TUC Congress 2019 - Full transcript of speech on whistleblowing

Below is the full text of the speech to the Trades Union Congress 2019 in support of Motion 52, delivered by HCSA delegate Dr Paul Donaldson:

*Check against delivery*

“Everyone should benefit from the courage of those in the NHS and Public Services who, with genuine concern, ‘speak out’ to expose neglect, inadequate resourcing, and wrongdoings which harm our patients, the public, and our colleagues.

“Yet it is still the case that those who do Speak Out – or who would Speak Out – stand to benefit the least and are likely to suffer the most for it. Some of the examples of this are chilling.

“Following the inquiry into the Mid-Staffordshire NHS Foundation Trust in 2013, and the follow-up review by Robert Francis, the Freedom to Speak Up review in 2015, the NHS introduced a number of the recommendations which he identified.

“The Freedom to Speak Up policy introduced by NHS Improvement in 2016, which is bolstered by the national Staff Council agreement on ‘speaking up,’ has sought to create an encouraging environment in which NHS workers can feel confident to reveal genuine concerns about failures in service standards, resourcing and adequacy of care.

“The widespread creation of Speak Up Guardians in hospitals has substantially aided this goal.

“These initiatives are welcome, but they are not sufficient to fully safeguard genuine whistleblowers.

“The Commons Public Administration and Constitutional Affairs Committee has looked at the effectiveness of the current NHS initiatives and found that doctors and nurses still fear what it termed to be the ‘finger of blame’, and are therefore reluctant to come forward.

“Securing whistleblowers against blame, bullying and retaliation, whether from colleagues or management, both at the time of disclosure and in the longer term, is the essential ingredient of a truly protective framework.

“And this is not yet in place in the NHS and public services.

“We have encountered members with genuine concerns about standards in their services but who are paralysed with fear for their careers and long-term employment when contemplating speaking up.

“Those who have bravely raised complaints about continued shortcomings in staffing levels, or hygiene and such like, soon find their work being closely scrutinised and their whereabouts and movements surveilled. Also there are those who, some time after their disclosure, have found themselves subject to formal disciplinary investigation and even dismissal because of a strict, unmerciful application of disciplinary rules.

“The employers internal procedures are not viewed with confidence by whistleblowers and, in many cases, with good reason.

“Those seeking to create a more protective regime have looked to done so via Employment Tribunals and by strengthening Protected Interest Disclosure rules.

“However, we do not see in the Employment Tribunal system anything which can dispel the anxieties and inhibitions of those who foresee the death of their careers, the reconfiguration of their service, or missed promotions, should they speak out.

“Nor do they serve well the those who have suffered retaliatory action.

“Employment tribunals, which dispense after the fact financial compensation and only rarely order reinstatement, which find it difficult to make causal connections between much earlier actions of speaking up and later disciplinary proceedings – all of which are of course assessed against the Burchill test – and which are too remote from the NHS and Public Service to grasp internal patterns and pressures, do not provide a satisfactory answer.

“That is why we ask Congress to call for better and active safeguards for whistleblowers in the form of a purposely designated agency within the public services sector, which is truly independent in terms of leadership and governance – and accountable to a parliamentary committee or, better still, a commission of stakeholders.

“Its remit would give it powers to receive and examine all whistleblowing disclosures as well as oversee and ensure action is taken to address and remedy any fault.

“Its role would, very importantly, extend to safeguarding the genuine whistleblower from adverse treatment by:

  • registering and declaring a complainant to be a genuine whistleblower.
  • maintaining a responsive oversight of the whistleblower’s subsequent treatment at work
  • having the remit to be or provide an ultimate appeals body in the case of a decision to dismiss, or allegation of discrimination or detriment, in connection with a registered genuine whistleblower.

“The findings of the appeal panel should be binding.

“Such a safeguarding mechanism would be entirely new to the NHS and as such would be an asset to it and to other public services, if the desire to protect whistle-blowers is indeed genuinely held.

“Congress, I move.”