The Francis Review of whistleblowing in the NHS

We look at the contribution to the review from health professionals group Patients First, which highlights a number of interesting, if concerning, issues.

The "Freedom to Speak Up Review" was announced on 24 June 2014 by the Secretary of State for Health and is led by Sir Robert Francis QC. It is an independent review aimed at helping to create an open and honest reporting culture in the NHS. The submission to the review by health professionals group, Patients First, makes interesting, if concerning, reading.

One of the key features of the failures at Mid Staffs, as highlighted by the Francis Inquiry, was the failure to foster a culture in which people felt able to highlight concerns about poor care practices. An outcome of this was that many felt discouraged to act as a whistle-blower, meaning that the poor standards of care continued for longer than would otherwise have been the case.

The Francis Report pointed out that: "Whistleblowing is only necessary because of the absence of systems and a culture accepted by all staff which positively welcomes internal reporting of concerns. If that culture is absent then raising concerns external to the system is bound to be a difficult and challenging matter, and an act which exposes the whistle-blower to pressure from colleagues. Therefore the solution lies in creating the right culture, not in focusing on improvements to whistleblowing legislation…"

Patients First: Key findings and learnings from The Frances Review on NHS whistle-blowers

As an initial step, the review asked to hear from as many people as possible who had good or bad experiences with raising concerns in the NHS. The Patients First submission is a response to that request.

Following a thematic review of 70 cases, Patients First pointed out that 79% of whistle-blowers had been bullied and 60% had not been supported by their union. It also suggested that NHS organisations were using a fundamentally wrong definition of "whistle-blower” when dealing with members of staff who raised concerns.

Patients First expresses the concern that many people within in the NHS only classify those who raise concerns outside of their employing organisation as whistle-blowers who are entitled to protection under the Public Interest Disclosure Act (PIDA) provisions which were inserted into the Employment Rights Act 1996 (the Act). Patients First correctly points out that PIDA makes no distinction between concerns being raised internally or externally. All that is required for protection is that a disclosure is made which falls into one of the following categories set out in the Act, including:

  • A criminal offence has been or is likely to be committed.
  • A person has failed or is likely to fail to comply with a legal obligation.
  • The health or safety of an individual has been or is likely to be endangered.

Patients First highlighted that this misconception represents a serious problem. Not only does it distort the true picture of the extent of whistleblowing, but it also distorts the assessment as to whether whistle-blowers are properly treated within the NHS.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.