The words “we received concerns…” can often be found in an inspection report from the CQC. These illusive and ill-defined ‘concerns’ often form the basis for an inspection. This inspection may mark the beginning of a period of CQC scrutiny; this scrutiny may lead to enforcement action such as the issuing of a Warning Notice or a Notice of Proposal. In reading a draft inspection report for the first time most providers are able to determine that these ‘concerns’ align with recent whistleblowing allegations.
Whistleblowing, or making a disclosure in the public interest, is the term used when a worker reports information to the CQC. This information can relate to a range of issues, including: social care, clinical failings, financial mismanagement and environmental damage. In reporting this information, a worker does not need to provide supporting material but must simply believe that the allegations are true. This is a low threshold which is accompanied by some criteria:
- The individual reporting the concern must be a ‘worker’ within the service. This includes agency workers and volunteers.
- The individual reporting the concern must believe they are acting in the public interest and not for personal gain. This means that an individual cannot raise a personal grievance or complaint by way of whistleblowing.
- The individual reporting the concern must believe that it shows past, present or likely future wrongdoing in one or more of the following categories:
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- Criminal offence;
- An individual has failed, is failing or is likely to fail to comply with a legal obligation;
- Miscarriage of justice has occurred, is occurring or is likely to occur;
- The health and safety of an individual has been, is being or is likely to be endangered;
- The environment has been, is being or is likely to be damaged; and/or
- The information showing one or more of these criteria has been, is being or is likely to be deliberately concealed.
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A worker is protected in making a disclosure in the public interest under the Public Interest Disclosure Act 1998 (“PIDA”). PIDA explicitly protects a worker from being subject to any detriment as a result of having made a whistleblowing disclosure. This means that if a worker is dismissed due to whistleblowing, this individual can bring a claim for unfair dismissal subject to satisfying certain legal requirements.
The majority of providers would agree that whistleblowing plays an important role within the health and social care sector, however the guidance falls short by simply accepting a variety of concerns at face value. The simple acceptance of a whistle-blower’s commentary, subject to it meeting the relevant criteria, can lead to an unwarranted period of scrutiny for the provider and the service. But, what would be the effect if a worker felt comfortable in raising the issue and / or any concerns directly with the provider before walking down the ‘whistle-blowing pathway’?
A good service provider should create a governance structure which empowers workers to raise concerns directly to management. The successful creation of a working environment which allows workers to raise issues, be heard and have matters meaningfully resolved serves a number of beneficial purposes. It generates a positive working environment, creates transparency amongst all levels of staff and allows for the internal resolution of potential conflict and / or concerns. An effective governance structure not only ensures compliance with Regulation 17 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 but potentially reduces the risk of escalation to external parties; external parties who have the power to undertake inspections and ‘rate’ a service accordingly.
While the CQC may have ‘received concerns’ its inspection is often not limited to just that information. It is often the case that where the ‘concerns’ do not warrant any adverse findings the CQC find other points of perceived concern to raise within its draft inspection report. This means that what started as a small point can rapidly become far reaching and result in the lowering of a service’s rating. This is evident in recent commentary contained in the CQC’s March 2023 Board Papers: “on average, 61.2% of services have received a Good or Outstanding rating since April 2022 which is significantly lower than the all-time average of 85.4%.” Accordingly, it is in a service provider’s best interests to ensure it has an effective and empowering governance structure.
If you require any assistance or advice in relation to CQC inspections that have happened as a result of whistleblowing disclosures, please contact Ridouts Professional Services Limited at info@ridout-law.com or 0207 317 0340.
