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04.03.15

Do your staff whistle while they work?

Guest blog by Jenny Jones, a barrister specialising in employment law, including whistleblowing in the health sector.

There are very few subjects that attract media attention as readily and intensively as the allegation that an NHS ‘whistleblower’ has suffered in their employment in some way as a consequence of speaking out. Yet I have not spoken to any senior manager or clinician from within the NHS, whether in an acute or primary care setting, who is not entirely encouraging of candour and supportive of employees who raise issues of concern in relation to patient safety. So why the mismatch?

The Public Interest Disclosure Act 1996 was introduced for very good reason but perhaps without a full understanding of the healthcare sector and the particular issues which ‘whistleblowing’ raises within the context of the NHS. For example: A worker (note, the right covers more than just employees) makes a protected disclosure (i.e. ‘blows the whistle’) if he or she “discloses information which, in the reasonable belief of that person, tends to show that the health and safety of any individual has been, is being or is likely to be endangered”.

A brief consideration of this definition by anyone working in any capacity in your practice could lead to the not unreasonable conclusion that they probably ‘blow the whistle’ on a daily basis. It might be a comment that a colleague’s sickness absence will make it difficult to see certain patients, an expressed frustration about the lack of resource to carry out a particular service – or a complaint that a colleague is behaving inappropriately in some way. Such things all have the potential to affect the services you provide and therefore the potential to affect a person’s health.

The amendment to the legislation in more recent times to confirm that a disclosure is only ‘whistleblowing’ if it is ‘in the public interest’ has made no difference to employers in the healthcare sector, all of whose actions have the potential to affect the public.

‘But my staff don’t claim to be whistle-blowers!’ I hear you cry. No, I am sure most of them do not and never will do. However, what happens when you want to discipline or performance manage a member of your team, only to be met with the (media-savvy) response ‘you’re only doing this to me because I’m a whistle-blower’? Letters to Commissioners, MPs and the Department of Health have been known to follow apace in such circumstances.

The online community is awash with interest groups willing to embrace and support those who position themselves as ‘NHS whistleblowers’.

So, how can a healthcare practice demonstrate to commissioners, staff, the public and (if ever necessary, an employment judge) that it is genuinely committed to candour, to constant service improvement and to supporting staff who raise issues relating to patient care in good faith?

My advice is, if you do nothing else, do the following two things:

First, dust off your whistleblowing policy (if your practice has one) and make sure it is fit for purpose and provides a simple, practical guide that your staff and partners understand and will use if necessary. This way you will minimise the risk of someone claiming, sometimes very much after the event, that they were not just raising a query but were ‘blowing the whistle’.

Second, appoint and train someone in a managerial capacity as your whistleblowing lead who understands this increasingly complex political and legal landscape.

The Harrison Clark Rickerbys Employment & HR team is led by Jenny Jones, Partner (Barrister) who is a specialist in the healthcare sector and whistleblowing in particular. Contact her on 01905 746470 or jjones@hcrlaw.com

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