Health and Sport Committee

Meeting date: Tuesday, November 19, 2019

Official Report 664KB pdf

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Subordinate Legislation

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Public Services Reform (The Scottish Public Services Ombudsman) (Healthcare Whistleblowing) Order 2020 [Draft]

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Public Services Reform (The Scottish Public Services Ombudsman) (Healthcare Whistleblowing) Order 2020: Statement of Principles [Draft]

Good morning, and welcome to the 27th meeting in 2019 of the Health and Sport Committee. We have received apologies from Sandra White; Bob Doris has joined us in her place. I ask everyone in the room to ensure that their mobile phones are off or on silent. Please do not record or photograph proceedings, as we do that ourselves.

Agenda item 1 is subordinate legislation. We will consider two instruments that are subject to affirmative procedure. As usual with affirmative instruments, we will start with an evidence session with the Cabinet Secretary for Health and Sport and her officials, which is an opportunity for members to ask the cabinet secretary about the instruments. We will then move on to debate the instruments.

We are looking at the draft Public Services Reform (The Scottish Public Services Ombudsman) (Healthcare Whistleblowing) Order 2020 and its statement of principles, which will be debated separately following the debate on the order.

I welcome to the committee the Cabinet Secretary for Health and Sport, Jeane Freeman, and the Scottish Public Services Ombudsman, Rosemary Agnew. Accompanying them are Stephen Lea-Ross, who is head of workforce planning in the Scottish Government, and John Paterson, who is a divisional solicitor in the Scottish Government. I understand that the cabinet secretary will begin with an opening statement.

Thank you very much, convener. Good morning to you and to colleagues. I will be brief.

I thank the committee for inviting me to the meeting and to move the two motions that are required to introduce the role of the independent national whistleblowing officer for NHS Scotland. It is vital that we continue to review and strengthen the mechanisms that we have to support and promote whistleblowing in our national health service. It is important that our staff feel able to speak up when they believe that things are not right and that they have no qualms about doing so, but I am conscious that, currently, that is not always the case. That is why, among other measures, I am determined to ensure that we do everything practical to make raising concerns and dealing with them a part of day-to-day business.

I have been very clear that the true litmus test for our health service will be that formal whistleblowing mechanisms will not need to be used precisely because we respond appropriately and timeously to issues that have been raised. Nevertheless, for us to get to that place, it is only right that we put in place the strongest system of effective checks and balances.

In response to the committee’s call for evidence, which has been very welcome, we have adopted a number of the committee’s recommendations. That is why I hope that it fully welcomes and supports the legislation, which will allow the Scottish Public Services Ombudsman to take on the role of independent whistleblowing officer for NHS Scotland.

I ask the committee to recommend that the draft Public Services Reform (The Scottish Public Services Ombudsman) (Healthcare Whistleblowing) Order 2020—I see that we are still in favour of very short titles—and the statement of principles be approved. That said, I will be very happy to take any questions, as I am sure my colleague Ms Agnew will be, too.

Thank you very much, cabinet secretary.

I acknowledge the point that you made that many of the recommendations in the committee’s report have been taken on board, including on the inclusion of a definition and the laying of the standards before Parliament. One issue that perhaps has not been entirely taken on board is the relationship between whistleblowing in the NHS and issues that may arise in social care and social work. I would be interested in the views of the cabinet secretary and the Scottish Public Services Ombudsman on how that relationship should be managed, given the nature of the structures that will be created under the order.

I know that you and your colleagues understand that the Government and local authorities take a partnership approach to social care. Quite rightly, local authorities have their own processes and procedures for complaints and whistleblowing. The common factor is our Scottish Public Services Ombudsman, whose role will be important in helping us to ensure that the broad principles and the overall approach that we want to take in the health service are reflected in how things are managed in social care. We will continue to discuss with our colleagues in the Convention of Scottish Local Authorities whether more can be done in that regard.

The key common denominator for us all is twofold. First, I am sure that our colleagues in COSLA and local authorities share our intention to ensure that staff feel able to speak up about their concerns, that those concerns are listened to and acted on and that no adverse redress is inflicted on staff as a consequence. Secondly, the shared common denominator is the Scottish Public Services Ombudsman—I hope that Ms Agnew does not mind me referring to her as such.

