Whistleblowing Policy. Associate Director of Governance and Quality. The Governing Body or GCCG Executive

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1 Author(s) Associate Director of Governance and Quality Version 0.0 Version Date 26 June 2013 Implementation/Approval Date Review Date June 2016 Review Body The Governing Body or GCCG Executive Policy Reference Number 010 1

2 Version Author Date Reason for review 0.0 Maggie Aiken June 2013 Inaugural Governing Body Policy Statutory requirement Page 2 of 18

3 Contents Page 1. Summary Introduction.8 3. Assurances to You 9 4. How the matter will be resolved How to raise your concerns Procedures for investigation Review of policy Training and awareness Sources of evidence/references.15 Appendix 1. Equality Impact Assessment.16 Appendix 2: Public Interest Disclosure Act (PIDA) Guidance 17 Page 3 of 18

4 1.0 Summary NHS Greenwich Clinical Commissioning Group seeks to ensure that staff should feel empowered and supported to raise concerns safely and confidently and encourages a culture of openness and transparency at all levels. Recent findings from the public inquiry into Mid-Staffordshire NHS Foundation Trust (The Francis Report: 2013) show the catastrophic effects when concerns are not raised and dealt with effectively. NHS Greenwich Clinical Commissioning Group believes that it is critical that staff should feel empowered and supported to raise concerns safely and confidently. In its response to the recommendations of the public inquiry into Mid-Staffordshire NHS Foundation Trust (The Francis Report), NHS Greenwich Clinical Commissioning Group has committed to focus on two key areas set out within it: Ensure that all providers of NHS care are appropriately delivering safety standards A focus on listening to patients and staff working inclusively as a member organisation. In the majority of cases, NHS Greenwich Clinical Commissioning Group would expect that concerns can be dealt with directly through its Directorate structure and line management arrangements. Initiatives such as the Speaking Up Charter (Oct 2012) shows a commitment to work collaboratively in creating a culture of openness in the NHS. The is in place to protect individuals by law, who do not believe their concerns are being listened to or acted upon appropriately. The NHS Greenwich Clinical Commissioning Group has been reviewed to reflect recent legislative changes, the establishment of NHS Greenwich CCG as a statutory body, The NHS Greenwich CCG constitution and key national reports that aid a culture of openness, transparency and a culture of shared values within the NHS Policies/Procedures/Processes to be read/understood in conjunction with this policy: Clinical Commissioning Group Constitution Conflict Of Interest Policy The Pan BBG Incident & Serious incident Policy Grievance Procedure Corporate Governance Framework Counter Fraud and Corruption Policy Staff Appraisal Process Quality Alert System Page 4 of 18

5 1.2. Consultation Process This policy has been considered and reviewed by the members of the Quality Committee of NHS Greenwich Clinical Commissioning Group 1.3. What is whistleblowing? Whistleblowing is the popular term used when someone who works in or for an organisation (referred to in this document as an employee ) raises a concern about a possible fraud, crime, danger or other serious risk that could threaten customers, colleagues, shareholders, the public or the organisation s own reputation. As an early warning system, whistleblowing can help alert employers to risks such as: a danger in the workplace fraud in, on or by the organization mis-selling or price fixing offering, taking or soliciting bribes dumping damaging material in the environment misreporting performance data medical negligence 1.4. The Committee on Standards in Public Life has recommended that all NHS organisations have, and take steps to publicise, a whistleblowing policy. The whistleblowing policy emphasizes the following points: The organisation takes malpractice seriously, giving examples of the type of concerns to be raised, so distinguishing a whistleblowing concern from a grievance. Staff have the option to raise concerns outside of line management Staff are enabled to access confidential advice from an independent body, such as the independent whistleblowing charity Public Concern at Work. The organisation will, when requested, respect the confidentiality of a member of staff raising a concern. When and how concerns may properly be raised outside the organisation (for example with a regulator). It is a disciplinary matter both to victimise a bona fide whistleblower and for someone to maliciously make a false allegation. This policy has been drafted with these principles in mind to ensure that individuals recognise that it is acceptable and safe to speak up The Public inquiry into events at Mid Staffordshire NHS Trust (The Francis Report), The NHS Constitution & Whistleblowing Page 5 of 18

