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1 Consultation on the implementation of the recommendations, principles and actions set out in the report of the Freedom to Speak Up review Patients First response Ourselves Patients First are nurses, doctors, managers and other staff who have made patients their first concern by raising concerns about poor standards of care and unsafe practice and in doing so, have often suffered reprisals in the workplace for highlighting such concerns. PF is a network of such health professionals & their supporters. We work to protect whistleblowers and create an NHS where they are no longer needed. Our purpose is to reduce death and harm in the NHS by campaigning for the UK Government to create policies and laws that ensure the NHS becomes open and accountable and we will actively support all those who raise concerns about patient safety. Introduction Patients First is recognised as having made a significant contribution to discussion on whistleblowing and patient safety, in particular by ensuring that the narrative contained in Sir Robert Francis’ Speak Up Review reflects the reality of the continuing poor treatment of many of those who raise concerns within the NHS, who are too often ignored or actively treated as the problem. We are very disappointed with this consultation document as it substantially fails to reflect the narrative and recommendations of the Speak Up Review itself, without in any way explaining why. We believe the omissions from this consultation are at least as significant as the inclusions. Crucial sections, principles and associated actions are simply removed from the consultation document. We therefore seek, above all, an assurance that the principles and associated actions set out in the Francis Speak Up Review will be implemented in their entirety, and are deeply concerned and disappointed at the following omissions. a. Bullying is a central crucial feature of a culture where staff feel unable to raise concerns, where they are not responded to, or where those who

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    Consultation on the implementation of the

    recommendations, principles and actions set out in the report of the Freedom to Speak Up review

    Patients First response Ourselves

    Patients First are nurses, doctors, managers and other staff who have made patients their first concern by raising concerns about poor standards of care and unsafe practice and in doing so, have often suffered reprisals in the workplace for highlighting such concerns.

    PF is a network of such health professionals & their supporters. We work to protect whistleblowers and create an NHS where they are no longer needed.

    Our purpose is to reduce death and harm in the NHS by campaigning for the UK Government to create policies and laws that ensure the NHS becomes open and accountable and we will actively support all those who raise concerns about patient safety.

    Introduction Patients First is recognised as having made a significant contribution to discussion on whistleblowing and patient safety, in particular by ensuring that the narrative contained in Sir Robert Francis Speak Up Review reflects the reality of the continuing poor treatment of many of those who raise concerns within the NHS, who are too often ignored or actively treated as the problem. We are very disappointed with this consultation document as it substantially fails to reflect the narrative and recommendations of the Speak Up Review itself, without in any way explaining why. We believe the omissions from this consultation are at least as significant as the inclusions. Crucial sections, principles and associated actions are simply removed from the consultation document. We therefore seek, above all, an assurance that the principles and associated actions set out in the Francis Speak Up Review will be implemented in their entirety, and are deeply concerned and disappointed at the following omissions.

    a. Bullying is a central crucial feature of a culture where staff feel unable to raise concerns, where they are not responded to, or where those who

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    raise concerns are victimised. It is astonishing that all reference to it (in Principle 3) has been removed. We seek an assurance it will be reinstated.

    Principle 3 and associated actions Culture free from bullying: Freedom to speak up about concerns depends on staff being able to work in a culture which is free from bullying and other oppressive behaviours.

    b. We note that Action 8.1 (All NHS organisations should devise and

    implement systems which enable such investigations to be undertaken, where appropriate by external investigators, and have regard to the good practice suggested in this report.) is not referred to at all and seek a clear assurance that it will be a core part of the DH response in line with the proposals jointly made by Patients First and NHS Employers which have been with the Secretary of State for well over a year, Principle 8 and associated actions Investigations: When a formal concern has been raised, there should be prompt, swift, proportionate, fair and blame-free investigations to establish the facts.

    c. We are unclear why all reference to Principle 9 has been removed?

