Whistleblowing Disclosures On The Rise – How Effective Are Your Governance Systems?

Introduction

In the latest 2020-2021 healthcare professional regulators whistleblowing report, whistleblowing disclosures have risen to 192 from 107 in the previous year. This substantial increase has largely been attributed to the Covid-19 pandemic, but is also indicative of a rising trend of whistleblowing within the health and social care sector, due to a growing divide between providers and staff.

Following the publication of this report, the Nursing & Midwifery Council (NMC) took regulatory action in response to all 192 disclosures made, whilst also referring 27 cases onto external bodies such as the Care Quality Commission. This report and the regulators response, demonstrates how seriously regulators take whistleblowing concerns that are raised with them. This places a large emphasis now more than ever for providers to have an effective governance system in place. Otherwise, with an ineffective governance system, staff may bypass internal processes and report issues to the CQC directly, who will use this to form perceptions ahead of immediate inspections to your service, which can potentially lead to a wide range of enforcement powers against providers.

For example, a whistleblowing disclosure to the CQC would allow them to form a perception that you do not have effective governance systems in place and is evidence of a breach of regulation 17. Providers should be aware that breaches can lead to rating limiters.  Regulation 17 is considered under the Well-Led section of the report but ‘Well-led’ and ‘Safe’ are often rated the same, so if the ‘Well-Led’ section is inadequate, it is entirely plausible the ’Safe’ section could be rated the same. It is therefore advantageous to have governance systems that promote quality and safety of the service, including empowering employees to speak up, to prevent these ramifications.

 Definition – of whistleblowing

The term ‘whistleblower’ may be used to describe people who make a ‘qualifying disclosure’ about a concern at their place of work, in the context of a care home this could include care or patient safety. It is in essence, a worker who is reporting information relating to types of wrongdoing or illegality at a workplace. In respect of a care home, whistleblowing has serious ramifications. Whistleblowing gained prominence in the health and social care sector following on the events of the Francis report which was published in February 2013 resulting in a public inquiry into Mid Staffordshire Foundation Trust. This subsequent inquiry revealed widespread mismanagement between the years January 2005 and March 2009. This was largely evidenced from whistleblowing which revealed critical levels of understaffing leading to an estimated 400-1200 unnecessary deaths.

The health and social care industry has since advocated for increased whistle blowing pleas in order to prevent such a scandal reoccurring. This is further demonstrated by the CQC who implore individuals who are employed by organisations in which they regulate to come forward. In a passionate plea the CQC stated in their latest whistleblowing guidance “we want you to tell us.” This was dated on the 22nd May 2020 and should raise concerns for health and social care providers, who may now have internal processes at threat of being bypassed.  This is because the CQC is actively encouraging employees to take concerns direct to them, without giving providers a fair chance to solve this internally.

For more information on the criteria that needs to be met here is a link to my colleague Anna’s article on whistle-blower criteria in order to make a valid qualifying disclosure.

Why an effective Governance structure is important

A good service provider should create a governance structure which empowers employees to raise concerns to management. Subsequently, this encourages a positive working atmosphere that addresses concerns from employees in a constructive manner, allowing them to resolve these internally, and therefore comply with Regulation 17(2)(e) which is to act on feedback from relevant persons on the services provided for the purpose of continually evaluating and improving such services. A way to promote and encourage this is to have an effective whistle blowing policy or adequate impartial internal feedback policy. This invigorates employees to offer constructive criticism.

Care staff are growing increasingly discontent with employers within the last 12 months, largely stemming from feeling unsupported, evidenced by one in three saying their whistleblowing concerns – often a safeguarding or patient safety issue – were ignored. This is of particular importance now more than ever due to recent studies from ‘Say so research’ which has revealed a catastrophic divide between care home workers and providers when it comes to reporting on management issues and concerns. The data shows that at least 50% of employees at care homes are currently unhappy about reporting systems and the management of reported issues, whilst 25% of care home staff are not comfortable to report any concerns at all. These damning statistics should raise concerns among providers, particularly the 180 providers who were surveyed and all felt they had adequate systems in place. This demonstrates the growing divide and disparity in opinion between care staff and providers. It is this divide which threatens providers the most who are subject to an increased likelihood of an inspection from the CQC, especially if a whistleblower has contacted them directly to raise concerns. The threat posed from the CQC is that they will take the staff’s version of the story as fact, which risks the CQC forming an incorrect perception of your service which poses both serious commercial and regulatory ramifications.

Conclusion

To conclude, in order to protect your care home from a rising trend of whistleblowing, providers should seek to mitigate this risk through an effective governance system. Furthermore it was established by the Say-so report that 50% of care home employees would feel more comfortable reporting an issue if it was through an independent reporting system, whereas 75% of owners did not see a need. This is one plausible solution to empowering employees, but not the only one available to providers. It is important to take these concerns seriously in order to bridge the growing divide between providers and staff. By doing so providers are protecting themselves from whistleblowing which is directly and actively encouraged by the CQC, who will inherently only gain half the picture from a staff’s perspective. The CQC are increasingly trying to get disgruntled employees on side, to effectively act the role of an inspector. This has been demonstrated by 50% of CQC’s physical inspections throughout the Covid-19 period stemming from whistle-blower’s disclosures. This is convenient for the CQC who are looking to impose a ‘targeted strategy’ when it comes to inspections, and seek to use whistleblowing disclosures and justification for targeting certain providers. Ultimately all employers should treat whistleblowers with respect and care, regardless of the disclosure detail and opinion on how unreasonable it may seem. However, the resounding point is that with an effective governance structure, it should reduce the risk of escalation.

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 Ltd at: info@ridout-law.com or by calling: 0207 317 0340.

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