The A&E Crisis and Protections for Whistleblowers

By Nicky Hayes, Legal Adviser at Protect (https://protect-advice org uk/)

The NHS is currently facing unprecedented pressure because of staffing shortages and funding cuts Healthcare workers are feeling overwhelmed and patient health and safety is being put at risk Consequently staff from the health sector feel obligated to speak up and Protect the UK s leading whistleblowing charity, advised 350 healthcare workers on how to blow the whistle safely last year alone

It is vital that health care workers feel comfortable raising their concerns without fear of reprisal: they are the eyes and ears for organisations regulators and the public But it's not always clear how to navigate the process

WHISTLEBLOWING LAW

The Public Interest Disclosure Act 1998 (PIDA) gives workers protection against negative treatment from their employer after raising their concerns The protection applies where a worker including primary care professionals has raised public interest concerns about specific types of wrongdoing

What type of concerns are protected?

Any matters that may affect the health and safety of an individual or breach of the law may fall within whistleblowing concerns In the health sector some of the examples we see include:

Poor clinical practice

Unsafe staffing levels

Inadequate training

• Culture of bullying and harassment

Safeguarding failures

• Fraud

It is important to note that you do not have to be certain that wrongdoing has occurred and hard evidence, although helpful, is not necessary to raise your concern You simply need to have a reasonable belief that there is cause for concern and provide information rather than just an allegation about the wrongdoing

Where can I raise my concerns?

INTERNALLY

Approaching a line manager or supervisor with concerns is often a sensible approach and the law protects this approach whether a disclosure is made to a line manager or the Chief Executive

It is important to be able to raise concerns higher in the management chain However, there will be times where the concerns are about the conduct of the line manager or they have failed to deal with concerns in the past so approaching this person would not be appropriate

This is where an employer’s whistleblowing policy will be useful as it often explains the best person outside of line management to approach Following a policy is not a requirement though it s a guide on who to approach, there can be real value in approaching a manager or director you trust with concerns inside the organisation Many health sector organisations have Freedom to Speak Up Guardians who can support those raising concerns

EXTERNALLY

Where the concerns have not been addressed or if you have little faith the concerns will be addressed internally e g because you are aware of other whistleblowers being victimised or ignored or maybe past concerns you’ve raised have been ignored, you can go outside of your employer

The law protects whistleblowers who raise concerns with a regulator an MP or – in some circumstances –even the media if they lose their job or are victimised for doing so

If you blow the whistle to a regulator you must reasonably believe that your concern falls within that regulator s remit and that the information you disclose is substantially true

An appropriate regulator in the health sector might be the Care Quality Commission or one of the professional health bodies- a full list of regulators can be found here

Disclosure to the media may be protected but comes with the strictest legal tests and is usually a place of last resort for disclosure You must either reasonably believe that you will be victimised by your employer, fear that evidence will be concealed by them or that your concern is exceptionally serious

WHERE CAN I GET ADVICE?

Getting early advice especially when you are considering those external disclosures is important and there are places that provide such guidance You can get support in raising your concerns from • Protect’s free and confidential Advice Line (020 3117 2520);

Your trade union or professional body;

Your local Freedom to Speak Up Guardian

If you have already raised public interest concerns in the NHS you may be eligible for the NHS Speaking Up support scheme

If you are concerned about wrongdoing it is important to know that there is legal protection and that you shouldn’t be treated badly or dismissed for doing so