FAQs: Handling whistleblowing concerns

Every organisation that delivers NHS services must have a procedure that is in line with the National Whistleblowing Standards. They must have procedures in place that enable their staff, students, volunteers and others delivering health services, to access the Standards. The INWO will then be able to investigate complaints about concerns that have been through the local whistleblowing process.

Each organisation will need to have their own systems and structures in place for oversight and management of the whistleblowing procedure.  This oversight function will include ensuring that cases are being actively progressed, that updates are being provided to those raising concerns, that support for those involved is provided, and that recommendations are implemented appropriately. 

The INWO recommends that responsibility for whistleblowing sits better with an executive function, other than HR, such as risk management.

Whistleblowing procedures and HR policies are separate, have different legal bases and duties, and cover different issues. It is easier to maintain the whistleblowing focus on the risk of harm or wrongdoing if this responsibility is not held within HR.  This frees up HR personnel to focus on HR issues and procedures. This can also reassure those raising concerns that the focus will be on improving safety rather than on HR issues.

Human resources do, however, have a critical role in ensuring that support is available for those that raise concerns, and that managers are fully trained in receiving concerns. They also need to ensure that any HR issues that are raised within the context of whistleblowing are handled effectively and supportively, alongside any whistleblowing investigation.  They may also need to provide advice where investigations reveal HR issues which need to be addressed.

Anyone delivering NHS services is covered by the National Whistleblowing Standards.  This applies to staff at every level of the organisation, as well as board members.  Each organisation must identify a suitable route for concerns raised by or about senior staff, and ensure that this route is well understood by both senior management and confidential contacts.

The National Whistleblowing Standards (the Standards) provide a standardised procedure which is a legislative requirement for all NHS service providers to comply with.  The Standards are not a HR procedure.  However, they do impact on employees, and as such, each organisation must decide whether and how they want to write these requirements into their own HR policies.

For NHS Scotland board employees, a Once for Scotland policy is in place.  This applies to all NHS employees and refers directly to the Standards.  For employees of other organisations, it is up to the organisation to decide whether the Standards are written into internal HR procedures, but any internal whistleblowing policy must facilitate access to a procedure which is in line with the Standards, as a legal minimum.

Investigators will normally be appointed internally but the person appointed should be senior and separate from the issues raised. The Standards say that when identifying the person who will investigate, it should be a senior member of staff from another department or service.

In some cases, particularly in smaller organisations, it may not be possible to find someone internally who has sufficient expertise or distance from the issues to be able to carry out the investigation. In these circumstances, organisations can give consideration to the option of appointing an external investigator, or having reciprocal arrangements in place, for example with another GP practice.

If you receive a new concern, the first thing to consider is whether or not it meets the definition of whistleblowing as set out in the National Whistleblowing Standards (the Standards).

Whistleblowing concerns are about a risk of harm or wrong doing raised in the public interest. They can sometimes be confused with employment grievances and where there is a question about this, it might be helpful to think about whether the concern is about an individual’s own employment situation or if the issue has a wider impact. The Standards provides more information on the difference between a grievance and a concern.

If someone says they want to whistleblow, even if you do not consider their issue to be in line with the definition, they have a right to ask the organisation to consider it under the Standards.  The organisation can then decide whether or not it fits the definition, and inform the whistleblower of their decision.

It is, however, important to remember that confidential contacts should not decide whether an issue is whistleblowing – that is for the organisation to decide. Instead, they should provide the whistleblower with appropriate information, and assist them in their consideration of whether to raise the concern under the Standards or another process.

It is important to establish whether or not the concern was previously looked at under the old whistleblowing process. If it was, and the position is unchanged, then it is unlikely to be eligible for consideration under the new process. However, organisations should consider whether or not the person raising the issue has new information that might impact on the outcome of the previous investigation and look at the risks surrounding the concern. If the concern suggests that there may be ongoing risks, then it would be appropriate to consider it under the National Whistleblowing Standards (the Standards).

