

Thank you.

Thank you for coming along today. The committee received a written submission that quotes you, Sir Robert, in calling into question the independence of whistleblowing champions who are employed by authorities that the whistle is being blown on. It says:

“Sir Robert Francis in his ‘Freedom to Speak Up Review’, following the Mid Staffs inquiry, stated that these appointments should be seen ‘by all’ as independent, fair and impartial—that they should not be adjuncts to existing posts.”

Will the non-execs who are whistleblowing champions with NHS boards comment on how they reconcile their different roles and whether they see any pitfalls in their being board members as well?

I think that it is implicit in the role of a non-exec. If I thought that I was a board member to do what the executive board members thought I should do, the whole system would have failed. I am there to form my own views about things and act on them.

That is right. We are appointed by the minister and we have that independence. We should certainly be able to speak up and challenge, and I think that we do that. However, I can understand why members of the public and people who have had bad experiences could have concerns about that, and why there is potential for public concerns about independence.

I think that the independent national officer can offer some assistance in reconciling that, in that there will be guidance. There will be an opportunity for the independent national officer to monitor and benchmark boards’ performance and openness and transparency in relation to whistleblowing, and to produce national materials and training for whistleblowers. There has been some consideration of whether the independent national officer should become the final, independent stage in the whistleblowing process. There could also be potential in the role, given its independence, to provide a forum for patients and the public around whistleblowing and how it is responded to, and a forum for staff who have concerns or have had experiences in the area that they want to talk about.

There may well be potential for that, but I am keen to explore a bit further your role as non-execs who sit on a board. How do you convince NHS staff that you are neutral and that you are not part of the system or culture that they perhaps have concerns about?

As Robin Creelman said, our appointment process suggests that independence, but it is also seen in how we handle the business. With some of the issues that I have dealt with, or some of the scrutiny, I have raised the level of investigation and highlighted limitations in investigations. I think that we have our own personal integrity in being open and transparent and in challenging systems.

How has that message been transferred to the staff on the ground?

As we said earlier, we have been developing our communications with staff through our various newsletters and roadshows and through the visibility of non-executive directors and senior managers and so on. That is how we convey our openness in the system.

I think that you have touched on something that needs to be explained a bit more to staff. According to whistleblowing policies, which tend to be relatively standard across all boards, the whistleblowing champion, who is not named but just mentioned, is not part of the investigatory process at all—they are divorced from it. Our role is to oversee the process. As part of that, I carry out a kind of exit interview with whistleblowers to find out how the system can be improved, but I think that we need to explain things a little bit better to staff and emphasise the independent nature of our view.

How long have you been in this role?

Just over a year. It is a relatively new thing.

I think that Mr Creelman is right—we should also explain what we do not do. We do not carry out investigations or take part in that process. Instead, we play an assurance role.

And that assurance role has been in place for only a year.

Yes.

The whole whistleblowing thing has been around for only a little over a year.

I wonder whether Sir Robert, whom I quoted at the start of my questions, can share with us his opinion on the appointment of non-executive directors at board level as whistleblowing champions.

I am not going to speak about the situation in Scotland—

I was not talking about individuals as such.

Perhaps I can speak more generally from an English perspective.

When I made this recommendation—and I am choosing my words carefully here—I did not have it in mind that the role should be the same as the role of a non-executive director in a whistleblowing process. When I wrote my report, many trusts had a board director who, as part of their portfolio, had oversight of the whistleblowing process, and what I recommended was the creation of a guardian, because it seemed to me that every organisation needed someone who had the confidence of the staff and the management and who could, when problems arose, unlock the right door to a solution.

I knew that, in different organisations, there would be different solutions, and because this was such a novel recommendation, I did not go very much deeper than that. However, every trust in England now has a freedom to speak up guardian; they come from a wide range of backgrounds—some are non-executive directors—and time will tell whether that approach has worked. The concern that some people have expressed and which I think we have to look at is that a non-executive director has a corporate responsibility to the running of the organisation that, to some, might be seen as conflicting with their role of helping to oil the wheels of the system for challenging the organisation. I am not saying that the situation is impossible, but we have to work it out; however, I would emphasise that the issue of the right person to be a guardian might come down to an individual’s personal qualities and how they are respected in an organisation rather than the position that they actually hold in it. As I have said, time will tell.

