Consultation on the proposals for the introduction of the role of an Independent National (Whistleblowing) Officer (INO)

14 Queen Street
Edinburgh

We support option 2, that the INO could also examine the decision making and outcome of the whistleblowing complaint. This would help the INO role provide a genuinely independent and external level of review on the handling of whistleblowing cases. It would mean that the INO is able to provide both assurance and a possible means of closure in difficult whistleblowing cases. It is also important to ensure that this role improves local whistleblowing systems and does not duplicate procedures. The process should be simple and transparent with a clear reporting system in place. Option 2 however is likely to mean that more cases would be referred to the INO for a review of the decision making process and outcome of the complaint.

A complaint must comply with each of the principles when assessing whether or not the INO should investigate it. We agree that the five principles for raising concerns with the INO seem appropriate, although are not particularly patient/health focused. Consideration may be given to more tailored principles which are still in line with the Public Interest Disclosure Act. NHS Boards should investigate concerns about patient safety at a local level in the first instance, and the INO should provide a final stage and outcome for complaints raised by whistleblowers (and potentially NHS boards).

We are concerned that point (iii) of the whistleblowing complaint criteria places too great a responsibility on the complainer to explain or confirm which criteria applies (e.g. a criminal offence, miscarriage of justice, damage to the environment etc). This duty on the whistleblower to gather all the relevant information and then prove it is correct may deter some people from going to the INO. By comparison, the Scottish Public Sector Ombudsman takes responsibility for assessing whether a complaint fits the necessary criteria for investigation as well as investigating and making findings.

Consideration could be given to including an option to review ongoing decisions that are taking too long to resolve, as there may be a perception that issues are being inappropriately kept under local review for too long.

Independence and power are vital in making the INO effective. The INO needs to be able to ensure that NHS boards take forward any recommended actions he/she makes and also have the ability to follow-up on and enforce recommendations where required. The INO should be able to openly challenge where appropriate.

Consideration could be given to the INO having the power to compel production of evidence from Public bodies and also have the power to scrutinise/validate that evidence. The INO needs to have authority to ensure his/her recommendations are considered carefully and acted upon, otherwise the role would be less effective. Again, comparison to the powers of the SPSO may be helpful.

As part of the health and social care integration agenda we can see benefits of all employees of adult health and social care services having access to the INO. However it is not clear how the scope of the role of the INO could be widened to include employees of the social care sector. The Cabinet Secretary committed to establishing the INO in response to the recommendations from the Freedom to Speak Up Review. We understand that there has not been a comparable review yet undertaken in adult social care. Without the same level of understanding, we cannot comment if the INO is the appropriate way forward across social care services.

If adult social care is included, then consideration would have to be given to also including staff who worked for voluntary and independent sector organisations providing commissioned services. The involvement of the INO should be a final stage in a whistleblowing process and robust whistleblowing policies must already be in place for the rest of the process. The BMA is not in a position to comment whether this would be the case already within the adult social care sector, however given the drive towards integration much greater consideration should be given to maximising the scope of the role.

Given the importance of the role, the job title should have a very clear title that signposts its function to staff. It needs to include the term Whistleblowing – some of our members have commented that INO as an acronym does not make the role sufficiently clear. It would also be helpful to include in a subtitle to the role a reference to “raising concerns”.

Doctors tell us that they fear raising concerns or 'whistleblowing' for the possible impact it could have on their career or their relationship with colleagues. Many also believe that they won't be listened to or it won't make a difference. It is therefore important that we end this culture where people don't feel able to speak up. No-one should be victimised for raising a concern. Doctors have both the right and duty to speak out, and they should be supported to do so. We must ensure that there is an environment in which those who have genuine concerns are listened to and safeguarded.

A lot of work has taken place in recent years in relation to whistleblowing through local systems, policies and processes and the INO role will hopefully be instrumental in holding these systems to account and helping to instil confidence in this process. We would be happy to contribute to this work on an ongoing basis.

For further information, please contact Anne Jenkins, Senior Policy Executive, at AJenkins@bma.org.uk or 0131 247 3013.