For advice on the Standards and how to handle concerns you have received, organisations can contact our Improvements, Standards and Engagement team on 0131 240 2978.  They can provide general advice on the application of the Standards to specific scenarios.

If you consider that a concern is not eligible for the whistleblowing procedure, you must explain your reasons to the person who raised the concern and signpost them to the INWO. The person can then bring this decision to the INWO, and we will consider whether it was reasonable. Further details can be found in the National Whistleblowing Standards in the section on the initial discussion.

An anonymous concern means that nobody knows who has shared the information with the organisation. This is different to an unnamed concern, where the person raising the concern does not want their identity to be recorded. Information on how to deal with both types of concern can be found in the section of the National Whistleblowing Standards on anonymity and unnamed concerns.

Discuss with the person raising the concern and check whether they work for the organisation (either as staff, student, trainee or volunteer) and therefore have access to the National Whistleblowing Standards (the Standards).  Concerns about care and treatment could include for example, poor standards of care, delays in receiving treatment, or refusals to provide care.

• If they are doing so on behalf of the friend/relative and would like an individual response to questions about their care, consent should be sought and this should be handled through the NHS complaints procedure.  This would mean the patient’s personal injustice could be considered, as well as wider patient safety concerns.
• If the patient does not know about the concern or does not want to complain about their treatment, business as usual should first be attempted, then the Standards should be followed, as it is not an NHS complaint covered by the Model Complaints Handling Procedure.

The first thing to consider is whether they work for the organisation (either as staff, student, trainee or volunteer) and therefore have access to the National Whistleblowing Standards (the Standards).  If they are not, then the Standards don’t apply.

If they are, and have no concerns about their personal care and treatment or that being received by the friend/relative, but have witnessed something of concern happening to another patient they do not know while receiving care or visiting others, then this is a matter for the Standards.  However, it is important to establish what they have seen, and why they consider this to have wider implications beyond the care of a single patient.

If someone is raising concerns:

• about their own care and treatment, and
• there is no reference to risk, care or treatment of others, or
• they are suggesting there may be a broader public impact but they have not witnessed or do not provide evidence of witnessing broader impact

The concerns should be handled through the NHS complaints process, not through the National Whistleblowing Standards.  Reassurance should be given that wider impact will be addressed through lessons learned.

This potentially could be raised under both the National Whistleblowing Standards (the Standards) and the NHS complaints procedure.  The NHS provider will need to decide how to approach these types of scenarios on a case by case basis.  This should involve discussing with the person raising the concern what outcome they are seeking.

• If the person has concerns about their own personal care, for which they are claiming an injustice, that element should always be handled under the NHS complaints procedure.   
• If the person has concerns, but is not claiming a personal injustice, and they simply want to raise the wider issues they have witnessed, the concerns should be handled under the Standards. It is important that they have witnessed these concerns in relation to others, and are not simply saying that, because it happened to them, it could happen to others.
• If they are claiming a personal injustice relating to their care and treatment, and claiming there is a wider risk but have not witnessed these concerns in relation to others then it should be handled as a patient complaint.  Simply saying that, because it happened to them, it could happen to others is not enough to make it a whistleblowing concern.  Reassurance should be given that wider impact will be addressed through lessons learned from the complaints handling process.
• If they are claiming a personal injustice relating to their care and treatment, and have witnessed the care and treatment of others which they believe constitutes a wider public interest risk, then the issue may need to follow both routes.  That said, there should be discussion with the person raising the concerns, to establish whether this should be a concurrent investigation or whether one should take place first.  The service provider needs to be clear what is being dealt with through each route.  It may be, for example, that the complaint is handled through the NHS complaints procedure, and that addresses the wider issues to the person’s satisfaction.  It may be, that the patient safety issues are so significant that these are addressed immediately through the Standards.

In all circumstances, the focus should be on ensuring, that all aspects are considered through one or both processes and that the person raising the concern clearly understands what route(s) is being used and why.

Anyone who is unhappy with the procedure the NHS provider decides to use to handle their complaint/concern may complain to the SPSO or the INWO (depending on the procedure they are trying to access). If someone expresses unhappiness, you should consider whether they have raised any matters which would lead you to review your decision on the procedure and, if not, signpost to SPSO/INWO.

