Continued Petitions

I am happy to start because part of the petition questions the service that Public Concern at Work provides to staff across NHS Scotland, so it might help to explain a little bit about Public Concern at Work to the committee.

We are an independent charity and a legal advice centre that was set up almost 25 years ago. The heart of our mission is to encourage workplace whistleblowing to prevent disaster and damage, so that we get a safe environment for people to speak up, so that staff are listened to, and so that we prevent the kind of scandals that unfortunately are all too common in the newspapers—the Mid Staffordshire NHS Foundation Trust type of scandal.

We deliver our mission by providing free, independent, legally privileged advice to any UK worker across the United Kingdom. We also support organisations in their whistleblowing arrangements and we do public policy and research. Our submission covers some of our work with the NHS in England. More recently, of course, we have been providing the national confidential alert line for the Scottish Government. We have also been working on the new agenda in England for the freedom to speak up guardians and the national guardian who has recently been put in place to improve policy and culture around speaking up in the workplace in the NHS in England.

We have been working with Health Education England to train the freedom to speak up guardians in the NHS in England; we have trained approximately 165 of the people who have picked up that post and we have 100 or so more to train. We are involved in how to improve the culture around speaking up, specifically in the NHS but also across any sector in the UK.

We are an important safety net for whistleblowing arrangements that organisations put into place locally. We will always be an option for a member of staff to take advice from. If they are unsure whether or how to raise their concern, we are a safety net for them to explore their options.

We were never set up as—and our contract with NHS Scotland is not intended to be—a reporting line. A reporting line involves taking the information and feeding it back into the organisation or to another part of the system to get the issue addressed. We try to help individuals to think about where they might go in that system to help them to make an informed decision. We are also aware of individuals’ legal rights in relation to whistleblowing because we are a legal advice centre, so that is part of our advice. However, the real focus of our advice is how to get the information to somebody who can do something about it with the least risk to the individual and with the best chance that the information will be listened to, addressed and acted upon.

The petition seeks a more enhanced service than the one that was commissioned by NHS Scotland. I entirely agree that the independent investigation process is an absolutely essential part of good whistleblowing arrangements. However, it is not part of the offer in the service that we provide, so there is a mismatch between what has been commissioned and what is being asked for in the petition.

I am the head of strategy for the City of Edinburgh Council and our whistleblowing arrangements sit independently within our division, reporting directly to the chief executive, the monitoring officer and the relevant committee.

Prior to the implementation of the new arrangements in 2013-14, we had what I would describe as a standard public interest disclosure policy for staff. Through that, we found that we did not receive concerns and were not able culturally to encourage staff to raise their concerns as we would have liked to. We changed our policy on whistleblowing not only to incorporate the provisions of the Public Interest Disclosure Act 1998 but to broaden it out and provide colleagues with a strong, independent mechanism through which to raise any serious concerns that they may have and that they may feel uncomfortable raising through the normal channels, such as the normal management lines.

We procured an independent whistleblowing hotline arrangement. Colleagues in the City of Edinburgh Council can contact an external body to raise their whistleblowing concerns. The concerns that are logged with that provider are categorised as minor or major. If there is a matter of major concern, the provider has an option to investigate it on our behalf and take its findings to the chief executive and the council committee that deals with that.

Since the new arrangements have been in place, we have had 53 disclosures, which is a few each year. There is no pattern or trend to that. The most significant number are not major disclosures, but we have had 11 major reports, some of which have led to criminal convictions. However, we have found that, through having that independent approach—which is unique among local authorities in Scotland—we have actively built the culture of, and trust in, the staff’s ability to raise concerns and they are now able to see how those concerns are addressed dependably through our committee system with our elected members.

I will certainly not disagree with how the City of Edinburgh Council has decided to go forward with the hotline. In the NHS, we have always encouraged our staff and trade union members to raise any issues. We have robust policies in the NHS, which have been agreed in partnership with the trade unions over the years and mean that the staff feel valued, protected and able to raise their concerns.

