By Steve Turner, former chair of the WBUK health and social care working group (https://medicinegovorgmedlearn-innovation-event-nhs.blog/about/)
Summary:
In this blog Steve Turner reflects on why genuine patient safety whistleblowers are so frequently ignored side-lined or victimised. Why staff don’t speak out, why measures to change this have not worked and why regulators are part of the problem. Concluding with optimism that new legislation going through Parliament offers a way forward from which everyone will benefit.
The scale of the problem:
The hidden costs of stigmatisation of healthcare whistleblowers are immense. System wide problems in this area of healthcare are reinforced by a lack of transparency, and the failure of accountability. The consequences of this failure have been investigated many times over the years. A seminal case was that of the Bristol heart surgery scandal in the 1990s. This was brought to light by the anaesthetist Steve Bolsin and led to the implementation of a system of [1] clinical governance1. This advance in measures to deliver quality, consistent and safe care remains as relevant today as it ever was. More recently the investigation into the failings at mid Staffordshire2 highlighted how a ‘good news’ only culture, where reputation management was placed above patient safety, is failing patients. Critically for me the shocking fact is that where staff who blow the whistle can’t, or don’t, speak out, are ignored or silenced, the onus to expose wrongdoing falls on patients and their relatives. This involves great personal cost.
This shameful thread of patient-led whistleblowing goes back a long way and has not stopped. Examples where patients, carers, or relatives have had to take the lead and blow the whistle include the death of Robbie Powell3, Elizabeth Dixon4, Oliver McGowan5, Claire Roberts and those who died in the Belfast Hyponatraemia scandal6, the Gosport War Memorial Hospital opioid deaths scandal7, and the investigation into maternity related deaths in East Kent8. These patient safety scandals appear to show no sign of abating despite the report on the failings at mid Staffordshire2 and Sir Robert Francis’ major review into whistleblowing in the NHS9.
Patients have to blow the whistle on unsafe care.
A stream of healthcare scandals, (too many to mention all of them here), has been exposed by members of the public. Key examples include the case of Robbie Powell who died of untreated Addison’s disease in 19903. Thanks to tenacity of Robbie’s father (Will Powell) this led to the clarification of the absence of a legal duty of candour for health care professionals10. Despite numerous reports and failed investigations, including one of which put forward 35 suggested criminal charges, the Robbie Powell case remains open with the Crown Prosecution Service [CPS]. In addition, the former Welsh Ombudsman and the English Ombudsman are both calling [2] for a public inquiry into the case11.
Another case concerns those who died at Gosport War Memorial Hospital in the 1990s due to being prescribed opioid medicines that were not indicated for their condition. This led to an Independent Review Panel7 which took four years and cost £14 million. The Panel found that 456 deaths in the 1990s had “followed inappropriate administration of opioid drugs”. In 2019 Assistant Chief Constable Nick Downing, head of the Serious Crime Directorate for Kent and Essex Police, announced that a new criminal investigation into the deaths was to take place, and the campaign for justice continues.
Other serious issues include premature deaths of people with learning disabilities and autism12 which led to the implementation of the learning from deaths programme. On average, the life expectancy of women with a learning disability is 18 years shorter than for women in the general population. The life expectancy of men with a learning disability is 14 years shorter than for men in the general population13. There are numerous individual cases that support this finding, almost all of which I believe were first highlighted by parents, informal carers, or relatives. In 2014 the Department of Health and Social Care has published an Inquiry which found that almost two-fifths of people with learning disabilities died from causes ‘amenable to good quality healthcare’14.
In 2022 a report by Dr Bill Kirkup OBE, into deaths in East Kent NHS maternity services8 confirmed that the ‘onus was on patients to raise concerns’ because the culture of fear prevented whistleblowers from speaking out. “In every case staff were aware of serious mistakes or wrongdoing but they were unaware of how to raise concerns because those who tried were subjected to peer pressure to be silent and everyone was afraid of the [personal] consequences.” These consequences were exemplified by the experience of the nursing director who was told that speaking up would harm her career.
