Submission to The Shipman Inquiry


September 2003

Below is our written submission. For our oral evidence, click here.

Submission

Annex 1 - Background on Public Concern at Work (PCaW) 1999 & 2001

Annex 2 - Statistics from PCaW’s helpline 1993-2002

Annex 3 - PCaW report to the Royal Brompton Inquiry 2000

Annex 4 - PCaW / UNISON survey on whistleblowing in the NHS 2003

Annex 5 - PCaW flyer & Policy Pack (NHS, England) 2003

Annex 6 - Bristol Report - submission, Legal Opinions & papers 2001

Annex 7 - DoH Guidance & BMJ article 1993/4

Public Concern at Work
PCaW was established in 1993 as an independent charity to deal specifically with public interest whistleblowing. We do this in four key ways by:

  • offering confidential practical and legal advice to individuals concerned about wrongdoing in the workplace;
  • providing training, guidance and consultancy to employers and other organisations on risk management, governance tool and whistleblowing;
  • informing public policy on the responsibility of individuals and the accountability of organisations; and
  • working across the community - through schools, groups and the media - to promote whistleblowing and the public interest.

We were closely involved in settling the scope and detail of the Public Interest Disclosure Act 1998 (PIDA) and remain the main UK organisation that promotes public interest whistleblowing and monitors claims and decisions under PIDA. Annex 1 includes (a) from our 1999 review a brief history to PCaW and the Act and (b) our most recent biennial review. Next month we publish a new biennial review and we will then mail you a copy.

Since we began a decade ago, we have dealt with over 500 whistleblowing concerns from the health service. Annex 2 sets out the annual figures since 1993, though please note they will include a small number relating to private health care. Additionally as to the figures for 1993/94, they include both the public (whistleblowing) concerns and the private enquiries we handled that year. Health sector concerns have consistently made up 15% of the total whistleblowing concerns for each of the past 5 years - making it the second highest sector after the care sector.

The advice we offer is free of charge and is specifically aimed at people who are unsure whether or how to raise a concern about wrongdoing. It is fundamental to our work, as (a) it is an effective means to deter and detect serious wrongdoing, (b) it helps to clarify the accountability of employees and those in charge of organisations, and (c) it provides real help in cases where people face conflicts of loyalty. One added value of this experience is that it informs the services we provide organisations, including many NHS Trusts and bodies, professionals and regulators and the policy advice we provide Government, and Inquiries such as yours.

Whistleblowing in the NHS
A summary of developments on whistleblowing in the NHS from 1993 to June 2000 is to be found on pages 6-9 of the report at Annex 3. The report was commissioned by the Independent Inquiry into the Paediatric Cardiac Unit at the Royal Brompton Hospital. We commented on the Trust’s Speaking-Up Policy in the context of - and its response to - serious and anonymous allegations sent to the media.

As to the effect of recent developments on whistleblowing in the NHS, we refer you to the UNISON/PCaW survey of NHS staff at Annex 4. The survey indicated that while positive changes have been occurring, there is still clear need for improvement. Significantly, in our view, 90% of those who said they had had a patient safety concern had raised it locally. We do not believe the figures would have been anywhere near as high a decade ago.

In July 2003, the Department of Health sent our updated whistleblowing toolkit, the Policy Pack 2003, to all NHS trusts in England. It had commissioned this update, following the successful response to our Policy Pack 1999. The 1999 Pack was sent out with HSC 1999/198 (a copy of which is attached to the report at Annex 4). We enclose a copy of the revised and current Pack at Annex 5.

Learning From Bristol
In 2001 we wrote to the Department of Health as we were concerned that the Report Learning from Bristol had misunderstood the law and practice on whistleblowing in the NHS. As the Bristol Inquiry had been set in train by a whistleblower, this was of importance to the medical profession and the public. Our own submission promoted a response from leading Counsel, to which we replied. The Government accepted our view that the report had erroneously suggested that the whistleblower, Dr Bolsin, would not have been protected by PIDA had it been in force. The relevant papers are, as requested, reproduced in Annex 6.