The whistleblowing culture in the NHS is relatively new. The helpline is new so it is still bedding in. We need to raise awareness that it exists. There are references in the papers to the amount of calls having dropped, which raises the point that we need to promote the helpline more. For us, the preferred option is the continuation of the current arrangements along with the introduction of an independent national officer.

That is looked at carefully if a whistleblowing incident is ever raised. As a union activist, I have dealt with whistleblowing cases in my employment. At times, I can see that the issue should be raised through another policy. The member of staff can be advised that it should be dealt with as a grievance or through the bullying and harassment policy, which everybody takes seriously. There is still an issue of distinguishing between the two and deciding whether something is a whistleblowing matter—a major incident—or whether it can be dealt with through the board’s policies and procedures.

Vexatious complaints are the problematic part of whistleblowing. If we are supporting a member, we will not just go full pelt in doing that. We will do a lot of investigation to make sure that there is background evidence for the concerns that are being raised. However, there is a problem not only for the trade unions but for the health boards.

We have anecdotal evidence to link the arrangement of taking forward an independent hotline and the investigation process, to that building of confidence in our arrangements on whistleblowing and how we actually deal with concerns and complaints across the piece. Since the hotline has been in place, every one of the 53 requests and disclosures that have come in have been fully investigated. That includes the non-qualifying disclosures that we are talking about here, of which there were 14. All those have been placed back into the appropriate investigation process.

What our colleagues are seeing in that anecdotal feedback is that, every quarter, we openly speak at our governance, risk and best value committee about the disclosures that have been made—whether they are major, minor or non-qualifying disclosures—and identify that we have actively investigated them. We give a sense of those outcomes to the committee and in reports to the public. We also show where we have changed policy or procedure or where an action has been taken. According to anecdotal staff feedback from some of the focus groups that we have held, that approach has been welcomed. Visibility and transparency across the organisation have given the staff a sense of confidence.

In a similar way to parliamentary procedure, we take some items of business in private and some in public. In public, we give a sense of all the disclosures, whether they have been investigated and whether they have been closed. For all our elected members on that committee, we give an overview of exactly what the concern that was raised was, who undertook the investigation, whether it was done internally or through our external provider, and the outcome of the investigation. We also cover how we fed back to the whistleblower themselves, whether they were not known to us but known to the provider or were happy to share their details. They then have the opportunity of saying whether they were satisfied with the outcome—that they felt that they had been heard and so on—or whether there were still underlying issues. Any of our committee members can also get a full copy of the report on the investigation that we carry out.

The confidence that I can see in the data is in the public interest disclosure policy that we had previously, before we implemented the new arrangements. Across an eight-year period, we had three public interest disclosures. Since 2014, when the hotline was put in place, our whistleblowing hotline has had 53 contacts. From those, there were 11 major investigations into matters raised by colleagues. To me, that shows a sense of confidence in the new arrangements and that colleagues feel that there is a trusted route for them to raise those concerns.

We are about to go into a new promotional element on whistleblowing. We still have to ensure that everybody is fully aware of the policy and how they can engage. Although we have reached a huge number of our staff, we still have some work to do with our colleagues on the front line so that they fully understand what the service is about. Our feedback loop—the way in which we let colleagues know when our investigations have resulted in, for example, a change in policy or in the way that we work—could be better. We need more conversations and promotional activity as we continue to build confidence and shift our culture.

Yes. At the end of the pilot, we asked employment law specialists to review our whistleblowing arrangements, because we like to have a learning culture and constantly think about how we can improve what we have available for colleagues. The review came back with some suggestions on promotion, and work on that is actively under way as part of our improvement plan.

Not really. When we initially launched the pilot in May 2014, it was a very new way of approaching this type of disclosure from members of staff. To be absolutely honest, those early months of engagement with colleagues across the organisation at all levels were not easy. We worked hard with colleagues in many different services to promote and explain what we were attempting to do. We tried to set out that the service is a useful risk management tool and is about us all doing things better. It is about transparency. It benefits us all if we know when something is going on in the organisation that we would not be happy or comfortable with. I suppose that there was a good deal of persuasion around that.