Another significant report is that into the life and death of Elizabeth Dixon4, which contains recommendations that apply across the board:
…’6. Clinical error, openly disclosed, investigated and learned from, must not be subject to blame. Conversely, there should be zero tolerance of cover up, deception and fabrication in any health care setting, not least in the aftermath of error. (NHSE, GMC, NMC, MoJ)
7. There should be a clear mechanism to hold individuals to account for giving false information or concealing information relating to public services, and for failing to assist investigations. The Public Authority (Accountability) Bill drawn up in the aftermath of the Hillsborough Independent Panel and Inquests sets out a commendable framework to put this in legislation… It should be re-examined. (MoJ)
8. The existing haphazard system of generating clinical expert witnesses is not fit for purpose. It should be reviewed, taking onto account the clear need for transparent, formalised systems and clinical governance. (DHSC, MoJ)…’
The amount of evidence and the number of reports that were initiated thanks to the tenacity and courage of patients, relatives, carers and parents, is truly shocking. How can we change this? How many more reports do we need? The only thing we can say with confidence is that lessons have not been learned.
Why don’t staff speak out?
I was recently asked ‘why don’t staff speak out?’ There’s very little rigorous research on whistleblowing in health and social care, So I can only offer my personal views on this apparent absence of ethical behaviour. I believe this quote from Margaret Heffernan (Professor of Practice at the University of Bath School of Management) goes some way to explaining this:
“I have never encountered an organisation as vicious in its treatment of whistleblowers as the NHS”15
Demonstrating veracity of this statement is beyond the scope of this piece. If anyone has any doubts there are a string of high-profile cases to support it, including the cases of Steve Bolsin, Raj Mattu, Kim Holt, Peter Duffy and Chris Day.
When I was asked why staff st[3] ay silent my first thought was to say that those who would speak out have all left. Of course, this can’t be the full story. So, what are the other reasons? One possible reason is that people who are promoted to highly paid jobs attain these positions because they ‘toe the line’. Organisational psychologists talk about the role of enablers and ‘flying monkeys’ in maintaining this culture. A flying monkey is a psychology term that refers to an enabler of a narcissistic person, a henchman so to speak. Many staff keep their heads down and don’t look too hard at what’s going on around them. Some commentators see this as a behaviour that supported by the promotion of toxic positivity. What I mean by this is a culture of talking-up successes, however small, completely ignoring failure, and therefore missing the learning that comes from failure. The widely used phrase ‘rock the boat but stay in it’16 springsto mind here, especially the empty references to ‘radicals’ and ‘change agents’. This forms part of learning materials which are often accompanied by reams of management jargon and pseudo-science. This leads to a morally bankrupt approach where ‘all is well’ (‘nothing to see here’) and toxic positivity prevails. The belief that no matter how bad a situation is, people should maintain a positive mindset, move on and not mention it, is a way of working that is directly contradicted in these wise words by the late Professor Aidan Halligan:
‘Run toward problems, especially on a bad day’
My views may sound very harsh, especially coming from someone like me who left direct employment with the NHS in 2008. It’s important to point out I believe the vast majority of NHS staff, at all levels from clerical staff and porters to senior managers and chief executives, do their best to work around the bullying and toxicity to deliver safe care for patients. Doing their best despite the prevailing culture rather than being supported by it. Sometimes biding their time and subtly subverting directives that are not in patients’ best interests. The threat of being referred inappropriately to a professional body is ever present17, and an environment where the pressure of work is extreme, exhausting and unstainable are also major factors. For many, the prevailing culture also means that the careers of highly skilled accountable, ethical and caring staff are held back through denial of learning opportunities and promotion, and informal blacklisting which is commonplace. [4]
There’s an army of people ready for change, a huge informal network of highly motivated caring people, which is why I’m optimistic about the future.
Why have ‘speaking up’ reforms failed?
These are my personal views based on my experience and that of my colleagues.
Since Sir Robert Francis’ whistleblowing report9 there have been several changes designed to improve the situation. These include Freedom to Speak up Guardians, the introduction of an institutional duty of candour, the ‘Fit and Proper Persons Test’18 for Board members, and the NHS Whistleblower Support Scheme. In addition, the Health and Safety Investigation Branch [HSIB] was set up in 2017, and a National Patient Safety Commissioner was appointed in 2022.