6 On 9 June 2010, in his statement to the House of Commons about the public inquiry into events at Mid Staffordshire NHS Trust, the Secretary of State for Health announced a range of measures to build on and give teeth to the current safeguards for whistleblowers in the Public Interest Disclosure Act 1998 (PIDA). This included amendments to the NHS Constitution: Insert an expectation that NHS staff will raise concerns about safety, malpractice or wrong doing at work which may affect patients, the public, other staff or the organisation itself as early as possible Insert a NHS pledge to support all staff in raising concerns about safety, malpractice or wrong doing at work, responding to and where necessary investigating the concerns raised Highlight in the NHS Constitution the existing staff legal right to raise concerns about safety, malpractice or other wrongdoing without suffering any detriment 1.6. The Public Interest Disclosure Act (PIDA 1998) The Public Interest Disclosure Act (PIDA) 1998 was introduced to protect employees who are worried about wrongdoing where they work and want to blow the whistle or more formally described as making a disclosure in the public interest. The Act applies to most employees including health, local authorities; a police or fire authority; or a related body and includes those employed on a temporary basis or through an agency. Someone making such a disclosure must do so in good faith (even if later it turns out to be untrue) and must believe that at least one of the following tests are met: that a criminal offence has been or is likely to be committed that someone is failing, or will fail, to comply with legal obligations that a miscarriage of justice will occur or has occurred. The Act protects all employees, contractors, trainees or agency staff. The legal protection is that he/she can receive unlimited compensation. However, to gain the protection of the Act it is important to ensure that any whistleblowing meets the criteria of being a qualifying disclosure and must be to a legal adviser, employer, Minister of the Crown, or the relevant regulator, Auditor General of the NAO to whom any concerns about the proper conduct of public business, value for money, fraud and corruption in relation to the provision of public services can be addressed. 1 Only in more extreme circumstances are wider disclosures permitted. NHS employers have been instructed to set up whistleblowing procedures and ban gagging clauses. All organisations should have one and staff have a right to ask for it. An employee who is victimised or discriminated against in any way because they have blown the whistle (known as making a protected disclosure ) can take their employer to an employment tribunal. Following the publication of the Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry and the Government's initial response attention has been drawn to the 1 Page 6 of 18

7 issue of using clauses which are intended to prohibit, or are perceived to prohibit, a member of staff or former employee from raising a genuine concern about patient safety or other issue, under the Public Interest Disclosure Act (PIDA) 1998, more commonly referred to in the media as "gagging" clauses. Recent guidance has been published setting out the use of compromise agreements and confidentiality clauses. Any such clauses should not be confused with the use of confidentiality clauses often included in compromise agreements which support both parties to move on after a dispute or where sensitive or personal information is involved. Compromise agreements used appropriately and in line with guidance, should ensure disputes can be settled and still maintain a culture of openness and transparency. 2. Introduction 2.1 NHS Greenwich Clinical Commissioning Group is committed to achieving the highest standards of service to its patients, and the highest possible ethical standards in providing a public service. The is to support and to enable members and all directly employed staff, to report any malpractice, illegal acts, discrimination, whether of race, gender, disability or orientation, or omissions by its members and employees. 2.2 You may have doubts about raising your concerns; you may think it is not your business, or you have no proof, or you are being disloyal to colleagues, managers or the NHS Greenwich Clinical Commissioning Group. You may already have mentioned something, but nothing has been done about it. 2.3 NHS Greenwich Clinical Commissioning Group has introduced this policy to enable everyone to raise their concerns immediately, confidentially and with the assurance that they will be dealt with properly. To be successful we must all try to deal with issues on their merits. NHS Greenwich Clinical Commissioning Group welcomes your genuine concerns and is committed to dealing responsibly, openly and professionally with them. Where there is a potential risk to patients or members of staff this should over-ride concerns regarding disloyalty to colleagues and organisational boundaries. 2.4 If something is troubling you that you think we should know about or look into, please use this procedure. If, however, you are aggrieved about your personal position, please use the Grievance Procedure. This whistleblowing procedure is primarily for concerns where the interests of others or the NHS Greenwich Clinical Commissioning Group are at risk. 2.5 You have a public and professional duty to report on the following: Malpractice or ill treatment of a patient by a member of staff for whom you do not have management responsibility. (Where you do manage the member of staff, the disciplinary policy should apply. Instances where the whistle blowing procedure would be appropriate are if the member of staff about whose conduct you are concerned is on the same grade, or senior, Page 7 of 18

