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Policy responses and statements
- Name of organisation:
- Department of Health
- Name of policy document:
- The NHS Constitution and Whistleblowing -
A paper for consultation
- Deadline for response:
- 11 January 2011
Background: On 9 June 2010, in his statement to the House of Commons
about the public inquiry into events at Mid Staffordshire NHS Trust,
the Secretary of State for Health announced a range of measures to
build on and give teeth to the current safeguards for whistleblowers
in the Public Interest Disclosure Act 1998 (PIDA). This included amendments
to the NHS Constitution.
This consultation document sought views on proposals amending the
NHS Constitution to:-
- Insert an expectation that NHS staff will raise concerns about
safety, malpractice or wrong doing at work which may affect patients,
the public, other staff or the organisation itself as early as possible;
- Insert a NHS pledge to support all staff in raising concerns about
safety, malpractice or wrong doing at work, responding to and where
necessary investigating the concerns raised; and
- Highlight in the NHS Constitution the existing staff legal right
to raise concerns about safety, malpractice or other wrongdoing without
suffering any detriment.
COMMENTS ON
DEPARTMENT OF HEALTH
THE NHS CONSTITUTION AND WHISTLEBLOWING - A
PAPER FOR CONSULTATION
The Royal College of Physicians of Edinburgh (the College) is pleased
to respond to the Department of Health’s consultation on The
NHS Constitution and Whistleblowing.
Responses to the consultation questions are set out below.
General comments
- Do you agree the NHS Constitution should be changed
to highlight the rights of staff to raise legitimate concerns
in the public interest?
The College agrees that NHS staff should be encouraged
to raise legitimate concerns. The proposed amendments offer
some clarification and support for staff.
Whistleblowing focuses on raising concerns after harm
or damage has occurred. It is considered that NHS employees
need to be encouraged to raise concerns where patient safety is at risk. This
should be highlighted more explicitly in the proposed amendments.
In addition, the amendments should be accompanied
by additional measures to engender change towards a culture of openness
within the NHS. One
possible option is the introduction of mandatory training for management
and staff which enhances safety awareness and “speaking up” as
well as being required to formally raise concerns. This broader
strategy is critical.
In 2009, following a survey of 3034 consultants, staff and associate
specialists and junior doctors in England and Wales, the British Medical
Association recommended a number of measures including the following:
- the pooling of clinician concerns to identify trends;
- the provision of examples of the types of concerns to be raised
in the Staff Handbook;
- improved guidance on how staff are to manage any conflicts between
their duties regarding patient safety and implied duty of confidentiality
and loyalty to their employer;
- the provision of positive recognition for people who have raised
concerns; and
- the use of a model disclosure policy for adoption by Trusts produced
by the Department of Health and the wide advertisement of such policies
by Trusts1.
Consideration should be given to such measures in addition to the
proposed constitutional amendments.
New expectation on staff to raise concerns
- Do you agree there should be an expectation set out
in the NHS Constitution that staff should raise any genuine legitimate
concerns around safety, malpractice, wrongdoing, or other risks
at the earliest reasonable opportunity? If not, why not?
Some categories of medical staff, for example,
doctors, already have such an obligation and are held to account
by the General Medical Council for failure to raise concerns. However, there is some concern
that the insertion of an expectation upon staff may be viewed as prescriptive
and represent a shift of responsibility away from management. To
balance this it is considered that the creation of an obligation upon
staff must be well supported by measures to encourage openness within
the NHS.
The explanatory text in the Handbook states that
concerns should be raised first with a line manager or lead clinician. It is noted
that, in the health setting, some concerns have an element of immediacy
that may this render impracticable. For example, there have been
incidences where the removal of the wrong leg or kidney was recognised
by staff who felt unable to speak up. It is important therefore
that staff are encouraged to raise concerns immediately, regardless
of whether their line manager or lead clinician is available.