Given all the above, why has there not been a reduction in high-profile healthcare failings? In my view there are several reasons.
Many believe, as I do, that the approach of the Care Quality Commission [CQC] to whistleblowing is part of the problem. We often learn from investigation reports that the CQC ( and other regulators) had been listing problems in their reports for years and yet no meaningful action has been taken. ‘Regulatory capture’ is a serious problem, that is when regulators are adversely influenced by the people they are inspecting. This is often linked to the revolving door of staff who move from health and care employment to the regulators, and informal links which amount to cronyism. This behaviour is something that commentators have noted and which I have experienced myself19. Patients suffer as a result.
The introduction of the National Guardian Office and Freedom to Speak Up Guardians [FTSU] in each NHS trust is also problematic. This initiative has an inbuilt conflict of interest, as the Guardians are employed by the trusts themselves. The All-Party Parliamentary Group on Whistleblowing [APPG] have heard from whistleblowers who have been failed by local Guardians sharing their experiences that included the disclosure of their identity to hospital management and boards, which resulted in retaliation. The APPG has also heard from Local Guardians who were not supported and themselves the target of retaliation after supporting whistleblowers20. In addition, something which I find shocking is that the National Guardian Office appears to studiously avoid the word ‘whistleblowing’ in its material and outputs wherever possible. This adds to the stigma around healthcare whistleblowers and is inexcusable.
Another lesser known initiative is the NHS Speaking Up Support Scheme21 (originally titled the Whistelblower Support Scheme). There is not much information available on this scheme in the public domain. I became aware of the scheme when I was asked if I wanted to apply. Later I signposted several people to the scheme. I learned that although the scheme has benefited some people, for others it appears to have made their situation worse. Through a freedom of information request, and thanks to the intervention of my MP, I have managed to obtain a redacted copy of the evaluation of the pilot scheme which supports the view of mixed results22.Having read this report it is unclear to me why it hasn’t been published and why it was redacted. Particularly as I think (I can’t be sure of course) that one of the redactions is a comment I made. A comment I wanted to be shared.
As for the other post-Francis review initiatives, the Kark Review in 201823 on the Fit and Proper Person Test [FPPT] is unequivocal in its findings:
‘Essentially it [FPPT] does not ensure directors are fit and proper for the post they hold, and it does not stop the unfit or misbehaved from moving around the system.’23.
In addition, the statutory current duty of candour24 seems, at times, to be little more than a tick box, with the responsibility for talking to patients often left to the most junior staff. A duty of candour is about simply telling the truth and is everyone’s responsibility, not a task to be delegated. The need for a legal duty of candour on individuals has been highlighted by Robbie Powell’s father Will Powell and links to proposals for a Hillsborough Law.
The HSIB and the National Patient Safety Commissioner initiatives have some built in limitations to what can be achieved. The HSIB’s remit does not include investigation of systemic problems. This limits the areas that they can cover. As for the National Patient Safety Commissioner, this is a new role which is very promising. Unfortunately, the scope of this role is limited, with the remit covering only medicines and medical devices. This means that these two initiatives are not able to tackle the systemic organisational cultural issues that are at the root of some major patient safety failings.
One thing that stands out here is that none of the above measures specifically tackle the stigma around whistleblowing in healthcare. In fact, some reinforce the stigma.
A way forward:
Much has been written about healthcare whistleblowing and measures that have been implemented to promote positive change. Despite these, the victimisation of healthcare whistleblowers and the stigmatisation around whistleblowing in health and in social care has not abated. The measures introduced have so far achieved very little. In some instances, I believe, they have made the problem worse.
The Protection for Whistleblowing Bill [HL]25 which passed its second reading in December 2022, proposes the repeal of the current Public Interest Disclosure Act26 [PIDA], replacing it with an [5] Office of the Whistleblower [OWB]. This would prevent concerns of genuine healthcare whistleblowers becoming buried under an employment issue, and their original patient safety concerns being side-lined.