8 to you, or if they work in a different team) Awareness of suspected child/vulnerable adults abuse or neglect Repeated ill treatment of a patient despite a complaint being made A criminal offence has been, is being, or is likely to be committed Suspected fraud Awareness of suspected terrorist or extremist activity Disregard for legislation, particularly in relation to health and safety at work The environment has been, or is likely to be, damaged Breach of Standing Orders or Standing Financial Instructions Showing undue favour over a contractual matter or a job applicant A breach of a code of conduct Information on any of the above has been, is being, or is likely to be concealed 3. NHS Greenwich Clinical Commissioning Group assurances to you 3.1 NHS Greenwich Clinical Commissioning Group Commitment The Governing Body and Accountable Officer are committed to the and Procedure. If you raise a genuine concern under this policy, your job will not be at risk, and you will not suffer any form of retribution or harassment. A genuine concern is where you believe, in good faith, that patients or interests of the NHS Greenwich Clinical Commissioning Group are at risk. Any allegations made that are found to be deliberately malicious will be dealt with under the Governing Body s Disciplinary Policy and Procedure. 3.2 Confidentiality NHS Greenwich Clinical Commissioning Group will not tolerate harassment or victimisation of anyone raising a genuine concern. If you have asked for your identity to be kept confidential, we will not disclose it without your consent. If the situation arises where the concern cannot be resolved without disclosing your identity (for instance because evidence is required in court), we will discuss with you whether and how we can proceed. 3.3 Anonymity Although anonymous reports will be considered under the Whistleblowing Policy, it will be more difficult for such reports to be investigated fully. Also, it is not possible to protect confidentiality if the identity of a person making an allegation anonymously is revealed as part of the investigation. It is, therefore, not appropriate for concerns to be made anonymously under the Whistleblowing Procedure. Page 8 of 18

9 4. How NHS Greenwich Clinical Commissioning Group will handle the matter 4.1 Once you have told us your concern, we will look into it to assess the action to be taken. This may involve an internal inquiry or a more formal investigation. 4.2 Where concerns are raised regarding Fraud and Corruption, the organisation may be required to act in accordance with the Counter Fraud and Security Management Services (CFSMS) by liaising with their internal Counter Fraud team. All staff should refer to the NHS Greenwich Clinical Commissioning Group Counter Fraud and Corruption Policy which is available on the intranet. 4.3 Where concerns are raised about the practises of clinical staff, action under this procedure may not be appropriate, and the NHS Greenwich Clinical Commissioning Group will have to act in accordance with current English law, e.g. follow Child Protection procedures. 4.4 We will tell you who is handling the matter, how that person can be contacted, and whether your further assistance will be required. If you request it, we will write to you summarising your concerns and setting out how we propose to handle it. 4.5 We will keep a record of the concerns raised, anonymising where necessary. 4.6 You must not try to investigate or handle the matter yourself, but if you have any suggestions for investigation, these would be appreciated, and will be considered. If you have a personal interest in the matter, please advise us when you raise the concern. 4.7 There may be instances where we are unable to tell you how the matter will be investigated, or precisely the action that will be taken, because to do so would be a breach of our duty of confidentiality to another person. 5. How to raise your concerns 5.1 If you have a concern, we hope you will feel able to raise it initially with your line manager. This may be done verbally, or in writing. Your manager will then decide what action to take. 5.2 If you feel unable to raise the matter with your manager, for whatever reason, you think that they have not taken appropriate action, please raise the matter with your key Director /Head of Dept or equivalent senior manager. Page 9 of 18