There are two areas in which there will be some clarity and in which some clarity will be needed. On the ground, I completely agree that we need to ensure that clear guidelines are in place for both sides—health and care—and that we are available for advice on how to take matters forward. We will be entering into a memorandum of understanding with the Care Inspectorate, so we will be able to share information at a regulatory level. There is a strategic overview side to the issue but, in the early days, it is about how we make the system work practically on the ground. Although we have clear views on how we can offer guidance, some things will be learned through the testing.

I have been contacted by and have met some of the petitioners who have called for the creation of an independent whistleblower. They brought up the idea of an independent hotline for people to go to directly, and I am interested in whether such a hotline will be created. Would that result in any changes to the role of a whistleblowing champion? How will we assess matters as roles evolve?

In relation to the additional request for the hotline, we continue to fund the whistleblowing alert and advice line. As we have discussed previously in the committee, the Government’s view is that that service and the role of the Scottish Public Services Ombudsman—as our national whistleblowing champion, my colleague’s office will provide advice and support if that is appropriate before people take up specific issues—are sufficient in offering people a route to go down if they want to raise concerns in that manner.

As we have developed the role of the whistleblowing champions, we have been conscious of the intention to create the national independent whistleblowing officer. I advise the committee that we are due to appoint the champions by the end of this year—before the Christmas recess. We received 136 applications, and we have shortlisted 45 candidates to go through the interview process. I am delighted and very grateful that Ms Agnew has taken part in every single interview, as our independent person. That has produced an additional level of understanding about how the two roles will match and complement each other, which will feed into the induction and training work that we do with the people in each board in Scotland who are appointed as whistleblowing champions who report to me. What has happened already has been informed by that experience and, as we go forward, we will continue to keep in mind both roles and how they interact.

Cabinet secretary, there is no doubt about the intention of the order.

You will be aware of the evidence that the Public Petitions Committee has taken over time, which has identified some worrying trends. Scottish Ambulance Service staff and union representatives have come to my surgeries several times to talk about the bullying and harassment of whistleblowers. I wrote to the Scottish Ambulance Service, but its answer was—frankly—head-in-the-sand stuff.

Guidelines are all well and good, and I do not think that anyone would object to the direction of travel that you are trying to take, but how will you ensure that the guidelines are followed and that people who want to raise issues will be able to do so in line with the guidelines and in a safe environment? Currently, that is not happening in the Ambulance Service.

There is a mixed picture across the entire national health service—and I, too, have had representations from the Ambulance Service unions. However, staff across the health service have told me that they felt able and confident to raise issues—and that it was safe, as you put it, to do so—and that the issues were addressed. It is fair to say that there is a mixed picture. You and I both want all staff across our health service to feel encouraged to raise issues of concern, and to feel that if they do so, what they say will be heard and they will be safe from adverse redress.

You are right to say that guidance is important. Across our health service, there is significant room for improvement in basic complaints handling, for many people who raise issues or make complaints. It is all about whether individuals understand that a complaint is an opportunity for improvement and learning or whether they adopt an overly defensive stance. That applies in whistleblowing cases, too.

Therefore, part of the work that the whistleblowing champions will undertake will be the continuous promotion of a change in culture in individual boards. The champions will liaise with unions, staff side and managers at every level. The work that we lead with human resources directors in health boards will complement those efforts, as will the work that is under way in the ministerial group that I chair, which, post-Sturrock, has brought together a range of organisations and bodies, including our royal colleges, our unions, the Royal College of Nursing and the General Medical Council, to identify different ways in which we can all contribute to promoting the positive, safe working culture that we are talking about.

It is not about doing just one thing; it will take all those layers of effort to begin to put together the pieces of the jigsaw that are needed if we are to promote that change in culture.

I will be responsible for ensuring that the standards and principles are implemented and monitored. Following feedback on the draft standards, we have emphasised an issue to do with the handling of complaints about whistleblowing concerns that have not been through the public body—the NHS organisation. We refer to such complaints as “premature” complaints. We have done that because it is clear that, although the ultimate aim is the culture change that means that we do not have to engage in whistleblowing because we have an NHS in which everyone feels confident to speak up, there will be a period of time during which we must support people to build that confidence.

