XMAS FOI On NHS Whistleblowing

Paul Gaffney made this Freedom of Information request to Royal United Hospital Bath NHS Trust

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was successful.

Dear Royal United Hospital Bath NHS Trust,

I have done some research and found there are a number of pieces of guidance on how best to ‘whistleblow ‘in the NHS.
Examples include:
1) Each trust is expected to have a’ whistleblowing’ policy modelled on 2003 Department of Health Guidance.
2)Other ‘whistleblowing’ guidance that is issued to general practitioners by NHS employers after the Shipman Inquiry and a Code of Practice published in 2008 by the British Standards and Public Concern at Work .
3 )A Doctor’s duty to report concerns is set out in the General Medical Council’s Good Medical Practice published in 2006 supported by supplementary guidance Raising Concerns About Patient Safety.
‘43. You must protect patients from risk of harm posed by another colleague’s conduct,
performance or health. The safety of patients must come first at all times. If you have
concerns that a colleague may not be fit to practise, you must take appropriate steps
without delay, so that the concerns are investigated and patients protected where
necessary. This means you must give an honest explanation of your concerns to an
appropriate person from your employing or contracting body, and follow their
procedures.
44. If there are no appropriate local systems, or local systems do not resolve the problem,
and you are still concerned about the safety of patients, you should inform the relevant
regulatory body. If you are not sure what to do, discuss your concerns with an impartial
colleague or contact your defence body, a professional organisation, or the GMC for
advice.
45. If you have management responsibilities you should make sure that systems are in place
through which colleagues can raise concerns about risks to patients, and you must
follow the guidance in Management for doctors.
So raising concerns is not just a matter of personal conscience – in some circumstances it is a
professional obligation.’

4) Under the Public Interest Disclosure Act 1998 ‘whistleblowers’ get legal protection against victimisation or dismissal for exposing malpractice at work. This piece of legislation followed a succession of cases where whistleblowers had been ignored , including the problems at Bristol Royal Infirmary ,where 29 babies and children died after heart surgery .
5) Until 1 April 2010 it was optional for NHS trusts to report serious untoward incidents to the National Patient Safety Agency (NPSA).Since then there has been a duty to report introduced by the Care Quality Commission Registration Regulations 2009 ...a more demanding duty :
“This is a duty which is accomapied by sanctions in the criminal law for failure to report –and th ephraes in the regulations is ‘without delay’ –deaths which cannot be explained by the normal course of the illness the patient is suffering from.
And then equally significantly there’s a further duty ,again, to report events which appear –before anybody which has actually been injured or died from events in hospital –systems need to be in place which would expose patients to that sort of risk.’
THE QUESTIONS RAISED BY THIS FREEDOM OF INFORMATION ACT REQUEST ARE :
1) Is there any case law or any other pieces of legislation or other pieces of NHS or professional guidance which protect any possible ‘whistleblower.’?
2) Does the duty to inform of ‘wrongdoing’ extend to other staff: legal advisors,managers and social workers ,nurses and care assistants as well as doctors as well?Does it include a duty to inform of potential ‘wrongdoing’ that has come to light in other trusts and the like?
3) What punishment is meted out to those who knew of alleged wrongdoing and remained silent?
4) How many staff members have ‘whistleblown’ in your organisation?
Which department were they in?
How many are still employed there?
What were the outcomes of the attempt to ‘whistleblow’?

5) Despite pieces of legislation and professional guidance such as these nearly 90% of severance packages between NHS Trusts and departing doctors contain confidentiality clauses.The charity Public Concern at Work states that the law protects whistleblowers even if they have signed confidentiality arrangements.
a) How many confidentiality arrangements have been reached with former staff members?
b) What was the value of each agreement?
c) Does the 1998 Public Interest Disclosure Act make it illegal for NHS Trusts and other public bodies to include confidentiality clauses preventing the disclosure of information that is in the public interest? If not do they still have a duty to inform their professional body or indeed anyone else? Does this extend to any ‘act or omission’ (a term used in the Human Rights Act ) on the part of your organisation?
Yours sincerely
Paul Gaffney LLB BA
Ipswich
Suffolk

Yours faithfully,

Paul GaffneyLLB BA

Clark Julie (Royal United Hospital Bath NHS Trust),

Dear Paul,

This is just to acknowledge receipt of your request under the Freedom of Information Act.

I can confirm that your request is being dealt with and that you can expect to receive a reply within the timescales specified.

In the meantime, if I can assist any further with this request, please do get back to me.

