Freedom to Speak Up, policy, legislation and guidance

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19 / 5 / 2016 Midnight

Both nationally and locally in the NHS, improvements to organisational culture, reporting mechanisms and how concerns are effectively dealt with are being made. 

Sir Robert Francis review of whistleblowing processes in the NHS 

When Sir Robert Francis conducted his Freedom to Speak Up (FTSU) review throughout the summer of 2014, he sought a wide range of views from across the NHS. This included first hand experiences from staff who had raised a concern (and reported that they had suffered some form of detriment as a result of doing so), employers, professional and system regulators, and other professional bodies.

In February 2015, Sir Robert Francis published his final report which made a number of key recommendations under five overarching themes with actions for NHS organisations and professional and system regulators to help foster a culture of safety and learning in which all staff feel safe to raise a concern. Two key elements include the appointment of a local FTSU guardian in each trust and a national guardian for the NHS.

It is important for employers to understand the impact of these recommendations on local policies and procedures. A summary of the key actions and recommendations can be downloaded in our summary document.

In his speech Jeremy Hunt, the Health Secretary for England, thanked the work of the FTSU review team and stated that he accepted all of the actions highlighted in Sir Robert's report. He also agreed that further consultation would be undertaken, where appropriate, to work through how these actions can be implemented.

Department of Health consultation on actions and implementation of the Freedom to Speak Up recommendations

The Department of Health (DH) published a consultation in February 2015 on a package of measures for the implementation of recommendations, principles and actions set out in the FTSU report. NHS Employers responded to the consultation, after engaging with employers and gathering evidence. Visit our case studies and resources section to download your copy of our response. The DH published its Learning not blaming report in July 2015, confirming next steps to improve patient safety.

Care Quality Commission and the national guardian role

The national guardian role is intended to support local FTSU guardians and staff who have raised a concern with their NHS organisation and feel the concern has been poorly handled by their employer or other body.  

Whistleblowing legislation and policy

Here you can find the legal frameworks and policy drivers that underpin and support the agenda relating to the raising of public interest concerns (more commonly referred to as whistleblowing).

Freedom to Speak Up raising concerns (whistleblowing) policy for the NHS

NHS Improvement on 1 April 2016, published a standard integrated policy for raising concerns for NHS organisations in England to adopt as a minimum standard to help normalise the raising of public interest concerns. You can download the policy from the NHS Improvement website. Organisations are expected to use the policy and add local processess and additional information in the spaces provided. 

NHS Constitution

The NHS Constitution establishes the principles and values of the NHS. It sets out rights and responsibilites for patients, public and staff to ensure that the NHS operates fairly, safely and effectively. Some amends were made in July 2015 to further reinforce the recommendations made by Sir Robert Francis. These include:

  • patient involvement
  • feedback
  • duty of candour
  • end of life care
  • integrated care
  • complaints
  • patient information
  • staff rights, responsibilities and commitments
  • dignity, respect and compassion.

The Francis report emphasises the role of the NHS Constitution in helping to create a more open and transparent reporting culture in the NHS which focuses on driving up the quality and safety of patient care. Download the NHS Constitution for England.

Public Interest Disclosure Act 1998

The Public Interest Disclosure Act 1998 (PIDA) is known in the UK as the whistleblowing law. The Act protects employees under the law by providing that employers should not victimise any employee who raises a concern internally or to a prescribed regulator.

The Act covers all workers including temporary agency staff, individuals on training courses and self-employed staff who are working for and supervised by the NHS. It does not cover volunteers, although as a matter of good practice, it is strongly recommended that employers make volunteers aware of their local policy and procedures for raising concerns and they are clear about who they can go to for further advice and guidance internally and outside of the organisation.

Enterprise and Regulatory Reform Act 2013

The Enterprise and Regulatory Reform Act (ERRA) came into force in April 2013. The Act introduces a number of key changes to the Public Interest Disclosure Act targeted at strengthening protections for whistleblowers, including:

  • the introduction of a ‘public interest’ test has meant that from April 2013, workers have had to show that they reasonably believe that the disclosure they are making is in the public interest
  • the removal of the test of ‘good faith’, allowing whistleblowing claims to go through the employment tribunal system without being too easily dismissed for not being made in 'good faith'
  • the introduction of a redress for workers who suffer any form of bullying or harassment by a co-worker, as a result of them reporting a concern. This means that co-workers can be held personally liable where it is proven that they have bullied or harassed any member of staff as a direct result of them reporting a concern, employers may also find themselves vicariously liable, unless they can provide sufficient evidence that they took all reasonable steps to prevent the bullying or harassment
  • an extension of the scope of the definition of 'worker' to further clarify who is covered by the legal provisions.

