NHS North Somerset Clinical Commissioning Group. Whistleblowing Policy (Raising Concerns about Malpractice at Work)

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1 NHS North Somerset Clinical Commissioning Group Whistleblowing Policy (Raising Concerns about Malpractice at Work) Approved by: Quality and Assurance Group Ratification date: July 2015 Review date: July 2017 If you require this document in a different format, please telephone the Corporate Manager on Page 1 of 10

2 Contents 1 Introduction Scope of the Policy Responsibilities Procedure for Reporting Local resolution Designated Officers Concerns about the Chief Operating Officer, the Chief Clinical Officer or Chair Trade Union Representatives Disclosure outside the CCG Safeguards against knowingly false/malicious allegations... 7 Page 2 of 10

3 1 Introduction 1.1. The CCG is committed to ensuring the highest possible standards of service to patients. It recognises that there may be circumstances where members of staff are concerned about particular practices, people or circumstances at work and it has developed safe consistent procedures within this policy to allow such concerns to be expressed and appropriate action taken. 1.2 This policy and procedures have been developed to support and assist staff to bring genuine concerns to the attention of appropriate people within the CCG who can take the relevant action and ensure the high quality of the services provided. 1.3 The CCG has adopted the NHS Code of Conduct for NHS Managers (issued in October 2002) and has agreed that the principles contained in that code should apply to all staff. The Code includes specific guidance about raising concerns at work. 1.4 The Public Interest Disclosure Act (July 1999) requires employers to establish procedures that protect staff who, acting in good faith, disclose information about the organisation and its activities or those of any of its employees, or anyone working for, with or connected to it. A summary of relevant parts of the Act is given in Appendix 2 2 Scope of the Policy 2.1 This policy applies to all employees, including permanent, temporary and bank staff, and also to the self-employed, contractors and agency staff working within the CCG. 2.2 The CCG has a range of policies and procedures which deal with standards of behaviour and conduct at work.staff should use these procedures where necessary. Situations may occasionally arise however where it is not appropriate or staff feel unable to report incidents through the usual management channels and where this policy and procedure may be used 2.3 Examples where the following occur or are likely to occur include: - When a criminal offence is, has or is likely to be committed - Inappropriate or poor professional practice - A failure to comply with a legal obligation - A miscarriage of justice - Improper use of public funds - Endangering the health and safety of an individual(s) - Damage to the environment. - The concealment of any of the above. 3 Responsibilities 3.1 Management Responsibilities All managers have a responsibility to: - take staff concerns seriously - consider them carefully and undertake an investigation. - understand the difficult position a member of staff may be in. Page 3 of 10

4 - seek appropriate advice. - take prompt action to resolve the concern or refer it on to an appropriate person. - keep the member of staff informed of the process. - monitor and review the situation. - inform senior managers. - ensure individuals who genuinely report concerns are not penalised in any way. 3.2 Employee responsibilities Employees have a responsibility to: - work within their professional code of conduct. - ensure that the best standards of care are achieved. - report any concerns which might compromise these standards. - raise concerns in good faith with a true belief that a malpractice has occurred. - not raise concerns with any malicious intent. 3.3 Counter Fraud Any employee who has a concern regarding possible fraud should contact the Local Counter Fraud Service to confidentially raise the issue. The Local Counter Fraud Service can be contacted on Staff can also contact the NHS Protect Hotline The CCG will not tolerate any harassment or victimisation of a genuine whistleblower (including informal pressures), and will deal with such actions under the CCG s Disciplinary Policy. 3.5 The CCG recognises the difficulty staff may face in voicing concerns, and assures them of support and confidentiality during the initial investigation process. The CCG will seek to protect the confidentiality of members of staff who raise matters of concern where possible unless required to provide evidence as part of an official investigation. 3.6 The CCG also recognises that there may be circumstances where concerns are raised without substance and malicious intent and will deal with any such whistle blowing under the CCG s disciplinary procedure. 3.7 The Governing Body is responsible for monitoring this procedure and the concerns/issues that are raised as a result. 4 Procedure for Reporting 4.1 In certain cases it is recognised that individuals may be reluctant to voice their concerns, particularly if the conduct or action of a colleague is involved. This may be true particularly if the complaint is about someone in a senior position or from a different discipline or profession. A summary of the various reporting procedures is given in Appendix The CCG is keen to ensure that staff feel able to raise such concerns without fear of subsequent action being taken against them. 4.3 The options available to staff are as follows: Page 4 of 10

