NHS: Whistleblowing

Lord Prior of Brampton Excerpts

Tuesday 30th June 2015 Lords Chamber

[Lord Desai]

To ask Her Majesty’s Government what is their policy on whistleblowing in the National Health Service.

[The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)]

My Lords, the Government are committed to improving openness in the NHS and ensuring that whistleblowers are considered an asset and receive proper support. The Freedom to Speak Up report sets out principles and actions to help create a culture change in the NHS. It calls for local accountability, with system regulators providing national oversight and guidance. We will publish our consultation response on a package of measures arising from the review and next steps shortly.

[Lord Desai (Lab)]

I thank the noble Lord for that Answer, but is he aware that there is considerable anxiety among junior doctors, especially among those from a black or ethnic-minority background, that their career prospects may be harmed or they may even find their contract terminated if they are whistleblowers? Will he promise to take a look into that problem?

[Lord Prior of Brampton]

The noble Lord makes a very important point. There are many junior doctors from BME backgrounds who do indeed feel that it is difficult to raise concerns. One recommendation in Sir Robert Francis’s report is that every NHS organisation should have a local freedom to speak up guardian, which I hope will help. But whatever we do to change the law or codes from the GMC and others, it will not replace the need to have an open, transparent and learning culture in all NHS organisations.

[Baroness Walmsley (LD)]

My Lords, would it not be more likely that such discrimination as mentioned by the noble Lord, Lord Desai, would be stamped out if there were more black and ethnic minority members of staff at senior levels in the NHS? Is he aware that the proportion in London NHS trusts of those from a BME background is only 8%, compared to 45% in the general population and 41% among NHS staff?

[Lord Prior of Brampton]

The noble Baroness has probably read The “Snowy White Peaks” of the NHS, which sets out very clearly for all to see the really shocking lack of representation of people from BME backgrounds at senior levels of the NHS. This is an absolute priority. NHS England has appointed Yvonne Coghill to look at all the racial inequality issues, and she and NHS England have my full support in their endeavours.

[Lord Harris of Haringey (Lab)]

My Lords, I declare an interest as having two family members who work in the NHS. Further to the answer that he has given, will the Minister reflect on the fact that many trusts have contracts in which staff are warned that if they bring the trust into disrepute, they are likely to face disciplinary action? This has a stifling effect on whistleblowing and people raising issues of legitimate public concern with the media. Will he comment on that practice and what is going to be done about it?

[Lord Prior of Brampton]

In Robert Francis’s report, Freedom to Speak Up, he specifically mentions—I think it is in principle 13, from recollection—that there should be no such clauses in NHS contracts unless it can be demonstrated that there is indeed a true public interest. In any severance package in which there is a gagging clause of any kind, CQC is entitled to inspect those agreements during its inspections.

[Baroness Wall of New Barnet (Lab)]

My Lords, the duty of candour has made a big difference in hospitals to staff owning up if there is a difficulty or they have made a mistake in any part of their service. Does the Minister accept that there is a relationship between that and whistleblowing and with the guardians that are in existence in hospitals, such as in my own in Milton Keynes, where they are designated by the people in the department and so are trustworthy in the sense of how they are elected or selected? Does the Minister not agree that the duty of candour is making a difference to the whole culture of the health service being open and honest?

[Lord Prior of Brampton]

The noble Baroness is absolutely right. The duty of candour, which puts an obligation on organisations to show candour, is making a difference. I congratulate the GMC and the NMC, which have spelled out clearly in their codes that the professional duty of candour is equally important.

[Baroness Masham of Ilton (CB)]

My Lords, if one was going to whistleblow, who would one contact?

[Lord Prior of Brampton]

There are a number of organisations that the noble Baroness might wish to contact, but most important is to raise the matter first in the local organisation. All organisations should have their own whistleblowing procedures, and that is the right way to raise concerns. If any individual finds that not to be satisfactory, the right way to proceed is through the Care Quality Commission, which has a dedicated hotline in its service centre in Newcastle.

[Baroness Brinton (LD)]

My Lords, which takes priority: duty of candour or an employee’s contract with their NHS trust where they are gagged?

[Lord Prior of Brampton]

The duty of candour should clearly take precedence. It should be seen in the context of an agenda to improve patient safety in hospitals; if we are not open about our mistakes, we will not learn from them.

[Lord McFall of Alcluith (Lab)]

My Lords, the experience of whistleblowers in the NHS is not for the faint-hearted, with lip service paid to internal hotlines. To ensure the maximum protection for genuine whistleblowers with no retribution whatever, is it not time that a legal duty of care towards them is imposed on NHS trusts?

[Lord Prior of Brampton]

The Government have taken a lot of action to help protect whistleblowers. I think that there is a limit to the law in this regard and the changing culture is more important. The Small Business, Enterprise and Employment Act 2015 places an obligation on NHS employers not to discriminate against people who have blown the whistle or raised concerns. I believe strongly that the law has a role to play in this but that we need a fundamental change of culture in the NHS.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Lord rightly expects a fundamental change of culture among NHS bodies, but does he agree that one way in which that could be helped would be if Ministers welcomed criticism from chief executives and leaders of those bodies of unrealistic expectation on the part of Ministers and of there being too few resources? Does he agree that such leaders are stamped on for making their views known, which is simply not conducive to encouraging openness in their own organisations?

[Lord Prior of Brampton]

The noble Lord makes a good point. If one looks back at the history of Mid-Staffordshire, one sees clear evidence that the priorities of that organisation were too skewed towards hitting financial targets and meeting other extraneous objectives such as becoming a foundation trust. The message to all NHS organisations should be that patient safety and quality of care come first.