Report on "The Right to Speak Out", a public meeting at BMA House

Last month there was a public meeting on whistleblowing and defending public services at BMA House. The meeting was organised by Local East London Save Our NHS campaigns and hosted by the London Regional Council of the BMA. The meeting was organised to bring together NHS whistleblowers and union members who had acted in defence of services and been victimised for it, to share their experiences and discuss how it could be ensured staff can speak out safely.

Speakers were Kim Holt, Consultant and whistleblower on Haringey Children's Services, Charlotte Monro, sacked OT & whistleblower from Whipps Cross Hospital. Julie Davies from Haringey NUT, Tracey Boylin a HR director for an NHS Trust who was removed from her role when she tried to stand up for bullied clinicians,Polly Toynbee, Guardian columnist and Nick Clarke, Department of Health representative working on the Francis Review 'Freedom to Speak Up in the NHS'

The speakers recounted the harrowing experience of raising concerns and being ignored, and then subsequently bullied and victimised when they continued to press concerns.

Dr Kim Holt was suspended for 4 years for blowing the whistle on the poor state of child health services run by Great Ormond Street Hospital and Haringey Council. Infamously, while she was suspended Baby Peter was the victim of negligence as an overstretched locum consultant failed to recognise and act on signs of abuse. Dr Holt campaigned and won her job back, and started the whistleblowers campaign group Patients First to lobby the government for protection for whistleblowers, and support those who are victimised for raising concerns.

Tracey Boylin recounted her experience and gave an insiders view of how HR departments are used to bully, control and silence staff who attempt to blow the whistle. Tracey laid out the regime of false accusations, disciplinaries and intimidation staff faced from management, and how she had tried to reverse this for the good of patients and staff.

There was an inspiring message from Julie Davies who through her role as branch chair of Haringey NUT related whistleblowing to the work unions do to highlight the effect of cuts, and the detrimental effect of bullying management and head teachers on staff and services. Julie illustrated how unions can take the lead in protecting staff and blowing the whistle, and how the collective organisation of a union gives individuals and groups of staff strength to stand up to management.

Polly Toynbee situated the regime of fear and intimidation within the NHS in the current context of cuts, privatisation and austerity. With Jeremy Hunt personally calling the senior management of every A&E department not meeting its targets, she outlined how the bullying and silencing culture emanated from the top of the NHS, and was enforced on institutions through the regime of targets and sanctions which the NHS is made to operate under.

Dr Richard Clarke gave an overview of the recommendations from the review, and the information gathering that had preceded it. Over 600 individuals and 43 organisations wrote in response to the invitation to contribute to the review and over 19,500 responded to the staff surveys sent out by independent researchers. The authors of the review met with over 300 people through meetings, workshops and seminars.

From this evidence, they identified 5 themes for change:

• culture change
• improved handling of cases
• measures to support good practice
• particular measures for vulnerable groups
• extending the legal protection.

There were 2 major recommendations, and 20 principles and actions which NHS organisations should adopt. The first recommendation was simply that the Trust should adopt the 20 principles, and the second that the Secretary of State should review annually the progress of implementing them.

Many of the principles came across as platitudinous;

“Principle 1 Culture of safety: Every organisation involved in providing NHS healthcare, should actively foster a culture of safety and learning, in which all staff feel safe to raise concerns. Action 1.1: Boards should ensure that progress in creating and maintaining a safe learning culture is measured, monitored and published on a regular basis.”

“Principle 3 Culture free from bullying: Freedom to speak up about concerns depends on staff being able to work in a culture which is free from bullying and other oppressive behaviours. Action 3.1: Bullying of staff should consistently be considered, and be shown to be, unacceptable. All NHS organisations should be proactive in detecting and changing behaviours which amount, collectively or individually, to bullying or any form of deterrence against reporting incidents and raising concerns; and should have regard to the descriptions of good practice in this report.”

The two substantive principles, the ones highlighted in the reviews press release, were that Trusts appoint a “Freedom to Speak Up” Guardian (Action 11.1), to act in an independent capacity to hear concerns and ensure they are dealt with properly, and the creation of a support scheme (Action 12.1) to find employment for NHS workers “whose performance is sound who can demonstrate that they are having difficulty finding employment in the NHS as a result of having made protected disclosures.”