5 a. Local resolution see section 6. b. Reference to designated officer(s) (see below) who are outside the formal line management structure. c. Reference to Trade Union representatives. In all cases, members of staff have the right to discuss their concerns with the Chief Operating Officer. However the policy has been designed to allow staff to feel able to resolve their concerns locally as laid out below (section 6). 4.4 The individual concerned can be accompanied by a Trade Union Representative recognised by the CCG, professional friend, or fellow employee during the discussions on the issues that they have raised. 4.5 Whilst pursuing the aim of openness, it is imperative that patient confidentiality is maintained and that confidence in the services provided by the CCG is not unreasonably undermined. Similarly, as members of staff have certain obligations and responsibilities to the CCG as their employer, it is important that the employer/employee relationship is not compromised. 5 Local resolution 5.1 Wherever possible, staff concerns about health service issues should be resolved locally i.e. between the member of staff and his/her line manager or professional head. In accordance with this policy and the Code of Conduct, the manager will: - Take the concern seriously. - Consider the issues fully and sympathetically. - Recognise that raising a concern can be a difficult experience for some staff. - Seek advice from health care professionals where necessary. 5.2 The line manager will be required to investigate the allegations thoroughly. The member of staff will receive an acknowledgement noting their concerns within 3 working days and a subsequent written response at the conclusion of the investigation. 5.3 In the event that the member of staff does not consider that outcome has dealt with their concern, they will have the right to raise the issue with one of the designated officers within the CCG making clear why they do not believe their concern has been addressed. 6 Designated Officers 6.1 The designated officers for the CCG are:- Corporate Manager Lay member Named Clinical Leader 6.2 The designated officer will be an alternative point of contact for employees who wish to raise concerns under the provision of this policy or where there has been a failure to resolve the issue through the local resolution. S/he will arrange an initial interview, Page 5 of 10

6 which will be strictly confidential and will ascertain the area of concern. At this stage, the member of staff will be re-assured about protection, and possible reprisals or victimisation. S/he will also be asked whether or not s/he wishes to make a written or verbal statement. In either case the designated officer will write a brief summary of the interview, which will be agreed by both parties. 6.3 The designated officer following discussion with the employee will raise the concern with the relevant Officer who will commission the appropriate investigations. In the event of the concern being related to Officers of the CCG, the issue should be raised directly by the designated officer with either the Chief Clinical Officer or the Chair of the CCG. 6.4 A formal response following the investigation will be made to the member of staff within 7 working days of the investigation being completed. 6.5 In the event of the issue not being resolved by the appropriate Officer the issue will be referred to the Chief Clinical Officer for resolution within 10 working days. 6.6 If any member of staff who has raised a concern feels that as a result they are experiencing difficulties in the workplace they should contact one of the nominated officers for advice and support. 7 Freedom to Speak Guardian 7.1 This role will be filled by an individual that will act as an independent and impartial source of advice to staff. They will have the authority and access to anyone in the organisation, including the CEO, or if necessary outside the organisation and they will be an expert in all aspects of raising and handling concerns. They can ensure that the primary focus is on the safety issue; that the case is handled appropriately, investigated promptly and issues addressed; and that there are no repercussions for the person who raised it. They can also act as an honest broker to verify that if there were pre-existing performance issues that were already being addressed, these should continue and cannot be portrayed as a consequence of speaking up. 8 Concerns about the Chief Clinical Officer or Chair 8.1 If the complaint is about the Chief Clinical (Accountable) Officer, the designated officer should raise the issue with the Chair of the Governing Body, who will decide on how the investigation will proceed. This may include an external investigation. 8.2 If the complaint is about the Chair of the Governing Body the designated officer should initially raise the issue with the Chief Clinical (Accountable) Officer. 9 Trade Union Representatives 9.1 The CCG recognises that some employees may wish to raise their concerns initially with their trade union representatives. The trade union representative will ascertain as many facts as possible from the member of staff and raise the issue with a designated officer within two working days. The designated officer will then follow the procedure as laid out in the policy above. Page 6 of 10

7 10 Disclosure outside the CCG 10.1 If an employee has exhausted all the internal mechanisms or justifiably feels the use of internal approaches would be impossible, it may be appropriate to take their concerns to an outside body. Before doing so an employee should seek the advice of their Trade Union or Public Concern at Work*. * Public Concern at Work is an independent charity and a leading authority on public interest whistleblowing, and was closely involved in setting the scope and detail of the Public Interest Disclosure Act. 11 Safeguards against knowingly false/malicious allegations 11.1 Where the investigation concludes that false or malicious allegations have been made it will be necessary to take action under the CCG s Disciplinary Procedure. 12 Review of policy 12.1 Any action taken under this policy will be reported to the CCG and the Governing Body will monitor the effectiveness of action taken and this policy and its procedures. Page 7 of 10

