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Geraint Davies (in the Chair)
I call Dr Philippa Whitford to move the motion. I know it is a bit early, but we are all here.
Dr Philippa Whitford (Central Ayrshire) (SNP)
I beg to move,
That this House has considered NHS whistleblowers and the Public Interest Disclosure Act 1998.
It is an honour to serve under your chairmanship, Mr Davies. Gosport, Morecambe Bay, Mid Staffordshire and Bristol Royal Infirmary are NHS scandals that all have quite a few things in common: they went on for a long time and often whistleblowers who might have brought the issue to an end and saved lives were punished or ignored. They were certainly intimidated. The anaesthetist who raised the issue of baby cardiac surgery at Bristol Royal Infirmary ended up in Australia.
The term “whistleblower” suggests a pressure cooker—a build-up of pressure to the point where someone cannot resist it any longer and feels the need to come forward. We are trying to decompress some of that impression by having audit of patient safety through such systems as Datix, where staff get used to reporting every little aspect that does not go smoothly, which therefore creates the habit of coming forward. We still have issues. They often relate to the whole system, the trust or perhaps the behaviour of certain medical or clinical staff. There is no easy way to come forward, and the people seeing that behaviour take a long time to be listened to or to step up.
In the investigation into Mid Staffordshire, which was the worst NHS scandal, Sir Robert Francis’s report spoke about developing a “freedom to speak up” culture, to make doing so normal. Sir Robert suggested only minor changes to the Public Interest Disclosure Act 1998 but, as I will come on to later, I think it needs major change because it underwrites everything else.
Mr Jim Cunningham (Coventry South) (Lab)
I congratulate the hon. Lady on securing this timely debate. I had two cases in Coventry, going back 10 or 15 years, in which consultants were suspended for whistleblowing. On the one hand, the Government encourage whistleblowers, but on the other the national health service seems to have a different definition of whistleblowers. One of those cases ended up in court. I do not know the exact figure, but it cost between £3 million and £4 million, and went on for at least 10 years. Meanwhile, back at the ranch, the individual was losing their skills. What does she think about that?
Dr Whitford
Obviously, I am unaware of the individual case and the rights and wrongs of it. However, a review of the cost of whistleblowing as it stands shows that having an effective system and effective law would save us money overall.
Sir Robert Francis envisaged “freedom to speak up” guardians in each trust, to whom whistleblowers could go informally to seek advice and support. Such guardians are in all trusts across England. They include a wide range of people, and the appointment system is not altogether clear or transparent. We will have to look at what kinds of staff work best, whether appointments have been appropriate, and whether whistleblower guardians can recognise, if they are clinicians—which many of them are—that there might be a conflict of interest, because the issue might be in their department. The national guardian has been in place since 2016, but her position is non-statutory and sits inside the Care Quality Commission. Her role is described on the website as “leading cultural change” rather than deciding individual cases.
Through all the publicity, there has been quite a change in atmosphere and tone. The whole issue has had a significant airing. In Scotland, we have an alert and advice line run by Public Concern at Work. It is interesting to see the changes from the second half of 2016 to the first half of 2017. The number of concerns that the hospital, or the health board as it is in Scotland, admitted immediately were valid—instead of their having to be proved, or their being put off—went from 0% to 14%. The number of those that were ignored or denied dropped by 30%, and those reported to a manager or a senior manager went up by 30%. That suggests quite a difference in practice. The numbers are quite small, but they suggest a pattern. The data showed that, naturally, the most common group to report is nurses—they are the biggest employed group within the NHS—and the most common reason was still patient safety.
The problem is that that is all still legally underpinned by the Public Interest Disclosure Act, which was passed in 1998. It was a private Member’s Bill very similar to one that had been introduced a few months before. It therefore did not have a Second Reading, and it had only one day in Committee. At the time, it definitely was ahead of what was going on elsewhere, and was a recognition of the importance of whistleblowers, but that was 20 years ago. It really is time for change.
Mike Hill (Hartlepool) (Lab)
Does the hon. Lady agree that workers are still put off by responses to whistleblowing allegations and, under the legislation, the threat of disciplinary action if the complaint is perceived to be malicious?
Dr Whitford
I utterly agree. It is important to be clear that a disclosure in the NHS, which is what we are focusing on, regarding patient safety as opposed to employment issues, which are quite separate and dealt with differently, is in the public interest. The problem is that in cases where whistleblowers have been punished and have suffered detriment, what starts as reporting becomes a bullying and harassment issue that ends up in a normal employment tribunal setting, and the original concern is not dealt with.
Jim Shannon (Strangford) (DUP)
I congratulate the hon. Lady on bringing this matter to Westminster Hall for consideration. Some 7,000 staff raised concerns about bullying or patient safety in 2017-18. Over the same period, some 356 whistleblowers said that they had experienced repercussions, ranging from subtle persecution, such as career opportunities being closed off, to being fired unjustly. That is truly shocking. Does she agree that the Minister may have to look at a full investigation into just how far-ranging these matters are?
