According to CQC’s board meeting minutes of 15 July 2020, 50% of CQC’s physical inspections were informed by whistleblowers during the COVID-19 period, which demonstrates that CQC is taking whistleblowing disclosures very seriously. The 15 July 2020 board meeting minutes also stated that “…In the month of May we completed seven inspections due to intelligence indicating risk, including whistleblowing, safeguarding and complaints. In addition, we launched our ESF on 4 May and had conversations with 3575 registered locations by the end of the month.” It is therefore a good time for providers to reflect on issues relating to whistleblowing in their own organisations.
On 22 May 2020, CQC published advice on its website for staff in relation to reporting concerns. It stated, “If you’re employed by an organisation that we regulate and you have concerns about the care being provided by your employer, we want you to tell us. Your information is very important in helping us form a picture of how well the service you work for cares for all the people who use it.” This statement clearly indicates that CQC is relying on disclosures made by staff to inform decisions around inspections. The phrase “we want you to tell us” is of particular concern because CQC is effectively encouraging staff members to bypass internal processes and report any issues to them directly.
What is whistleblowing?
Whistleblowing is the term used when a worker reports information relating to certain types of wrongdoing. Workers do not have to prove their concerns but they must believe that they are true. Concerns can relate to a range of issues, such as social care and clinical failings, financial mismanagement and environmental damage. The wrongdoing will typically, although not necessarily, be something that the worker has witnessed at work. Whistleblowing is more formally known as making a disclosure in the public interest.
CQC’s guidance on whistleblowing titled, ‘Whistleblowing: Guidance for providers who are registered with the Care Quality Commission’ (November 2013) states that, “whistleblowing is the term used when someone who works for an employer raises a concern about malpractice, risk (for example about patient safety), wrongdoing or possible illegality, which harms, or creates a risk of harm, to people who use the service, colleagues or the wider public.”
Whistleblowing is different to making a complaint. In the context of a care setting, the person making the disclosure is not usually directly or personally affected by concerns they raise, in the sense that the concerns raised are more likely to relate to service users in a care home rather than themselves as staff members. Whereas, a person who makes a complaint has often been personally affected by their grievance. For example, they have received poor treatment in their workplace and they therefore have a personal interest in the outcome of any investigation.
What criteria must be met before a whistleblowing disclosure can be considered?
The criteria that must be met before a whistleblowing disclosure can be considered is summarised below:
- The person raising a concern is a ‘worker’. This extends beyond formal contracts of employment and includes agency workers and volunteers.
- The person raising the concern must believe they are acting in the public interest so it must not solely be for personal gain. Personal grievances and complaints are therefore not usually whistleblowing.
- The person raising the concern must believe that it shows past, present or likely future wrongdoing in one or more of the following categories:
- that a criminal offence has been committed, is being committed or is likely to be committed. This may be within or outside the UK.
- that a person has failed, is failing or is likely to fail to comply with a legal obligation.
- that a miscarriage of justice has occurred, is occurring or is likely to occur.
- that the health or safety of any individual has been, is being or is likely to be endangered.
- that the environment has been, is being or is likely to be damaged.
- that information showing one or more of these criteria has been, is being or is likely to be deliberately concealed.
- A whistleblower will usually approach their employer to raise a concern but in some cases it will not be appropriate for them to do this. Potential whistleblowers may be concerned that they will suffer some form of detriment from their employer as a result of raising a concern. In such instances, an option for a whistleblower is to approach a prescribed person. For matters relating to the provision of health and social care, CQC is a prescribed person. The role of a prescribed person is to provide workers with a mechanism to make their public interest disclosure to an independent body where the worker does not feel able to disclose directly to their employer and where that body might be in a position to take further action on the disclosure. A worker will potentially qualify for the same employment rights as if they had made a disclosure to their employer if they report to a prescribed person. In order to qualify for these rights, the worker must have a reasonable belief that the matter falls within the remit of the prescribed person and that the information disclosed is substantially true.
- In raising the concern, the individual must not themselves be committing an offence.
Protection for whistleblowers
Whistleblowing is a term used to describe making a disclosure in the public interest. An employee is protected under the Public Interest Disclosure Act 1998 (the “PIDA”) if they make a disclosure in good faith, reasonably believe that information and any allegations contained in it are substantially true and that making the disclosure does not involve committing a criminal offence.