While both commendable actions, on closer inspection they contain worrying points. The “Freedom to Speak Up” Guardians are supposed to act independently, but they will be appointed by the Chief Executive of the hospital. How free they are remains to be seen. And the support scheme for NHS workers contains the caveats “whose performance is sound” and “who can demonstrate......as a result of having made protected disclosures”.

As many Trusts attempt to smear the practice and abilities of whistleblowers as part of their victimisation, how many will emerge from this process able to demonstrate their sound practice? And it states they must demonstrate they have been excluded from employment for having made protected disclosures, meaning they must have gone to court and be recognised as having made a protected disclosure under the Public Interest Disclosure Act. This is notoriously difficult, and many whistleblowers never make it that far, so they will be unable to access this scheme.

The report, a lot like Francis earlier report into Mid Staffs in 2013, contains many supportable points, but little that is concrete or beneficial, and that which is, is riddled with get out clauses that hospital management and lawyers will use to escape justice.

The most incisive comments were from the floor, with Clare Gerada, former head of the RCGPs, stating the reports solutions seemed aimed at putting responsibility on individuals, and not recognising the systemic nature of the problem, which would have required placing the responsibility on institutions to solve it. The report is a continuation of the DOH practice to look for individual failings, and cover up or gloss over the way structural issues are the cause of many problems in the NHS.

Whistleblowing Consultant Radiologist Otto Chan was damning when he took the stand, stating simply that Francis had spent a long time on his report, but had "missed the whole point", which was to hold people to account. Dr Chen made a comparison with the treatment of the captain of the Costa Concordia, who was tried for manslaughter for the deaths of 32 crew members and passengers. "Robert Francis and Jeremy Hunt now have the names of thousands of managers" he said "who are responsible for covering up harm to patients, and victimising and ruining the lives of thousands of people..... the culture in the NHS isn't going to change until those people are put in court, tried and held accountable for what they've done."

The governments lack of action on this point, considering the mountains of evidence that the inquiry has uncovered, is damning. If Robert Francis and Jeremy Hunt were serious about addressing the bully NHS management culture, they could bring charges against those who have lead cover ups in the present and recent past. The review even admitted “many of the contributions described cases that are recent or current.” (Point 18) Whistleblowers are being victimised now or in the recent past, and the DOH, Robert Francis and Health Secretary have evidence of this, yet have declined to act on this information in any meaningful way.

More speakers pointed out problems with the report, and also with the institutions which are there to protect whistleblowers. A young doctor pointed out that the law firm contracted by the BMA to defend members had been tangled in corruption scandals, and half of its staff had split away, and ended up providing legal services to NHS institutions which were fighting whistleblowing claims.

Another consultant described how the new hospitals being built with PFI lacked facilities like consultants common rooms, depriving doctors of spaces to meet and discuss issues, and making it harder to build the unity among staff needed to collectively oppose management.

An anaesthetist spoke about how almost every week changes were made to the surgical service at her hospital, without consulting medical staff, and every week she sent emails to hospital management asking for the new changes to the service to be reversed due to the risks they created and the lack of input from clinicians in the decision making process. Only for this to be repeated the next week, and the next. She wondered aloud how long this would go on before she her self was subject to victimisation for her whisteblowing

The meeting also heard from an activist from the Blacklist Support Group, who made the connection between the construction industry excluding union reps to allow them to reduce health and safety costs, their collusion with the government and police on this issue, and NHS management silencing those who expose their similar failings.

What are the solutions?

The main solution as proposed by whistleblowing groups like Patient First or Compassion in Care have been for a legal duty to act on staff concerns, with serious consequences for institutions and management who do not. They also call for an end to the use of gagging clauses in whistleblower settlements to allow concerns to be heard and acted upon instead of silenced, for costs of cases and settlements to come under the Freedom Of Information Act to ensure greater transparency, and for the formation of an independent safety body with powers of investigation and ability to bring prosecutions against individuals and institutions.

The government has not carried out most of these suggestions, although they have implemented a statutory Duty of Candour which requires NHS organisations and staff to inform patients of any incidents which have or may have caused them harm. This was  criticised by Action against Medical Accidents as the DOH watered down the Duty of Candour for primary care providers, and private healthcare providers. Again, the private health sector escapes accountability measures which are applied to public healthcare providers. Its probably not a coincidence that the increasingly privatised primary care sector was exempt from this too.