09:45  

One of the significant differences between whistleblowing complaints and other complaints that we look at concerns how we get involved at the first stage. We have made it very clear that people can come directly to us—they do not always have to go to their organisation first. That does not mean that, as the independent national whistleblowing officer, we necessarily investigate everything. If we did, that would undermine the idea of learning and of building a listening and trusting culture. However, it means that we can get involved at the outset in a very different way, I hope giving whistleblowers the confidence that they are not doing it all by themselves and that somebody is monitoring what is happening. I am trying to reassure you that we have picked up some of those issues in how we intend to implement monitoring and to use the standards as part of the greater jigsaw.

As was mentioned, I have been involved with the recruitment and interviewing of the whistleblowing champions, which has provided some insight into how relationships will work. Whistleblowing champions are not under my jurisdiction, for want of a better phrase, but it is vital that, in giving their assurance to boards and in championing how whistleblowing works on the ground, they have access to the advice and guidance that my organisation can give. I feel that, between us, we are putting together a fairly robust framework.

Convener, can I just—

There will be an opportunity in the debate, but if you have a further question for the minister, you should ask it now.

Cabinet secretary, you raised the issue of culture, which is central to the whole whistleblowing issue. How are you proposing to change the culture at the top line of management? From the work that the Public Petitions Committee has done and the evidence that it has taken, it seems to me that that is where the greatest resistance is. If we cannot change the culture at the top lines of management, it will be very difficult to cascade anything through the rest of the organisation.

That is a very fair point. We have significant work to do at the lower levels of management to provide support to individuals so that they can undertake the role that we are asking them to play in a way that they feel confident about. I know from the individual instances that come to me as a constituency MSP that we are not talking about the most senior staff in the organisation; we are talking about people who have been promoted into a leadership role. They will often have been very good at the role that they undertook before, and they will now be leading a team, but without any additional support on how to do that in addition to undertaking the actual work. That can often produce grievances that are not dealt with fairly or heard, which can then escalate and become something much more serious. I think that the issue arises at every level. Through our work on project lift, which members are familiar with, we need to ensure that we are offering learning and support at every level of supervision, management and leadership.

For the most senior level, all that will now be reflected in how we conduct the ministerially led annual reviews. As discussions among chief executives, HR directors and directors of estates across the NHS come together, with this issue forming part of those discussions, we should ensure that those senior staff understand all the pieces of the jigsaw that we are putting together, as I have described it, and the aim that we are putting them together for. We will then look at how the monitoring work that is undertaken can feed into those ministerially led annual reviews, which always include a discussion with staff side representatives about how they feel management is delivering on the service to them as staff. In all that, we will have discussion, opportunities for learning and training, and then the chance at ministerial level to review how each board is doing on this, with data but also with discussion.

Good morning, cabinet secretary and panel. During the past 12 months, I have spent a lot of my time dealing with the culture of bullying in my local health board, NHS Highland. Brian Whittle spoke about a culture of bullying, and that is what I was certainly dealing with. Will the order help to prevent future situations such as we had in the Highlands from blowing up? I do not believe that the Highlands is the only place in Scotland where we have bullying. Will it also improve the situation for and support our current whistleblowers?

In and of itself, simply having the order will not change the culture of an organisation. I have said repeatedly that I want us to get to a point where whistleblowing is the exception because the culture, policies, approaches and internal relationships in our organisations work in such a way that nobody needs to whistleblow. Instead, people can raise concerns that are heard and acted on, and they are treated with respect, with no negative consequence for them. Whistleblowing happens, I believe, when people feel strongly about an issue that they raise and they do not believe that they have been heard; alternatively, they believe that they have been intimidated into silence, so they look for another way. The order creates that route, but in and of itself it does not change the culture that has taken us to that place.

All the other elements that I have outlined—you and I have discussed them before, Mr Stewart, including in the committee—form what I described a moment or two ago as the jigsaw. I believe that, partly through what it sets up and partly through the way in which Ms Agnew’s office can intervene at an earlier stage, as she said, and provide support and help, the order contributes to giving staff an assurance. They will have to test that assurance, and we will have to ensure that we earn their trust in their testing of it and assure them that we take the issues very seriously. We want to hear their concerns, investigate them and act on them—at Government level but also, most importantly, at board level.

