Duty of candour: a fear of whistleblowing still pervades the NHS

Whistleblowers have been promised changes to support them but many people still worry about speaking out

Last week, Guardian Healthcare Professionals Network focused on how the NHS deals with complaints. Dr Nick Clements of the Medical Protection Society noted that doctors are more likely than ever to receive complaints, and put at least some of the blame on ‘production’ targets for healthcare. Richard Vize, and Dr Suzanne Shale and Murray Anderson-Wallace, wrote about workplace culture, and how that can welcome or repel complaints. Richard Vize concluded:

NHS services which welcome complaints, discuss them with an open mind and embrace them as an opportunity to secure a better experience for patients are likely to be confident, trusting organisations that value their staff and patients. Ultimately it is about distributing power – enabling those who both give and receive care to make the system better.

But many do not. My contribution (below) was based around interviews with two NHS whistleblowers, practice nurse Anna Blackburn and former NHS chief executive Gary Walker (who now campaigns in support of NHS whistleblowers, and took part in Guardian Healthcare’s live discussion on this). Interviewing Anna Blackburn and Gary Walker left me feeling that at least some NHS organisations are the exact opposite of the ideal described above – they reject complaints and rubbish the complainant. That certainly betrays a lack of confidence, and also betrays patients.

Asking who is to blame – government, managers, healthcare professionals – is not as important as working out how to encourage NHS whistleblowers from coming forward in future. As I mentioned in my piece, the Care Quality Commission is encouraging staff to contact it (after they have tried their own organisation’s processes, or if they fear the consequences of that) – further information here, or call them on 03000 616161.

The consequences may well be grim. Anna Blackburn – who still works as a practice nurse, but on contract rather than in a permanent job – told me:

I would definitely say to people, you have to do it, as you have to have your conscience clear. But it is career suicide, I’m afraid.

Gary Walker, who similarly now works as a healthcare management consultant rather than as a trust chief executive, agreed. This has got to change. In other walks of life, although it is never an easy path, whistleblowers may get a financial reward, or a strong safety culture accepts the need for their complaints. Airlines seem to do reasonably well on the latter – sensible, given that the consequences of ignoring problems can be hundreds of deaths.

But, you can say exactly the same about healthcare.

Powered by Guardian.co.ukThis article titled “Duty of candour: a fear of whistleblowing still pervades the NHS” was written by SA Mathieson, for theguardian.com on Monday 9th December 2013 08.30 UTC

In July 2010, when Anna Blackburn started work for an Oxford GP, she found a backlog of hundreds of emails and test results. She believed these had not been acted on, potentially causing serious harm to patients.

Blackburn, a practice nurse for three decades, complained to NHS Oxfordshire primary care trust. The trust suspended the practice’s sole GP, Mark Huckstep, soon afterwards and he was also suspended by the General Medical Council for 18 months in 2012, before he voluntarily removed himself from its register.

But while Huckstep is no longer a GMC-registered doctor, Blackburn no longer nurses in Oxfordshire. She resigned following arguments with a manager brought in by the trust to run the practice, then lost a constructive dismissal case against the since-disbanded trust; as GPs are independent contractors, it had not directly employed her.

Blackburn, now a long-term locum nurse in Buckinghamshire, says she would not repeat the legal action – but does not regret blowing the whistle. “I don’t think you have a choice, if you have a moral conscience,” she says.

However, she warns that NHS staff considering a complaint should know that managers often protect themselves, rather than patients. “There should be a duty of candour. Until people are held to account when they don’t follow that line of honesty, I can’t think things will change much, as they will hide behind each other,” she says. “Everyone is just regulated by themselves.”

Many NHS scandals have featured ignored whistleblowers, including at Mid Staffordshire foundation trust and Winterbourne View hospital. Whistleblowers have been praised by ministers, who have promised changes to support them.

But many people worry about speaking out. Research in June with 2,017 people by YouGov for charity Public Concern at Work found that 22% feared reprisals if they raised a concern at work, with similar numbers concerned about the response of colleagues and career damage.

Gary Walker was fired as chief executive of United Lincolnshire hospitals trust in 2010, allegedly for swearing in a meeting. But in March 2013, he told parliament’s health select committee that he was forced to leave after refusing to meet waiting list targets for non-emergency patients when the trust’s hospitals were full of emergency cases, and was then gagged by a compromise agreement over the terms of his departure. NHS East Midlands, which has since been disbanded as part of the government’s health service reorganisation, disputed this at the time.

Walker, who has recently worked with Public Concern at Work on a report recommending changes to whistleblowing, says he has heard from around 100 NHS staff in similar situations since he went public. “I don’t believe there’s any area of the NHS that is exempt from the fear of whistleblowing,” he says. “It’s almost a disease that permeates every level.

“There is a style of management: you will do as you are told, you won’t make any noise, you will deliver the targets or else,” he adds.

Given that, who should a would-be NHS whistleblower turn to? The first person is the employee’s manager, but Walker says this has two problems: the manager may not do anything and may anyway be the cause of the problem. Failing this, NHS organisations have policies for whistleblowing with named senior officers to handle complaints, but this still means an organisation investigating itself.

Walker says that a whistleblower should consider outside agencies, such as the Care Quality Commission, which has invited such contacts. He adds: “If you fear victimisation, then go to the CQC, police or your MP, but whatever you do, file an anonymous report within your organisation.” This can be sent to those named in the whistleblowing policy, often including the chief executive and chair, although Walker adds: “Some are very career-focused, and would quite happily bury bad news.”

Anyone making such complaints is protected under the Public Interest Disclosure Act, which makes it illegal to fire an employee over a “protected disclosure” to their employer, a regulator and in some circumstances the public. However, Public Concern at Work argues that the legislation is complex, and is not working as intended.

For advice, staff can turn to unions and professional associations, with some including doctors and registered nurses being obliged to report misconduct which may lead to harm to patients. However, Unison said that while it can advise its members on whistleblowing, it is not able to accept a legally protected disclosure under the current law. It believes this should be changed so that unions can formally represent staff with concerns, allowing them to remain anonymous.

Gary Walker says he understands why some prefer not to report problems, or give up at an early stage, through fear of endangering their jobs. “The message is, if you cross NHS management or senior doctors and rock the boat, you’re finished,” he says.

“I would definitely say to people, you have to do it, as you have to have your conscience clear,” adds Blackburn. “But it is career suicide, I’m afraid.”

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