Yours Sincerely,

Julie Clark on behalf of
Simon Edwards
Information Governance Manager
Information Services Department
Royal United Hospital Bath

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Edwards Simon (Royal United Hospital Bath NHS Trust),

3 Attachments

Dear Paul,

Thank-you for your email received on 12^th December 2010 requesting
information which has been processed under the Freedom of Information Act.
Your request has been considered in accordance with the requirements of
this Act. I can confirm that the Trust is holding records that are
relevant to your enquiry. Information has been supplied for the period
April 2010 to the current date.

Request Response
1) Is there any case law or any Please see the attached “speak up
other pieces of legislation or other for a healthy NHS” guide and also
pieces of NHS or professional a consultation paper on “The NHS
guidance which protect any possible Constitution and Whistle Blowing”,
‘whistleblower.’? that is currently out in the NHS at
this time with a closure date of the
11^th January 2011
2. Does the duty to inform of The professional regulatory bodies
‘wrongdoing’ extend to other will provide detailed guidance for
staff: legal advisors,managers and their respective professions, e.g.
social workers ,nurses and care NMC for nurses/midwives, GMC for
assistants as well as doctors as doctors etc.
well?Does it include a duty to inform
of potential ‘wrongdoing’ that Please also find a copy of our local
has come to light in other trusts and RUH Whistle Blowing Policy.
the like?
3. What punishment is meted out to The Trust has a proscribed
those who knew of alleged wrongdoing disciplinary process and if
and remained silent? appropriate this would apply to any
negligent behaviour depending upon
all of the circumstances
4. How many staff members have The Trust maintains a central record
‘whistleblown’ in your of incidents and near misses as part
organization and Which department of its governance arrangements but
were they in? does not maintain a central record
of employees who have raised issues
? How many are still employed there? of serious concern/risk where they
would be deemed as
What were the outcomes of the ‘whistleblowers’.
attempt to ‘whistleblow’?
The Trust has received one
collective claim by four
ex-employees who assert to have
raised matters internally during
their employment but who were unable
to give evidence or examples to
demonstrate that this had in fact
taken place. These assertions were
made as part of an Employment
Tribunal claim against the Trust
which also consisted of a number of
other elements.

The colleagues were employed in the
Paediatric Occupational Therapy

The ‘Whistleblowing’ elements
outlined in the ET claim were never
tested in court as the Trust settled
these employment claims through
Judicial Mediation.

We have however agreed as part of
the overall settlement, which
consisted of a number of employment
related actions, to update our
Whistleblowing policy.
5. Despite pieces of legislation and
professional guidance such as these
nearly 90% of severance packages
between NHS Trusts and departing
doctors contain confidentiality
clauses.The charity Public Concern at
Work states that the law protects
whistleblowers even if they have
signed confidentiality arrangements.

a. How many confidentiality
arrangements have been reached with
former staff members?

b) What was the value of each a. No confidentiality
agreement? agreements have been reached.

c) Does the 1998 Public Interest
Disclosure Act make it illegal for
b. A settlement totalling
NHS Trusts and other public £128,682.59. This was made up of
bodies to include confidentiality four payments of £45,813.14,
clauses preventing the disclosure of £25,296.66, £28,545.97 and
information that is in the public £29,027.82 respectively
interest? If not do they still have a
duty to inform their professional c. Confidentiality
body or indeed anyone else? Does this agreements if used will always
extend to any involve taking expert legal advice
and as such will be assured that
‘act or omission’ (a term they are compliant with any current
used in the Human Rights Act ) on the legislation.
part of your organisation?

I trust that this information provides you with a suitable response to
your enquiry. If not and you feel that your request has not been
satisfactorily answered, then the Trust has an internal review procedure
for dealing with complaints received under the Freedom of Information Act
2000 whereby your case is presented to the Chairman for an independent
review/decision. Alternatively, you do have the right to complain to the
Information Commissioners Office after any internal review procedure has
been exhausted. The Information Commissioners Office is an independent
body that enforces the Freedom of Information Act, the Data Protection Act
and the Environmental Information regulations. The address of the
Information Commissioner is Information Commissioners Office, Wycliffe
House, Water Lane, Wilmslow, Cheshire SK9 5AF

If I can be of any further assistance, please do not hesitate to contact
me again.

Simon Edwards

Information Governance Manager

Data Protection Officer & Freedom of Information Lead

Royal United Hospital Bath NHS Trust

Combe Park, Bath BA1 3NG

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