We had to operate very independently. With the hierarchy of line management and so on, it was difficult to have challenging conversations with people who, in some cases, were senior to us. Gradually, during the pilot, which lasted a year, we developed extremely good working relationships with colleagues in areas where we had frequent contact, such as human resources. As you can imagine, there was a lot of interaction with HR, especially in looking at the background and previous cases and so on. During the pilot, we also developed a very good working relationship and partnership with our external provider. The contract is commercially procured and the pilot provider was successful in the procurement process, so we will be working with it for the next couple of years.

Kirsty-Louise Campbell might know better than I do about that, but we were not involved at the very start. I became involved when we launched, as the arrangements were being made with the provider and we were setting up how we would work together. From my perspective, it all worked well. We worked in partnership to develop the way that we would work together.

On the day that we launched the service, we received a major disclosure that led to a protracted investigation, with certain aspects involving Police Scotland. Probably the biggest challenge that we faced was that, on day 1, the launch day, we were not ready for that major disclosure and huge investigation. There was a huge learning curve in those early months. The people who we were working with at the time were very keen to launch the service as quickly as possible and, with hindsight, we probably were not as prepared as we should have been to launch on that day. However, we survived. We had a good outcome. It was a very difficult investigation, which eventually led to a criminal conviction. That experience of being thrown in at the deep end and having to deal with matters as they came up informed the processes and the future development of the service.

Indeed. It is probably worth noting that that case was raised through the old public interest disclosure policy a month prior to the launch of the new policy. The whistleblower was concerned that the issues that they had raised were not being dealt with through the old route, which led them, on the day of our launch, to contact our external provider and to disclose all the information again to them.

The banking sector has a new approach to whistleblowing. The Financial Conduct Authority has put in place specific rules that to some extent mirror what colleagues here from the City of Edinburgh Council are saying about the structure that is needed for whistleblowing arrangements.

The measure of success for any such arrangements is that staff trust the organisation to do something about the issue that has been raised and that staff are treated fairly and not badly. Therefore, having in place good structures and governance processes, the commitment of senior leadership and the reporting that is being talked about are front and centre of getting good whistleblowing arrangements to work.

The banking sector might be a place to look at when considering what processes it might be sensible to expect NHS boards to put in place. Of course, there are the new whistleblowing champions, which I would have thought would provide the forum for discussions to take place on what structure to have for board reporting on whistleblowing.

In addition to the national officer, the NHS in England has a freedom-to-speak-up guardian in every secondary care trust. That role is likely to be extended to primary care. That person is responsible for receiving concerns and being in touch with the senior governance part of the organisation—the board, the chief executive, the whistleblowing champion or the non-executive director—that is responsible for whistleblowing, so there is a sense that the information is being dealt with and the individual is being protected.

It is interesting that the banking sector is coming at the issue from a rules-based approach, while the NHS has a person-centred focus. The two sectors can probably learn from each other; perhaps the two approaches could be melded. Maybe there is an opportunity for more structure in what is expected of boards in Scotland, as opposed to the more light-touch approach that is in place. That might be a way to look at the issue.

Although the Dutch model has what the Dutch call the house of the bell ringers, which is an amalgamation of a regulator and an advice centre, it is fair to say that the UK is leading the way on what is expected of organisations. In Europe, the debate is about having a law that protects whistleblowers and a directive that pushes member states into setting up a legal framework. We are ahead of the game in that sense, because we have a legal framework. We are talking more about putting the issue back to the organisations, the employers and the regulators, to make sure that they are listening to the concerns that are being raised.

I cannot say what other organisations we should look at or whether they are being looked at, but we always have to be willing to learn from elsewhere. However, the local council and the health board are two entirely different employers that have entirely different terms and conditions, policies and procedures, so a caveat is that they have different issues. We should not always try to compare the two employers, because entirely different concerns will be raised, whether they are medical or health-related concerns.

