In this blog, I reflect on why genuine patient safety whistleblowers are so frequently ignored, side-lined or victimised. Why staff don't speak out, why measures to change this have not worked and, in some cases, have exacerbated the problems. Steve concludes with optimism that new legislation going through Parliament offers a way forward from which everyone will benefit.
The scale of the problem
The hidden costs of stigmatisation of healthcare whistleblowers are immense. System-wide problems in this area of healthcare are reinforced by a lack of transparency and the failure of accountability. The consequences of this failure have been investigated many times over the years. A seminal case was that of the Bristol heart surgery scandal in the 1990s. This was brought to light by the anaesthetist Steve Bolsin and led to the implementation of a system of clinical governance. This advance in measures to deliver quality, consistent and safe care remains as relevant today as it ever was. More recently, the investigation into the failings at mid Staffordshire highlighted how a ‘good news’ only culture, where reputation management was placed above patient safety, is failing patients. Critically for me the shocking fact is that where staff who blow the whistle can't, or don't, speak out, are ignored or silenced, the onus to expose wrongdoing falls on patients and their relatives. This involves great personal cost.
The onus to expose wrongdoing falls on patients and their relatives. This involves great personal cost.
This shameful thread of patient-led whistleblowing goes back a long way and has not stopped. Examples where patients, carers or relatives have had to take the lead and blow the whistle include the death of Robbie Powell, Elizabeth Dixon, Oliver McGowan, Claire Roberts and those who died in the Belfast Hyponatraemia scandal, the Gosport War Memorial Hospital scandal, and the investigation into maternity services in East Kent. These patient safety scandals show no sign of abating despite the report on the failings at mid Staffordshire and Sir Robert Francis’ major review into whistleblowing in the NHS. This is reinforced by the 2023 Bewick Review, which is the first of three planned reviews into University Hospitals Birmingham NHS Foundation Trust. This review was commissioned following repeated serious concerns relating to patient safety, leadership, culture and governance, which were initially downplayed or ignored. The full story behind these failings and their significance has yet to fully come to light.
Patients have to blow the whistle on unsafe care
A stream of healthcare scandals (too many to mention all of them here) have been exposed by members of the public. Key examples include the case of Robbie Powell who died of untreated Addison's disease in 1990. Thanks to the tenacity of Robbie’s father (Will Powell) this led to the clarification of the absence of an individual legal Duty of Candour for healthcare professionals. Despite numerous reports and failed investigations, including one of which put forward 35 suggested criminal charges, the Robbie Powell case remains open with the Crown Prosecution Service (CPS). In addition, the former Welsh Ombudsman and the English Ombudsman are both calling for a public inquiry into the case.
Another case concerns those who died at Gosport War Memorial Hospital in the 1990s who were prescribed opioid medicines that were not indicated for their condition. This led to an Independent Review Panel, which took four years and cost £14 million. The Panel found that 456 deaths in the 1990s had "followed inappropriate administration of opioid drugs". In 2019, Assistant Chief Constable Nick Downing, head of the Serious Crime Directorate for Kent and Essex Police, announced that a new criminal investigation into the deaths was to take place and the campaign for justice continues.
Other serious issues include premature deaths of people with learning disabilities and autism, which led to the implementation of the learning from deaths programme. On average, the life expectancy of women with a learning disability is 18 years shorter than for women in the general population. The life expectancy of men with a learning disability is 14 years shorter than for men in the general population. There are numerous individual cases that support this finding, many of which were first highlighted by parents, informal carers or relatives. In 2014, the Department of Health and Social Care published a report that found that almost two-fifths of people with learning disabilities died from causes "amenable to good quality healthcare."
In 2022, a report by Dr Bill Kirkup into deaths in East Kent NHS maternity services confirmed that the "onus was on patients to raise concerns" because the culture of fear prevented whistleblowers from speaking out. “In every case staff were aware of serious mistakes or wrongdoing but they were unaware of how to raise concerns because those who tried were subjected to peer pressure to be silent and everyone was afraid of the [personal] consequences.” These consequences were exemplified by the experience of the nursing director who was told that speaking up would harm her career.
