After an extensive review of whistleblowing in the NHS, Sir Robert Francis has published his Freedom to Speak Up Review (the Review). Perhaps not unexpectedly he has concluded, after considering information submitted by individuals and organisations in writing and in person, that although many whistleblowing cases are handled well by NHS organisations, too many are not, which he believes has and continues to have a disproportionate impact on individuals who are deterred from speaking up by the fear of adverse consequences or the belief that nothing will be done to address the issues raised. Francis concludes that ultimately this places patients at risk. He recommends that all NHS organisations implement the principles and actions set out in the Review to effect necessary changes to the way in which individuals raise concerns and the way in which these are dealt with.

The Secretary of State for Health has accepted all of the actions highlighted in the Review, and has agreed that further consultation will be undertaken, where appropriate, to work out how these actions can be implemented.

Francis highlights 20 principles, together with a series of related action points, which fall under the following five overarching themes:

  • Culture change
  • Improved handling of cases
  • Measures to support good practice
  • Particular measures for vulnerable groups
  • Extending legal protection

Francis emphasises that boards must lead on effecting a culture change, to move away from a “blame culture” and “foster a culture of safety and learning, in which all staff feel safe to raise concerns”. Noting that whistleblowers do not always know who to turn to, Francis recommends that each organisation establish a full time independent “Freedom to Speak Up Guardian”. The guardian would give independent support and advice to staff who want to raise concerns, raise them at board level and hold the board to account should it fail to focus on a patient safety issue. The Secretary of State for Health has said that each organisation should act now to make this appointment. The Review also recommends that organisations nominate non-executive directors to take specific roles in relation to receiving concerns and that a manager in each department is nominated to receive reports.

Francis envisages that this culture can be achieved through training staff in how to raise and address concerns (such training to be devised by Health Education England and NHS England), as well as taking a proactive stance in addressing bullying and performance issues. Whilst he has rejected calls for the establishment of an external body to investigate complaints, he emphasises that investigations must be prompt, swift, proportionate and blame free. Investigators must have the necessary expertise and, critically, have the time to investigate the matter without having to fit it around their day job. He is critical of lengthy periods of suspension and special leave concluding that these measures leave whistleblowers isolated and susceptible to mental health issues. He recommends that suspension and special leave should only be considered when there is a risk to patient or staff safety, there is concern about criminal wrong doing or tampering with the evidence. Instead he recommends that consideration be given to redeployment to other sites or non-patient facing roles. Further, he cautions against moving whistleblowers who have raised concerns about colleagues from their roles, as this may be seen as a deterrent to raising concerns.

Whilst he notes that he has not reviewed any recent settlement agreements which prevent (or “gag”) individuals from blowing the whistle, he also notes that confidentiality clauses can be worrying for individuals. He recommends that confidentiality clauses should only be included when they are in the public interest (although the meaning of this is not clear) and that the chief executive should review all agreements to satisfy themselves that this has been complied with.

Nationally, Francis recommends that a role of Independent National Officer (INO) be established to provide national oversight and review of the treatment of NHS whistleblowers. They may provide advice to organisations and the Freedom to Speak Up guardians. The INO is not intended to have binding powers, although Francis envisages that they will work with regulators and recommendations may become binding via regulatory mechanisms. Recommendations are also made to strengthen legal protections for whistleblowers so as to protect them from victimisation when applying for new employment, expand the list of prescribed bodies/persons with whom disclosures can be raised and for the establishment of a scheme to enable whistleblowers to find new employment in the NHS.

Francis has recommended that regulators should regard departure from good practice, as set out in the Review, as relevant to whether an organisation is safe and well-led. Organisations will need to update policies and procedures as a result of the Review. If we can assist with this, please let us know.