The PIDA protects workers from being subject to any detriment as a result of having made a protected disclosure. If a worker is dismissed for making a protected disclosure they can make a claim for unfair dismissal provided certain legal requirements are met. Disclosures which are made maliciously or which are knowingly untrue are not protected under the PIDA.
Throughout the COVID-19 pandemic, it has been a very difficult and challenging time for staff working in care homes. Many staff have faced significant challenges over a short period of time and have had to cope with an increased workload as well as dealing with various other issues. These factors make it more likely that staff will raise concerns about a service or make whistleblowing disclosures.
Data in relation to whistleblowing
On 17 June 2020, CQC reported that, “there has been an increase in calls to CQC’s national contact centre from staff raising concerns about care. We have done some work to analyse this and seen that the biggest increase has come from staff in the adult social care sector; we have received 2,612 calls from adult social care staff raising concerns in the period 2 March 2020 to 31 May 2020, compared to 1,685 for the same period in 2019 – a 55% increase.”
Other data published in relation to calls made to CQC is as follows:
- 32% of calls included concerns about how infection control or social distancing was being practiced at the service staff worked in
- 26% of calls to CQC related to lack of PPE or other infection control products.
- 4% of calls referred to quality of care being impacted by COVID-19.
Protection for Employers
The best way for employers to deal with any potential employee whistleblowing disclosures is to encourage staff to speak up early and to raise any concerns that they have with management. If providers encourage a culture of openness and support staff to share their concerns without fear of reprisal, staff are more likely to raise issues internally before escalating concerns to CQC. If organisations have a suitable complaints policy in place, staff may be more likely to raise concerns this way, rather than make a whistleblowing disclosure. Employers should ensure that they have a suitable whistleblowing policy in place which clearly sets out the steps employees should take when they wish to raise concerns and who they should report the concerns to. It may reference a confidential advice or support line for employees. This should help to encourage employees to raise concerns internally first by following the procedures set out in the company whistleblowing policy.
When concerns are raised by employees, providers should protect themselves by treating any disclosures carefully and taking appropriate action. Deficiencies in documentation can be a breeding ground for potential claims so providers should ensure that records are clear and accurate. Records should include the names of employees, dates and any key witnesses involved.
CQC’s advice to care staff in relation to whistleblowing that, “…your information is very important in helping us form a picture of how well the service you work for cares for all the people who use it” is quite concerning. CQC is encouraging care staff to raise concerns with them directly rather than advising them to follow company procedures and raise concerns internally first. Often, if issues are raised to employers directly, concerns can be dealt with quickly and efficiently and there is no need for them to be escalated externally. CQC is effectively asking staff to carry out the role of an inspector. If 50% of CQC’s physical inspections were informed by whistleblowers during the COVID-19 period it is clear that whistleblowing disclosures are being taken very seriously and it is possible that CQC will take regulatory action in response to the disclosures made to them. There is also a possibility that CQC will make referrals to other regulators so that they can take action too. CQC should not pretend that encouraging whistleblowing is purely to protect service users. CQC should acknowledge that whistleblowing disclosures makes their role as inspectors a lot easier as they have less investigatory work to undertake.
Employers should treat all whistleblowers with respect and care – no matter how much it may be felt that the disclosure is unreasonable. It is also important that employees feel confident in reporting concerns in order to prevent or stop poor care practice. The earlier concerns are raised the sooner they can be investigated. This will help reduce the risk of harm to service users, colleagues or the wider public.
It is clear that CQC is seeking to encourage employees to bypass internal procedures and it important that you give consideration to whether your governance systems are sufficiently robust and your culture open and transparent that people feel comfortable raising concerns internally. Whistleblowing disclosures are being relied on by CQC to demonstrate that a service has issues with leadership and governance and wider cultural issues. This can prompt CQC to carry out an inspection which in turn could lead to CQC rating a service poorly which could also lead to further enforcement action. If you require any assistance or advice in relation to CQC inspections that have happened as a result of whistleblowing disclosures, our specialist solicitors can help. Please contact Ridouts Professional Services Plc using the email address firstname.lastname@example.org or by calling 0207 317 0340.