Better protection for nursing: reporting poor practice Richard Griffith
The government has responded to criticism about a legal loophole in the protection of those who report poor practice in the interest of the public. The gap in protection, which limited any liability for the detrimental treatment of whistleblowers to their employers and excluded detriment caused by co-workers, threatened to derail plans for the introduction of a duty of candour on healthcare providers as recommended by the Francis Report. In this article, the author describes how changes to the law set out in the Enterprise and Regulatory Reform Act 2013 will improve protection for nurses who report poor practice and explains the role of Public Concern at Work in providing advice and support to nurses who wish to report poor practice. Key words: Duty of candour ■ Whistleblowing ■ Protection from detriment ■ Vicarious liability
T
he government is determined to impose a duty of candour on the NHS and its staff, as recommended by the Mid Staffordshire NHS Foundation Trust Public Inquiry (Francis Report) (2013). The duty is seen as a key element in ensuring openness and transparency in the NHS, thus preventing repetition of the deliberate concealment of poor care and negligence highlighted by the public inquiry. Health-care providers, registered medical practitioners, nurses and other registered health professionals will be required to volunteer relevant information to persons who have or may have been harmed by the provision of services, whether or not the information had been requested and a complaint or report had been made (Francis Report (2013) at 1473).
Protection: the key to disclosure To be effective, health professionals charged with reporting such incidents must be confident that their concerns will be welcomed and acted upon, and that they will be free from victimisation and harassment (Laurance, 2011). Concerns have been raised about the effectiveness of a duty of candour because
Richard Griffith is Lecturer in Health Law, College of Human and Health Sciences, Swansea University
842
protection for those who report poor practice has been seen as inadequate and in urgent need of improvement (Griffith, 2013).
Public Interest Disclosure Act 1998 The Public Interest Disclosure Act 1998 was introduced following public concern about the difficulties faced by workers who wished to speak out when serious issue of public concern occurred in their workplace. The Act provides workers with protection against dismissal or detriment for making a protected disclosure with respect to certain types of wrong doing or malpractice (Employment Rights Act, 1996). A nurse who expressed concern about the management and standards of care where he worked was given a written warning; he was then fired when he passed his concerns on to statutory inspectors, after waiting for ten days for his workplace to take action. He filed a complaint under the Public Interest Disclosure Act 1998 and an employment tribunal decided that: ■■ He had first raised concerns internally ■■ He was acting in good faith ■■ His belief about poor practice was shown to be correct and honest. His whistleblowing to the Inspectorate was therefore protected and the disclosure deemed to be reasonable because the Inspectorate was
an investigatory body, his concerns were serious and he acted reasonably in not waiting for more than ten days. In addition, his workplace had no internal whistleblowing policy. He was awarded £33 000 in compensation, which included aggravated damages, because his employer had acted in a demeaning, insensitive, unprofessional, unreasonable and arrogant manner (Shennan, 2001). To be protected, a nurse will need to argue that, as a result of a public-interest disclosure, they have been dismissed or suffered detriment. Qualifying disclosure includes that where: ■■ A criminal offence has been committed, is being committed or is likely to be committed ■■ A person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, such as a duty of candour ■■ A miscarriage of justice has occurred, is occurring or is likely to occur ■■ The health or safety of any individual has been, is being or is likely to be endangered ■■ The environment has been, is being or is likely to be damaged ■■ That information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed (Employment Rights Act, 1996). Nurses reporting poor practice must ensure that the information disclosed is a protected disclosure. It requires more than simply making a general allegation or expressing an unspecified concern. Clear information relating to a particular set of facts must be disclosed.
Dismissal and victimisation Under the Public Interest Disclosure Act 1998, a worker who makes a qualifying disclosure is protected against unfair dismissal or being subject to a detriment because of the disclosure. Detriment is not defined under the Act, but can include victimisation and other forms of action by the employer, which can disadvantage the person concerned. A decision by the Court of Appeal highlighted a gap in this legal protection in Fecitt and others v NHS Manchester (Public Concern at Work intervening, 2011), where
© 2013 MA Healthcare Ltd
Abstract
British Journal of Nursing, 2013, Vol 22, No 14
British Journal of Nursing. Downloaded from magonlinelibrary.com by 137.189.170.231 on November 18, 2015. For personal use only. No other uses without permission. . All rights reserved.