Dr Whitford
I thank the hon. Gentleman for his intervention. I hope that this is just the first little step towards putting the matter on the agenda. The tragedies at Gosport brought the whole issue back. A nurse had come forward years and years ago, and could have saved hundreds of lives had she been listened to. Not being listened to is almost the least that can happen to a whistleblower, in that often they suffer detriment or reprisals and even lose their jobs.
The one change that Sir Robert Francis suggested to PIDA that has been made in England and Scotland is redress for discrimination regarding new employment—that is, applying for a new post within the NHS. Work is under way to introduce that in Wales as well. However, the main Act remains as it was. The first key weakness of PIDA is that it does not ensure an investigation of the whistleblower’s concern. Given the risks they take when they come forward, the detriment they may face, and the months or years of tribunals or other stages, it is crucial that the concern that made them step forward is not either overshadowed or completely ignored. I think that is their biggest frustration.
The Act most certainly does not protect whistleblowers. It describes itself as protecting whistleblowers from detriment, intimidation and reprisals, but PIDA can be used only for litigation after the detriment. Once someone has lost their job they can take their employer to an employment tribunal and attempt to have redress. The problem at that point is that the whistleblower has to prove that it was their disclosure—their coming forward and speaking up—that drove the loss of their job. Of course, employers will find all sorts of other excuses, such as, “Oh, they didn’t get on with their colleagues,” or, “They were a trouble maker,” or, “They were late for work.”
The success rate of litigation under PIDA is 3%, which is appalling, and shows how utterly weak the law is. Whistleblowers suffer further detriment while going through litigation. They know that they may face being landed with the costs. They may face bankruptcy, and stress that could go on for extended periods. Furthermore, between 2013 and 2017, people had to pay for employment tribunals. That, of course, closed that avenue off to many whistleblowers.
I make the simple case that we need a new public interest disclosure law. It should not sit inside employment law. It should not be a tweak to what we have now. We should recognise that the Public Interest Disclosure Act covers all sectors. The NHS may be one of the most common sectors to have whistleblowers, but the Act covers finance, research and business. We need a specific law.
It must be utterly clear that such disclosures are in the public interest, and that is where I disagree with the hon. Member for Stirling (Stephen Kerr), who may speak later. I do not agree with paying bounties to those who would disclose. Whether or not it creates a conflict of interest, it certainly gives the impression of doing so. It is utterly important, in the defence and protection of whistleblowers, that they can show that the only reason they have come forward is to protect patients or whoever the consumer is in their service.
Stephen Kerr (Stirling) (Con)
Just for clarity, I am not advocating bounties. It is one of the options to be looked at, but there are reservations about it, which I know the hon. Lady shares.
Dr Whitford
I thank the hon. Gentleman, who has set up an all-party group on whistleblowing and on the Public Interest Disclosure Act 1998. I welcome that, but one of my concerns is the issue of bounties.
It is important that we have a new PIDA law and an independent, statutory body that is equal to other bodies and can take on the NHS, NHS Improvement and the CQC. It must not be a department in one of those regulators; it must be separate from the NHS to ensure real independence, and it must investigate and act on concerns. If a local investigation has failed or is failing, there should be a mechanism to report that to an independent body. If we get to the point where there is simply a slanging match within a trust, there will never be a satisfactory resolution, so arbitration needs to come in and look at the cold facts and the original facts of the disclosure. Often, what is looked at is the process, but not whether the whistleblower was actually right to raise an issue in the first place.
It is critical that whistleblowers are protected from detriment from the moment of speaking up. They should be protected during the investigation, and they must not be picked on either subtly, as the hon. Member for Strangford (Jim Shannon) said, or blatantly—they must not lose their jobs. It is important that legal penalties for reprisals against whistleblowers can actually be enforced.
There should be a system of redress for whistleblowers that does not involve litigation. Litigation is expensive for the NHS and the whistleblower, and is utterly confrontational. That means that, at the end of the process, even when a whistleblower has been proven to be right and genuine, there has often been such a breakdown in relationships that it is not possible for them to go back to their previous role.
Mr Jim Cunningham
I thank the hon. Lady for giving way once again. The case I outlined actually ended up in the courts, and the hospital was told to take the individual back. Well, it never took him back. There was a long, drawn-out process over a number of years, and it was eventually settled through litigation. That individual—Dr Mattu—was a well-known consultant.
Some of the older Members will remember the case, going back 10 or 15 years. We had debates and got the support of Mr Speaker. The hospital tried to use letters I sent to it, in which I raised issues that had been raised with me, in the courts, and the judge ruled it out of order. The hon. Lady is right that we need an independent body, but where it finds that the hospital is guilty, as it were, and that the whistleblower was doing their job, it should have the power to order reinstatement—that is the nub of the matter—to ensure they are not victimised.
Dr Whitford
I agree that there should be protection to ensure that whistleblowers are not victimised, but the problem is that if the relationships have been allowed to break down because the system is so confrontational, often even the whistleblower does not consider it possible to go back. That is a tragedy, because it often means losing someone talented, particularly at a time when we are so short of staff in all four NHS systems in the UK.