When concerns are raised about senior staff, it is particularly important that the investigation is conducted by an individual who is not only independent of the situation, but empowered to make decisions on any findings of the investigation. The National Whistleblowing Standards (the Standards) say that organisations should ensure that they have procedures in place to deal with concerns of this type. In developing their procedures, organisations should consider:

• How to establish clear lines of responsibility for individuals that are tasked with investigating, so that they are able to conduct the investigation independently
• How to establish clear lines for reporting at the end of the investigation
• How to ensure there are no barriers to the investigation
• That any procedure adheres to the whistleblowing principles outlined in the Standards
• That consideration is given to external options, where necessary.

Firstly, the organisation should consider whether or not the policy is being correctly applied. If they find that the policy is being correctly applied, but they agree that there is a problem with the policy itself, they should explain to the whistleblower why they do not have capacity to change it. They should also consider taking the concern forward at a national level, or with their board if it has been raised within primary care or a contractor.

If staff, students, trainees or volunteers have concerns about the way another organisation or provider is delivering NHS services (and their concern meets the definition of whistleblowing) they should raise this with their manager.  Where appropriate, the concern should be considered through existing contractual/management/professional arrangements or through other business as usual processes.

If this does not resolve the concern, the “worker” can raise this as a whistleblowing concern.  They can use their own organisation’s confidential contact if they do not feel safe sharing their concerns with their manager.  Management would then need to share this information with the other provider (keeping the whistleblower’s identity confidential), and come to a shared decision as to how the concern should be investigated.

To access the National Whistleblowing Standards (the Standards), visitors must meet the definition of a whistleblower in that they are delivering NHS services, even if they are visiting a service provided by another organisation.

Visitors who meet the definition in the Standards should be encouraged to raise their concern with the other organisation, such as with staff on the ward at the time.  This would be “business as usual”.  If this does not resolve the issue they should raise their concern with their employer, who will need to provide them with protection while the issue is investigated by the NHS provider they are visiting.

Visitors who do not meet this definition are not covered by the Standards, but should still be encouraged to raise their concerns through existing contractual, management or professional arrangements, as business as usual.  They also have the option of raising an anonymous concern, but this would not be covered by the Standards.

Any manager can receive a concern, either from someone they manage or from someone else that delivers services in their team or department.  Senior managers (such as lead clinicians or service directors) may receive concerns from anyone within their service, and more widely within their organisation, as sometimes it will be difficult to raise a concern within a department or service where this would create risk for the individual.

In addition to line management routes, all organisations delivering NHS services must provide confidential contacts – someone that is trained in receiving concerns and in the organisation’s arrangements for receiving concerns.  This may involve signposting to another member of staff, or logging the concern and ensuring action is taken by another member of staff if the person raising the concern is not willing to take the concern to another manager.

Staff wanting to raise concerns about primary care services can raise their concern with the board’s primary care confidential contact, as this may be the safest way for them to raise a concern.  The confidential contact will then need to decide how the concern can best be investigated, and share information accordingly.

We normally expect the issue to have been reviewed by the internal whistleblowing procedure before we investigate it.  There may be instances where people feel the need to come to the INWO before raising their concern internally.  We would be happy to discuss such cases, and will assess what action we can take on a case by case basis.  It is very likely we would ensure that an internal investigation was appropriately undertaken (including support for anyone raising the concern), before starting any INWO investigation.

You can find an outline of what is expected of everyone, from senior management to confidential contacts and all staff in the part of the National Whistleblowing Standards on staff responsibilities.

Where possible, concerns should be responded to by the organisation within five working days at stage 1 and 20 working days at stage 2. It is possible to extend these timescales, if there is good reason to do so, but the organisation must keep the whistleblower updated and explain the reasons for the delay. The INWO considers ‘day 1’ of these timescales to be the working day on which the concern is formally received by the organisation. Consideration of whether the concern is eligible for the whistleblowing procedure and who should handle it must take place within the timescales set out in the Standards. If it takes longer to determine this, the organisation should extend the timescales in line with the Standards and explain the reasons to the whistleblower.