Why hasn't the government implemented this straight forward legal change? A legal duty to act on staff concerns would greatly reduce management and the employers power over staff. It would force management to act on any serious staff complaint, and prevent them changing services to the detriment of staff and patients. I It would give staff a powerful tool to use against management, and upset the power imbalance which exists in all employer-worker relationships.

This is the key issue. Management would lose their power to manage if staff could hold them to account via such a law. It would make it near impossible to implement changes such as cuts or privatisations which can be shown to be potentially harmful to patients or staff. It would give trade unions a powerful weapon to use against bosses who ignore employees concerns.

Even if just applied to the NHS or healthcare, such a law would set a powerful precedent for all other industries. Why should healthcare management be held to account for ignoring staff concerns, but not management in other dangerous industries, like construction? Construction employers routinely ignore workers concerns over safety and victimise and blacklist trade unionists, as outlined by Blacklist Support Group activists at the meeting.

This is why the call for a legal change falls on deaf ears, not because the law doesn't make sense, or because Health Ministers are particularly uncaring. Its because of the wider ramifications of such a law on employer-worker relationships.

In the current context of austerity politics, where cuts and privatisations are devastating public services which are being run into the ground at great cost to patients and staff, this legal change would prevent management being able to implement the changes required by the austerity regime.

This is not an issue the government or employers will compromise on.

What can we do instead?

This doesn't mean we should give up hope, but we should change the perspective and strategy of whistleblowing campaigning efforts. Campaign groups like Patients First have been crucial in highlighting the plight of whistleblowers and providing them much needed help and support. They are impeded though by lack of resources and support, and overwhelmed by demand from healthworkers reporting dozens and dozens of cases across the crisis ridden NHS.

The NHS unions (BMA, RCN, UNITE, UNISON) all have plenty of resources, but they have leaderships which are complicit in many management cover ups; actions which have been detrimental to the NHS, patients and staff.

The latest scandalous case has been that of surgeon Edward Jesusdason who is being sued by the BMA effectively for refusing to agree to a gagging clause. Jesusdason refused to accept a gagging clause, and shared information with another surgeon and the CQC. The BMA in return dropped his case against the employer case and is now suing him for the costs. The case has been covered at length by Dr Philip Hammond on this blog.

NHS staff should not abandon their unions - despite their poor record - but fight to reform them. Whistleblowers need the support and strength that comes from unions and collective organisation in the workplace.

Unions should be championing the cause of whistleblowers and using their industrial strength to campaign for change, and to protect them. If the present leaderships are unwilling to do this, union members need to organise among the grassroots, campaigning at branch and national level to change the union and its leadership so that it addresses these issues properly, instead of siding with the employer as occurs all to often now.

Health activists have been working on a short set of proposals to present to the unions , and will publish these shortly. It is hoped these can form the basis for campaigns across the health unions to challenge the complicity and conservatism which leads unions to side with management over their members.

By transforming the culture and practice of our unions, we can mobilise their power to push for the changes we need. We cannot hope for the government to legislate in our interests from a position of weakness. We have to organise our own power so our demands cannot be ignored.

System change not legal change

We also need a long term strategy which pushes for systemic changes to the health service and the system we live under. The solution to unaccountable management power isn't ultimately legal changes which leave the employer-management power structure intact, its an overhaul and democratisation of that structure which is required.

We need a democratisation of our public services and wider society. Real accountability can only come through bringing democracy and transparency into the workplace. Management positions in the NHS should not be appointed. They should be subject to election and recall by the staff they work over, making managers directly accountable and creating quick avenues to redress any wrongdoing. Senior management at board level should be elected by staff and the wider community who the institutions serves. Appointments should be abolished, and staff and communities given the power to recall board members. There should be no secret agreements, and NHS budgets should be transparent and published online so they are freely available for inspection and audit. Changes to services should only come about after discussion and a thoroughly democratic process involving patients and staff.

Only by increasing democracy and transparency in how institutions operate can we create services where whistleblowing isn't necessary, and where staff and patients have effective ways of holding those in power to account.