To go back to the question, we should always be willing to look elsewhere and to implement new approaches in our organisations to assist our staff. To that end, Unison recently developed an app that allows our staff and members to raise concerns that go to Unison regionally, while the same email or message goes to the director of nursing in the health board concerned. We are moving into the digital technology age, and the initial indications are that the app is proving helpful.

There is a temptation to assume that everybody wants to raise things anonymously or via some sort of electronic means. However, that is not always the case. Having access to advice and a kind of independent space is important, whether that is done through us or the trade union.

On that point, our main method of contact is by telephone, so there is less email and digital engagement and there are more telephone calls to the hotline provider.

There has been research by the University of Greenwich and the ACCA on the channels that are needed for a good whistleblowing system.

It is the Association of Chartered Certified Accountants. The research states that a multitude of channels is needed in order to build trust. At one point, people might use the channel of anonymity. If lots of concerns are raised anonymously, that is perhaps a sign that people are not quite sure; they will choose anonymity if they do not feel that they will be protected. At another point, they might choose a telephone line or someone who is independently appointed, such as an ombudsman-type person. The choices ebb and flow as new initiatives come out and there is more incentive to use the system or more promotion of the system. A multitude of channels is needed because we are talking about trust, and people’s trust will change over time—it is not static.

The issues are cultural and historical because of the different employers—local councils and health boards—in the IJBs. Those employers have vastly different terms and conditions, which gives rise to different issues, as I explained earlier. That exacerbates the problem of where a whistleblower goes to. We will need to learn from that. The IJBs have proven to be problematic already in some areas, and the whistleblowing issue adds another problem. They are in their infancy, but we need to keep that point in mind.

I cannot say at this point whether there can be a resolution. My day trade union job is in a health board that is not a territorial one, so I am not involved in the IJBs. I do not have a lot of experience of the problems; we get that through our health committee, which I am representing today. I cannot answer on what the resolution will be.

10:30

One reason is probably historical. We have had good and robust policies and procedures to report any malpractice, bullying, harassment and so on. The whistleblowing facility is relatively new; it has been promoted, but we definitely agree that it has to be promoted better and more widely across the organisation. The appointment of an independent national whistleblowing officer alongside the helpline would see a further push for that awareness.

As for call numbers being relatively low, our staff have historically felt obliged to raise matters through their line managers in the health boards. The culture has been to raise concerns through that structure. Whistleblowing has been a relatively new thing in the past four or five years in the health service, and we need to promote it further. The trade unions advise our members to contact us or to raise matters individually with our support. We will continue to do that through our members meetings, newsletters and websites. The issue is well publicised and we hope that that will increase the use of the helpline.

I cannot answer on confidence in the helpline. There will be positive and negative feedback about helplines or hotlines—call them what you want. I cannot answer on the reasons why the number of calls has dropped, which might be because of the low level of awareness that we talked about. If that is so, we need to promote it more.

Staff in the health service may feel that a case does not involve major whistleblowing, so it goes through one of the other policy processes. That is the only answer that I can give you on the drop in numbers.

I think that I can answer the question on the drop in numbers. There was a huge spike in the first six months, when something like 73 cases were raised, of which 57 were private employment matters. Understanding of what the line is about has since improved, and the concerns that are coming through are more along the lines of public interest issues and less about seeking advice on private issues. The sense that the helpline is about whistleblowing and not grievances is perhaps shown by the drop in the figures.

The line has had an average of approximately 17 calls every six months. A similar number of public interest issues, which involve an individual seeking advice, will be in the next six-monthly report.

The real measure of what is happening on the ground is the number of calls that the internal whistleblowing designated contacts at each board receive. All boards have good whistleblowing arrangements, with designated individuals who are signposted as the place to raise a concern, and that is where the investigation takes place. The activity at board level is the measure of success for the process.

Perhaps. I am not suggesting that private grievances are not incredibly important. Private grievances and whistleblowing concerns need to be dealt with, but the two need to be separated. Perhaps it was a little unclear at the beginning of the process whether the line was a bullying line or a whistleblowing line, so lots of people with bullying issues came through. Bullying needs to be dealt with, but not necessarily through the whistleblowing process.