The body obviously needs to be statutory so it has enforcement powers, but it should also be responsible for developing standards and training to show hospital trusts, health boards and hospitals, regardless of the system, what good looks like. Setting up, speaking up for and reporting on a body structure for the NHS will be for all four nations, because health is devolved, but PIDA still sits above that. It needs to be the underpinning statutory law that gives the body force.
In Scotland, we are still working on our system. Obviously, the Francis report looked at the system in England. We have whistleblower champions in our health boards, but we are working on setting up the independent national whistleblowers office. The difference between that and the national guardian in England is that it will be statutory and independent of NHS Scotland. It will sit in the office of the Scottish public services ombudsman, so it is utterly outside the NHS and clearly sends a message of independence. It will be able to adjudicate in individual cases. Normally, that will be when all local processes have been exhausted, but provision is being considered to allow an earlier referral when the local system has simply broken down and the concern about patients has been lost in the conflict-driven system.
Standards are being developed for all health boards so there is a consistent approach. The standards that sit above everything else are that whistleblowers will be listened to, that their concerns will be acted on and that they will be supported. The former Secretary of State, who is now away to sunnier climes or travelling the world, used to keep saying in the Chamber that whistleblowers are central to patient safety. I have to say that I slightly disagree.
When someone is forced to blow the whistle, it is because the patient safety systems have failed. In Scotland, we have a national patient safety programme, which is the first in the world that is right across the system. People cannot pick and choose whether they do the huddle at the start of an operating list or whether they do the World Health Organisation checks before operating on somebody. It looks at the frontline to try to reduce errors, but we know that there will still be situations that are not ideal, so someone will need to come forward. That is the thing: whistleblowers are a backstop. The patient safety system, the Datix system or the auditing may need to be improved, but whistleblowers provide a backstop to prevent us from going over the cliff, to prevent more people from dying and to allow timely action.
The problem is that, although doctors have a duty of candour laid on us by the General Medical Council, we also see the landscape littered with people’s careers and jobs, as the hon. Member for Strangford said earlier. For an individual, that is really difficult. They think, “If I speak up and step forward, it may be the end of my career. I may be out of a job. I may be out of this hospital.” For patients’ sake, we need a change, we need to get it right, and we need a new public interest disclosure law. We should start work on that now.
Stephen Kerr (Stirling) (Con)
It is a privilege to serve under your chairmanship, Mr Davies. I congratulate the hon. Member for Central Ayrshire (Dr Whitford) on securing this debate and on her compelling and powerful speech. I find myself agreeing wholeheartedly with what she had to say. It is a noteworthy event when Scottish Conservatives and Scottish National party Members agree unanimously, but it has happened twice today—it happened in the main Chamber, too.
I welcome the hon. Lady’s description of the work being done in NHS Scotland. She described the patient safety system, which has been in place for some time. Work on it is subject to continuous improvement, which is the correct approach. The different parts of the United Kingdom can share things with and learn from each other, and this is a good case in point.
As the hon. Lady has said, I was recently elected co-chair of the all-party parliamentary group on whistleblowing—I declare that up front. Time and again, inquiries into healthcare scandals, such as that at Gosport War Memorial Hospital, expose cases of people who spoke out to warn those who should have taken action but who were suppressed because healthcare leaders know that PIDA has no effective mechanism to address cover-ups and retaliation. The NHS continues to forensically investigate and penalise whistleblowers, while concerns go unheeded. PIDA has not changed that. It leaves patients at risk because it does not require the investigation of the whistleblower’s concerns. It is, in short, no deterrent. More than 19% of calls to Public Concern at Work and 30% to WhistleblowersUK are from the healthcare sector. Very few complaints proceed to an employment tribunal. Only 3% of claimants who make it to an employment tribunal win a PIDA claim, as has been mentioned. That is not good enough, and it is not a fair reflection of reality. Furthermore, the cost to the whistleblower can be far reaching and include complete ruination, while the institution can remain unaccountable—“It’s only taxpayers’ money”—but for a few forgettable headlines.
Inquiries into healthcare scandals such as those mentioned by the hon. Lady show that we are still not there on measures for whistleblowing. People who spoke out to warn those who should take action were suppressed, as I have said, and that happens because of the lack of an effective mechanism under PIDA. Punitive investigations and penalties are still part of the reality of life for a whistleblower. The Act does not go far enough to protect whistleblowers against that.
For whistleblowers, the cost of bringing a PIDA claim often exceeds £100,000 and they often find themselves on trial, as has been said. They suffer from retaliation and financial ruin. In the health service, as in so many sectors, institutions use attrition to wear down whistleblowers and can bring to bear uncapped resources and lawyers who use strategies to exhaust their funds, wearing them down mentally as well as financially and into submission. Whistleblowers are left without any money or resources, with their professional reputation undermined and their health impaired.
