whistleblowing uk health and safety representatives conference october 15 2010

Whistleblowing

UK Health and Safety Representatives Conference

October 15 2010

“The longer I worked the more certain I felt that, as improbable as it might seem, there were moments when an individual conscience was all that could keep a world from falling”

Dame Janet Smith - Shipman Report – 2004

“I believe that 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”

Whistleblowing v Grievance

Whistle blowing is generally about a ‘risk, malpractice or wrongdoing which affects others’ – the complainant is generally a ‘witness’

Grievance is generally about an individuals own employment position. The person is normally a ‘complainant’

Some ‘headline’ events

Zeebbruge Piper Alpha Graham Pink Bristol Margaret Haywood Stanley Adams Dr Harold Shipman Maidstone and TW Mid Staffordshire

Brief recent History

1993 NHS Guidance 1995 Nolan report 1997 NHS Reminder and second Nolan report 1999 PIDA plus new part IV(15)a to ERA 1996 NHS ‘Policy Pack’ on Whistleblowing 1999 PID (Prescribed Persons) Order 2003 NHS pack (HSC 1999/198) April 2010 ETs can report to ‘regulators’ eg SFO ‘Raising Concerns’ RCN Campaign Congress 2009 SPF NHS Guidance June 2010 AFC Section 21: Right to raise Concerns September 2010 NMC Guidance November 2010

Nolan – seven principles of standards in public life Selflessness Integrity Objectivity Accountability Openness Honesty Leadership

Nolan: W/Blowing policy should make clear That the organisation takes malpractice seriously – gives examples and

distinguishes a w/blow issue from a grievance

Concerns can be raised outside of ‘line management’

Access to confidential advice from an independent body

Will respect confidentiality if requested

When and how concerns may be raised outside the employer eg with a regulator

It is a disciplinary matter to victimise a w/blower or to make a false allegation

NMC “Code” – you know this!

Regulatory body for Nursing “act without delay if you believe that you or a colleague

or anyone else may be putting someone at risk” “inform someone in authority if you experience problems

that prevent you working within this code or other nationally agreed standards”

“report your concerns in writing if problems in the environment of care are putting people at risk”

July 2009: NMC meet with unions and others to improve advice – Guidance expected November 2010

PCAW/Nursing Standard Survey 2008 ‘most nurses will speak up even if

means personal risk to themselves’ 68% had concerns over ‘serious risk’

and 68% had raised them 77% say culture ‘same or better than

1999’ 85% said they would raise a concern

PCAW/Unison

50% not know if there is a policy 90% had ‘blown whistle’ 33% said their managers would want/expect them to

report 30% said managers would not want ‘to know’ 1/3 say suffered personal comeback 25% said ‘culture improving’ 50% felt issue ‘dealt with reasonably’ Better results where there is a w/blowing policy

RCN Survey Congress 2009

50% of employers had a ‘whistleblowing policy’ and 82% knew how to access it

21% felt they had been ‘discouraged from using policy

63% had raised concerns 99% understood the NMC duty 43% would report even if it meant putting themselves

at risk

Public Interest Disclosure Act 1998 - PIDA Effective from July 1999 “An act to protect individuals who make certain

disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for other connected purposes”

No gagging clauses for ‘protected disclosure issues’ Must show ‘qualifying disclosure’ Suffered detriment (or dismissal)

PIDA Coverage

‘Workers’ No service requirement No cap on compensation Must be ‘reasonable belief’, raised in ‘good faith’ and

‘in the public interest’ Does not require that a Whistleblowing policy be in

place Automatic unfair dismissal if dismissal for a ‘protected

disclosure’

PIDA ‘Protected Disclosure’

Required to attract the protection of the legislation; Significance of the good faith requirement Three tiered disclosure regime i) disclosure to employer (or third party) in reasonable belief and

good faith ii) disclosure in good faith, with reasonable belief and believed

to be substantially true to a prescribed person iii) disclosure in good faith where believe to be true to persons

other than the above and not for personal gain exceptionally serious

PIDA – Disclosure (Tier i)

Criminal offence – has, is or will be Has, is or will fail to comply with legal obligation That a miscarriage of justice has , is or is likely to

occur That H&S is being or is likely to be endangered That the environment is or is likely to be damaged That information tending to show any of the above

has been, is being or likely to be concealed’

‘Regulatory Disclosure’ (Tier ii)

Disclosure can be made in certain circumstances to a person prescribed by the Secretary of State e.g.

PID (Prescribed Persons) Order 1999 HMRC, Charity Commission, HSE, IFA, SFO, Can be made even if no internal disclosure -

raised – in good faith, reasonable belief and substantially true

‘Wider disclosure’ (Tier iii)

Wider public interest disclosure E.G. MPs press/ media Good faith, believe to be true, not for personal gain

and must be reasonable in all the circumstances. Other than in the case of an ‘exceptionally serious

issue’ must be disclosed first to employer or a prescribed body or reasonably fear a detriment or fear that evidence will be concealed or destroyed by employer

PCAW 10 year review

7000 claims lodged at ET for victimisation

3000 Judgements

70% of claims settled

Of the rest 78% lost and 22% won

In 1999 157 PIDA claims and 1761 in 2009

Health and Safety Executive

HSE strongly supports measures which protect whistleblowers from any form of victimisation. HSE has a complaints handling system to ensure that concerns about health and safety are dealt with effectively and efficiently. HSE and local authority staff do all that they can to preserve the confidentiality of workers who raise concerns about health and safety, whenever this is requested.

Raising Concerns 2009

RCN “Raising Concerns”

0845 772 6300 Speak to your line manager Patient records Incident Report Forms Clinical Meetings / Supervision H&Safety Committee RCN Representative

How to respond?

Don’t be ‘lone ranger’ – involve the RCN Data/information Negotiate a whistleblowing policy Communicate in writing and get

employer etc to put position in writing Use agreed procedures

RCN Frontline First

Waste in the service

Job and service reductions

Nursing innovation / solutions

http://frontlinefirst.rcn.org.uk/

Support for patient and staff safety Patient safety Module on RCN Learning Zone NPSA: Foresight Training Programme Safety Climate Assessment Tool (SCAT) Infection prevention and control Minimum

Standards 2008 Dignity Campaign Nutrition Now

RCN

RCN guidance for workplace representatives on work related stress

RCN e-learning on Violence

RCN Work related violence toolkit

PCAW

Independent Charity Advice and Support Give advice to people on crime, danger or

wrong doing at work NHS contract SPF ‘Speak up for a healthy NHS’ July 2010 www.pcaw.co.uk 0207 404 6609

http://www.hse.gov.uk/workers/whistleblowing.htm

http://frontlinefirst.rcn.org.uk/ www.pcaw.co.uk http://www.nmc-uk.org/Publications-/

“The longer I worked the more certain I felt that, as improbable as it might seem, there were moments when an individual conscience was all that could keep a world from falling”