The creation of an expectation on staff to report
may mean that they are more likely to report concerns to ensure that
they have fulfilled their obligation. It is therefore important that staff are made
aware of the responsibility not to make malicious allegations and understand
that broader constraints that may impact upon an organisation. For
instance, resource issues or logistics may prevent or inhibit optimal
care but there may be a clear plan or process for improvement in place.
Consideration should also be given to how Trusts will deal with increased
numbers of concerns being raised.
- Do you agree with the proposed wording of the new expectation
on staff? If not, can you suggest how the new expectation
should be worded?
Whilst it is noted that the wording of the expectation and supporting
information is based around the terminology used in the Public
Interest Disclosure Act 1998 (‘the PID Act’), it may
be appropriate to include additional references to patient safety to
improve relevancy.
It is noted that the definition of “genuine legitimate concerns
around safety, malpractice, wrong doing and other risks” needs
clarification and/or supporting examples.
Pledge to support for staff who raise concerns
-
Do you agree that the NHS Constitution
should include a pledge that NHS organisations should support
staff when they raise legitimate concerns as defined by PID Act,
in the public interest? If not, why not?
-
Do you agree with the wording of the pledge? If
not, can you suggest how the new pledge should be worded?
The inclusion of a pledge on behalf of NHS organisations
to support staff who wish to raise concerns is supported by the College. However,
as the consultation document acknowledges, whilst legal protection
for staff who wish to raise concerns is strong, “implementation
on the ground has not always been consistent or effective” and
that “all too often staff who have spoken up for patients have
found themselves punished rather than celebrated”.
Amending the Constitution should be just one
of a number of measures to address this. For example, there
is a need to promote a culture of excellence and frankness. Public
Concern at Work found that where a Trust promoted whistleblowing
well, 81% of nurses said they suffered no reprisal from raising concerns
and 67% said the concern was handled well. In Trusts where
whistleblowing was not promoted, this latter figure reduced to 16%2.
In addition to support for whistleblowers, consideration
should also be given to support for those against whom whistleblowing
is directed. False
allegations can negatively affect the reputation of individuals, departments
and Trusts. It is important to ensure an investigation and the
after effects are handled appropriately to minimise and address damage
in such cases.
Staff right to raise concern
-
Do you agree that the NHS Constitution should be amended
to make it clearer that staff are able to raise any concern with
their employer, whether it is about safety, malpractice or other
risks, in the public interest without fear of detriment?
-
Do you agree with the wording proposed for inclusion
in the NHS Constitution? If not, can you suggest other wording
to use?
The College agrees that the Constitution and accompanying Handbook
should be amended to refer in detail to legal rights conferred on staff
by the PID Act.
Miscellaneous
- Previous questions have asked about the specific changes
to the Constitution. Is there anything else you would like
to add about these changes, in particular, in relation to their
impact?
N/A
- Are there any barriers to achieving equitable protection
for staff who wish to raise concerns about safety, malpractice,
or other risk from the perspective of ethnicity, gender, disability,
age, sexual orientation, religion/belief, socio-economic or rural/geographical
considerations?
One of the most difficult barriers relates to staff in more junior
positions who may feel that their opinion is not valued.
In addition, there may be difficulties where complaints relate to
Trust management, as management may be in the conflicting position
of having to self-assess.
- What proportionate measures could address those issues?
Education and awareness programmes may assist in empowering all members
of staff to speak out.
Where conflicts of interest exist at a Trust management level,
there may be a need to remove any assessment and/or investigation
process from local control. It may be preferable to have
a central or regional reference group which is separate from the
Trust itself.
- What are the positive impacts that might result from
implementing this policy from the perspective of ethnicity, gender,
disability, age, sexual orientation, religion/belief, socio-economic
or rural/geographical considerations?
N/A
- What proportionate measures might we implement that
could enhance this positive affect?
N/A
-
BMA Survey;
Speaking Up for Patients, May 2009
-
Legal Protection
for Whistleblowers, Mar 2010.
Copies of this response are available from:
Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.
Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939
[6 January 2011]
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