Lasting Powers of Attorney: recent key developments
Robert Francis QC reports on whistleblowing within the NHS and creating a culture of safety and learning in which all staff feel free to raise a concern.
Over 10 years ago, in her letter to the Secretary of State alongside her fifth report on the Shipman Inquiry Dame Janet Smith said:
“… the willingness of one healthcare professional to take responsibility for raising concerns about the conduct, performance or health of another could make a greater potential contribution to patient safety than any other single factor.”
In Robert Francis QC’s recent report into whistleblowing in the NHS, “Freedom to Speak Up – a review of whistleblowing in the NHS” this sentiment takes centre stage focussing not only on the willingness of individuals to raise concerns but also on the role of organisations and management in creating an environment in which those individuals feel that they can raise such concerns and importantly, that those concerns will be listened to and acted on. It examines how those staff who raise concerns are treated and how any such concerns are handled.
The Report is particularly timely because of the way in which the treatment of whistleblowers can impact on the duty of candour obligations that came into being last year and which are still being developed. It is easy to see that a culture in which people feel afraid to raise concerns in the public interest because they fear reprisals, a lack of support or simply that their complaint will not be properly investigated is inimical to the attainment of an NHS showing the levels of openness, transparency and candour identified in the first Francis report and now widely seen as necessary to accountability and an improvement of patient care.
In its analysis, the Report identifies a number of obstacles within the NHS which deter staff from speaking up in the first place: these include poor handling of concerns that are raised and the vindictive treatment of the person raising the concerns. It sets out 20 principles and associated recommendations and actions to help individuals and organisations address and mitigate the existing obstacles and to create a “culture of safety and learning in which all staff feel safe to raise a concern.”
The Report was only published on 11 February 2015 and its future impact will depend on whether and if so to what extent its recommendations are implemented. For the time being, however, doctors and nursing staff in particular should keep abreast of developments in this area; including keeping an eye on the pending outcome of the GMC’s review into how it deals with doctors who raise concerns in the public interest and the GMC’s recent consultation on the draft guidance on the duty of candour which is being prepared in conjunction with the NMC.
In the meanwhile and irrespective of the uncertainty as to what will ultimately happen to the recommendations made in the Report there is much that those working within the NHS can take from it today. In particular it helps to identify what doctors should be able to expect from their own colleagues and organisations when they themselves are in the unenviable position of having to raise a concern about patient care and / or in the public interest in order satisfy their own professional responsibilities.
1. Do you work in a culture that allows all staff to raise concerns openly and safely?
What is the culture like in which you work? Are there open, transparent and effective procedures in place for the raising of concerns? Principles 1 and 2 recommend that every organisation involved in providing NHS healthcare should actively foster a culture of safety and learning in which all staff feel free to raise concerns and where raising concerns is something that everyone does and is encouraged to do. Principle 7, building on existing obligations in the 2014 Regulations on the duty of candour and Good Medical Practice suggests that there should be in place structures to facilitate both informal and formal raising and resolution of concerns; and Principles 3 and 5 state that staff should be made to feel valued and should not have to work in a culture of bullying or other oppressive behaviour; managers should consider, in particular, the needs of those groups more vulnerable to victimisation if they raise a concern.
2. Is there support available for those who raise a concern?
Principle 11 recommends that NHS organisations should provide staff who raise concerns with ready access to mentoring, advocacy, advice and counselling. Principle 12 suggests that such staff should be given support to find alternative employment if they cannot continue in their existing employment due to the nature of the concern raised and that suspension of staff who raise concerns should be seen as a last resort, rather than common place.
3. Are concerns investigated and acted on swiftly and fairly?
Do you feel as if your concern will be listened to and acted upon? Principle 8 requires that where a formal concern has been raised there should a prompt, swift, proportionate fair and blame-free investigation to establish the facts.
4. Is there proper training available on the procedure by which to raise a concern?
If you are a student or were training at the time of the events leading to the concern you want to raise had you been told about the importance of raising your concerns and how to do it before you started the role? The Report outlines in detail the role of organisations involved in education and training and requires as good practice of those organisations that, amongst other things students cover raising concerns in the course curriculum and that there is an officer available for students seeking advice and support on raising concerns (Principle 18). It also requires that those organisations offering clinical placements make available to clinical students and trainees the same procedures for raising concerns, obtaining advice and support and means of investigating concerns as for their regular staff. Further that employers are aware that groups of temporary workers such as locums, agency and bank staff should be aware of the vulnerable position those groups are in and as such should make sure that they have access to the appropriate induction, training and support and are encouraged rather than penalised for raising concerns.
5. Is there a strong sense of personal and organisational accountability for the raising of concerns?
What kind of response do you anticipate in raising your concern? Is it a valid concern raised in good faith? Importantly the report makes clear that there should be personal and organisational accountability for the raising of concerns including for poor practice in relation to encouraging the raising of concerns and responding to them; the victimisation of workers for making a public interest disclosure and raising false concerns in bad faith (Principle 14). It is possible that this recommendation, in particular is something that the GMC and NMC will take into account in developing their guidance on the duty of candour.
The five points identified above are just some of the lessons that can be drawn from the “Freedom to Speak Up” Report; there are many others which offer insights as much for managers and regulators as for potential whistleblowers. Whilst the list above is not exhaustive the message is clear; the NHS needs to create a culture where employees feel safe raising concerns in the public interest and about patient care. Where this is not done the NHS is at risk of undermining the promising work that has so far been done, and continues to be done, in creating a culture of openness, transparency and candour and in some cases may obstruct individuals who work within it from complying with their own, ever developing, professional obligations.
Kingsley Napley provides training on the obligations of individual practitioners, including managers under the duty of candour. We are experienced in representing doctors before the General Medical Council. If you would like any further information about an issue or training needs please contact Julie Norris.
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