Whistleblowing in the health and social care sector – As published in Healthcare Business – October 2019

On 11 September 2019, the Nursing and Midwifery Council (NMC) published its joint whistleblowing disclosures report with other professional regulators to show what action regulators have taken and how they work together in relation to whistleblowing disclosures.

When talking about the ‘Whistleblowers disclosure report 2019’, Matthew McClelland, Director of Fitness to Practise at the NMC said, A culture in which people can speak up when things go wrong supports better, safer care. When people do speak up, they want to know their concerns will be listened to and action will be taken. Today’s report demonstrates just how seriously we take whistleblowing disclosures. We took regulatory action in response to all the disclosures we received in 2018/19. In some cases, we also referred to other regulators so that they could take action too.”

What does this mean for the healthcare sector generally?

The publication of the ‘Whistleblowers disclosures report’ acts as a good reminder to health and social care providers that their employees can and do raise whistleblowing disclosures.

Whistleblowing in the care sector is the term used when someone raises concerns about poor care practice or wrongdoings which cause harm or risk of harm to service users, colleagues or the wider public. For example, concerns may relate to how service users are being treated, their welfare, safety or privacy and dignity.

Whistleblowing is different to making a complaint. The person making the disclosure is not usually directly or personally affected by concerns they raise and they rarely have a personal interest in the outcome of an investigation. This means that they should not have to prove their concerns. 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 six criteria that must be met before a whistleblowing disclosure can be considered is helpfully summarised on the NMC website:

  1. The person raising a concern is a ‘worker’. This extends beyond formal contracts of employment and includes agency workers and volunteers.
  2. 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.
  3. 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 conceal

4. The person raising the concern must believe that the matter falls within a prescribed person’s regulatory remit.

5. The person raising the concern must believe that the information they disclose is true.

6. In raising the concern, the individual must not themselves be committing an offence.

Protection for Employers

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. 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.

Protection for employees

Whistleblowing is a term used to describe making a disclosure in the public interest. You are protected under the Public Interest Disclosure Act 1998 (PIDA) if you make a disclosure in good faith, you reasonably believe that information and any allegations contained in it are substantially true and making the disclosure does not involve committing a criminal offence.

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 PIDA.

Conclusion

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.

The ‘Whistleblowers disclosure report’ can be accessed at the following link:

https://www.nmc.org.uk/globalassets/sitedocuments/regulators/whistleblowing-report-2019.pdf