10.3 Raising Concerns At Work: Whistleblowing Guidance for Workers and Employers in Health and Social Care

Introduction:

Health and Social care services exist to promote the health, wellbeing and dignity of patients and service users and the people who deliver these services want to do the best for those they serve. However, there will be occasions when wrongdoing occurs in the workplace. This is why encouraging workers to raise concerns openly as part of normal day-to-day practice is an important part of improving the quality of service user support and patient safety. When concerns are raised at an early stage, corrective action can be put in place to ensure high quality and compassionate care based on individual human rights.

The importance of raising concerns at work in the public interest (or “whistleblowing”) is recognised by employers, workers, trade union and the general public. Working in partnership with Trade Unions, staff associations and employee representatives is an important part of ensuring fairness and promoting awareness of the policies, procedures and support mechanisms which a good employer will have in place. We would like to acknowledge the contribution and input towards this guidance made by key stakeholders. There are too many for us to thank individually, but they include Trade Unions, employers’ associations, campaigning groups, regulators, professional bodies and whistleblowers themselves. The contents of this Guidance have been endorsed by the Social Partnership Forum and the Social Care Institute for Excellence.

Why is it important to raise concerns?

It is important for individuals to feel safe and listened to when raising concerns. An open approach to whistleblowing promotes the values of openness, transparency and candour and encourages employees to treat patients and service users with dignity, respect and compassion. In that way, the wellbeing and safety of patients and service users and the provision of good care become part of the culture, and are seen as “the way we do things around here”.

From the employer’s point of view, there are good business reasons for listening to workers who raise concerns, as it gives an opportunity to stop poor practice at an early stage before it becomes normalised and serious incidents take place. Whistleblowing has been shown to be an effective way to achieve service improvement, leading to better patient care and promoting dignity. From the workers’ perspective, the freedom to raise concerns without fear means that they have the confidence to go ahead and “do the right thing”. It is part of encouraging workers to reflect on practice as a way of learning.

 Expectations within our sector

As a worker in health or social care, there are moral, ethical and professional issues to consider in relation to raising concerns.

Staff registered with a professional regulatory body such as the General Medical Council (GMC) or the Nursing and Midwifery Council (NMC) have to adhere to their respective codes of conduct. Professional codes of conduct usually place a duty on the practitioner to raise concerns where they see instances of poor practice or wrongdoing. The professional regulators are able to offer advice to whistle-blowers as well as register complaints against their members.

Social workers, now registered with the Health and Care Professions Council, are subject to the HCPC’s standards of conduct, performance and ethics which state that practitioners ‘must act in the best interests of service users’ and ‘must protect service users’ from danger (Health and Care Professions Council, 2012).

Large numbers of workers in the sector are not regulated in this way, but will be expected to raise concerns in the interests of patients and service users.

The Social Care Code of Conduct, which sets out what is expected of adult social care workers, refers to whistleblowing in the first principle, and this is reinforced in the Social Care Commitment.

The NHS Constitution emphasises the importance of honesty and openness and was updated in March 2013. It pledges that the NHS will “encourage and support all staff in raising concerns at the earliest reasonable opportunity about safety, malpractice or wrongdoing at work, responding to and, where necessary, investigating the concerns raised and acting consistently with the Public Interest Disclosure Act 1998”.

The relationship to the safeguarding framework

Safeguarding the health and wellbeing of patients and service users means they should not be exposed to abuse, whether physical, psychological, sexual or financial, neglect or institutional abuse. It is not the worker’s responsibility to investigate or decide if abuse has happened, only to make sure that the appropriate agencies are told about their concerns or suspicions. Workers should make sure that they understand and follow their local authority’s safeguarding policies regarding referral of their concern to the appropriate agency via the designated safeguarding officer, a manager or themselves, if possible on the same day as they have the concern.

What the Law Says

Following a number of high profile events, the government introduced the Public Interest Disclosure Act 1998 (PIDA), which provides legal protection against detriment for workers who raise concerns in the public interest (also known as making a disclosure) about a danger, risk, malpractice or wrongdoing in the workplace which affects others.

To be protected, the disclosure must be in the public interest, the worker must have a reasonable belief that the information shows that one of the categories of wrongdoing listed in the legislation has occurred or is likely to occur, and the concern must be raised in the correct way. PIDA is a complex piece of legislation and more detail is provided on page 29. The way PIDA works is for the worker to be able to claim a remedy at an Employment Tribunal if they are subjected to bad treatment as a result of their whistleblowing.

Top Tips

The following tips are intended to support workers in raising concerns and to help managers respond appropriately when handling concerns raised.