PIDA is expensive, limited in scope and beyond the reach of most whistleblowers. It is also overly complex, with cases currently waiting for over 2 years to be heard. Employers game the system to run whistleblowers out of funds. Fewer than 12% of cases that go to the Employment Tribunal win.
PIDA does not protect patients and is not accessible to members of the public who blow the whistle. Currently there is no statutory provision to investigate or address the wrongdoing highlighted by whistleblowers. Many whistleblowers have been denied any protection because they are not workers. These include many families like those at Gosport Memorial Hospital7, victims of the Belfast Hyponatraemia scandal6, the parents of Oliver McGowan5 and the family of Robbie Powell11. As well as the victims of maternity failings in the past and those currently under investigation.
An Office of the Whistleblower would change this and help us identify the root causes of systemic patient safety failings25. I urge everyone with an interest in this subject to read the bill, and watch the video of Baroness Kramer introducing the second reading of the Bill27.
For the first time in years, I am optimistic.
References:
| 1 | Department of Health (2001) The report of the public inquiry into children’s heart surgery at the Bristol Royal Infirmary 1984-1995: learning from Bristol (Cm 5207(II)) WWW: https://webarchive.nationalarchives.gov.uk/ukgwa/20100407202128/http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4005620 |
| 2 | Department of Health (2013) Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry WWW: https://www.gov.uk/government/publications/report-of-the-mid-staffordshire-nhs-foundation-trust-public-inquiry |
| 3 | Hartles, S (2021) Robbie Powell: Time for Truth, Justice and Accountability Open University Harm & Evidence Research Collaborative WWW: https://www.open.ac.uk/researchcentres/herc/blog/robbie-powell-time-truth-justice-and-accountability |
| 4 | Dr Kirkup, B CBE (2020) Independent report The life and death of Elizabeth Dixon: a catalyst for change WWW: https://www.gov.uk/government/publications/the-life-and-death-of-elizabeth-dixon-a-catalyst-for-change |
| 5 | Ritchie, F OBE (2020) Independent Review into Thomas Oliver McGowan’s LeDeR Process Phase two WWW: https://www.england.nhs.uk/wp-content/uploads/2020/10/Independent-Review-into-Thomas-Oliver-McGowans-LeDeR-Process-phase-two-_20-October-2020.pdf |
| 6 | Department of Health, Northern Ireland (2018) Report of the Inquiry into Hyponatraemia related Deaths WWW: http://www.ihrdni.org/inquiry-report.htm |
| 7 | Gosport Independent Review Panel Report (2018) The Panel Report – 20th June 2018 WWW: https://www.gosportpanel.independent.gov.uk/panel-report/ |
| 8 | Dr Kirkup, B OBE (2022) Reading the signals: maternity and neonatal services in East Kent – the report of the independent investigation WWW: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1111992/reading-the-signals-maternity-and-neonatal-services-in-east-kent_the-report-of-the-independent-investigation_print-ready.pdf |
| 9 | Francis, R Sir (2015) Report on the Freedom to Speak Up review WWW: http://freedomtospeakup.org.uk/the-report/ |
| 10 | Action against Medical Accidents [AVMA] (undated) Robbie’s Law WWW: https://www.avma.org.uk/policy-campaigns/duty-of-candour/robbies-law/ (accessed 23.01.2023) The European Court Ruling in full: WWW: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-6998%22]} |
| 11 | Parliamentary and Health Service Ombudsman [PHSO] (2022) Radio Ombudsman: Will Powell’s 32-year quest for justice for son Robbie WWW: https://www.ombudsman.org.uk/news-and-blog/blog/radio-ombudsman-will-powells-32-year-quest-justice-son-robbie (accessed 123.01.2022) |