8 Appendix 1 WHISTLEBLOWING PROCEDURE Member of staff wishes to raise an issue of concern Member of staff may also contact the Freedom to Speak Guardian for independent and impartial advice Line Manager Designated Officer Trade Union Rep. Manager will listen to the facts presented and will undertake a full investigation and will respond to the member of staff within 3 working days. Designated Officer will conduct an initial interview with the member of staff. A written or verbal statement and brief summary will be agreed by both parties. The designated officer will then liaise with the appropriate Officer of the CCG who will commission the appropriate investigations. A response will be sent to the member of staff within 5 working days. Staff/Union rep will ascertain facts and liaise with a designated officer within 2 working days Resolved? Yes Resolved? No Yes No further action required Key contacts No No further action required YES Raise issue with Chief Operating Officer Resolved? NO Employee has right to raise matter in public arena in accordance with the Act Designated Officers: Corporate Manager Laura Davey Lay Member Graham Nix Named Clinical Lead Dr Jeremy Maynard Freedom to Speak Guardian: Director of Nursing & Quality Jacqui Chidgey-Clark Page 8 of 10

9 Appendix 2 UK Public Interest Disclosure Act Summary of the Act The Act came into force on 2nd July It encourages people to raise concerns about malpractice in the workplace and will help ensure that organisations respond by addressing the message rather than the messenger; and resisting the temptation to cover up serious malpractice. Through protecting whistleblowers from dismissal and victimisation in the following circumstances, the Act promotes the public interest. Malpractice The Act applies to people at work raising genuine concerns about crime, civil offences (including negligence, breach of contract, breach of administrative law), miscarriage of justice, danger to health and safety or the environment and the cover up of any of these. It applies whether or not the information is confidential and extends to malpractice occurring overseas. Individuals covered In addition to employees, it covers trainees, agency staff, contractors, homeworkers, trainees and every professional in the NHS. The usual employment law restrictions on minimum length of service and age do not apply. The Act does not presently cover the genuinely self-employed, volunteers, the intelligence services, the army or police officers. Legal Advice The Act confirms that workers may safely seek legal advice on any concerns they have about malpractice. This includes seeking advice from Public Concern at Work, which is designated a legal advice centre by the Bar Council. Internal disclosures A disclosure in good faith to a manager or the employer will be protected if the whistleblower has a reasonable suspicion that the malpractice has occurred, is occurring or is likely to occur. Where a third party is responsible for the matter this same test applies to disclosures made to it. Disclosures to Ministers Where someone in the NHS or a public body blows the whistle in good faith direct to the sponsoring Department, the disclosure is protected in the same way as an internal one. Regulatory disclosures The Act protects disclosures made in good faith to prescribed bodies such as the Health and Safety Executive, the Inland Revenue and the Financial Services Authority, where the whistleblower reasonably believes that the information and any allegation in it are substantially true. Page 9 of 10

10 Wider disclosures Wider disclosures (e.g. to the police, the media, MPs, and non-prescribed regulators) are protected if, in addition to the tests for regulatory disclosures, they are reasonable in all the circumstances and they meet one of the three preconditions. Provided they are not made for personal gain, these preconditions are that the whistleblower reasonably believed he would be victimised if he raised the matter internally, reasonably believed a cover-up was likely and there was no proscribed regulator; or had already raised the matter internally or with a prescribed regulator. In deciding the reasonableness of the disclosure the tribunal will consider the identity of the person to whom it was made, the seriousness of the concern, whether the risk or danger remains, and whether it breached a duty of confidence the employer owed a third party. Where the concern had been raised with the employer or a prescribed regulator, the reasonableness of its response will be particularly relevant. Finally, if the concern has first been raised with the employer, it is relevant whether any whistleblowing policy in the organisation was or should have been used. Exceptionally serious matters Where the concern is exceptionally serious, a disclosure will be protected if it meets the test for regulatory disclosures and is not made for personal gain. The disclosure must also be reasonable, having regard to the identity of the person it was made to. Full protection Where the whistleblower is victimised in breach of the Act he can bring a claim to an employment tribunal for compensation. Awards will be uncapped and based on the losses suffered. Additionally where an employee is sacked, he may apply for an interim order to keep his job. Gagging clauses Gagging clauses in employment contracts and severance agreements are void insofar as they conflict with the Act's protection. Page 10 of 10

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