    Principle 9. Mediation and dispute resolution: Consideration should be given at an early stage to the use of expert interventions to resolve conflicts, rebuild trust or support staff who have raised concerns.

    d. We note, with respect to Principle 12, the reference to a further consultation on establishing a support scheme for NHS workers and former NHS workers whose performance is sound who can demonstrate that they are having difficulty finding employment in the NHS as a result of having made protected disclosures. We seek an assurance that Patients First will be centrally involved in that consultation.

    e. We are surprised and disappointed that Principle 13 and the associated actions are not explicitly referred to and seek an assurance that they will be. This is a crucial element of Sir Roberts recommendations and, unless explicitly included, its absence will provides a comprehensive escape clause for organisations whose Boards do not wish to implement the recommendations. Principle 13 Transparency: All NHS organisations should be transparent in the way they exercise their responsibilities in relation to the raising of concerns, including the use of settlement agreements.

    f. We note that Para 7 of the consultation states

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    In addition, in light of the review, the national regulators will consider their aligned approach on Well-Led organisations and the Fit and Proper Persons Test. They will also consider how best to strengthen guidance relating to these issues, consulting publically where appropriate.

    There is no other reference to Principle 14. We do not believe that this principle and associated actions can be left solely with regulators whose record as a whole in holding organisations Boards and Board members to account on such issues is patchy to say the least. Nor do we believe the apparent reliance on the Fit and Proper Persons test is likely to make any significant difference given that we are unaware of a single Board member in any NHS organisation who has so far been barred from being treated as such a person on the grounds of their failure to support whistleblowers.

    We are particularly concerned that that there is no mention whatsoever in the consultation of the role of compromise agreements, confidentiality clauses or victimisation. In the light of the very recent judgement in the case of Jean Haydr regarding the role of Employee Staff Records we seek an assurance that all staff will have an automatic right to inspect their ESR record and amend demonstrably unfair or inaccurate reports. Principle 14 is central to the effectiveness of these recommendations. Unless organisations and their leaders are to be held to account, and where appropriate sanctioned, there is little likelihood of the required fundamental culture change on raising concerns in large parts of the NHS.

    Principle 14 Accountability: Everyone should expect to be held accountable for adopting fair, honest and open behaviours and practices when raising or receiving and handling concerns. There should be personal and organisational accountability for: poor practice in relation to encouraging the raising of concerns and responding to them; the victimisation of workers for making public interest

    disclosures; raising false concerns in bad faith or for personal benefit; acting with disrespect or other unreasonable behaviour when raising or responding to concerns; inappropriate use of confidentiality clauses.

    g. Whilst we note the intention to bring forward legislation to protect

    students and trainees, we can see no good reason why the explicit protection set out in Principle 18 should not be applied immediately and incorporated into the NHS Constitution.

    Principle 18 Students and Trainees: All principles in this report should be applied with necessary adaptations to education and

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    training settings for students and trainees working towards a career in healthcare.

    h. Suggestions to improve the process and outcome of raising concerns for BME staff We are disappointed and surprised that the Consultation document makes no mention of the suggestions made relating to the extensive evidence in the Speak Up Review report to the less favourable treatment of BME staff by a range of organisations. No explanation is provided and there is no reference within the consultation document to the additional patient safety risk posed by such apparent discrimination. We ask for assurance that this will be addressed in the final response from DH to the consultation.

    We wish these introductory concerns to be regarded as a central part of our response to this Consultation. Responses to specific questions Question 1: Do you have any comments on how best the twenty principles and associated actions set out in the Freedom to Speak Up report should be implemented in an effective, proportionate and affordable way, within local NHS healthcare providers? In considering this question, we would ask you to look at all the principles and actions and to take account of local circumstances and the progress that has already been made in areas highlighted by Freedom to Speak Up. Patients First believes that the core principles underpinning the implementation of the principles and associated actions should be transparency, accountability (especially of Boards) and effectiveness. We do not believe affordability should be a feature of the arrangements other than where is can be demonstrated in respect of any wasteful and inefficient local proposal. Question 2: Do you have any opinions on the appropriate approach to the new local Freedom to Speak Up Guardian role? Question 3: How should NHS organisations establish the local Freedom to Speak Up Guardian role in an effective, proportionate and affordable manner? We believe the Freedom to Speak Up Guardian role must be characterised by

    A job specification that requires previous evidence of experience of personally raising concerns and of a willingness to act independently of

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    organisational pressures to compromise on patient safety and staff concerns

    A selection process with a majority external panel who themselves are demonstrably committed to such an independent role

    An employment contract which we believe should be held centrally by whichever national organisation the role is jointly accountable to

    The role should be jointly accountable to the Chief Executive of the organisation for which the Guardian has a Guardian responsibility, and to whichever national organisation the role reports to.