When a whistleblower acts, it is from a sense of duty to the public and to their vocation. In the case of health, that is in pursuit of patient wellbeing. When institutions react, it is often with an attitude of legalistic defence rather than in the spirit of embracing the opportunity to improve, or to right a wrong. Take the case of Dr Raj Mattu who exposed the preventable death of patients. After a fight of more than 10 years—this case may have been the one referred to by the hon. Member for Coventry South (Mr Cunningham), but I did not catch the name he used—Dr Mattu’s case was upheld by a judge. It had cost taxpayers anywhere between £6 million and £22 million, according to various estimates. Furthermore, Dr Mattu had been a leading cardiologist but now, at the age of 59, he is having to retrain. That is a waste of talent, and he was someone who did the right thing and has been proven to have done the right thing. A vast amount of money was spent to defend a legal position and to fight against a whistleblower, instead of being used to right the wrongs that Dr Mattu identified—all because a route of legal challenge was followed.
The main upshot of such cases is to channel NHS funds to firms of employment lawyers. That cannot be right at any time, because resources are always scarce. The case for legal reform is evident. The APPG will gather evidence to support changes to the law, which is what is required. Our objective is to bring together Members on both sides of the House, including those with different views on the finer details, to continually highlight the issue of whistleblowing and what happens to those who have the integrity and courage to act. The objective is to build consensus on certain issues and, we hope, to draw sufficient attention from Members across the House to achieve that change in the law.
We need to look closely at the idea of an independent investigatory authority, as has been discussed—I completely support what the hon. Member for Central Ayrshire said in that regard. We must also look at having independent and transparent investigations, and at the provision of arbitration, which has also been mentioned. We need to keep the law under review and up to date—it is 20 years since this law was looked at in any detail, and that is a long time—because the landscape changes, loopholes become apparent and new legal strategies can be deployed to shut down whistleblowers. Most of all, we need to look at the issue of protection for whistleblowers. Our job in this place is to formulate law, and we should do so to give genuine whistleblowers the protections they need. They may need financial help, and their professional reputations will almost certainly need protection. Most importantly of all, however, they need to know that we as legislators have their back through not only our words but our actions.
I hope that this important and valuable debate will continue. I also hope that the Minister will suggest that the Government have taken heed of the need for improvements to be made to the way in which whistle- blowers are treated, because we still have a long way to go.
Mike Hill (Hartlepool) (Lab)
Thank you, Mr Davies, for allowing me to speak under your chairmanship.
I absolutely agree with the aspiration of the hon. Member for Central Ayrshire (Dr Whitford) to put in place a separate level of protection. My experience of whistleblowing comes from my experience of many years as a full-time trade union official for Unison. I remember the original PIDA being enacted, and that immediately afterwards employers were scurrying about to design internal policies to make it hard for whistleblowers even to come forward, let alone to proceed with a complaint in comfort and with protection. Many of those policies emphasised that, if the complaint were malicious, it could end with disciplinary proceedings. Certainly the policies were not favourable to the spirit of the legislation.
I agree with everything that has been said, but I must underpin my opinion that employment law must sit alongside the matter in question—there must be protections for workers. Yes, we have had the Francis review, but let us not forget the recent Gosport War Memorial Hospital inquiry, which shows that PIDA is clearly not working as a self-policing device within big employers such as the NHS.
I remember the Winterbourne View scandal. The investigation originated with a different kind of whistle- blowing, through “Panorama”, but it came out of staff concerns. The scandal not only affected how mental health patients were treated in their communities from thereon in—it exposed the difficulties of working in such an environment—but had a knock-on effect for NHS employees. From my time with the Tees, Esk and Wear Valleys mental health trust in Hartlepool, I remember the movement of workers, with patients, into localities. That was disruptive to their jobs and lives; sometimes it led to job losses, so there are consequences.
There are also difficulties with whistleblowing. Often, whistleblowers will blow the whistle at inappropriate times. For example, they might be subject to internal inquiry or a disciplinary, and if the whistleblowing comes at that point it can be seen as disruptive, even when it is not deliberately so. However, that should not deter any important review of the basis of that whistleblowing.
I agree with the hon. Member for Central Ayrshire that local proceedings should be dealt with separately, with whistleblowing dealt with centrally from an independent perspective. We are not just talking about the NHS; there has also been whistleblowing in the civil service, for example.
I hate to see victims. As a trade union activist, I have seen too many victims. Equally, I have seen too many patients let down in mental and core health. Whistleblowers can be young or old. Young people are often concerned about peer pressure. They learn about whistleblowing on the job, and they might see obvious things that more experienced people do not. People at the older end of the shift also whistleblow, for whatever reason, about important issues that are stark-staringly obvious to them. Such things must be taken seriously. We cannot go on and have more and more patient deaths on our hands because we do not have a proper structure.
I apologise to the hon. Member for Stirling (Stephen Kerr). I was interested in the APPG, but I was unable to get there. I have always been keen on the issue. We cannot have a glass-half-full or glass-half-empty situation. We have to have protections for workers, whistleblowers and patients. We cannot live our lives through television investigations, or organisations such as the Nursing and Midwifery Council saying they have fit-for-purpose policies to deal internally with such issues. Whistleblowing is a global matter of protection for all. I appreciate the opportunity to speak in this important debate.