Top Tips for Workers

Whistleblowing is when you speak out about something you are concerned about at work because you think it needs bringing out into the open for the public good. It can be a hard decision to do this. Here are some top tips to help you make your decision in an informed way and to help you access any support you may need:

1. Read the whistleblowing policy and procedure where you work. (This is sometimes called the “Raising Concerns Policy”). It should tell you:

• what type of concerns are covered
• when and how a concern should be raised and who with.

In larger organisations, you can normally find the policy on the staff intranet or ask the HR department. In smaller organisations, you might find it in the Staff Handbook or you could ask your manager for a copy. You need to follow the procedure to make sure you remain protected under the law – this is called the Public Interest Disclosure Act 1998 (PIDA). You can get independent advice by contacting your Trade Union representative, the Whistleblowing Helpline on 08000 724725, an HR manager or a Citizens Advice Bureau. In some circumstances, you may also wish to obtain independent legal advice.

2. Raise the concern immediately or at the earliest opportunity. If you believe that something is wrong, you do not need proof. Speaking out early could stop the issue from becoming more serious, dangerous or damaging.

3. Think about whether your concern can be discussed in an informal way or at things like supervision meetings, at your appraisal, team or departmental meetings or at staff forums.

4. Find out if other workers share your concerns. If so, you may be able to raise your concern as a group – there can be strength in numbers.

5. Check your organisation’s policy to find out who you should report your concerns to. Your line manager is usually the first person to go to. If you believe that your manager may be involved or you feel unable to raise it with them, you may need to go to another manager or someone else that is listed in the whistleblowing policy. If you work for a small organisation where there are no more senior managers, then you might need to go to a regulator such as the Care Quality Commission (CQC). If you think the ways to report are not clear or you do not feel supported or safe then you should contact HR or your Trade Union for advice in the first instance. Alternatively, you may wish to seek independent confidential advice from the national Whistleblowing Helpline. You can call them on 08000 724 725.

6. Try to see if you can sort things out inside your organisation first. But if you are not satisfied, then you might need to tell someone outside of where you work. This might mean telling your professional regulator or the CQC. Reporting anything to the media should always be the LAST thing you turn to. Try all the other places talked about first – particularly if what you want to report involves private or confidential information.

7. When you report your concern, focus on as much factual information/evidence as possible. This means things like being specific about;

• dates and times – what happened and the order of events
• who was involved
• any witnesses. Act honestly and professionally at all times in the interests of patients and service users.

8. Try to present the situation as clearly and with as much information as possible – either verbally or in writing. Identify what you believe to be the key issues and risks. For example, is there a risk to the patient/service user or is it to do with a professional/clinical practice etc.? Writing it down will help you to get your thoughts in order particularly if you are upset, worried or feeling emotional about it. Your trade union and the Whistleblowing Helpline can offer support. Provide as much supporting information as you can, for example files or emails. ALWAYS ask for further advice, for example from your Trade Union or professional body, if these contain private or confidential information.

9. Check out the process and what will happen next. Talk about what might happen next with your manager or the person nominated in the whistleblowing policy. You will need to give them a reasonable amount of time to check the facts and to find out more if they need to, before they feed back to you. Respect the fact that your manager may need to keep some information private and confidential if it relates to other people. Try to cooperate with any investigation into what you have reported and the attempts to resolve the issues and put things right. You are entitled to get support from a work colleague or union representative at any meeting to discuss your concerns or during any investigation that takes place.

10. Keep track of what is happening. Even if you raise your concern verbally, you should also keep a record in writing of any discussions relating to your concern – this means things like the dates things happened, who you talked to, what was said, what the response was. One way of keeping track of things is to email the manager/nominated person after any discussion with a summary of the main points. Make it clear that you are raising a concern in line with your organisation’s whistleblowing policy and the Public Interest Disclosure Act 1998 (PIDA). This is the law to do with whistleblowing.

11. Maintain confidentiality. It is best if you can speak out openly about what you think, although you can ask for your identity to be kept confidential. The person/manager with whom you talk about things should make every effort to protect your identity. However, there may be times when, because of the nature of the investigation or what you want to say, it will be necessary to say who you are publicly. If this IS going to happen then the person you raise your concerns with should make every effort to let you know first. Remember, if you work in a small team then people you work with might guess or work out your identity. If this happens, tell your manager and let him/her know if you are being bullied or harrassed or being treated badly as a result. Concerns raised anonymously – this means when you do not reveal your name – can be more difficult to deal with and investigate in the best way. More action is likely and possible if your identity is known when you report something.