Good morning, panel. Cabinet secretary, the most recent revelations about the Queen Elizabeth university hospital have demonstrated the need for a fit-for-purpose whistleblowing system that protects whistleblowers. Before we approve the order, I want to ask why you think that whistleblowers are saying that it is not fit for purpose. We have heard that you do not want to take forward an independent whistleblower hotline. Why has the Scottish Government not adhered to the new Council of Europe standards on whistleblowing in the order?

Rosemary, do you want to answer that?

I respectfully challenge the idea that the order is not fit for purpose. It is questionable whether what is in place today, without the order, is fit for purpose, given that we have had the incidents that have been described around the table. We are taking a crucial step on a journey to making a difference because, following extensive consultation, we have produced standards that are fundamentally rooted in the values of the NHS. They recognise all the issues that whistleblowers and those who scrutinise whistleblowing have raised. We are talking about something that takes us to the right place, I hope, for Scotland and Scotland’s NHS. It is about embedding those principles and values and making them come alive in such a way that whistleblowing over a culture of bullying means that it is identified and addressed very quickly, or does not occur at all.

I cannot talk about the Council of Europe element, but I hope that I can give you some assurance about the way in which the standards have been produced and drafted. There has been extensive input not only from the NHS but from whistleblowers and other interested parties, and we have also talked to a lot of whistleblowing organisations about the approach that we are taking. I think that we are at the start of a positive journey. These standards will work for us.

I also know, through my network of ombudsmen, that it is not only people in Scotland who are watching what is going on. Many of my international colleagues are interested in what we are doing and see it as an innovative approach.

I appreciate what you are saying, but the whistleblowers we have met do not feel that that is the case. They feel that the Scottish Government has clipped the wings of the system before it has even been implemented. Am I correct in thinking that, if I am a whistleblower at NHS Lothian and I come to you with a concern, you will not investigate it and, instead, you will hand it back to my employer to investigate?

I do not think that it is quite that straightforward. It comes back to the point that we made about premature complaints—things that have not been investigated before being escalated.

We have two aims. First, we want to ensure that the whistleblower and anyone who is involved in the matter is protected in the way that they should be. Secondly, we want to ensure that organisations learn from what is brought to them. The best way of doing that is for them to address the issues themselves.

If things come directly to us, we have the option of making a decision at that point about how to proceed—that is in the order and is reflected in the principles and standards. There might be some cases in which we feel that it is in the public interest and in the interests of the whistleblower to get involved straight away. In other cases, based on conversations with the whistleblower, we might refer the matter back to the organisation. However, if we do that, we would not simply say to NHS Lothian, “Here you are—please investigate this”; rather, we would take a much more active role in monitoring the process and the outputs, so that we can ensure that what the whistleblower is seeking as an outcome is addressed head on. We would take different routes, depending on what is brought to us.

The fundamental point is that we want whistleblowers to feel supported and confident and to be able to trust the system. If we can engender that trust, we might not need the whistleblowing element at all, because the approach would simply become part of the normal way of doing business.

I recognise, of course, that, particularly in the early days, people who have had negative experiences will be looking for a bit of extra reassurance. I am not saying that we will investigate every instance, and I am not saying that we will investigate none of them. We will take a case-by-case approach to our decisions, based on discussions with the whistleblowers.

We must not forget that linked to all of that is the role of the appointed whistleblowing champion. The champion will not only monitor a board’s conduct in relation to its complaints procedure but work with the ombudsman to provide advice and support to any individual whistleblower or group of whistleblowers.

It is fair to say that the changes that the order brings in will stand or fall on the basis of confidence. My question in that regard follows on nicely from the question that Miles Briggs asked. How will the changes be communicated to the staff on the ground? How will staff know what merits a whistleblowing approach as opposed to an approach that involves normal grievance procedures? Those are the questions that I have been asked in my surgeries by people who have tried to blow the whistle and have been referred to the HR grievance process in their health board.

10:00  

How we make the distinction between grievance and whistleblowing is a really good question.

We have included in the standards the idea of business as usual. Where whistleblowing has not kicked in, it would be business as usual. When someone raises a whistleblowing concern, we would first of all ensure that the NHS organisation sends it down the right route. If the concern relates to a grievance, it should go down the HR route, whereas if it involves whistleblowing, it will go down the whistleblowing route. There will be situations in which the correct route is a little difficult to establish, and that is where the whistleblowing champion and the SPSO will have an important role to play in offering advice.