LEGAL
Protection will be extended by the Enterprise and Regulatory Reform Act 2013 The lacuna in the legal protection afforded that those who report poor practice will be closed by an amendment introduced in the Enterprise and Regulatory Reform Act 2013. In keeping with legal protection from bullying, victimisation and harassment under the Equality Act 2010, this amendment will close the gap in protection highlighted by the Court of Appeal in Fecitt and others v NHS Manchester (Public Concern at Work intervening, 2011). It will hold co-workers personally liable if they victimise colleagues who report poor practice. As it will be unlawful for co-workers to cause detriment to whistleblowers, the employer will become vicariously liable for the actions of their staff and will also be liable for any detriment suffered by a whistleblower. Although this provision is not yet in force, and the government has not confirmed when it will be implemented, it will improve protection for nurses who report poor practice and is essential for any duty of candour to be effective.
© 2013 MA Healthcare Ltd
Public concern at work Nurses who still fear the consequences of reporting poor practice to their employer have the option of making a protected disclosure to a prescribed person under the Public Interest Disclosure (Prescribed Persons) Order (as amended) 1999. This includes disclosures made directly to the Care Quality Commission. Nurses who wish to report poor practice
British Journal of Nursing, 2013, Vol 22, No 14
may also seek the advice and support of the whistleblowing charity Public Concern at Work (further information can be found at http://www.pcaw. org.uk/). The charity aims to protect society by encouraging workplace whistleblowing and they give confidential advice and support to individuals with whistleblowing dilemmas at work as well as support organisations with their disclosure polices and pressing for changes to the law. Nurses who have witnessed poor practice, but are unsure whether and how to raise their concerns can receive independent and confidential advice from the Public Concern at Work advice line that is managed by lawyers with expertise in public disclosure cases. The advice line number is 020 7404 6609.
Conclusion
edfuentesg/iStockPhoto
three nurses reported a colleague at the walkin centre where they worked. Although their concerns were justified no further action was taken against the member of staff. Relations among staff at the centre deteriorated and the employing trust responded by taking action against those who had reported poor practice. They reduced the hours of one member of staff to zero, and the two others were moved from the walk-in centre. All three claimed they had been victimised and treated in a detrimental manner as a result of their disclosure. The Court of Appeal held that the employing trust could not be held liable for the behaviour of individual members of staff towards those who report poor practice. The Court found that in contrast to equality law, which held individuals personally liable for their acts of victimisation against those pursuing a discrimination claim, there is no provision making it unlawful for individual members of staff to victimise those who report poor practice.
The government is determined to press ahead with its intention to impose a duty of candour on health-care providers Nurses who fear the consequences of reporting poor practice and their staff, and has responded to can make a protected disclosure. criticisms that protection for those who confidential independent advice and support report poor practice was inadequate.The government is closing an unacceptable loophole from the charity Public Concern at Work. BJN in the legal protection of whistleblowers through an amendment introduced in the Conflict of interest: none declared Enterprise and Regulatory Reform Act 2013 Fecitt and others v NHS Manchester (2011) Public Concern at Work intervening. EWCA Civ 1190 that will make co-workers personally liable Griffith R (2013) Duty of candour requires better protection and their employers vicariously liable for any for nurses. BJN 22(6): 350–1 detriment suffered by a whistleblower protected Laurance J (2011) NHS whistleblowing safeguards not working. (accessed 17 July 2013) under the Public Interests Disclosure Act 1998. Thehttp://tinyurl.com/o4fmko3 Mid Staffordshire NHS Foundation Trust Inquiry (2013) Independent Inquiry into Care Provided by Although not yet in force, the provision will Mid Staffordshire NHS Foundation Trust January close the loophole and strengthen whistleblower 2005–March 2009. The Stationery Office, London protection. Public Interest Disclosure (Prescribed Persons) Order (as amended) 1999 (S.I. 1999/1549) Nurses who are uncertain about their rights, Shennan F (2001) Sacked nurse gets backing from the law. should they report poor practice, can receive Scotland on Sunday. Edinburgh: 8
Key points n The Government is determined to impose a duty of candour on the NHS and its staff as recommended by the Mid Staffordshire NHS Foundation Trust Public Inquiry n Concerns were raised about the effectiveness of a duty of candour because protection for those who report poor practice was inadequate and in urgent need of improvement n The gap in the legal protection afforded those who report poor practice will be closed by an amendment introduced in the Enterprise and Regulatory Reform Act 2013 n The Act will hold co-workers personally liable and their employers vicariously liable if they victimise colleagues who report poor practice n Nurses who wish to report poor practice may obtain advice and support from the whistleblowing charity Public Concern at Work at http://www.pcaw.org.uk/ or their advice line on 020 7404 6609
843
British Journal of Nursing. Downloaded from magonlinelibrary.com by 137.189.170.231 on November 18, 2015. For personal use only. No other uses without permission. . All rights reserved.