Full details of the process and timescales for responding to concerns can be found in the whistleblowing procedure section of the National Whistleblowing Standards.

When you receive a concern, you should start by having an initial discussion with the whistleblower, including consideration of confidentiality and who they are willing to have their identity shared with.

There is more information about confidentiality in the National Whistleblowing Standards.

There are two key areas of responsibility for confidential contacts (who can also be called whistleblowing ambassadors):

• Providing a first point of contact and support for those wanting to raise concerns
• Promoting speaking up and raising awareness of the benefits of raising concerns and the routes for doing so in their organisation.

The National Whistleblowing Standards (the Standards) set out what is expected in that first contact – most importantly it is about providing a safe space for the person to raise their concern, and then exploring their options as to what to do next. The confidential contact should provide advice and assistance, by steering towards whistleblowing or potentially another route, if more appropriate e.g. HR processes or a professional regulator like the General Medical Council (GMC). While they are not expected to give detailed advice, they are expected to be able to appropriately signpost to other procedures and also other sources of information and support, such as staff unions.

The confidential contact should be separate from a whistleblower’s line management structure where possible, so this may mean it is necessary to have more than one confidential contact within a board or organisation.

In relation to promoting and awareness raising, confidential contacts need to be able to work with senior managers and frontline staff, to raise awareness of the importance of raising concerns, promote good practice in handling concerns, and identify and highlight areas where they see barriers to speaking up. It is this feedback, this role of having ‘eyes and ears on the ground’, that make confidential contacts a really important asset for organisations to hear about how easy staff find it to raise concerns.

There are a range of different ways to provide support to a whistleblower and it is important to discuss their needs with them early on and be familiar with the support initiatives and tools in place within your organisation. For example, there may be support services available to staff, such as employee assistance programmes, that could be helpful. For students and volunteers, there may be specific resources available via their higher education provider or volunteer co-ordinator.

It may be that the whistleblower needs support that you can provide yourself, for example, if they are concerned about confidentiality and are seeking reassurance that their identity will be protected throughout the investigation.

Further details about the information and support available for the whistleblower and all those involved in the process are available in the section of the National Whistleblowing Standards on getting information or advice.

If you receive a new concern, the first thing to consider is whether or not it meets the definition of whistleblowing as set out in the National Whistleblowing Standards (the Standards).

Whistleblowing concerns are about a risk of harm or wrong doing raised in the public interest. They can sometimes be confused with employment grievances and where there is a question about this, it might be helpful to think about whether the concern is about an individual’s own employment situation or if the issue has a wider impact. The Standards provides more information on the difference between a grievance and a concern.

It is, however, important to remember that confidential contacts should not decide on behalf of an organisation whether an issue can be considered as whistleblowing – that is for the organisation to decide. Instead, they should provide the whistleblower with appropriate information, and assist them in their consideration of whether to raise the concern under the Standards or another process.

If someone says they want to whistleblow, even if you do not consider their issue to be in line with the definition, they have a right to ask the organisation to consider it under the Standards.  The organisation can then decide whether or not it fits the definition, and inform the whistleblower of their decision.

When you receive a concern, you should start by having an initial discussion with the whistleblower, including consideration of confidentiality and who they are willing to have their identity shared with.

There is more information about confidentiality in the National Whistleblowing Standards. As a confidential contact, you should be able to log a concern and should also be aware of the internal process for ensuring that the appropriate staff are aware of the concern and take action on it.  Your role is to share the information that the whistleblower has passed onto you, so the whistleblowing coordinator can take appropriate follow up action.  They will then contact the whistleblower to discuss how the concern will be handled and who else needs to know about it.

It is important to record information about all concerns that you receive. You can find a full list of the information you should record in the part of the National Whistleblowing Standards on recording and learning lessons.  The confidential contact is not responsible for recording all this information, but should log as much information as possible at the outset.