Another significant report is that into the life and death of Elizabeth Dixon, which contains recommendations that apply across the board:
"…6. Clinical error, openly disclosed, investigated and learned from, must not be subject to blame. Conversely, there should be zero tolerance of cover up, deception and fabrication in any health care setting, not least in the aftermath of error. (NHSE, GMC, NMC, MoJ)
7. There should be a clear mechanism to hold individuals to account for giving false information or concealing information relating to public services, and for failing to assist investigations. The Public Authority (Accountability) Bill drawn up in the aftermath of the Hillsborough Independent Panel and Inquests sets out a commendable framework to put this in legislation… It should be re-examined. (MoJ)
8. The existing haphazard system of generating clinical expert witnesses is not fit for purpose. It should be reviewed, taking onto account the clear need for transparent, formalised systems and clinical governance. (DHSC, MoJ)…"
The amount of evidence and the number of reports that were initiated thanks to the tenacity and courage of patients, relatives, carers and parents, is truly shocking.
How can we change this? How many more reports do we need? The only thing we can say with confidence is that lessons have not been learned.
Why don’t staff speak out?
I was recently asked ‘why don't staff speak out?’ There's very little rigorous research on whistleblowing in health and social care, so I can only offer my personal views on this apparent absence of ethical behaviour. I believe this quote from Margaret Heffernan (Professor of Practice at the University of Bath School of Management) goes some way to explaining this:
“I have never encountered an organisation as vicious in its treatment of whistleblowers as the NHS".
If anyone has any doubts there are a string of high-profile cases to support it, including the cases of Steve Bolsin, Raj Mattu, Kim Holt, Peter Duffy and Chris Day.
When I was asked why staff stay silent my first thought was to say that those who would speak out have all left. Of course, this can't be the full story. So, what are the other reasons?
One possible reason is that people who are promoted to highly paid jobs attain these positions because they ‘toe the line’. Organisational psychologists talk about the role of enablers and ‘flying monkeys’ in maintaining this culture. A flying monkey is a psychology term that refers to an enabler of a narcissistic person, a henchman so to speak. Many staff keep their heads down and don't look too hard at what's going on around them. Some commentators see this as a behaviour that is supported by the promotion of toxic positivity. What I mean by this is a culture of talking-up successes, however small, completely ignoring failure, and therefore missing the learning that comes from failure. The widely used phrase ‘rock the boat but stay in it' springs to mind here, especially the empty references to ‘radicals’ and ‘change agents’. This forms part of learning materials that are often accompanied by reams of management jargon and pseudo-science. This leads to a morally bankrupt approach where ‘all is well’ (‘nothing to see here’) and toxic positivity prevails.
The belief that no matter how bad a situation is, people should maintain a positive mindset, move on and not mention it, is a way of working that is directly contradicted in these wise words by the late Professor Aidan Halligan:
"Run toward problems, especially on a bad day."
My views may sound very harsh, especially coming from someone like me who left direct employment with the NHS in 2008. It's important to point out that I believe the vast majority of NHS staff, at all levels from clerical staff and porters to senior managers and chief executives, do their best to work around the bullying and toxicity to deliver safe care for patients. Doing their best despite the prevailing culture rather than being supported by it. Sometimes biding their time and subtly subverting directives that are not in patients’ best interests. For clinicians, the threat of being referred inappropriately to a professional body is ever present, and an environment where the pressure of work is extreme, exhausting and unstainable are also major factors. For many, the prevailing culture also means that the careers of highly skilled accountable, ethical and caring staff are held back through denial of learning opportunities and promotion, and informal blacklisting which is commonplace.
There's an army of people ready for change, a huge informal network of highly motivated caring people, which is why I'm optimistic about the future.
Why have ‘speaking up’ reforms failed?
These are my personal views based on my experience and that of my colleagues.
Since Sir Robert Francis’ whistleblowing report there have been several changes designed to improve the situation. These include Freedom to Speak up Guardians (FTSU), the introduction of an institutional Duty of Candour, the ‘Fit and Proper Persons Test' for Board members and the NHS Whistleblower Support Scheme. In addition, the Health and Safety Investigation Branch (HSIB) was set up in 2017 and a National Patient Safety Commissioner was appointed in 2022.
Given all the above, why has there not been a reduction in high-profile healthcare failings? In my view there are several reasons.
Many believe, as I do, that the approach of the Care Quality Commission (CQC) to whistleblowing is part of the problem. We often learn from investigation reports that the CQC (and other regulators) had been listing problems in their reports for years and yet no meaningful action has been taken. ‘Regulatory capture’ is a serious problem, which is when regulators are adversely influenced by the people they are inspecting. This is often linked to the revolving door of staff who move from health and care employment to the regulators, and informal links which amount to cronyism. This behaviour is something that commentators have noted and which I have experienced myself.. Patients suffer as a result.