The government has responded to criticism about a legal loophole in the protection of those who report poor practice in the interest of the public. The gap in protection, which limited any liability for the detrimental treatment of whistleblowers to their employers and excluded detriment caused by co-workers, threatened to derail plans for the introduction of a duty of candour on healthcare providers as recommended by the Francis Report. In this article, the author describes how changes to the law set out in the Enterprise and Regulatory Reform Act 2013 will improve protection for nurses who report poor practice and explains the role of Public Concern at Work in providing advice and support to nurses who wish to report poor practice. Key words: Duty of candour ■ Whistleblowing ■ Protection from detriment ■ Vicarious liability
T
he government is determined to impose a duty of candour on the NHS and its staff, as recommended by the Mid Staffordshire NHS Foundation Trust Public Inquiry (Francis Report) (2013). The duty is seen as a key element in ensuring openness and transparency in the NHS, thus preventing repetition of the deliberate concealment of poor care and negligence highlighted by the public inquiry. Health-care providers, registered medical practitioners, nurses and other registered health professionals will be required to volunteer relevant information to persons who have or may have been harmed by the provision of services, whether or not the information had been requested and a complaint or report had been made (Francis Report (2013) at 1473).
Protection: the key to disclosure To be effective, health professionals charged with reporting such incidents must be confident that their concerns will be welcomed and acted upon, and that they will be free from victimisation and harassment (Laurance, 2011). Concerns have been raised about the effectiveness of a duty of candour because
Richard Griffith is Lecturer in Health Law, College of Human and Health Sciences, Swansea University
842
protection for those who report poor practice has been seen as inadequate and in urgent need of improvement (Griffith, 2013).
Public Interest Disclosure Act 1998 The Public Interest Disclosure Act 1998 was introduced following public concern about the difficulties faced by workers who wished to speak out when serious issue of public concern occurred in their workplace. The Act provides workers with protection against dismissal or detriment for making a protected disclosure with respect to certain types of wrong doing or malpractice (Employment Rights Act, 1996). A nurse who expressed concern about the management and standards of care where he worked was given a written warning; he was then fired when he passed his concerns on to statutory inspectors, after waiting for ten days for his workplace to take action. He filed a complaint under the Public Interest Disclosure Act 1998 and an employment tribunal decided that: ■■ He had first raised concerns internally ■■ He was acting in good faith ■■ His belief about poor practice was shown to be correct and honest. His whistleblowing to the Inspectorate was therefore protected and the disclosure deemed to be reasonable because the Inspectorate was
an investigatory body, his concerns were serious and he acted reasonably in not waiting for more than ten days. In addition, his workplace had no internal whistleblowing policy. He was awarded £33 000 in compensation, which included aggravated damages, because his employer had acted in a demeaning, insensitive, unprofessional, unreasonable and arrogant manner (Shennan, 2001). To be protected, a nurse will need to argue that, as a result of a public-interest disclosure, they have been dismissed or suffered detriment. Qualifying disclosure includes that where: ■■ A criminal offence has been committed, is being committed or is likely to be committed ■■ A person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, such as a duty of candour ■■ A miscarriage of justice has occurred, is occurring or is likely to occur ■■ The health or safety of any individual has been, is being or is likely to be endangered ■■ The environment has been, is being or is likely to be damaged ■■ That information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed (Employment Rights Act, 1996). Nurses reporting poor practice must ensure that the information disclosed is a protected disclosure. It requires more than simply making a general allegation or expressing an unspecified concern. Clear information relating to a particular set of facts must be disclosed.
Dismissal and victimisation Under the Public Interest Disclosure Act 1998, a worker who makes a qualifying disclosure is protected against unfair dismissal or being subject to a detriment because of the disclosure. Detriment is not defined under the Act, but can include victimisation and other forms of action by the employer, which can disadvantage the person concerned. A decision by the Court of Appeal highlighted a gap in this legal protection in Fecitt and others v NHS Manchester (Public Concern at Work intervening, 2011), where
© 2013 MA Healthcare Ltd
Abstract
British Journal of Nursing, 2013, Vol 22, No 14
British Journal of Nursing. Downloaded from magonlinelibrary.com by 137.189.170.231 on November 18, 2015. For personal use only. No other uses without permission. . All rights reserved.