Patricia Gibson (North Ayrshire and Arran) (SNP)
I thank my hon. Friend the Member for Central Ayrshire (Dr Whitford) for bringing forward this important debate. I think we all agree that when malpractice and failure in our NHS threaten the public interest, and when concerned staff do not have the confidence to speak up and share their concerns, our public services are threatened across the board. Of course, that does not apply just to the NHS—we know it has happened in other sectors.
My hon. Friend, who focused on the NHS, pointed to recent examples that underline the need for staff who raise concerns to be protected. Indeed, almost all the official reports and the inquiries that have followed have shown that co-workers had seen the dangers but had been too afraid to raise the alarm, or had raised it with the wrong person or in the wrong way. We need only cast our minds back to the Clapham rail disaster, the Zeebrugge ferry disaster and the empire of Robert Maxwell—in all those cases and others, people already had concerns, but they were either unable or unwilling to come forward, for whatever reason.
Paul Girvan (South Antrim) (DUP)
Numerous NHS staff have indicated to me their unwillingness to come forward because they believe there is a culture of bullying in the NHS. If they make a complaint, they are targeted. Even though complainants want to remain totally anonymous, that does not seem to happen. I know one doctor, in particular, who raised an issue and who feels he has been sidelined from promotion and everything else because of the stance he took against his peers.
Patricia Gibson
Sadly, we have heard that point several times during the debate. We hear it far too often. The culture must change.
We have focused on the NHS, which we all understand is an important public service. If the public cannot trust and have faith in the NHS, we are in a sorry state indeed. I am sure my hon. Friend the Member for Central Ayrshire would tell us that the reason we need to ensure there are robust mechanisms in place to protect whistleblowers is that, ultimately, whistleblowing is about saving lives.
We will never know whether safer whistleblowing, with protection for those who raised concerns, would have halted the activities of Ian Paterson in the NHS and the private sector, given that concerns about his surgical procedures and his desire to carry out harmful and unnecessary mastectomies had apparently been circulating since 2003. Professor Ian Kennedy, who reviewed Paterson’s practice, put it like this:
“Whistleblowers do not fare well in the NHS. This is one of the major indictments of management in the NHS: that it is inwards-looking, over-defensive, and prone to destroy, by a variety of means, those who suggest that the Emperor has no clothes…It is a blight on the NHS and is one of the principal areas where lessons must be learned.”
As the hon. Member for Stirling (Stephen Kerr) reminded us, where provisions to further protect whistleblowers are required, they should be put in place.
It has been reported that up to 10 doctors who worked with Paterson are under investigation by the GMC, apparently for failing to act on concerns. I make no comment about that, but one has to ask how it is possible that there is a culture in which fellow medics can even be suspected of failing to act on such concerns. How on earth could such an ethos ever develop and, apparently, thrive? That monster has lurked in the NHS, and that culture has to be changed. As the hon. Member for Hartlepool (Mike Hill) said, it is changing, but not as quickly as we would like.
As my hon. Friend the Member for Central Ayrshire outlined, the Scottish Government have implemented a number of measures to help protect whistleblowers and ensure they feel confident to speak out. Extra legal protections are now in place for student doctors and other postgraduate trainees who speak up if they are unfairly treated by their training body. However, as she pointed out, those are—and must be—quite separate from standard employment issues.
Importantly, the Scottish Government have committed to the function of the independent national whistleblowing officer for NHS Scotland being held by the Scottish public services ombudsman, creating a mechanism for independent external review where an individual has a concern about the handling of their whistleblowing case. That will be in place by the end of 2018. Importantly, the intention is to ensure that whistleblowing cases are concluded in a reasonable timescale. We heard from the hon. Member for Stirling about a case that dragged on for many years, which is far too long. That is simply not acceptable.
As my hon. Friend the Member for Central Ayrshire pointed out, we are building a consistent approach in Scotland. Staff will have access to an independent external body that can review their case and bring it to a clear, final and fair conclusion. I urge the Minister to study the improvements in Scotland carefully to ensure that the system in England is as robust as it can be and as supportive as possible to whistleblowers who raise genuine concerns. Of course, that is not to suggest that Scotland has nothing left to learn. We all must continue to be very vigilant, as the hon. Member for Stirling pointed out.
Gagging clauses have been used to suppress, or potentially suppress, information about patient care, which can lead to failings being repeated. I think we would all agree that that is completely unacceptable. My hon. Friend gave us a timely reminder—if we needed reminding —about the tragedy of Mid Staffordshire, which led to the deaths of as many as 1,200 patients. That must not be allowed to happen again.
Such malpractice and failings can thrive only in a culture where people are afraid to speak out and where fear and secrecy reign, as the hon. Member for Hartlepool reminded us. We have learned from Mid Staffordshire, but we must go on learning from it. I urge the Minister to be ever vigilant and watchful. Of course, genuine concerns have to be raised responsibly, but they must be raised. The NHS as an institution must encourage that, as the hon. Members for Stirling and for Hartlepool set out.