10 5.3 If you feel unable to raise the matter at this level, for whatever reason, or you think that appropriate action has not been taken, please raise the matter, as appropriate, with: The Chief Accountable Officer The Chief Finance Officer Lead Directors or any member of the Senior Management Team 5.4 If you are unsure whether to use this procedure or you want independent advice at any stage, you may contact: Your Trade Union District Officer (the HQ of most trades unions will have a Public Interest Disclosure Act (PIDA) 1998 contact. See appendix 1 for further information) Your Trade Union steward The Independent charity Public Concern at Work at or by Complaints and PIDA Manager, Audit Commission. Westward House. Lime Kiln Close, Stoke Gifford, Bristol. BS34 8SR. Telephone (confidential public interest disclosure line) To speak to a NHS Whistleblowing helpline advisor you should telephone , the phone line is open Mon-Fri 8am-6pm. If calling out of hours or on a bank holiday, there is also an answering service where you can leave a message for an advisor to call you back at a convenient time Alternatively, you may send an to: all messages are treated in strict confidence. 5.5 External Parties If a person/s or organisation contracting with NHS Greenwich Clinical Commissioning Group has concerns that they would like to raise with regard to matters described above. They should initially raise these concerns with the list described in If you feel that you are unable to do this for any reason, you should refer the matter to either the Local Counter Fraud Specialist on /1, or can the Local Counter Fraud Specialist on Alternatively staff can also contact the NHS Fraud and Corruption Reporting Line on or contact the Public Concern at Work on NHS Greenwich Clinical Commissioning Group will treat your concerns in the Page 10 of 18

11 same way as they would do if you were an employee and can offer you the same assurances of Confidentiality and Anonymity. 5.8 NHS Greenwich Clinical Commissioning Group expects that, with the support of this policy, staff members will report their concerns. However, we recognise that there may be exceptional circumstances where you may want to raise concerns externally. Possible contacts are: Dept of Health Health and Safety -Health and Safety Executive (HSE) NHSE CQC The Audit Commission The Independent Regulator of NHS Foundation Trusts (Monitor) Environmental issues the Environment Agency Fraud NHS Counter Fraud and Security Management Service Public Sector Finance: National Audit Office (NAO) Competition & Consumer Law: Office of Fair Trading Others Charity Commission, Data Protection Registrar, Occupational Pensions Regulatory Authority. British Dietetics Association Health Professionals Council (HPC) General Medical Council (GMC) Nursing and Midwifery Council (NMC) The Police 6. Procedures for the NHS Greenwich Clinical Commissioning Group investigations 6.1 Role of the Designated Officer Where concerns are not raised with the line manager, one of the designated officers detailed at section 4.3 will be the point of contact for employees who wish to raise concerns under the provisions of this policy. Where concerns are raised with them, they will arrange an initial interview, which will if requested be confidential, to ascertain the area of concern. At this stage, the whistleblower will be asked whether they wish their identity to be disclosed and will be reassured about protection from possible reprisals or victimisation. They will also be asked whether or not they wish to make a written or oral statement. In either case, the designated officer will write a brief summary of the interview, which will be agreed by both parties. Page 11 of 18

12 All designated Officers will: Take all concerns seriously Consider all concerns fully, fairly and sympathetically Maintain confidentiality and anonymity where this is requested Seek advice from relevant professionals where appropriate, in particular the HR department Investigate where appropriate, or authorise an investigation and consider the concerns raised, collecting any relevant evidence and keeping a written record of the process Keep the member of staff informed in writing of any action to be taken (whilst maintaining reasonable staff and patient confidentially) 6.2 Role of the Chief Accountable Officer (CAO) The designated officer will report to the CO, who will be responsible for the commission of any further investigation. 6.3 Complaints about the Chief Accountable Officer If, the concern is about the Accountable Officer/CAO, the matter should be referred directly to the Chair of the Governing Body, who will decide on how the investigation will proceed. This may include an external investigation. 6.4 The Investigation General The investigation will need to be carried out under terms of strict confidentiality, under which circumstances the subject of the complaint would not be informed until (or if) it becomes necessary to do so. This may be appropriate in cases of suspected fraud. 6.5 Cases Involving Fraud In cases of suspected fraud, the Local Counter Fraud Specialist (LCFS) must be involved. All concerns will be investigated by the LCFS in line with the Secretary of State Directions on Countering Fraud and Corruption and the Governing Body s Counter Fraud and Corruption Policy. 6.6 Suspension from Work In certain cases, such as allegations of ill treatment of patients, suspension from work Page 12 of 18