Whistleblowing in different settings
You have asked for our comments on staff raising concerns in four cases and on how to overcome any barriers. We give our initial views below and will be happy to elaborate on these when we give evidence. First, can we say that, in our view, the way to overcome barriers to speaking up in any setting is to embed a culture where it is safe and acceptable to raise a concern and to question suspect conduct. While the need for this is greatest in the workplace, the basic dilemma can arise across the community and so we believe whistleblowing should be a life skill taught in schools. Secondly as to workplaces in general and the NHS in particular, we think this culture is best embedded where those who oversee NHS organisations, large or small, recognise their own accountability and view whistleblowing as key to patient safety and good clinical governance.

Turning to the scenarios you set out:

Where an employee is concerned about another professional employed in another organisation and the service is fragmented geographically or otherwise. Relevant issues will be whether the employee feels and is able to raise the matter with her employer, with the other person, or with his employer or with an appropriate authority. We confirm that there can be additional problems for an individual working in a small or remote community, where the concern is about, say, a local GP who is an influential member of the community.

Where a non-professional or junior has concerns about a professional or more senior person. This is the classic whistleblowing scenario where they have the same employer. In all organisations, no matter the size, issues of loyalty can play a crucial role in determining whether someone has the confidence to speak up and to do so early. Whether the individual is in a junior position or not, the extent to which they feel able to raise a concern largely depends on the following factors -

a) fear of reprisals from the senior or from the management line (whether the matter be raised internally or externally)
b) whether they feel their opinions carry any weight
c) uncertainty as to how or where to raise the concern internally
d) confusion about how where to go to get the issue properly looked into, and
e) suspicion that nothing will be done anyway.

We also receive calls from members of the public, sometimes these are of a consumer nature and sometimes from members of the public. In the latter case, the risks of reprisals or repercussions for their raising the concern are slight and there are more options available as to possible recipients of the disclosure. To this end, in our limited experience, these are not the most difficult people to provide whistleblowing advice to.

We believe that when some acute dilemma or issue arises which - if well founded - threatens the lives or livelihoods of others, the provision and promotion of a source of independent, confidential advice is desirable, as the Nolan Committee recommended. In our view, such a solution will have a greater effect where its availability is endorsed by the employer in the way we set out at the start of this section. One example of such a route is our own confidential helpline. While our helpline has been, is and will remain available to employees without charge, a number of leading employers have begun to take out subscriptions to it (at levels around 10 pence per employee per year) which include promotional posters. The DoH has just taken a quarterly subscription on this basis, following the response to the Policy Pack 2003 and its recognition that the helpline does provide a service of value to the NHS. For your information, a flyer about the helpline subscription and our services for organisations is at Annex 5 along with the NHS Policy Pack.

The case of Mrs. Renate Overton
We will be happy to discuss in detail with you and the Inquiry the facts you have provided us relating to Mrs Renate Overton. Relevant factors for us include -

a) Did the hospital staff raise their concerns with anyone? If so, what did that or those people do? Was there a clear line of accountability?
b) If not, why do they say they did not raise the concern? Had the Trust introduced a raising concern policy following the NHS Guidance of 1993? If so, were the staff aware of it? If there was no such policy, why so?
c) Was it normal practice then that such a serious concern would be put on the patient’s notes? If so, would it then have been for the senior doctor to deal with? If s/he did not, why not?

Our comments are, for this reason, dependent on the facts the Inquiry found. As to the general climate at that time in the NHS, it was dominated by a perceived culture of fear. On one occasion I recall one time I appeared on a news programme and two nurses came on with stockings over the head in the same way a terrorist might appear. It was said this was necessary because they feared reprisals for speaking publicly about patient care. In 1993 the NHS sent out guidance - attached at Annex 7 - on staff relations with the public and the media. This was the first major attempt by any employer to address the issue of whistleblowing. While we had concerns with it - in particular its over-reliance on the management line - we believed it received more criticism from patient and employee groups and the media than it deserved. It was widely denounced as a gagging charter. My recollection is that this perception, if not the reality, continued beyond 1994 and this may very well have affected the attitude of the staff looking after Mrs Overton as to whether they should raise their concerns at all.

Since then, the NHS, unions and professional bodies have issued guidance on whistleblowing, the Public Interest Disclosure Act has come into force, and individual Trusts have worked to create more open and accountable workplace cultures. A new generation of doctors and nurses are in place, having been trained knowing about the Bristol and Alder Hey tragedies. It is our firm view that the culture for blowing the whistle in the NHS of today - with its focus on patient care - is both different and much improved from what it was in 1993 and we believe the survey with UNISON (at Annex 4) supports this.