More details guidance about PIDA and the changes enforced under the Enterprise and Regulatory Reform Act 2013 can be found on the Public Concern at Work (PCAW) website.

Review of existing legal frameworks for whistleblowers

In June 2014 Business, Innovations and Skills (BIS) published a report outlining key findings from their call for evidence on the current whistleblowing framework, as result of a commitment made during the passage of the Enterprise and Regulatory Reform Bill in 2013. The Bill received Royal Assent and came into force in April 2014.

See our response to the BIS call for evidence on behalf of employers.

The report made eight recommendations to help address issues and barriers in the reporting of, and dealing with public interest concerns. For ease of reference, these have been summarised below with signposting to further guidance where this is readily available.

  • Improved guidance for individuals, including clarifying issues such as the invalidity of gagging clauses. See our guidance on settlement agreements and use of confidentiality clauses.
  • There is a need for best practice guidance and/or a non-statutory code of conduct. See the whistleblowing guidance and code of practice which can be found on the Business, Innovations and Skills website.
  • Making clear the position in relation to cost awards, The government will take steps to ensure that people are fully aware of the general position. Where a case is successful in an employment tribunal, arrangements will be in place to reimburse the individual.
  • Assessment, in liaison with the prescibed bodies of the current referral system to identify if any changes need to be made.
  • Introduction of a duty to report, making clear that all prescribed bodies/persons (including professional and system regulators) will be required to report this information annually. See further guidance published by the Business, Innovations and Skills (BIS) – Prescribed bodies: annual reporting requirements on whistleblowing (March 2015).
  • A commitment to update of the prescribed bodies/persons list on an annual basis to ensure that this remains accurate and up to date. Download the latest version of the prescribed bodies/persons list from the GOV.UK website.
  • Issue secondary legislation to include relevant groups which are currently excluded from protections, including student nurses. Others under similar arrangements to student nurses are likely to be considered in due course.
  • Explore various options to promote the sharing of best practice and learning.

Further information about developments as they evolve, will be posted on this web page, and communicated through our workforce bulletin.

The Bribery Act 2010

The Bribery Act 2010 came into force in July 2011 and helpful guidance is available from the Ministry of Justice. This guidance is targeted at helping employers ensure their local policies and procedures are in line with the legislation and, most importantly, are tied into whistleblowing arrangements.

Health Service Circular 1999/198 "The Public Interest Disclosure Act 1998: Whistleblowing in the NHS"

The Health Service Circular 1999/198 was originally issued by DH following the implementation of the Public Interest Disclosure Act (PIDA) which came into force in 1998.

The Health Service circular requires every NHS trust to have robust policies and procedures in place which enable staff to raise concerns in compliance with the Public Interest Disclosure Act and remains in force.

PAS 1998 Whistleblowing Arrangements Code of Practice

The British Standards Institute (BSI) and the whistleblowing charity Public Concern at Work (PCaW) developed a standard for whistleblowing which is available as a Publicly Available Specification (PAS) for individual use. The PAS sets out good practice for the introduction, revision, operation and review of effective whistleblowing arrangements.

The document was originally developed to be of assistance to organisations across the private, public and voluntary sectors and it is informed by UK whistleblowing legislation, the Public Interest Disclosure Act 1998 (PIDA). The PAS does not claim to include all the necessary provisions of a contract.

Organisations are responsible for its application and should be aware that compliance with its recommendations does not necessarily confer immunity from legal obligations.

Copies of PAS 1998 Whistleblowing Arrangements Code of Practice can be downloaded free from the BSI website on completion of a short form.

Guidance

  • In October 2014 the Government published guidance including a comprehensive list of prescribed bodies/persons as outlined under section 43F of the Public Interest Disclosure Act (PIDA) 1998. The list (current version February 2016) outlines who staff can make a disclosure to, where they have exhausted all internal routes to raise the concern with their employer and the issue remains unresolved, or where they feel unable to raise issues directly with their employer. It is important that workers are clear about who they can escalate concerns with externally as well as internally, to ensure they remain covered by the protections afforded to them under PIDA. Employers are therefore recommended to include reference to this guidance within their local policy and communications with staff around raising concerns. The list is subject to periodic review to ensure it remains accurate and up to date.
  • Guidance for employers on the use of settlement agreements (formerly known as compromise agreements and confidentiality clauses) should be read in conjunction with revised guidance on severance payment arrangements
  • Staying on course - advice for employers on early and effective intervention in dealing with concerns aimed at those responsible for managing the performance of medical staff. It encourages early identification and intervention when concerns first arise about a doctor to minimise any risk to patients and staff.
  • Raising concerns at work: whistleblowing guidance for workers and employers in health and social care produced by the national Whistleblowing Helpline and endorsed through the Social Partnership Forum, of which the NHS Employers organisation is a partner.

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