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Whistleblowing

Do you have robust whistleblowing policies? Given the ongoing high profile whistleblowing affecting the sector, Benjamin Roberts shares his expertise on the law around whistleblowing and how to draft a comprehensive whistleblowing policy.

Whistleblowing keeps hitting the headlines in relation to the health and social care sectors. The appalling practices exposed at Winterbourne View and the Old Deanery (highlighted in the BBC’s Panorama programmes) brought the issue to the forefront in 2011 and again in 2014. In both cases the perpetrators of abuse were exposed, along with staff who had failed to report the abuse they had witnessed. It was galling that only by using hidden cameras was the abuse brought to light and action taken to protect the victims.

It has long been established that sharing of information is vital for the protection of vulnerable groups in our care. Moreover, withholding information to the detriment of service users is potentially an act of abuse.

Whistleblowing law

The law governing whistleblowing, known in legal terms as ‘making a protected disclosure’, was set out in the Public Interest Disclosure Act 1998 (PIDA) and incorporated into the Employment Rights Act 1996 (ERA) in sections 43A-43L. A protected disclosure is defined as any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following (the full grounds have been edited to reflect those most applicable to the care sector):

  • a criminal offence;
  • the breach of a legal obligation;
  • a danger to the health and safety of any individual; or
  • the deliberate concealment of information tending to show any of the above matters.

It is easy to think of examples that might fall within the definition above. For example, a breach of the Mental Capacity Act 2005, failure to correctly hoist a service user or incorrectly signing a medicine administration record (MAR) chart. A worker who reported any of these events could be making a potential disclosure. However, for it to be whistleblowing, additional criteria must be met.

The ERA goes further, it also requires that the worker must:

  • not act for personal gain; and
  • reasonably believe the information disclosed, and any allegations it contains, are substantially true.

Next, the worker must either:

  • have reported this to their employer; or
  • reasonably believe that they would suffer detriment (or that the evidence would be destroyed or concealed) if they did so.

Finally, it must be reasonable in all the circumstances of the case for the worker to make the disclosure. In making that final judgment the courts will consider:

  • who the disclosure was made to and why (a report to the Care Quality Commission would qualify);
  • how serious the issue being reported was;
  • if the issue is ongoing or likely to reoccur;
  • if the worker followed any internal procedures; and
  • if the disclosure breached service user confidentiality.

Whistleblowing in practice

Applying the above in practice, the worker should have reported the issues to their employer unless, for example, their employer was the perpetrator, in which case they should have reported it to the Care Quality Commission, as opposed to the press, a friend, or on a social network. However, that is not to say that a potential act of whistleblowing should not be treated as such if, at first glance, one of the criteria above does not appear to have been met – only careful investigation can reveal the full facts and caution should always be exercised.

Workers can whistleblow at any point, so it may well be that a worker whistleblows when they, themselves, are being investigated for misconduct. It is vital that employers faced with that situation address the two issues separately, fairly and objectively. The Court of Appeal case Fecitt and others and Public Concern at Work v NHS Manchester [2012] IRLR 64 CA made it clear that if there are employment issues in relation to an employee who whistleblows (or purports to whistleblow), the employer is not prevented from addressing these, as long as it is clear that any treatment of the employee that could be perceived as negative is not in relation to their whistleblowing. If an employer proposes to investigate disciplinary issues (or take disciplinary action) with a purported whistleblower, it is likely that will be a very fine line to tread.

Employers may be understandably upset if a worker reveals confidential information about staff or service users to third parties when purporting to whistleblow. However, it is worth bearing in mind, not only the protections of PIDA, but also the exemptions in the Data Protection Act 1998. The exemption in s.29 says that the protection of data under the Act does not apply where a disclosure of personal data is for the purpose of prevention or detection of a crime. Other exemptions may well apply, depending on the facts and circumstances.

What is abundantly clear is that employers must never infringe on a worker’s right to whistleblow and within reason must encourage them to do so in good faith, preferably internally. As an employer, you must not (nor be seen to) attempt to curtail your staff’s absolute right to whistleblow externally without first reporting issues to you. However, through a well-drafted policy, clear systems for reporting and training, you may be able to encourage your staff to both whistleblow more and to you in the first instance. This also needs to be balanced with the potential abuse of the whistleblowing system by staff making malicious allegations against each other or seeking to unfairly undermine their managers.

Whistleblowing policy

A best practice, whistleblowing policy should:

  • ensure that all staff have read (and signed to say that they have read, understood and will abide by) the policy;
  • make it clear that any concerns or complaints about or relating to their own contracts of employment should be raised via the grievance procedure;
  • explain that staff have a duty of care towards service users;
  • explain that staff have an obligation to report bad practice or abuse and failure to do so, or concealing this, could be a serious disciplinary matter;
  • explain that issues should be reported promptly to aid investigation and safeguard those who may be at risk;
  • highlight and give examples of potential issues that may be reportable and that they need only have a ‘reasonable belief’ that what they are reporting is correct;

Explain how to whistleblow:

  • verbally and/or in writing;
  • to the appropriate manager (including when they wish to report their usual manager and where to find the relevant contact details);
  • about third party organisations or individuals;
  • draw strict lines in terms of what staff may or may not do in order to establish whether or not their concerns have a factual basis (eg forbidding staff to take documents or photographs or set up their own surveillance, but advising on how to protect information at risk of destruction);
  • explain that managers have been fully trained in how to record, report and act upon allegations made – all issues reported will be taken seriously and treated confidentially;
  • explain that whistleblowers will be protected from any potential victimisation and how to report any incidents of victimisation resulting from whistleblowing;
  • explain that staff are encouraged to put their names to reports, but can have their anonymity protected if they wish;
  • explain that staff have the right, if they wish, to report concerns directly to the Safeguarding board, Care Quality Commission or the Police, but explaining that they should only do so if they reasonably believe that they would suffer detriment (or that the evidence would be destroyed or concealed) if they reported internally;
  • explain that any bullying, harassment or any other detrimental treatment of whistleblowers in or out of the workplace could constitute gross misconduct;
  • explain that malicious allegations (eg where the allegations are known to be false, where there is no factual basis to make the allegations and/or no reasonable basis for a belief that the allegations could be true) could constitute gross misconduct.

Domiciliary care providers in particular should bear in mind that their staff might be required to whistleblow about third party care providers (eg if the care is shared between two providers) or about family members of the service user. Domiciliary care providers must, therefore, train staff to recognise potential signs of abuse or neglect and how to report concerns.

Take all reasonable steps

What is abundantly clear is that encouraging whistleblowing and supporting whistleblowers is increasingly important for care providers. Moreover, with concealed cameras becoming more widely available and affordable, concerned members of the public or staff may resort to this means of ensuring that there is no maltreatment taking place. This can obviously place providers in a difficult position, where third parties are more aware of what is taking place when care is provided for service users than they are themselves. The key to preventing this and potential abuse is to take all reasonable steps to ensure that staff are monitoring care and reporting any concerns immediately.

Benjamin Roberts is Solicitor and Care Services Manager at Abbey Legal Services. carehomes@abbeylegal.com

Read Benjamin’s top tips for providers and read a whistleblowing case study, or add to the debate in the comments below. Subscription required.

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