12. If you are not satisfied… If you feel your concern has not been addressed or the issues have not been resolved to achieve a solution and positive outcome, you should use the sources of support and help available to pursue the matter. Not speaking up might mean that poor care will carry on and may even get worse. If this is the case, you will need to refer to your organisation’s policy in order to be clear about what action you can take and where you can go next. If there is nothing more you can do inside your organisation, then you can raise a concern with a regulator. This means somewhere like the Care Quality Commission (CQC). They have a confidential number you can call on 03000 616161. If your concern is regarding an individual professional’s practice, the professional regulator would be best placed to take action. If you do this, you need to have reason to believe that the information you give and any allegation you make is substantially true – if you only suspect something then that is not enough when you report concerns outside of where you work. You can raise your concern with a regulator such as the Care Quality Commission even if you have left your job. And, as from 6 April 2014, members of the House of Commons (MPs) have been added to the list of ‘prescribed persons’. Talking to the police or the media are also protected under the PIDA law, but only under certain circumstances. For example, if you genuinely believe you would be victimised or bullied if you raised the matter internally or with a regulator, you would probably be protected. Going to the media should always be the last resort. Doing this could have an impact on your employment and it is a good idea to get advice before telling anyone outside of work. If you are leaving your employment, your employer may ask you to sign a settlement agreement. Before doing this, read the further information on page 25 and seek advice from an independent advisor or the Whistleblowing Helpline.

Remember, the Whistleblowing Helpline is available to help advise on the whistleblowing process – our phone number is 08000 724725

 Advice and support

People who have raised concerns often say they feel isolated and unsure of what to do. It is important to access appropriate support at an early stage. There are different types of advice and support available:

Advice on the whistleblowing process – how to raise a concern:

• Available from the HR department of your organisation, the National Whistleblowing Helpline, or your Trade Union.
• In certain cases, a public law solicitor may be appropriate.

Local support for you in the workplace and representation at formal meetings

• Your Trade Union, professional body or work colleagues.

Emotional and/or therapeutic support

• Counselling services via your employer or your GP. If you have no access to counselling services please call the helpline to discuss how we might be able to help.

Flowchart of whistleblowing process

This flowchart sets out the stages in raising a concern and shows the management levels for internal disclosure. In a small organisation, there may not be more than one or two levels of management to whom you can escalate your concerns. In these cases, you should consider escalating your concern to the regulator or other prescribed person at an earlier stage than is shown on the flowchart.

Guidance for Managers

Create a good culture to allow workers to feel confident about raising concerns

1. Consider your management style

• Read through the section on the responsibilities for employers on page 19, which sets out what support your organisation should be providing to help you to respond positively to workers who raise concerns at work (also known as “blowing the whistle”). It’s important that you are approachable, and foster a climate of openness and mutual respect.

2. Be prepared

• Find, read and understand the whistleblowing policy and procedure where you work. (This is sometimes called the “Raising Concerns” or “Speaking Up” policy). The policy will help you to:
• Understand your role and responsibilities as a manager in how to respond to and handle concerns raised. Seek advice from HR when required, where this available.
• Know how and where to escalate serious concerns which need to be dealt with by senior staff, and explain this to the worker raising the concern.
• Attend any training provided, or request training when needed. In a smaller organisation, find out what training may be available and arrange to attend.
• Train workers to understand and practice values and demonstrate acceptable behaviour in their everyday work. In social care, the Common Induction Standards have to be completed by every worker new to social care and new and aspiring managers are recommended to use the Manager Induction Standards. Both of these require understanding of raising concerns/ whistleblowing procedures.
• Train and inform staff about their personal responsibility for respectful treatment of co-workers who raise concerns for the public good, and their legal liability for any bad treatment (for more detail, see page 33).

3. Offer support and encourage early action

• Support and encourage workers to raise concerns at the earliest opportunity. Concerns at work could be a regular agenda item for discussion in normal communication and regular meetings such as 1:1 meetings, team meetings and departmental meetings.
• Focus on constructive discussion and dialogue, finding a solution, making improvements and dealing with risk.
• Be approachable and encourage workers to check if they are unsure what is appropriate and to admit mistakes rather than concealing them, so that they can be remedied.
• Identify any training or development needs for workers to support competency in the role.

 What to do when a worker reports a concern

Top tips for managers

1.Listen carefully to any worker raising a concern:

• Commit to taking the matter seriously.
• Thank the person for raising it (even if you think they may be mistaken).
• Acknowledge how they may be feeling, that it may be a difficult or stressful situation, and offer reassurance.
• Respect the worker’s belief that they are raising a genuine concern in the public interest. • Treat this as being reasonable.
• Avoid prejudging whether this is correct or valid until an appropriate investigation has taken place.