13 may have to be considered immediately. Protection of patients is paramount in all cases. 6.7 Informing the Whistleblower during the Investigation If the whistleblower has so requested, the designated officer will keep the whistleblower informed about progress of the investigation and its outcome. 6.8 Outcome of Investigation If the result of the investigation is that there is a case to be answered by any individual, the Disciplinary Policy and Procedure will be used. Where there is no case to answer, but the employee had a genuine concern and was not acting maliciously, one of the designated officers should take steps to try to ensure that the employee suffers no reprisals. 6.9 Malicious Allegations Only where false allegations are made maliciously will it be appropriate to act against the whistleblower under the terms of the Disciplinary Rules and Procedures Inquiries If the concern raised is very serious or complex, an inquiry may be held. The composition of an inquiry panel will depend on the nature of the allegation. NHS Greenwich Clinical Commissioning Group recognises the contribution the trade unions can make to an inquiry, and, where appropriate, may consult with the appropriate trade unions about the scope and details of the inquiry, including the implementation of the recommendations of the enquiry. In such instances, it may be desirable for a trade union representative to be appointed to the panel of the inquiry Following the Investigation The Chief Accountable Officer/CAO will brief the relevant designated officer (the officer to whom the allegations was first reported) as to the outcome of the investigation. The designated officer will then arrange a meeting with the whistleblower to give feedback on any action taken. This will not include details of any disciplinary action, which will remain confidential to the individual concerned. Where possible, the feedback will be provided within two weeks of the outcome of the investigation. Page 13 of 18

14 6.12 Further Action If the whistleblower is not satisfied with the outcome of the investigation, NHS Greenwich Clinical Commissioning Group recognises the lawful rights of employees and ex-employees to make disclosures to prescribed persons such as those listed in paragraph Review of Policy The policy will be reviewed in line with changes to employment legislation or in 3 years. 8. Training and Awareness NHS Greenwich Clinical Commissioning Group is committed to ensure that all staff dealing with issues of concern, whistleblowing, investigations are fully trained. 9. Monitoring This Policy should be kept under review in the light of changing circumstances and requirements. As a minimum it should be reviewed routinely every three years. If there are significant changes this should be returned to the ratifying body for approval. The processes for monitoring compliance with this procedure are outlined in the table below: Measurable Policy Objective Monitoring/Audit Frequency of monitoring Responsibility for performing the monitoring Monitoring reported to which groups/committees, including responsibility for reviewing action plans Ensure training of lead individuals conducting investigations Annual Annual Director of Integrated Governance Review of cases Annual Annual Director of Integrated Governance Health & Safety & Well Being Group Quality Committee Governing Body 9. References: Francis, Robert QC (2013) Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry House of Commons Feb 2013 General Medical Council (2012) Raising and acting on concerns about patient safety GMC, General Medical Council Code of conduct Page 14 of 18

15 NMC, Nursing and Midwifery Council Code of conduct HCPC, Health &Care Professions Council Code of Conduct NHS Employers Guidance: The use of compromise agreements and confidentiality clauses April 2013 Health Service Circular HSC 1999/198: The Public Interest Disclosure Act Speak up for a healthy NHS The Nolan Committee: Standards in Public Life Useful websites: ce/dg_ Page 15 of 18

