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  • Roger Kline

The lifecycle of the whistleblower

The Independent Inquiry into the outrageous behaviour of breast surgeon Ian Patterson states “It’s bewildering that he continued to practice for so long…..Wilful blindness in relation to Paterson’s behaviour and aberrant clinical practice” was widespread including his colleagues “keeping heads down” and avoiding him. https://tinyurl.com/wp3facd


When I read this it reminded me of a document I drafted in 2013 as part of wider evidence by whistleblowers and others about their treatment in the NHS. It was based on very extensive evidence of individual cases. At its heart was a pattern whereby those who raise legitimate concerns, whether about patient safety or their own treatment, are themselves treated as the problem. The recent case of Michelle Russell perfectly illustrates that such behaviours are still alive and well in some parts of the NHS. https://tinyurl.com/u2on2bz


There is some evidence of a greater understanding of the shortcomings current NHS approaches to disciplinary action https://tinyurl.com/u9njd2e  and some NHS employers have embraced a quite different approach to the one described below in 2013. But there is a very long way to go before all NHS employers cease the approach described below.


Research published by Public Concern at Work (now Protect) in 2013 showed that if a concern is not listened to or accepted by the second attempt it is less likely to be raised again. If a concern is not accepted then the response might well be a formal criticism or even turned into a disciplinary matter, and the individual suddenly finds themselves the target of retribution. In the experience of those who advise and support such staff they may well then be ignored, obstructed or victimised, notwithstanding the layers of supposed protection from statutory protection, employer policies and Ministerial assurances


The “lifecycle” portrayed here is one many whistleblowers will recognise in part or in full. It is based on advising, and occasionally representing, hundreds of whistleblowers in health and social care. I have used the term “whistleblower” but many of those who do raise concerns have no idea what they are letting themselves in for at the moment they raise a concern,


I look forward to the day that those who raise concerns are universally welcomed as a crucial means of improving health and social care. We are certainly not there yet.


Stage one. Avoidance and denial.

1.   Fail to acknowledge the concern being raised in a timely manner leaving the whistleblower concerned that the matter of concern is being ignored or even continues. The NHS staff survey confirms this is very common.

2.   Fail to accept that the concern is genuine and/or serious on the grounds such as that “no one else has complained” or “we disagree with your view.”

This can be difficult for an experienced individual especially where there may be risks to patients. It is the more senior professional that is more at risk of being dismissed for whistleblowing possibly because they are seen as more of a threat. More junior people are more likely to be ignored.

3.   Explain that nothing can be done because “there are no additional resources or staff” and appeal to the member of staff to “be patient” because ”everyone is doing their best.” There is research evidence linking staffing to patient safety, again a dilemma for the individual concerned who might be genuinely worried for patients in their care.

4.   Explain that the concern has been “addressed” when it self-evidently hasn’t been. This can be done by use of an “investigation”, which is often neither independent nor a proper investigation taking account of all perspectives, or properly scrutinising available data. The whistleblower is often not kept informed of the investigation nor given a copy of the full report and evidence if one is produced.

This is often when many whistleblowers begin to feel more distressed and confused about what is happening. When an employer responds in this way this is an early warning sign and PF would strongly advise seeking some external support.

5.   Point out that the concern raised can be seen as criticism of colleagues and should it not turn out to be true then this could result in a “difficult situation” or indeed in disciplinary action for a malicious or vexatious complaint. Some policies are explicit about this.

6.   Invite the whistleblower to withdraw their concern, reminding them directly or indirectly that this “doesn’t look good” on any future reference.

7.   Even if that isn’t done, the whistleblower will generally have been completely taken by surprise by the management response and may well withdraw the concern, or go off sick, due to the anxiety created by the responses, possibly never to return.

8.   If that doesn’t work suggest that the whistleblower withdraws the concern and agrees that the manager will look at it “less formally” and then proceed to “encourage” staff to raise incident concerns informally with the manager before submitting them, to vet them, whether or not this accords with the Trust procedure.

9.   As far as possible, a poor employer will ensure that the concern raised doesn’t go anywhere near the trust “risk register”. Indeed such an employer may prefer for no written record of any concerns at all to be kept. If a regulator askes to see the risk register, of course this concern will not be recorded.

10. Continue to give no feedback on whether anything has been done arising from the concern raised so the member of staff has no idea whether it is being ignored. At this point the individual may be so stressed due to a hostile response that trying to chase up a response becomes secondary to trying to protect themselves.


Stage two. If an employer wishes to make life even more difficult for a whistleblower, encourage a resignation, or “moving on”.

11. Marginalise the whistleblower by missing them off the invites to meetings that they would normally be attending, or miss then off emails they would normally be included in, or invites to training events/CPD they would normally attend.

12. Undermine or overload the whistleblower by withdrawing essential resources or simply not providing them. These might include administrative support, equipment, a failure to provide sick cover for colleagues that might normally be provided, increasing the caseload or workload, changing their shift patterns or their work base or working area. There are many subtle ways that staff can be undermined and treated differentially to their colleagues, which increases the level of stress on individuals and makes many feel like resigning.

13. Excessively scrutinise the whistleblower’ s work by calling in records, increasing inspections, more one-to-ones, or bringing forward appraisals.

14. Advise work colleagues that it wouldn’t be a good idea to give support, be a witness or over-fraternise with the whistleblower. Suggest that they are not well, have “problems at home” or imply that the whistleblower has been critical of colleagues even if they haven’t. This can be done more or less subtly but is sometimes done openly. If an employer is trying to drive out a whistleblower then this sort of behaviour might even be encouraged. There are examples of colleagues who have supported a whistleblower being themselves targeted and driven out. This is most likely to happen when a supporter is a senior colleague, and a particular threat.

