Whistleblowing in the NHS: further reforms

 15 October 2010

The Department of Health ("DH") issued a consultation paper entitled: "The NHS Constitution and Whistleblowing" earlier this week. The paper seeks views on DH proposals that will amend the NHS constitution in order to:

• create an expectation that NHS staff will raise concerns about safety, malpractice or wrong-doing at work which may affect patients, the public, other staff or the organisation itself as early as possible;
• pledge to support all staff in raising legitimate whistle-blowing concerns; and
• highlight within the NHS Constitution the existing staff right to "whistle-blow".

The amendments were originally announced by the Secretary of State for Health on 9 June 2010 and are part of the measures the DH wishes to build upon in order to boost the current safeguards for whistle-blowers. We have previously issued INSIGHTS on whistle-blowing issues in the NHS and on the Mid Staffordshire public inquiry.

Questions

Some of the questions that are being asked in the consultation are:

• Do you agree the NHS Constitution should be changed to highlight the rights of staff to raise legitimate concerns in the public interest?
• Do you agree that the NHS Constitution should include a pledge that NHS organisations should support staff when they raise legitimate concerns, in the public interest? If not, why not?
• Do you agree that the NHS Constitution should be amended to make it clearer that staff are able to raise any concern with their employer, whether it is about safety, malpractice or other risks, in the public interest without fear of detriment?

Evidence gathered through a recent NHS staff survey suggests that over 80% of staff know how to raise a concern and over 60% say that there is a process in place within their organisation to raise concerns confidentially. Nevertheless, the DH believes there is a reluctance to raise concerns in practice.

As a consequence, the DH is also asking NHS staff and others to comment on whether there are any barriers to achieve an: "…. equitable protection for staff who wish to raise concerns about safety, malpractice, or other risk from the perspective of ethnicity, gender, disability, age, sexual orientation, religion/belief, socio-economic or rural/geographical considerations."

If the proposed changes to the NHS Constitution are made they will have no direct legal effect. However, it will certainly highlight again the scope for claims of whistle-blowing. In addition, NHS bodies will be expected to illustrate how they have discharged the requirements of the NHS Constitution: for whistle-blowing, this is likely to be demonstrated by way of either creating a policy or reviewing an existing one. If they cannot, adverse inferences may be drawn in either employment litigation or in cases where a failure to discover issues is relevant, such as in inquests or other inquiries.

Replies to this consultation should be received no later than 20 January 2011.

Click here to view the consultation papers >>>

If you have any queries please contact:

Philip Farrar
philip.farrar@hilldickinson.com
+44 (0)151 600 8615

James Upton
james.upton@hilldickinson.com
+44 (0)161 817 7262

Sue Morrison
sue.morrison@hilldickinson.com
+44 (0)161 817 7327