16 Appendix 1 - Equality & Equity Impact Assessment Checklist This is a checklist to ensure relevant equality and equity aspects of proposals have been addressed either in the main body of the document or in a separate equality & equity impact assessment (EEIA)/ equality analysis. It is not a substitute for an EEIA which is required unless it can be shown that a proposal has no capacity to influence equality. The checklist is to enable the policy lead and the relevant committee to see whether an EEIA is required and to give assurance that the proposals will be legal, fair and equitable. The word proposal is a generic term for any policy, procedure or strategy that requires assessment. Challenge questions Yes/No What positive or negative impact do you assess there may be? 1. Does the proposal affect one group more or less favourably than another on the basis of: Race Pregnancy and Maternity Sex Gender and Gender Re-Assignment Marriage or Civil Partnership Religion or belief Sexual orientation (including lesbian, gay bisexual and transgender people) Age Disability (including learning disabilities, physical disability, sensory impairment and mental health problems) 2. Will the proposal have an impact on lifestyle? (e.g. diet and nutrition, exercise, physical activity, substance use, risk taking behaviour, education and learning) 3. Will the proposal have an impact on social environment? (e.g. social status, employment (whether paid or not), social/family support, stress, income) 4. Will the proposal have an impact on physical environment? (e.g. living conditions, working conditions, pollution or climate change, accidental injury, public safety, transmission of infectious disease) 5. Will the proposal affect access to or experience of services? (e.g. Health Care, Transport, Social Services, Housing Services, Education) Policy Author Date Signature: Equalities Lead (Carol Berry) Date Signature: Page 16 of 18

17 Appendix 2 Public Information Disclosure Act Guidance 1.1 The Public Interest Disclosure Act 1998 came into force in July Its purpose is to protect workers from victimisation, who want to raise concerns about malpractice, in good faith, in ways specified by the Act. 1.2 The Act directs the worker toward raising the matter internally in the first place and, where there is an internal whistleblowing procedure, to use it. However the Act will protect workers where they make external disclosures in a range of circumstances. If a worker chooses to disclose information in a way that is not covered by the Act, they will lose its protection. 1.3 The Act applies to people at work raising genuine concerns about crimes, civil offences (including negligence, breach of contract, breach of administrative law), miscarriages of justice, dangers 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 whether the malpractice is occurring in the UK or overseas. 1.4 In addition to employees, it covers workers, contractors, trainees, agency staff, home-workers, and every self-employed professional in the NHS. The usual employment law restrictions on minimum qualifying period and age do not apply to this Act. It does not presently cover the genuinely self-employed (other than in the NHS), volunteers, the intelligence services, the army or police officers. 1.5 A disclosure made in good faith to the employer (which may include a manager or director or through an agreed whistleblowing procedure) 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 malpractice, this same test applies to disclosures made to him. 1.6 A disclosure made for the purpose of obtaining legal advice is protected. Disclosures to union officials under agreed whistleblowing procedures would also be protected. 1.7 The Act makes special provision for disclosures in good faith to prescribed persons. These are likely to be regulators such as the Health and Safety Executive, the Inland Revenue and the Financial Services Authority. Such disclosures will be protected where the whistleblower meets the tests for internal disclosures and, additionally, honestly and reasonably believes that the information and any allegation in it are substantially true. 1.8 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 are not made for personal gain. Page 17 of 18

18 1.9 The whistleblower must, however, meet a precondition to win protection for a wider disclosure. This is either that: They reasonably believed that they would be victimised if they had raised the matter internally or with a prescribed regulator there was no prescribed regulator, and they reasonably believed the evidence was likely to be concealed or destroyed the concern had already been raised with the employer or a prescribed regulator the concern is of an exceptionally serious nature 1.10 If these provisions are met and the tribunal is satisfied that that disclosure was reasonable, the whistleblower will be protected. In deciding the reasonableness of the disclosure, the tribunal will consider all the circumstances. This will include the identity of the person to whom it was made, the seriousness of the concern, whether the risk or danger remains, and whether the disclosure breached a duty of confidence which the employer owed a third party. Where the concern had been raised with the employer or a prescribed regulator, the tribunal will also consider the reasonableness of their response. Finally, if the concern had been raised with the employer, the tribunal will consider whether any whistleblowing procedure in the organisation was or should have been used Where a whistleblower is victimised or dismissed in breach of the Act they can bring a claim to an employment tribunal for compensation. All awards will be uncapped and based on the losses suffered (though for victimisation short of dismissal the overriding requirement is that the award should be just and equitable). Where the whistleblower is an employee and is dismissed, they may within seven days seek interim relief so that their employment continues or is deemed to continue until the full hearing. Page 18 of 18

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