15. Find a complaint to use against the whistleblower and if one doesn’t exist, encourage someone to make one. This can be a colleague saying “X is a difficult person to work with”, or “I have some concerns about your work”. Every member of staff makes mistakes. Instead of being “learning events” these become opportunities for harassment. A fishing trip in anyone’s work is likely to find something wrong, missed or unclear. There are a number of cases where whistleblowers have been referred to the GMC or NMC and have suffered prolonged investigations before being told they have no case to answer, but the damage has been done by then.

16. Express concerns about the impact on the health of the whistleblower arising from the act of whistleblowing up to and including “you seem very stressed” “are you sure you should be at work” or even “I think you may be a bit suicidal”. Then suggest or insist on a period of sick leave. These comments could constitute harassment.

17. Suspend the whistleblower on the grounds that there needs to be an investigation into their work, or behaviour. If the whistleblower wasn’t stressed before, they certainly will be now. Suspension is an aggressive act in itself.

18. Ignore Tribunal decisions suggesting suspension may often not be appropriate (UKEAT/0338/10/DA Crawford and Another v Suffolk Mental Health Partnership NHS Trust. At Para 79. https://tinyurl.com/vq5826w )

19. Emphasise to the whistleblower that the suspension is a neutral act but also that they must not contact any work colleagues or discuss what has happened – even if their best friends or family are workmates. This is an aggressive act intended to isolate.

20. Take plenty of time to conduct the investigation, the longer the better. Many staff off work more than few weeks never return to work. https://tinyurl.com/mat9wg4   Being suspended is a lonely, demoralising and humiliating existence and is often intended to be.

21. Consider a restructure of the team, department or the work itself after which the whistleblower may be redundant, demoted, transferred to a different team or department. We have evidence of staff being got rid of in a “redundancy” when in fact it was unfair dismissal.

22. Spread the word round the department or team that the whistleblower is unlikely to come back, including moving their desk or changing their role, even clearing their desk.

23. If at all possible make sure an investigator is appointed who understands that a decision that there is “a case to answer” on all or some of the allegations should be found. If NCAS are involved make sure a convincing set of management witnesses are lined up.

24. If the whistleblower is on sick leave remind them that payment will not be for an unlimited period. Keep chasing them.


Stage three. On the exit path, maybe months or years later.

25. Meet the whistleblower and outline the steps underway to either make them redundant or restructure them. At this meeting suggest that there might be an alternative way forward which, in the light of “differences with colleagues” or “what is best for their career” or their “health” might involve:

  • retirement on favourable terms due to ill health or restructure

  • redundancy on favourable terms (which might not otherwise be available)

  • leaving with a good reference before any disciplinary process gets underway (or even during it)

  • if the whistleblower is on sick leave remind them that payment will not be for an unlimited period. Keep chasing them.

26. If the whistleblower is on sick leave remind them that payment will not be for an unlimited period. Keep chasing them.

27. Refer the whistleblower to the professional regulator (e.g. NMC, GMC, HCPC) or warn them that this is under consideration – and the potential implications


Stage four. The end nears - what won't happen.

28. Extremely unlikely that anyone will say “sorry we made a mistake”.

29. Extremely unlikely that anyone will say “thank you for highlighting this problem, we’re going to deal with it”

30. Extremely unlikely that if a disciplinary hearing is held that the outcome will be to clear the whistleblower of all charges.

31.  Extremely unlikely that any counter allegation of bullying, abuse of process, or breach of duty of care by the employer will be upheld or even properly investigated. Discourage witnesses.


How will it end?

32. The whistleblower will start to realise that whatever now happens their career in this particular employer has a serious cloud over it and they may better off leaving.

33. It is likely that the whistleblower will feel anxious, depressed, and in some cases be suffering from PTSD, due to the intensity of the victimisation. Their health must take priority and so continuing with a long drawn out dispute may be detrimental to their recovery. This is a real tension for those who really care for patients and wish to have the issues addressed and not buried. Also of course at this stage they are at risk of losing a career they have been very committed to.

34. The pressures from family and friends may convince them to find a “way out”

35. The worry of being dismissed or being unemployable will become more important

36. Their lawyer or trade union official (or both) may suggest that some sort of “compromise agreement” might be the way out of this situation, partly for their health and partly because either the “legal advice” is they their chances of winning in court are not good, or because what the Trust are offering is as much as they would win in court without the upset and stress – and they will get a reasonable reference without which a future career is impossible.

37. In most cases the threat of no reference and the enticement of some sort of financial package means that a “gagging clause” is not necessary. The member of staff is already crushed and just wants to put the entire experience behind them


Implications

This “lifecycle” is essential to understanding why the existence of whistleblowing policies and the abolition of “gagging clauses” hardly scratch the surface of the problem.


By the time the whistleblower leaves, their primary concern is their health, their family, their future job, some financial cushion, and to see the back of their employer. For many, the original whistleblowing concerns pale into insignificance, especially as they will be told they can still raise them but in practice most will not because the price will be that they will struggle to work again in their profession.


This is a shorted version of an October 2013 from which I have deleted the specific advice given at the time as that would need updating. The original is here. https://www.patientsfirst.org.uk/cat=6.html


Many thanks to Kim Holt, Jennie Fecitt, David Drew and David Johnstone for advice on the original draft.

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