A whistleblower must be seen not as a problem but as someone who genuinely seeks to improve how things are done. Every Member who spoke alluded to that. That requires a culture change in the many corridors and management offices of our health system, which will take time. We are getting there, but we are not there yet. We must never be complacent. Openness and transparency are key to ongoing learning and improvement, and such a culture will give patients the confidence they need. I am keen to hear the Minister’s response to those concerns.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is, as always, a pleasure to serve under your chairmanship, Mr Davies.
I congratulate the hon. Member for Central Ayrshire (Dr Whitford) on securing the debate and on her powerful and knowledgeable contribution. As always, she drew on her many years of experience in the national health service. She listed a series of scandals in the NHS and raised themes common to them all. They lasted too long, and too often those who blew the whistle paid a high personal price for their actions. She raised the real risk of clinicians finding themselves with potential conflicts of interest, which requires further thought, and rightly highlighted the fact that the current legislation does not create an obligation to investigate the original complaint—it is primarily concerned with protection after the event.
In his analysis, the hon. Member for Stirling (Stephen Kerr) suggested that PIDA was intended to be a deterrent but that, given the way it has operated, it is not that at all because whistleblowers are still being punished. Both he and the hon. Lady pointed out the woeful success rates in employment tribunals, which should give us all pause for thought about whether the legislation is fit for purpose. The hon. Member for Stirling talked about how litigation can sometimes be a war of attrition and employers can be very defensive at times, and how at the bottom of all this is an individual—sometimes a highly skilled individual—whose talent has been wasted and lost because they have blown the whistle.
My hon. Friend the Member for Hartlepool (Mike Hill) spoke with great passion and no little knowledge of some of the experiences of those who have blown the whistle. He was right that some employers have not embraced the spirit of the legislation; in fact, they contrive policies to run contrary to what we are trying to achieve here. Having met many of the staff in the NHS, I know they care deeply about the work they do and they want to do the best by their patients. That is why it is so important that we provide an environment where they are able to raise their concerns about things they may be worried are going wrong, without fear of repercussion or unfavourable treatment. They must also be confident, once they have raised those concerns, that action will be taken.
However, despite some notable advances in the protections available in recent years, it remains the case that even the best run organisations, with the most comprehensive policies in place, can still feel very daunting for individuals who want or need to blow the whistle. I know from my many years working as an employment lawyer—although not one who lined his pockets in this particular area—that it is extremely difficult for an employee to raise those issues. As we have heard already, the consequences of doing that can be hugely damaging. They can face anything from being shunned by their colleagues to summary dismissal on spurious charges, and the impacts of the kinds of things they deal with can last much longer than the period of employment to which we are referring.
In that respect, it was deeply concerning to read in the Francis report about staff who were on the brink of suicide because of the treatment they had received after speaking out. One of the few criticisms on the record of the NHS is the fact that many promising careers have lain in tatters as a result of ineffective protections under this legislation, while other people have spent years languishing in the legal system, with the taxpayer racking up tens of thousands in legal fees in the process.
Of course, while protecting whistleblowers is vital across all professions, it should be pointed out that NHS staff also have a professional duty to raise concerns. The NHS England and NHS Improvement policy states:
“If in doubt, please raise it. Don’t wait for proof… It doesn’t matter if you turn out to be mistaken as long as you are genuinely troubled.”
We cannot say that enough; I just wish it was easier to see that delivered in practice.
The Minister recently brought forward regulations to provide some additional protections for the present and future employment prospects of whistleblowers, which we welcomed. I raised a number of concerns during that debate and the Minister was good enough to write to me afterwards setting out some of the responses. However, one issue that I do not think we have got to the bottom of was protections for other workers who support whistleblowers. There is a worrying gap in the existing legislation. It is easy to envisage circumstances, particularly in the health service, where two or more employees might have an issue of concern that they jointly notice, but only one of them, in law, can make that protected disclosure.
When I raised that point to the Minister, her response made clear that the only remedy available to such associated parties would be to register a grievance under their employer’s grievance policy. That is a very worrying omission from existing legislation and I ask the Minister to consider whether she will look at that again, as well as at the many points that have been raised about the deficiencies of the existing legislation.
Another lacuna in the existing law was exposed much more prominently by Dr Chris Day. On 10 January 2014, Dr Day made a protected disclosure about critically low staffing ratios during a night shift on an intensive care unit at the Queen Elizabeth hospital in Woolwich. Unfortunately, the trust and Health Education England decided not to act on his concerns and terminated his contract, based on what Dr Day believes were false allegations, thereby stalling his progress to consultant.
Sadly—like many whistleblowers, as we have heard today—rather than having his rights protected by his employer, Dr Day was instead forced to defend them via legal redress at an employment tribunal. This is because Health Education England contended that
“even if the facts alleged by Dr Day were true, HEE could not be liable in law for any acts causing him detriment.”
That was significant because, while not acting directly as the employer, HEE recruits doctors in training, supplies them to various trusts and appraises them. The result was a wholly unnecessary and extremely lengthy legal battle, whereby Health Education England, which is a body of the Minister’s Department, effectively sought to move around 54,000 doctors out of whistleblowing protection. Despite the clear principles at stake, the Government consistently refused to become involved in the case to prevent the costly and embarrassing outcome that we have now arrived at.