The model in Scotland was deliberately different in making the whistleblowing champion an oversight rather than an operational role. Because the freedom to speak up guardian is an operational role, they are expected to help and protect the whistleblower, to get the information that is needed and to ensure that the wrongdoing or malpractice is investigated and addressed. The freedom to speak up guardian is therefore very different from the whistleblowing champion.

Where confusion arises is that, with cases that are perceived not to have been dealt with properly—or which have not been dealt with properly—no one might know where the top of the tree is in the organisation in question. Many NHS staff—indeed, staff in any organisation—will think, “There’s a whistleblowing champion; I’ll go to them,” but if they get told, “No. no, no—we can’t deal with you,” trust gets undermined very quickly.

There is academic research from all over the world that suggests that it is about trust—it is so hard to build up that trust and so easy to lose it. Whistleblowing systems need to be very flexible and have multiple channels. They must not have barriers. Sometimes the protection of the senior person can create the barrier that undermines the system.

12:15  

Can you clarify a point? You are whistleblowing champions and there is a perception that you guys are the ones who oversee the process, but I am hearing that you do not oversee it and have no operational responsibility for it, so what is your role?

Our role is to oversee the process. The role is clearly defined in the whistleblowing policies—that is certainly the case in the Highlands and Islands and is probably the same for the other boards.

So your role is to oversee policy.

No, it is to oversee the process.

Sorry. What authority do you have if the process is not being followed and how would you know if the process were not being followed?

When I am not satisfied with the process, as has happened in a very few cases in the Highlands and Islands, I suggest changes and continue to suggest them until I get general agreement and they are implemented. I discuss any change with the staff governance committee, the chair of staff governance, the chair of the board and then I assume that it is agreed and we do it.

The fact that you keep suggesting until it is changed suggests that there is some resistance.

At the end of the day it is a consensual change. I keep trying to make my point in the hope that other people will agree and then we change the process.

As a whistleblowing champion, what authority do you have?

I try to influence change where I see that the process is not working properly.

I have questions on two areas. First, Jenny Gilruth mentioned the Scottish Ambulance Service, and one of the most startling figures that I picked up from the papers was that less than a third of its staff feel that it is safe to speak up. Given the importance of the Ambulance Service, does anyone have observations on that?

My other question returns to the legal duty of candour. From a technical point of view, how is that duty to be enforced through sanctions and remedies?

I ask everyone to be brief, because we are really up against time.

Linked to that point is the fact that one of the most interesting tensions is in the relationship between organisations and individuals in relation to taking responsibility. Cathy James hinted at that. It is as difficult for a board or an organisation to front up to a failing as it is for an individual. Will you explore that as briefly as possible?

There is an absolute lack of accountability for those who have meted out retribution or retaliated against a whistleblower. We rarely see any sanction against decisions that have been made when whistleblowers have been treated badly. If there were the will to take that seriously and do something about it in the senior leadership of an organisation, that would change the perception that nothing changes.

I do not have a magic bullet. Time and again in all the scandals that have hit the public and private sectors, people have seen accountability as being missing. If we never see any accountability, people will endlessly fail to trust the system.

The question is so big that it could not be answered even if we had all the time in the day. Another issue is unintentional detriment. If, for all the best reasons and with good intentions, someone raised a whistleblowing concern in a ward setting but it was not proved correct, it is inevitable that the relationship in that ward area would break down. In such cases, the person who raised the concern often has to be moved from the area, even though they did nothing wrong. We need to address that situation. I understand that work is being done in health improvement in England to find a way to make that happen.

A re-employment scheme is being worked on in England. It is very much in its pilot stages, although it is operating.

Accountability is important. I will say one more thing about culture, which is that it is about people making the right decisions in the interests of their patients and the NHS in general. Victimising a whistleblower or a person who has raised a concern is the absolute antithesis of that.

Sometimes that has happened almost because of legal advice; there is a sort of adversarial culture that we need to get away from. However, when someone at a senior level has been proven to have acted in the way that I just described, there should be a means of holding them to account. Half the problem that we have is that managers in the NHS are not subject to the degree of regulation that registered healthcare professionals are. In general terms, perhaps that needs to be looked at.

I will pick up on the question of people who are having a whistleblowing aspect looked into. How many current NHS employees have been suspended, have been signed off because of stress or are on gardening leave and have not had the complaint looked into but are still being paid by the health service? I have been trying to get those numbers but I have had no luck. How many such people are suspended?