2. Respond positively and clearly:

• Reassure the person that the concern will be looked into promptly and (where appropriate) investigated thoroughly and fairly as soon as possible.
• Manage expectations of the individual – discuss next steps, reasonable timeframes, and arrangements for feedback on the outcome.
• Respect a worker’s request for confidentiality and any concerns about their job or career, but explain any circumstances where there may be limits on confidentiality.
• Offer advice about the type of support available to them (e.g. relevant contacts they can speak to such as: a designated whistleblowing lead within the organisation, HR, Trade Union, counselling, occupational health, or where they can seek independent advice – such as the Whistleblowing Helpline, or Citizen’s Advice Bureau).
• Be clear on what the worker should do and where they should go if they experience any reprisals or unacceptable behaviour, e.g. bullying, harassment or victimisation, from managers or colleagues.
• Give the individual a copy or refer them to your organisation’s whistleblowing or “raising concerns” policy.

3. Ensure a fair process of investigation:

• Ensure any investigation is carried out fairly and thoroughly.
• Keep an open mind – you may not want to believe all that you hear, but it’s important to remain objective.
• Focus on the information that is being disclosed, not on the worker who is raising the concern.
• Don’t let personal views influence your assessment of the issues.
• Recognise any strong emotions you may have and ask for help if you need it. (It is not unusual to have feelings such as anger, shock or distress).

4. Assess how serious and urgent the risk is:

• Decide whether the concern would be best dealt with under the whistleblowing policy or some other procedure (such as grievance).
• Don’t dismiss the disclosure as an exaggeration or being trivial unless there is clear evidence to support this assessment.
• Decide whether the assistance of, or referral to, senior managers or a specialist function (e.g. Finance) is desirable or necessary.
• Where there are grounds for concern, take prompt action to investigate or if the concern is potentially very serious or wide-reaching make sure this is escalated to the most appropriate person within the organisation to undertake further investigations.

5. Maintain good communication with the worker who raised the concern:

• Keep the worker advised and informed on progress.
• Update on any changes or delays in process.
• Give feedback on the outcome to the worker.
• Explain any action to be taken (or not), but maintain confidentiality where this involves other parties.
• Explain any mistaken perceptions or misunderstandings which may have occurred.
• Ideally feedback should be given face to face and followed up in writing.

6. Act fairly:

• Understand that you are accountable for your actions.
• Be clear on any action taken or not taken and the reasons for this.
• Never attempt to ignore or cover up evidence of wrongdoing.
• Always remember that you may have to explain how you have handled the concern.
• Don’t ever penalise someone for making a disclosure that proves unfounded if, despite making a mistake, s/he genuinely believed that the information was true.

7. Seek appropriate advice and/or support where required:

• If you are uncertain about how to proceed with a concern, always seek advice from HR or other relevant person/department within your organisation that has lead responsibility for personnel functions.
• They will also be able to support and advise you throughout any investigations you need to undertake into the issues raised, and in undertaking any actions required as a result of evidence being presented.

8. Keep clear concise records of all discussions:

• Date(s), what was said, response given by whom.
• Keep a record/log of all concerns raised (can be anonymised).
• Note the nature of the concern.
• Record how the investigation was conducted,
• Record outcome, decisions or action taken.
• Retain record for a minimum of five years.

9. Follow up action:

• Consider the potential actions:
• Is this a serious disciplinary matter?
• Are there alternative ways to achieve constructive, positive solutions for future improvement rather than simply apportioning blame?
• Address any issues of competence or ability highlighted, via training and development.
• Report on issues identified to the Board or owner (perhaps through your organisational monitoring system).
• Make recommendations across the organisation where appropriate i.e. feed into the ‘bigger picture’ and take remedial, proactive and preventative action where it is needed.
• Take steps to help share any learning, establish long-term solutions and prevent recurrence of the issue elsewhere in the organisation.
• Raise any issues identified in other relevant forums e.g.
• Health and safety,
• Risk assessment,
• Incident reporting,
• Quality reviews,
• Service or performance reviews,
• Business planning discussions,
• Training and development reviews.

10. Ensure the process has a positive outcome:

• Publicise and ’celebrate’ positive outcomes/actions/improvements resulting from someone raising a concern and speaking up (the person need not be named). This may encourage others to do the same.
• Provide appropriate feedback on the outcome to the person raising the concern.
• Build or rebuild working relationships and teams after a concern has been raised (the whistle has been blown) with appropriate support and advice from HR, Trade Unions etc.
• Check on the worker’s wellbeing at regular intervals to ensure they have not suffered any disadvantage, bullying, harassment or victimisation as a consequence of raising a concern.