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

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

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?

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.