The right – and duty – of NHS staff to speak up

Summary

A blog from hub topic lead Hugh Wilkins on the recent messages from NHS England and NHS Improvement leaders reminding everyone, including those at board level, of the duty and right of staff to speak up about anything which gets in the way of patient care and their own wellbeing. Hugh highlights the real risk of reprisals against some staff who have raised concerns in the public interest, and points out that much needs to change before NHS staff can be sure that it is safe for them to speak up.

Content

Prerana Issar is the Chief People Officer of NHS England and NHS Improvement.  She was appointed in February 2019 to this post, which was created after senior leaders in the NHS and Department of Health and Social Care realised that a new approach was needed to a number of serious workforce issues which had become apparent.  Among these is the complex, and hugely important, issue of speaking up (sometimes referred to as whistleblowing or raising concerns).

Prerana recently retweeted a message from NHS England and NHS Improvement that "It's so important (for NHS staff) to feel able to speak up about anything which gets in the way of patient care and their own wellbeing".[1],[2]

She is absolutely right... in principle. She is right to point out that NHS staff have both the right and the duty to speak up about problems like this, as is spelt out in the NHS Constitution[3] and professional codes of conduct for healthcare professionals.[4],[5],[6]

The problem is that in practice, as an unknown but substantial number of NHS staff have discovered to their cost, their careers may be at risk if they do speak up as is evident from almost all the replies to both tweets.[1],[2] There is a sad pattern of disciplinary action being taken against staff who have, in good faith, raised concerns in the public interest. Even though their motivation in speaking up in the first place is to improve patient care, they discover to their astonishment that they are considered to be troublemakers for having done so. A depressing cycle of suspension, isolation, unfair dismissal, denigration and blacklisting of the person who has spoken up is often played out, whilst the original concerns and their validity are covered up. What a waste of valuable resources.

The existence of such hostility to staff who have spoken up is evidenced in the 2015 report of the Freedom To Speak Up (FTSU) Review: "an independent review into creating an honest and open reporting culture in the NHS".[7] The press release which accompanied its publication announced that the review "identifies an ongoing problem in the NHS, where staff are deterred from speaking up when they have concerns and can face shocking consequences when they do. The review heard stories of staff that have faced isolation, bullying and counter-allegations when they’ve raised concerns.  In some extreme cases when staff have been brave enough to speak up, their lives have been ruined".[8]

The FTSU report calls for "an overhaul of NHS policies so that they don’t stand in the way of people raising concerns with those who can take action about them" and sets out "20 Principles and Actions which aim to create the right conditions for NHS staff to speak up". The principles are divided into five categories: the need for culture change; improved handling of cases; measures to support good practice; particular measures for vulnerable groups; and extending the legal protection.[7] 

In theory the law protects whistleblowers, but in practice, as a procession of disillusioned NHS staff who have experienced reprisals from their employers after speaking up have discovered the hard way, it does not. Employment tribunals are an alien environment for most healthcare staff. Case after case has shown that they are woefully ill-equipped to deal with precipitating patient care issues, in which tribunals appear to have little interest.

Even when NHS staff are, against massive odds, found to have been unfairly dismissed after raising concerns in the public interest, the so-called remedy they receive almost invariably amounts merely to paltry financial 'compensation'. These are monetary awards that generally come nowhere near compensating for the full financial consequences. The adverse impact of this lack of protection for whistleblowers is not only on the individual but also includes the chilling effect of deterring other staff from raising concerns and the consequences of cover ups. True overall costs to the NHS, patients, whistleblowers and taxpayers of retaliation against staff who speak up are very much greater than financial costs alone.

Staff surveys show that nearly 30% of NHS staff would not feel secure raising concerns about unsafe clinical practice.[9] Over 40% would not be confident that their organisation would address their concern if they do speak up.[10] There is still a lot to do in this area, as has been brought to the fore by recent reports of hostile responses by some NHS organisations to staff who have raised serious personal protective equipment (PPE) concerns affecting patient safety and health of themselves and their families.

To be fair, serial staff surveys show a marginal improvement in the percentage of NHS staff who agreed they would feel secure raising concerns about unsafe clinical practice, up from a disturbingly low 68.3% in 2015 to 71.6% in 2019.[9] And a further tiny improvement in the percentage confident that their organisation would address their concern, up from an even lower 56.2% in 2015 to 59.8% in 2019. 

Viewed from the perspective of NHS whistleblowers whose careers have been wrecked after speaking up these are painfully slow rates of improvement. Bearing in mind widespread reports of PPE shortages, and warnings to NHS staff not to make a fuss about this, it will be interesting to see whether this glacial pace of change in speaking up culture is maintained when the results of the 2020 survey are available. Based on experience in the last two years, we can expect another prolonged FTSU publicity campaign in the month preceding the annual autumn NHS staff survey.

The NHS Interim People Plan, published in June 2019, refers to development of a focus on whistleblowing and speaking up. It highlights the need for inclusive and compassionate leadership so that all staff are listened to, understood and supported, and the need to do more to nurture leadership and management skills of middle managers.[11] The original aim was to publish a full, costed NHS People Plan by Christmas 2019,[12] building on the interim plan, but this was delayed by unforeseen events, including a change of government, general election, Brexit ramifications and now the coronavirus pandemic. The interim plan makes clear the need to embed culture changes and leadership capability in order to achieve the aim of making the NHS "the best place to work".

There is much to do, and I wish well to those who want to make it safe for staff to speak up, but they must be under no illusion – there is a long way to go – and this will take more than an overhaul of NHS policies. I hope to develop these themes in future postings to the hub. Comments welcome.

References

1. NHS England and NHS Improvement tweet, @NHSEngland, 15 May 2020, 6:35pm. 
2. Prerana Issar tweet, @Prerana_Issar, 15 May 2020, 6:47pm.
3. The NHS Constitution for England. Updated 14 October 2015. 
4. Nursing and Midwifery Council (NMC). The Code: Professional standards of practice and behaviour for nurses, midwives and nursing associates, 2015, updated 2018. 
5. General Medical Council (GMC). Good medical practice: The duties of a doctor registered with the GMC. 2013, last update 2019. 
6. Health and Care Professions (HCPC). Standards of conduct, performance and ethics: The ethical framework within which our registrants must work, 2016. 
7. Freedom to speak up: An independent review into creating an open and honest reporting culture in the NHS. Report by Sir Robert Francis QC, 11 February 2015. 
8. Press release: Sir Robert Francis publishes his report on whistleblowing in the NHS, 11 February 2015.
9. NHS Staff Survey 2019. q18b: % of staff agreeing or strongly agreeing with the statement that: 'I would feel secure raising concerns about unsafe clinical practice'. 
10. NHS Staff Survey 2019 q18c: % of staff agreeing or strongly agreeing with the statement that: 'I am confident that my organisation would address my concern'.
11. Interim NHS People Plan, June 2019. https://www.longtermplan.nhs.uk/publication/interim-nhs-people-plan/
12. NHS People Plan overview, 2019. 

About the Author

Hugh is the hub's topic leader on whistleblowing. He is keen to see genuine evidence-based culture change in this complex area, so that it becomes safe for healthcare staff to raise concerns without fear of retaliation.