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NHS whistleblowing: plans for protecting those who speak out

As the National Health Service comes under the spotlight in another general election campaign, ministers have redoubled their efforts to tackle the NHS’s cover-up culture. Under new measures recommended by Sir Robert Francis, NHS senior management staff who have “consented or connived” in covering up poor standards of care could face fines or up to two years’ imprisonment. Since last year, NHS trusts have been legally obliged to admit errors to patients under their duty of candour but the sanctions for failing to comply have so far been vague.

NHS Litigation Authority

NHS trusts that cannot prove they have admitted to their mistakes and apologised to patients could also be fined £10,000 for losing any negligence claims arising from the matter. Should a trust fail to prove that it has been open following mistakes, it could be liable to reimburse the NHS Litigation Authority, the organisation that provides cover for claims against trusts and their employees. Health Secretary Jeremy Hunt hopes that the measures will send out a “strong message that covering up mistakes will not be tolerated.”

Mid-Staffordshire Report

Legislation to punish members of an organisation’s senior management is already in place via the Corporate Manslaughter and Corporate Homicide Act of 2007.   Under the act, an offence is committed if an organisation’s activities cause the death of a person because of a gross breach of their duty of care to the deceased and the organisation of the activities by senior management played a substantial element in that breach. Prosecutions under the act have been few and, although there have been police investigations into NHS trusts, there have been no prosecutions to date. This includes the investigations into the high mortality rates at Mid-Staffordshire NHS Foundations Trust. Although this investigation led to a barrage of legal claims from patients’ families, senior management all resigned from the trust or left the profession, leaving very little idea of who actually bears the blame. Had these measures been in place at the time, it is thought that numerous prosecutions would have been brought.

Sir Robert Francis, who led the inquiry into the poor standards of care at Mid-Staffordshire NHS Foundation Trust, made the recommendations on 11 February following his ‘Freedom to Speak Up’ Review. The review found that, although many organisations support staff who raise concerns, a “significant proportion” of NHS staff were fearful of speaking out because of possible repercussions from management and colleagues. Until now, NHS staff attempting to raise concerns have been left frustrated at the lack of changes to protect whistleblowers. Many staff feel that this is particularly true when their concerns involve a conflict of interest between the trust and the interest of the patient. It is hoped that these measures will encourage staff to speak out.

Sign Up to Safety

The recommendations come two years after Sir Robert’s inquiry, which found that although many staff at Mid-Staffordshire were aware of the poor standards of care, few made any attempts to highlight their concerns.   Despite a number of measures to improve patient safety since the inquiry, including the NHS Employers Speaking Up Charter, which aimed to provide support to those raising concerns and last year’s Sign Up to Safety campaign, Sir Robert claims that the NHS has not yet instilled a culture of transparency and that there is still a serious problem in the NHS in supporting staff who raise concerns regarding poor standards of care.

Sir Robert revealed that staff who raised concerns had faced bullying, isolation and counter-allegations. Many have experienced difficulties in continuing their careers; others have faced gagging clauses that tied severance payments to silence, a practice only ended in the NHS within the last year. Sir Robert’s review calls for:

  • A ‘Freedom to Speak Up Guardian’ to be appointed in every NHS trust to support staff;
  • A national independent officer to assist guardians;
  • Legislation and a new scheme to support NHS staff who lose their jobs through raising concerns;
  • Processes established at all trusts to make sure concerns are heard and investigated properly.

Sir Robert’s recommendations have been accepted in principle and consultations will now begin on the best methods of implementing them, including extending the measures to social care.

Medical negligence claims

The move will hopefully reassure those pursuing clinical negligence claims, many of whom experience additional distress due to the perception that their efforts to obtain information on their treatment have been frustrated by a cover-up culture. While the moves have been welcomed by organisations representing patients, the recommendations will undoubtedly raise further questions, not least that of the extent of the guardians’ powers and their independence from the trusts. Nor will whistleblowers currently in dispute with their employers be offered an amnesty, although it is hoped that those employers will at least reflect upon Sir Robert’s report.

Sir Robert acknowledges that “the NHS is blessed with staff who want to do the best for their patients. They want to be able to raise their concerns free of fear that they may be badly treated when they do so and confident that effective action will be taken.” Although these measures will seek to provide NHS staff with the confidence to make their concerns known to management, Sir Robert realises that the significant change required is cultural rather than regulatory. But as Jeremy Hunt states: “If we don’t get the culture right we will never deliver the ambitions we have for the NHS.”

If you have any questions in relation to NHS whistleblowing or wish to discuss a potential clinical negligence claim, then please do not hesitate to get in touch with us by emailing Clinical Negligence partner Joanna Laidlaw at [email protected].

Posted on Feb 19th, 2015 by Lyons Davidson

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