When we train the managers who receive the calls on understanding the issues and unpacking the complex matters that a whistleblowing issue can present, we help them to think about where there is whistleblowing and where there is a grievance and not just to assume that something is a grievance because the individual says that. The information on what the person has seen and whether a safety, malpractice or wrongdoing issue is hidden in among a dispute that might have gone on for a long time needs to be looked at. Training of managers is really important to get that right.

Any organisation that looks at whistleblowing will face that challenge. When should an informal process be used, which should be dealt with by a line manager who is paid to do a management job, and when should an issue be escalated to a more formal process? That will depend on the individual; on whether they have a good relationship with their manager; on whether they think that their manager will listen; on whether the manager has insight into the processes and understands when an issue is serious; and on when an issue should bypass the management line.

One reason why whistleblowing can present a challenge to organisations is that it breaks through the hierarchy. It is quite difficult to impress it on managers that there will be occasions when their staff go somewhere else, and they should encourage that. That is not necessarily a comfortable position for a manager to be in, particularly in healthcare, where there are strong systems for reporting. There is Datix reporting and serious incident reporting. Whistleblowing cuts across all such structures, which can be a challenge in healthcare and other industries.

The point is to have flexibility, which can feel uncomfortable to a manager or to somebody who is trying to put structure into an organisation. Although the structure is broken down when we say that it is fine on occasion to break the management line, that is essential in whistleblowing. There must be the sense that the issue does not have to go through one channel. That is the check and balance.

There is always more to do to train managers in every aspect of their work. The advice line shows that things can easily go wrong when something has not been listened to and dealt with in the management line; alternatively, the wrongdoing might have happened in the management line. It can feel difficult to break ranks.

The national guardian role that has just been put in place in England sits in the regulator. It is funded by NHS England, the Care Quality Commission, which is the regulator, and probably NHS Improvement, which Monitor, the financial regulator, became part of. There is a tripartite system to build independence. The national guardian’s office has a board with representatives from each of those organisations. It is a challenge to set up something that is truly independent when it is part of the Government, but that is done with regulators, and it should not be impossible to do that with such a role.

I emphasise that there should be a sense from the outset of what sort of cases the officer will take on. One of the challenges with the national guardian in England is that that was not sorted before the role was put in place, which has created uncertainty, and in turn that can breed mistrust. If we learn from the journey that the national guardian is on in England, that will improve the process for a similar appointment in Scotland.

Unison fully supports the introduction of an independent national officer, although we should ensure that they have the appropriate powers to investigate and feed back to organisations. Discussions should be on-going about the officer and their remit. Their remit should not just be in health, because there are local care providers, too. There is still a lot about the officer’s role to be considered. In our view, such a role will be vital to sit alongside the helpline. Because the position will be new, there will be teething problems, but we see the role as a seriously good addition to the whistleblowing arrangements.

When I read the petition, I wondered whether the petitioner was asking for an ombudsman to replace our alert line service. The problem is that a regulatory body will have a duty to investigate, so that takes away the access to independent advice. People want to get advice, but they will not necessarily be able to get it from a regulatory body.

Any regulatory body that has statutory powers needs to ensure, wherever possible, that it does not duplicate the work of other regulators. That is also a key point.

The healthcare safety investigation branch is another new development in England. It would be really innovative to combine what is being done in that branch with a national officer in Scotland. The investigation aspect—that is, the ability to tap into an independent investigation from the individual’s perspective—is missing across the UK. That kind of approach would bring about a step change in the trust and confidence in the arrangements.

Cathy James mentioned the Datix system that we use. Although Unison broadly supports that system, it needs to be reviewed in line with everything else that we are doing on whistleblowing and the Unison duty of care app. Datix is a good system, but it needs to be strengthened. At the minimum, we need to get feedback from the system to staff members who have raised incidents. We are working in partnership with employers to try, as best we can, to do that.