In September 2017, in a written parliamentary question, I asked about the cost to the NHS of defending the legal action brought by Dr Day. I was told that the total legal fees incurred by Health Education England stood at over £100,000, while Lewisham and Greenwich NHS Trust had incurred costs of £30,000. In May this year, Health Education England was ordered to pay Dr Day’s solicitors’ legal costs of £55,000 after it backed down and accepted that it should be considered an employer after all.
After four years and more than £200,000 of taxpayers’ money spent, Health Education England has accepted its responsibility and made a statement that I consider frankly astonishing:
“Having never wished to do anything other than facilitate whistleblowing for doctors in training, HEE is happy to be considered as a second employer for these purposes if it removes a potential barrier for junior doctors raising concerns.”
I ask the Minister to explain why this situation was allowed to go on for so long, when the case was refuted not on the basis of the facts, but on a technicality that flies in the face of everything we have tried to achieve today.
Dr Whitford
As in the case of Dr Day, the issue of poor staffing levels or rota gaps is a common incidence for people blowing the whistle because they feel it is unsafe. Scotland has just passed a safe staffing law, and I wonder whether, as with Datix and other systems, we need staffing level reporting to be seen not as whistleblowing but as something that should be done routinely. Whistleblowing would then start to become a smaller and smaller part of what staff might feel they had to do.
Justin Madders
That is an important point; we should see reporting issues such as staffing levels as something that would not be such a big deal. As is happening in Scotland, the safe levels should be ingrained not only into law, but into the culture of the workplace.
In conclusion, I repeat the same point that I made when the recent statutory instrument was discussed: that we now have a two-tier whistleblowing system, which provides some NHS employees with a greater level of protection than others working in the health and social care sector—social care workers, construction workers or anyone else who does not happen to work within those particular areas. Social care in particular is an issue. Public Concern at Work found that more than half of whistleblowers also reported some kind of victimisation, with 23% saying they had been dismissed after raising concerns. I ask the Minister, who is of course also responsible for social care, whether she considers that a satisfactory state of affairs.
Whistleblowers should be not just protected, but celebrated for the role that they play in defending the safety of others. Nobody making such a disclosure should do so in fear, wherever they work, nor should they face the risk of having their livelihood taken away. We owe it them to ensure that those protections are as effective as they can be.
The Minister for Care (Caroline Dinenage)
It is a great pleasure to serve under your chairmanship, Mr Davies.
I start by thanking the hon. Member for Central Ayrshire (Dr Whitford) for bringing forward this important debate on a vital issue and for the keen interest she has shown in patient safety across the board. I always listen carefully to what she says, not only because her contributions come from her perspective as a clinician—something that should be incredibly valued—but because, as a Member, I respect the practical, constructive and calm way she presents information to the House. It always makes an enormous difference as a Minister when information is given in that way. I also thank her for the role she has played in the pre-legislative scrutiny of the health service safety investigations Bill—another piece of legislation we are introducing to ensure that our health systems are continually learning and making a difference when things go wrong.
I also put on the record my thanks to my hon. Friend the Member for Stirling (Stephen Kerr) for setting up the all-party parliamentary group on whistleblowers. I am delighted he has taken that step. There are all-party parliamentary groups on a range of different issues, and one often wonders where they are coming from. However, I welcome his wholeheartedly, and I am keen to hear its considered recommendations. I am also delighted that the new Secretary of State for Health and Social Care has already stated his commitment to the health and social care workforce. The work of my hon. Friend’s APPG will go to the heart of that.
The Government are committed to building a culture of openness and transparency in the NHS, which is part of achieving our goal of making it the safest healthcare system in the world. We need to make sure that people who work in the NHS feel safe to speak up. We want that to become routine, and it is a key part of our commitment to ensuring patient safety and improving the quality of services. The NHS should support and welcome all staff—be they permanent employees, agency workers, volunteers or other contracted staff—raising concerns, wherever they have them.
The importance of people in healthcare speaking up has been demonstrated by many brave champions of patient safety, such as Helene Donnelly at the Mid Staffordshire NHS Foundation Trust. It is through the bravery of Helene and those like her that we can fully recognise the changes that have to happen in our health and care services. As the hon. Member for Central Ayrshire has said today and in the past, people blowing the whistle is a sign that the system has failed somewhere earlier on—that something has gone wrong and has not been put right. We want a culture in which we do not need whistleblowers like Helene because stronger preventions and better patient safety measures are in place, because people feel confident to admit when something has gone wrong, and because people feel protected and supported and are willing to raise concerns in the workplace as a norm.
Hon. Members will know that I am the Member for Gosport. I have recused myself from speaking as a Minister on the situation there so that I can continue to represent my constituents in that case, which I have been involved in for the last eight years. However, the case amply demonstrated the risks of not listening to those who raise concerns. It is clear that much of the pain and suffering experienced by families could have been avoided had those whistleblowers been listened to earlier.
