• When a staff concern is raised the primary focus is on identifying and resolving any patient safety issues.
• There is an integrated policy and a common procedure that does not distinguish between reporting incidents and raising concerns, and focuses on the safety issue not the possible legal status or other employment issues arising from the concern.
• The policy and procedure:
– reflects good practice described in this report
– applies to all staff concerns irrespective of whether the staff member classes it as whistleblowing
– includes requirements necessary for compliance with any obligation to report issues to patients and the organisation such as professional and statutory duty of candour
– authorises, and does not prevent or deter staff from raising concerns directly with any prescribed person, as well as any commissioner, but may advise them that the employer welcomes concerns being raised first within the organisation.
• The responsibility for overseeing policy, procedure and practice relating to raising concerns is allocated to the executive board member who has responsibility for safety and quality.
• Investigation of concerns is separate from employment procedures where possible.
• Disciplinary action necessary for any party associated with a concern is not considered or taken until the completion of any investigation and identification of any action required unless there are exceptional circumstances.
• Where a concern is reported to an external body, the organisation reflects, without seeking to blame, on the reasons why this happened.
Raising concerns should be part of the normal routine business of any well-led NHS organisation.
Action 2.1 Every NHS organisation should have an integrated policy and a common procedure for employees to formally report incidents or raise concerns. In formulating that policy and procedure organisations should have regard to the descriptions of good practice in this report.
Action 2.2 NHS England, NHS TDA and Monitor should produce a standard integrated policy and procedure for reporting incidents and raising concerns to support Action 2.1.
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5.4 Managing poor performance and
whistleblowing
5.4.1 The interaction between whistleblowing and management of poor performance is a complex and controversial issue. People who have raised concerns cite examples where they have suddenly been subject to critical appraisals and poor
performance processes as a consequence of raising concerns which were taken as criticism. Students told us how their previous good record suddenly deteriorated, and some healthcare professionals described retaliatory referral to their professional regulator.
5.4.2 On the other hand, employers have expressed their frustration about weak performers who raise concerns as a deliberate attempt to thwart or delay the performance management process, by claiming that they have raised a protected disclosure which has to be investigated first. Their experience is backed up by other bodies, such as the National Clinical Assessment Service (NCAS), Royal Colleges, and professional regulators and at least one of the organisations that support whistleblowers agreed that it does happen.
“ To date all potential whistleblowing incidents that I have been part of investigating were cynical attempts to distract attention away from a disciplinary concern around conduct or capability.”
5.4.3 Opinions differ on the extent of the problem. Whatever the scale, raising concerns for ulterior motives causes confusion and can result in unhelpful and unjustified suspicions about the authenticity of the concerns raised by all whistleblowers.
5.4.4 The motivation for a member of staff raising a concern has no automatic association with the truth or falsity of what is reported. Those who raise concerns should always be listened to: an expression of concern may well contain important safety issues. Just because someone is subject to poor performance or disciplinary action does not
mean they are raising a concern mendaciously or with an ulterior personal motive. The concern itself must still be addressed as a matter of priority, and separately from any other issue involving the NHS worker who raised it.
5.4.5 The best way to meet the possibility of false allegations, dishonestly made, is to investigate and establish that they are false, and by separating this from any existing process in relation to the individual. If this approach is taken rigorously and fairly, there is no reason why the raising of a concern should ever impede the continuation of management of poor performance or disciplinary processes which are being undertaken for other genuine reasons. At the same time, this approach ensures that all concerns requiring action are identified, and that there is an evidence base justifying decisions taken about them.
5.4.6 This is not to suggest that deliberately raising a false allegation is ever acceptable. The impact of such conduct is huge. It:
• tarnishes the image of the vast majority of people who raise concerns for genuine reasons
• reinforces the negative perception of
whistleblowers as ‘troublemakers’ setting back attempts to change the culture around raising concerns
• frustrates employers who become more wary and defensive in response to people who raise concerns, for example, focusing on the motive rather than the concern itself
• deters other staff from coming forward with concerns for fear they too will end up being performance managed.
5.4.7 Tackling poor performance is equally important. Poor performance is itself a safety issue, and NHS organisations must address it fairly and effectively.
“ This is about the separating out of concerns about care malpractice or wrongdoing at work from personal grievance disputes. To me that’s absolutely key to it, that’s crucial.”
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5.4.8 Managing poor performance in any sector is a complex and time consuming process. The fact that someone has made a protected disclosure does not preclude an employer from taking disciplinary or performance action against that person where this is appropriate. However, it would be completely wrong to instigate such action as a response to a concern being raised.
5.4.9 The design of a solution to this challenge has to start with meaningful and worthwhile performance discussions, appraisals and quality records of performance, absence etc. If there is a focus on developing staff capability in the first place, and on having the documentation and evidence to justify any performance action it should be possible to demonstrate that it is not in retaliation for speaking up. Managers need to have the confidence and capability to have honest conversations and to tackle poor behaviours where they occur, and not to succumb to the temptation to defer appropriate action because of potential difficulties. I do not underestimate how time consuming this can be, but delay in taking the appropriate action both in relation to concerns raised and performance issues can only make solutions more difficult to find. Continuous training for both new and experienced managers is essential to support this. I understand that Lord Rose has been considering the wider need for training for leaders and managers in the NHS and his recommendations should be relevant here.
5.5 Bullying
“ …unless bullying is recognised as a fundamental obstacle to a healthy, learning, compassionate culture, progress will be limited.”
5.5.1 Chapter 3 gave examples of the many references to bullying we received in the written contributions, in the responses to our staff surveys, and in the discussions we had at meetings and seminars. Many of the people who shared their experiences talked about the routine bullying and harassment they have suffered within the NHS. It has been upsetting to hear people describe having been undermined, harassed and victimised and that, for some people, being on the receiving end of this kind of behaviour seems to mark a daily reality. Such behaviour should never be considered acceptable.
5.5.2 Bullying was raised with us in a number of contexts:
• staff raising concerns about persistent bullying behaviours
• attempts to cover up allegations of bullying
• fear of reporting bullying behaviours by senior managers
• bullying behaviour towards people who had raised a concern
• frustration that no one is ever held to account for bullying a whistleblower.
What is bullying?
5.5.3 It was clear from our seminars that there was a lack of common understanding of the term ‘bullying’. This is a complex issue and it is important to understand what we mean by bullying.
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