| 12 | NHS England (2023) About LeDeR LeDeR is a service improvement programme for people with a learning disability and autistic people. WWW: https://leder.nhs.uk/about |
| 13 | NHS Digital (2020) Health and Care of People with Learning Disabilities, Experimental Statistics: 2018 to 2019 [PAS] WWW: https://digital.nhs.uk/data-and-information/publications/statistical/health-and-care-of-people-with-learning-disabilities/experimental-statistics-2018-to-2019 |
| 14 | Department of Health and Social care (2014) Premature Deaths of People with Learning Disabilities: Progress Update WWW: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/356229/PUBLISH_42715_2902809_Progress_Report_Accessible_v04.pdf |
| 15 | Heffernan, M – BMJ Talk Medicine Podcast – (2020) I have never encountered an organisation as vicious in its treatment of whistleblowers as the NHS WWW: https://soundcloud.com/bmjpodcasts/i-have-never-encountered-an-organisation-as-vicious-in-its-treatment-of-whistleblowers-as-the-nhs?utm_source=soundcloud&utm_campaign=wtshare&utm_medium=Twitter&utm_content=https%3A//soundcloud.com/bmjpodcasts/i-have-never-encountered-an-organisation-as-vicious-in-its-treatment-of-whistleblowers-as-the-nhs (accessed 23.01.2023) |
| 16 | Bevan, H – slide set – (2016) Rocking the boat and staying in it: how to be a great change agent WWW: https://www.slideshare.net/HelenBevan/rocking-the-boat-and-staying-in-it-how-to-be-a-great-change-agent-60792799 (accessed 23.01.2023) |
| 17 | Grossman, D & Clare, S (2023) Birmingham hospital culture worrying – health secretary BBC Newsnight WWW: https://www.bbc.co.uk/news/uk-england-birmingham-64261026 (accessed 30.01.2023) |
| 18 | Care Quality Commission [CQC] (2022) Fit and proper persons: directors (web Page) WWW: https://www.cqc.org.uk/guidance-providers/regulations-enforcement/fit-proper-persons-directors (accessed 23.01.2023) |
| 19 | Clegg, A (2022) How cronyism corrodes workplace relations and trust Financial Times. WWW: https://www.ft.com/content/98fdcde8-eba1-45b3-98a6-eceb5269e07c (accessed 23.01.2023) |
| 20 | WhistleblowersUK – blog – (2022) Meeting with Dr Bill Kirkup CBE and the APPG for Whistleblowing WWW: https://www.wbuk.org/news/meeting-with-dr-bill-kirkup-cbe-and-the-appg-for-whistleblowing (accessed 23.01.2023) |
| 21 | NHS England (2022) Speaking up support scheme (web page) WWW: https://www.england.nhs.uk/ourwork/freedom-to-speak-up/speaking-up-support-scheme/ (accessed 23.01.2023) |
| 22 | Greenop, D (2019) NHSI Whistleblowers Support Scheme pilot. Final Evaluation (redacted) Obtained in 2022 following a Freedom of Information Request. |
| 23 | Kark, K QC & Russel, J (Barrister) Commissioned by the Minister of State for Health (2018) A review of the Fit and Proper Person Test WWW: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/787955/kark-review-on-the-fit-and-proper-persons-test.pdf |
| 24 | Care Quality Commission (2023) Regulation 20. Duty of Candour. WWW: https://www.cqc.org.uk/guidance-providers/all-services/regulation-20-duty-candour |
| 25 | UK Parliament (2023) Protection for Whistleblowing Bill [HL] WWW: https://bills.parliament.uk/bills/3184 (accessed 23.01.2023) |
| 26 | UK Government (1998) The Public Interest Disclosure Act 1998 [ PIDA ] WWW: https://www.legislation.gov.uk/ukpga/1998/23/contents |
| 27 | Baroness Kramer (2022) Protection for Whistleblowing Bill, 2nd Reading, Baroness Kramer – video recording of the House of Lords introduction- WWW: https://youtu.be/N004g4mppig?list=PLPtuApYs79-6ie3tnwTpONsxjzc5ooG4d |
Steve Turner
Steve’s digital profile: https://linktr.ee/stevemedgov
Acknowledgement:
Thanks to all the clinicians who commented on the draft of this piece and to Dr David Church, GP Locum in Mid Wales and member of Justice for Doctors [J4D] and also of MPU (Doctors in Unite, the Union) who peer reviewed the draft.
Originally Published 2023