In underpinning the implementation of the standards and principles, I am aware that the SPSO has a job to do to raise awareness specifically within boards. However, we also need to ensure that boards and others have in place their own local guidelines and principles that comply with the standards and guidance and meet whistleblowers’ needs. We expect boards to run training and awareness sessions for their staff, and we will support and get involved with awareness-raising work as far as we can.

I have one additional element to highlight. I know that the committee will be familiar with the idea of partnership working in the health service, and we have a national staff-side organisation that brings together trade unions and other organisations that represent staff. The staff-side organisation is aware of the issues, and there will be further discussions with representatives of individual boards who come together in the national body on what more they believe would be helpful for them, as individual staff reps, so that they are enabled to properly advise those whom they represent on how the system works.

Good morning. The “Draft Explanatory Document” states at paragraph 1.5 that, under the order, one of the SPSO’s roles will be

“to investigate whether a relevant body or provider has handled a whistleblower’s complaint properly in accordance with the SPSO’s model complaint handling procedure for whistleblowing complaints and any action taken by or on behalf of the body or provider in respect of that complaint”

to see whether—I am paraphrasing here because of time constraints—it has been undertaken appropriately.

Will the SPSO interpret that provision flexibly or in a restricted fashion? I will explain what I mean by that, because it is quite important. When any investigation in an NHS board or wherever starts to take place based on a whistleblower’s complaint, it may cover a number of matters that the whistleblower did not complain about in the first place. In my experience, if additional facts that were not part of the core initial complaint emerge in the process of the SPSO’s investigations, the organisation can at times be restricted in the view that it takes on such matters.

I very much hope that the new process will ensure that, if NHS boards and other organisations uncover additional information outside the terms of the initial whistleblowing complaint that gives cause for concern, that information will be looked at in a meaningful way. More importantly, I would hope that, when the matter goes to the SPSO’s independent national whistleblowing officer, the organisation will take a view on any additional facts that may have emerged.

Taking a restricted view would mean that, if the complainant or whistleblower did not complain about certain matters in the first instance, although those matters will be looked at appropriately, the investigation might not take account of all the additional information that emerges during the process. As things stand, that does not happen in other areas of the SPSO’s complaints-handling work. Can we get some reassurances on that in relation to the new whistleblowing protocols?

It is probably worth highlighting the difference between complaints about service and whistleblowing.

Generally, complaints about service are about something that has happened; fundamentally, whistleblowing is about someone witnessing something that is happening, and, by definition, the whistleblower might not have witnessed everything relating to a particular issue. I cannot say that, every time, we will go as far as looking at every single line that has been raised. However, with the focus on patient safety and on the treatment of those who are involved in a whistleblowing complaint, the new protocols will mean that we have to go as far as we can to ensure that the whole issue is looked at, including how the board looked at it.

I do not think that we would be looking for additional things. However, issues may emerge, and the nature of whistleblowing complaints means that we follow different lines and perhaps do things in a slightly different way from what we do with straight service complaints.

I do not know whether my answer has been clear enough. I am not saying that we will do that every time, but I take your point that service complaints and whistleblowing are, by nature, quite different and probably have different starting points. I think that, perhaps more so than some of the other complaint work that we do, whistleblowing complaints will be based on statements, views and interviews involving a lot of people.

Ultimately, we have to keep sight of why we are doing this. It is about patient safety, the treatment of individuals and building a culture change. By definition, we almost have to make sure that we look at everything thoroughly.

I am not quite sure that there was an answer in there. I am not trying to be discourteous, but I make the point that, if there is a culture that has to be addressed, a defensive NHS board might have a very restrictive view of any complaint from a member of staff. Whether a complaint relates to things in the past or things that are going on, additional things will need to be investigated and checked out as matters unfold and more information comes into the public domain. We will need to make sure that the NHS board follows through on those aspects if they did not form part of the initial complaint. If any board does not follow through in that way, we will have to make sure that the SPSO follows through and ensures that NHS boards do the right thing. That is the reassurance that I am looking for.

I think that I can give you that reassurance.

Okay; thank you.

Does the cabinet secretary want to add to Rosemary Agnew’s previous point?

No.

That is fine. That exhausts the questions. We move on to agenda item 2, which is the formal debate on motion S5M-19757.