The introduction of the National Guardian Office and Freedom to Speak Up Guardians in each NHS trust is also problematic. This initiative has an inbuilt conflict of interest, as the Guardians are employed by the trusts themselves. The All-Party Parliamentary Group on Whistleblowing (APPG) has heard from whistleblowers who have been failed by local Guardians, sharing their experiences that have included the disclosure of their identity to hospital management and boards, which resulted in retaliation. The APPG has also heard from local Guardians who were not supported and themselves the target of retaliation after supporting whistleblowers. In addition, something which I find shocking is that the National Guardian Office appears to studiously avoid the word ‘whistleblowing’ in its material and outputs wherever possible. This adds to the stigma around healthcare whistleblowers and is inexcusable.
Another lesser-known initiative is the NHS Speaking Up Support Scheme (originally titled the Whistleblower Support Scheme). There is not much information available on this scheme in the public domain. I became aware of the scheme when I was asked if I wanted to apply. Later I signposted several people to the scheme. I learned that although the scheme has benefited some people, for others it appears to have made their situation worse. Through a freedom of information request, and thanks to the intervention of my MP, I have managed to obtain a redacted copy of the evaluation of the pilot scheme which supports the view of mixed results. Having read this report, it is unclear to me why it hasn’t been published and why it was redacted. Particularly as I think (I can’t be sure of course) that one of the redactions is a comment I made. A comment I wanted to be shared.
As for the other post-Francis review initiatives, the Kark Review in 2018 on the Fit and Proper Person Test (FPPT) is unequivocal in its findings:
"Essentially it [FPPT] does not ensure directors are fit and proper for the post they hold, and it does not stop the unfit or misbehaved from moving around the system."
In addition, the statutory current Duty of Candour seems, at times, to be little more than a tick box, with the responsibility for talking to patients often left to the most junior staff. A Duty of Candour is about simply telling the truth and is everyone’s responsibility, not a task to be delegated. The need for a legal duty of candour on individuals has been highlighted by Robbie Powell’s father Will Powell and links to proposals for a Hillsborough Law.
The HSIB and the National Patient Safety Commissioner initiatives have some built in limitations to what can be achieved. The HSIB’s remit does not include investigation of systemic problems. This limits the areas that they can cover. As for the National Patient Safety Commissioner, this is a new role which is very promising. Unfortunately, the scope of this role is limited, with the remit covering only medicines and medical devices. This means that these two initiatives are not able to tackle the systemic organisational cultural issues that are at the root of major patient safety failings.
One thing that stands out here is that none of the above measures specifically tackle the stigma around whistleblowing in healthcare. In fact, some reinforce the stigma.
A way forward
Much has been written about healthcare whistleblowing and measures that have been implemented to promote positive change. Despite these, the victimisation of healthcare whistleblowers and the stigmatisation around whistleblowing in health and in social care has not abated. The measures introduced have so far achieved very little. In some instances, I believe, they have made the problem worse.
The Protection for Whistleblowing Bill, which passed its second reading in December 2022, proposes the repeal of the current Public Interest Disclosure Act, replacing it with an Office of the Whistleblower. This would prevent concerns of genuine healthcare whistleblowers becoming buried under an employment issue, and their original patient safety concerns being side-lined.
The Public Interest Disclosure Act is expensive, limited in scope and beyond the reach of most whistleblowers. It is also overly complex, with cases currently waiting for over 2 years to be heard. Employers game the system to run whistleblowers out of funds. Fewer than 12% of cases that go to the Employment Tribunal win.
It does not protect patients and is not accessible to members of the public who blow the whistle. Currently there is no statutory provision to investigate or address the wrongdoing highlighted by whistleblowers. Many whistleblowers have been denied any protection because they are not workers.
An Office of the Whistleblower would change this and help us identify the root causes of systemic patient safety failings. I urge everyone with an interest in this subject to read the bill and watch the video of Baroness Kramer introducing the second reading of the Bill.
For the first time in years, I am optimistic.
About the Author
Steve is a registered general and mental health nurse prescriber (now retired) with a background that includes clinical education and governance, social policy and information technology. He is a WhistleblowersUK Health spokesperson and co-convenor of the WBUK Healthcare Whistleblowing Focus Group.