LEGAL
Protection will be extended by the Enterprise and Regulatory Reform Act 2013 The lacuna in the legal protection afforded that those who report poor practice will be closed by an amendment introduced in the Enterprise and Regulatory Reform Act 2013. In keeping with legal protection from bullying, victimisation and harassment under the Equality Act 2010, this amendment will close the gap in protection highlighted by the Court of Appeal in Fecitt and others v NHS Manchester (Public Concern at Work intervening, 2011). It will hold co-workers personally liable if they victimise colleagues who report poor practice. As it will be unlawful for co-workers to cause detriment to whistleblowers, the employer will become vicariously liable for the actions of their staff and will also be liable for any detriment suffered by a whistleblower. Although this provision is not yet in force, and the government has not confirmed when it will be implemented, it will improve protection for nurses who report poor practice and is essential for any duty of candour to be effective.
© 2013 MA Healthcare Ltd
Public concern at work Nurses who still fear the consequences of reporting poor practice to their employer have the option of making a protected disclosure to a prescribed person under the Public Interest Disclosure (Prescribed Persons) Order (as amended) 1999. This includes disclosures made directly to the Care Quality Commission. Nurses who wish to report poor practice
British Journal of Nursing, 2013, Vol 22, No 14
may also seek the advice and support of the whistleblowing charity Public Concern at Work (further information can be found at http://www.pcaw. org.uk/). The charity aims to protect society by encouraging workplace whistleblowing and they give confidential advice and support to individuals with whistleblowing dilemmas at work as well as support organisations with their disclosure polices and pressing for changes to the law. Nurses who have witnessed poor practice, but are unsure whether and how to raise their concerns can receive independent and confidential advice from the Public Concern at Work advice line that is managed by lawyers with expertise in public disclosure cases. The advice line number is 020 7404 6609.
Conclusion
edfuentesg/iStockPhoto
three nurses reported a colleague at the walkin centre where they worked. Although their concerns were justified no further action was taken against the member of staff. Relations among staff at the centre deteriorated and the employing trust responded by taking action against those who had reported poor practice. They reduced the hours of one member of staff to zero, and the two others were moved from the walk-in centre. All three claimed they had been victimised and treated in a detrimental manner as a result of their disclosure. The Court of Appeal held that the employing trust could not be held liable for the behaviour of individual members of staff towards those who report poor practice. The Court found that in contrast to equality law, which held individuals personally liable for their acts of victimisation against those pursuing a discrimination claim, there is no provision making it unlawful for individual members of staff to victimise those who report poor practice.
The government is determined to press ahead with its intention to impose a duty of candour on health-care providers Nurses who fear the consequences of reporting poor practice and their staff, and has responded to can make a protected disclosure. criticisms that protection for those who confidential independent advice and support report poor practice was inadequate.The government is closing an unacceptable loophole from the charity Public Concern at Work. BJN in the legal protection of whistleblowers through an amendment introduced in the Conflict of interest: none declared Enterprise and Regulatory Reform Act 2013 Fecitt and others v NHS Manchester (2011) Public Concern at Work intervening. EWCA Civ 1190 that will make co-workers personally liable Griffith R (2013) Duty of candour requires better protection and their employers vicariously liable for any for nurses. BJN 22(6): 350–1 detriment suffered by a whistleblower protected Laurance J (2011) NHS whistleblowing safeguards not working. (accessed 17 July 2013) under the Public Interests Disclosure Act 1998. Thehttp://tinyurl.com/o4fmko3 Mid Staffordshire NHS Foundation Trust Inquiry (2013) Independent Inquiry into Care Provided by Although not yet in force, the provision will Mid Staffordshire NHS Foundation Trust January close the loophole and strengthen whistleblower 2005–March 2009. The Stationery Office, London protection. Public Interest Disclosure (Prescribed Persons) Order (as amended) 1999 (S.I. 1999/1549) Nurses who are uncertain about their rights, Shennan F (2001) Sacked nurse gets backing from the law. should they report poor practice, can receive Scotland on Sunday. Edinburgh: 8
Key points n The Government is determined to impose a duty of candour on the NHS and its staff as recommended by the Mid Staffordshire NHS Foundation Trust Public Inquiry n Concerns were raised about the effectiveness of a duty of candour because protection for those who report poor practice was inadequate and in urgent need of improvement n The gap in the legal protection afforded those who report poor practice will be closed by an amendment introduced in the Enterprise and Regulatory Reform Act 2013 n The Act will hold co-workers personally liable and their employers vicariously liable if they victimise colleagues who report poor practice n Nurses who wish to report poor practice may obtain advice and support from the whistleblowing charity Public Concern at Work at http://www.pcaw.org.uk/ or their advice line on 020 7404 6609
843
British Journal of Nursing. Downloaded from magonlinelibrary.com by 137.189.170.231 on November 18, 2015. For personal use only. No other uses without permission. . All rights reserved.