I thank Rosemary Agnew and the other officials at the table. They will not take part in the debate. I invite the minister to move the motion. Members can then contribute and the minister will sum up.

I am happy simply to move the motion.

Motion moved,

That the Health and Sport Committee recommends that the Public Services Reform (The Scottish Public Services Ombudsman)(Healthcare Whistleblowing) Order 2020 [draft] be approved.—[Jeane Freeman]

In looking at what the committee has done to date on the issue, I think that this is a missed opportunity to create a fit-for-purpose whistleblowing system. There are real concerns that the legislation will not meet whistleblowers’ needs. I do not want the legislation to be held up, so we will support the motion, because we need to improve the protection of whistleblowers. However, I hope that we can look again at the issue and that further reforms will be brought forward as soon as possible.

Given what we are seeing across health boards from the Highlands to Glasgow and from Lothian to Tayside, it is important that we fix the matter and have a system that is fit for purpose. We will support the motion, but I think that we could have produced a much better system to protect Scotland’s whistleblowers.

I am trying to look at the issue from the perspective of those from whom we heard evidence who, having attempted to whistleblow, have found themselves on the wrong end of harassment and bullying.

The aims and objectives in relation to whistleblowing and the fact that we have recognised that there is a problem are admirable. However, like Miles Briggs, I have not heard any evidence today that would allow me to say to any whistleblowers who might be watching that I feel more comfortable with the system. At the end of the day, this is about the implementation of the system and how people are recognised and protected in it. As yet, I have not heard those practical reassurances. Like Miles Briggs, I think that we should support the order in the hope that the legislation can be strengthened to give confidence to those on the front line who are looking to take part in the system.

I have the draft standards in front of me. They say:

“An effective procedure for raising concerns ... is ... open ... focused on improvement ... objective, impartial and fair ... accessible ... supportive to people who raise a concern and all people involved in the procedure ... simple and timely ... and ... thorough, proportionate and consistent.”

If the standards and principles are followed, we should have a process that supports whistleblowers. I look forward to continuing to monitor and review the processes that are in place. I will support the motion to approve the order.

I share a lot of Miles Briggs’s concerns. The changes will only be as strong as the confidence that they enjoy from the staff on the ground. I will reserve judgment on that. I will listen to the people who come to my casework surgeries. With those caveats, I am minded to support the motion to approve the order, for now.

The cabinet secretary might wish to say something about a future review of the effectiveness of the system that is introduced.

I will be very brief. I do not agree that this is a missed opportunity. Members are failing to see what we are doing as part of the wider suite of serious actions that we are taking. I am grateful to Ms Harper for reminding us of the detail of the draft standards and principles. In this case, as in everything, what counts is delivery, as well as words on paper. I do not think that there can be any doubt about our collective and shared intent to improve the culture in our health service across the piece.

I add a note of perspective: there are many examples across all our health boards of issues and concerns that staff raise being dealt with timeously and with respect. We are trying to ensure that that happens consistently across the piece, that organisations learn from such practice and that people who raise concerns are and feel protected.

Mr Cole-Hamilton is absolutely correct to say—I think that I have said this previously—that, at the end of the day, it is about the quality of relationships and the degree of trust that we can engender across our health service. All the areas of work contribute to that, and the order is part of that work. The work is enhanced considerably by having the Scottish Public Services Ombudsman, which is an independent and credible office, as our national whistleblowing officer. In addition to the other matters that we have discussed, that, in and of itself, gives the order additional force and credibility.

Thank you very much, cabinet secretary.

Motion agreed to,

That the Health and Sport Committee recommends that the Public Services Reform (The Scottish Public Services Ombudsman) (Healthcare Whistleblowing) Order 2020 [draft] be approved.

I invite the cabinet secretary to move motion S5M-19770, which is the second motion in relation to healthcare whistleblowing.

Motion moved,

That the Health and Sport Committee recommends that the Public Services Reform (The Scottish Public Services Ombudsman) (Healthcare Whistleblowing) Order 2020 - Statement of Principles be approved.—[Jeane Freeman]

Motion agreed to.

I suspend the meeting briefly to allow for a changeover of officials supporting the cabinet secretary.

10:14 Meeting suspended.  

10:15 On resuming—