Speaking up and raising concerns should be routine in the NHS. As the hon. Lady said, whistleblowing legislation has been in place for 20 years, and all hon. Members have been vocal about its limitations. I am not averse to reviewing the legislation, and I am keen to hear any proposals that the new APPG and other Members feel would be appropriate. Evidence on the legislation’s effectiveness—or ineffectiveness—would be helpful. Hon. Members know that reviewing that legislation does not fall within the gift of either myself or the Department; the Department for Business, Energy and Industrial Strategy holds the control there. However, I am more than happy to speak to Ministers in that Department about this.
We are aware that improvements to our health and care system are needed to ensure that workers feel safe to speak up about problems. Responses to our call for evidence in 2013 highlighted that whistleblowers did not feel that way, which is why we legislated in the Small Business, Enterprise and Employment Act 2015 to require prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. The regulations to implement that reporting duty are now in place, and the prescribed persons’ first annual reports, covering 2017-18, are due to be published in the next few months. That is aimed at increasing public confidence that prescribed persons take whistleblowing disclosures seriously, through greater transparency about how they handle disclosures, and particularly that they investigate and take action where necessary.
Dr Whitford
The Minister mentions prescribed persons. The fact that Members are also prescribed persons shows how difficult and confusing it can be for whistleblowers to know where they should go. I suggest it would be difficult and confusing for an MP to know what to do with such information and where to go. I recognise that the NHS, as one of the major generators of these cases, perhaps needs its own structure. However, if we had an independent body that covered all other sectors, everyone who wants to blow the whistle would at least know where to go, because a lot do not at the moment. As my hon. Friend the Member for North Ayrshire and Arran (Patricia Gibson) said, they may blow the whistle in the wrong way and to the wrong person, and they will suddenly not be covered by PIDA at all.
Caroline Dinenage
The hon. Lady makes a valid point, which we will take into consideration.
As the hon. Lady knows, the National Guardian’s Office was established in 2016, and the independent national guardian, Dr Henrietta Hughes, was appointed to support NHS whistleblowers and to improve the NHS reporting culture. The National Guardian’s Office also provides leadership, training and advice for a network of more than 750 “freedom to speak up” guardians based in all NHS trusts and foundation trusts. There have been more than 6,700 cases of speaking up in the last financial year. The National Guardian’s Office is looking to extend a network into primary care later this year.
The ability of the National Guardian’s Office to effectively engage the system is already helping it to make recommendations to trusts, arm’s length bodies, the Government and providers of services to the NHS to help drive this cultural change. Its role in the system is as an influencer of change, rather than an imposer of requirements. Organisations should rightly remain responsible for tackling their own cultural issues.
The NHS is one of the largest employers in the world and makes a large investment in its workers. We do not want to lose great people from the NHS because they face discrimination for doing the right thing. That is why we introduced protections from discrimination for people seeking NHS employment who are perceived to have previously blown the whistle. That regulation came into force in May and will support NHS Employers in being an exemplar to others in fostering a culture of openness and a willingness to report problems with care. Separately, we also extended the definition of “worker” within the whistleblowing statutory framework in the Employment Rights Act 1996 to include student nurses and student midwives, meaning that those people are now protected under the Act.
Aside from statutory protections, on 1 April 2016 NHS England and NHS Improvement published a single national integrated “speaking up” policy to provide clarity and consistency across the system. In March 2017, NHS England also launched the whistleblowing support scheme—a nationwide pilot to help workers in primary care who have spoken up. A similar pilot was launched in September 2017 by NHS Improvement for people who have made a disclosure in secondary care. The schemes offer a range of services to support people back into employment. It is too soon to say how the pilots are progressing and how effective they have been. The aim is to ensure that any future scheme is fit for purpose and meets the needs of people who require support after making a disclosure.
We have also made changes at the regulatory level of the health and care system to better protect whistleblowers. The CQC has a legal duty to report on whistleblowing disclosures, and it has revised the “well-led” domain of its inspection assessment framework to include how organisations are progressing with implementing the recommendations from “Freedom to Speak Up”. It is important to mention the link between an organisation’s CQC rating and how seriously it takes speaking up, with 100% of organisations rated as outstanding by the CQC having guardians who reported that speaking up is taken seriously in their organisation, in contrast with only 36% of trusts rated as inadequate.
NHS staff who are prepared to speak up are an important asset. We want NHS staff to feel confident that, when they speak up in the public interest, it will not have a negative impact on their career. Supporting those who speak up in the NHS is utterly crucial to achieving those aims.
Dr Whitford
I appreciate how consensual the debate has been, and I hope the Minister recognises the points raised. As was mentioned, NHS structures will be different in each of the four nations, but PIDA sits above that. Perhaps, in trying to work together to tackle those differences, we can also share good practice from each country that sits within the NHS. We simply cannot go on as we are, because people die, and then people lose their careers. We are running without looking. I hope that the Minister takes this forward, both with the APPG and other Members.
Question put and agreed to.
Resolved,
That this House has considered NHS whistleblowers and the Public Interest Disclosure Act 1998.