I do not have the specific numbers, but we did research on the whistleblower’s journey that looked at 1,000 of our cases. In the public sector, and in the NHS and the healthcare sector specifically, more people were suspended, whereas in the private sector, more people were dismissed. We looked at a skewed sample, because people come to us when they are in difficulty with whistleblowing, but we have seen that trend in the statistics. I am afraid that I do not have absolute numbers.

Can you provide the committee with a breakdown of those statistics for Scotland?

I suspect that I cannot do that easily, but I will have a go and look at what we have in our system. We are a small charity that advises individuals; we are not a regulator, so we do not collect such data, but I will have a look.

Thank you.

I would like to raise a couple of issues now that we are at the end. Alison Johnstone mentioned blacklisting. I have been heavily involved in that issue in the construction industry. I am absolutely of the opinion that some form of blacklisting operates in the health service, although not on the formal basis that it did in the construction industry.

I was involved in the case of Dr Hamilton, who provided evidence to us. She had an unblemished record in the health service as a psychiatrist and was well respected until she blew the whistle and eventually lost her job. Despite the huge need for psychiatrists in Scotland and the vacancies all over the place, she cannot get employed in Scotland.

Is that a coincidence? Are you seeing that happening elsewhere? Scotland is a small place. It would take a human resources officer only half an hour to phone round the 13 other health boards and say, “What do you think of this one?” and for someone else to say, “Don’t take that.” There would be nothing official and nothing written down. The system could easily operate in that way. Is that happening elsewhere?

I can honestly answer no, not to my knowledge, but—

The second part is important—whether it is to your knowledge.

I can speak only for the board that I work in. However, your hypothesis implies a fairly large degree of collusion. Relatively senior clinicians would not be appointed by an HR person. I am not saying that what you described is not happening or dismissing it, but collusion would have to be quite sophisticated, because an appointment panel is usually made up of three or four people. I am not dismissing the possibility, but I would find it hard to believe. I certainly have no personal—

The example that I gave is in the public domain, so I am not giving away any secrets. There were a number of vacancies in one health board’s area and, when the person I mentioned applied for those vacancies, they suddenly did not exist any more. Such things lead to all sorts of conspiracy theories, but there clearly seems to be an issue.

I think that what you described happens. If someone gets the label of whistleblower, it is the label of a troublemaker. That is why we have always campaigned to have the kind of provision that Sir Robert Francis recommended, which gives people the same rights against discrimination pre-employment as they have when they are employed, so that they can say, “I have not been offered that job.” The problem with the current legal protection is that, until someone is in a job, they do not get that right. I think that that has been changed—

It is on the way to being changed.

It is on the way to being changed in the health sector only. I imagine that that applies in Scotland, because it involves the Public Interest Disclosure Act 1998, which definitely applies in Scotland, although not in Northern Ireland.

I do not see why that provision should not apply across the entire piece of legislation. The legislation protects all workers, so why would the problem be seen to be only in the health sector? It is a problem in all sectors.

Another point is on computerised staff records. Some whistleblowers are looking at how the back end of the computerised staff record is being used in an unofficial way to record information that managers put on their systems. I do not know whether that is happening just in England or what the system is in Scotland, but there is a sense that information that is not covered by a subject access request is sitting in those databases and it ends up being detrimental to people who are looking for a job elsewhere.

I did not know about the case that the convener mentioned but, if someone with such experience was of colour and did not get a job, there would be at least an automatic question mark about whether there was racial discrimination. I believe that whistleblowing, or whatever you want to call it, should be treated in the same way. If a whistleblower has been refused a job by a public sector organisation, there ought to be a reverse burden of proof. The question would be why that otherwise perfectly qualified individual had not got the job.

As a final point, has there been whistleblowing by board members?

Yes.

We get board members as whistleblowers all the time, not just from the health sector but from all sectors.

We are talking specifically about health.

I imagine that this applies to health. I do not have a specific case in mind, but we certainly get whistleblowers who are board members and at senior levels.

The committee can read in my inquiry report about a whistleblower from the board of the Care Quality Commission who gave evidence to me quite effectively.

Thank you very much for your interesting evidence.

12:26 Meeting continued in private until 12:41.