    The role should preferably be for a series of fixed term rolling contracts of, say, 3 years, held on secondment

    The role should be adequately resourced as any other senior role would be with a private room, administrative support, and other support facilities

    The Guardian should be required to provide regular reports to the Board and chief executive

    There should be a standard national job description which can be adapted (but not watered down) for each organisation

    It should not be possible for any disciplinary action to be initiated or carried out by the organisation for which the Guardian exists that must be conducted by the National Independent Officer

    It must be made clear that any attempt to victimise a Guardian for conscientiously carrying out their duty will be regarded as gross misconduct on the person(s) so doing

    It will be essential that the local Guardian has access to a range of support both expert support and to support them personally in what may well be a challenging and at times distressing role

    Questions of affordability should be subject only to those criteria being met Question 4: If you are responding on behalf of an NHS organisation, how will you implement the role of the Freedom to Speak Up Guardian in an affordable, effective and proportionate manner? See above Question 5: What are your views on how training of the local Freedom to Speak Up Guardian role should be taken forward to ensure consistency across NHS organisations? Training should be centrally co-ordinated and provided, at least in part, by the Independent National Officers office. It should be significantly influenced by the views and experience of those who have raised concerns and by authoritative patient safety organisations such as AVMA and the CHFG as well as Patients First. Question 6: Should the local Freedom to Speak Up Guardian report directly to the Independent National Officer or the Chief Executive of the NHS organisation that they work for?

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    They should report to Chief Executive in the first instance with a requirement that any report is automatically copied to the Independent National Officer whose office will review those reports on a regular basis with the local Guardian Question 7: What is your view on what the local Freedom to Speak Up Guardian should be called? The Independent Staff Advocate for Patient Concerns or Patient Safety Ombudsman/woman Question 8: Do you agree that the Care Quality Commission is the right national body to host the new role of Independent National Officer, whose functions are set out in principle15 of the Freedom to Speak up report? We have some concerns about this role being situated within the CQC but we regard all other possible homes as being inappropriate. We would prefer that the post is entirely independent but should that not be acceptable to the Secretary of State it will be important that its operational and strategic autonomy is clearly and transparently established. We seek an assurance that should the Independent National Officer be situated within the CQC that the CQC

    Has regulatory powers that are sufficient to enable it to act as appropriate on concerns drawn to its attention by individuals

    Has sufficient capacity to be able to do so something that is evidently not yet the case

    Strengthens the focus on the promotion of whistleblowing and the protection of those who do so are strongly embedded in their well led domain

    Question 9: Do you agree that there should be standardised practice set out in professional codes on how to raise concerns? Yes, but on the clear condition that any codification does not undermine the principles set out in The role of national bodies The Consultation document states

    Within many of the principles and actions is a role for the national regulators and bodies that oversee the NHS and healthcare provision in England. For each of the principles and actions where these national bodies have a role, we expect that they will separately consult on their plans and any guidance. We expect that these consultations will be published by summer 2015. In particular, there will be consultations on:

    How to apply the principles in the report to primary care The approach to implementing the principle on the Independent National Officer;

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    National guidance on various aspects of the principles The approach to establishing a support scheme for NHS workers and former NHS workers whose performance is sound who can demonstrate that they are having difficulty finding employment in the NHS as a result of having made protected disclosures National guidance on the approach to training staff in supporting the raising of concerns.

    7. In addition, in light of the review, the national regulators will consider their aligned approach on Well-Led organisations and the Fit and Proper Persons Test. They will also consider how best to strengthen guidance relating to these issues, consulting publically where appropriate.

    We regard it as essential that Patients First and other whistleblowing and patient safety experts and organisations are formally and centrally consulted on each and every one of these separate consultations and we seek an assurance that we will be.

    June 3rd 2015.