Response to Ombudsman
But my Supervisor is fabulous!
On the day that the Royal College of Midwives publishes it’s State of Maternity Services 2013 report, the media is awash with the results of the Health Services Ombudsman questioning the value of statutory Midwifery Supervision.
The response of RCM’s Chief Executive Cathy Warwick about Supervision has been greeted with mixed reactions. Some observers would suggest that Professor Warwick, a midwife herself, has adopted a rather protectionist attitude.
As a registered midwife having to engage with supervision, I have utilised it for the benefit of woman centred care; but recognised it to fail when challenged by the more powerful structures surrounding it. As a result I believe we need a root cause analysis of what is continuing to cause it to fail.
Much has been written by midwives in evidence of the various impacts of Supervision.
Their voices need to be heard very clearly.
Like many midwives, because I understand the benefits of Supervision, I have used it positively; but it has not always supported me personally and professionally.
I have reason to fear it; especially from what I have seen happen to women and midwives when it fails to cling to its true purpose. For some midwives the power of Supervision is awesome and un-challengable even when it is so very clearly wrong, and there are instances where as a result of its poor application, lives and careers have been destroyed.
Because of its unique anomalies is also difficult to stop its opaque processes once they have been set in motion.
As rightly deduced by Julie Mellor, is conflicted by employment, as many SoMs wear a managerial hat; and as far as the most senior LSAMOs are concerned, their role is further obfuscated by their employment, purpose, registration and accountability.
The structure and profile of supervision, also supports its lack of insight into how prevailing ideologies affect different communities. Few if any LSAMOs are from any black and minority ethnic background.
This lack of insight can be illustrated in the example of race discrimination. The 2012 RCM report on the disparities for black midwives is a very good example. Many issues it describes sit comfortably within the role of supervisory remit. However it appears to have not engaged especially as the treatment of midwives are recognised to have an effect on patient outcomes. One can only then wonder about the double negative impact on the outcomes for mothers and babies; including those who are black.
A key question would be whether this is a contributory factor towards the intransigent poorer outcomes for certain communities. Issues of race discrimination impacts are deeply hidden, and being so sensitive they are never fully explored. Consequently the poor outcomes continue to persist.
Race was also a question put in 2011 in the case of the Morecambe Bay Unit which failed its parents.
Supervision of midwives is unique and adds to the process of making midwifery the most highly regulated profession in the UK.
So that being the case, how have families been failed by it? To gain better understanding it is helpful to look back at some of the spectacular failings in previous times.
A prime example is the investigation into 10 maternal deaths at Northwick Park Hospitals from 2002-2005. This second investigation of the deaths highlighted a failure of statutory supervision to even recognise, never mind remedy any failings then; despite the yearly inspection of the unit by the most senior supervisor, the Local Supervising Midwifery Officer.
It would also be interesting to note how many (if any) of those women were from a black and minority ethnic community?
As an expert and experienced midwife practitioner, I have both seen and encountered very serious consequences of negligent maternity care in which midwives have been intricately involved; but helpless to remedy. Some of these e.g. the impact of supervisory misuse,
I have noted where they, despite their very best efforts are not able to raise concerns at any level of Supervision, because of the implications for them being bullied, victimised, losing their jobs, career, reputation and experiencing a total destruction of their and their families lives.
So whilst at face value Professor Cathy Warwick may be correct in her support of midwifery supervision, the Health Service Ombudsman is right to challenge its fitness for purpose, as would many midwives whose lives have come to grief through its misuse. The women we serve would also have their stories.
Whist inspecting maternity services, looking then to the processes which inspect service failures I have also come to realise that no matter their knowledge base and training, the Monitors and Inspectors can only be as good as their insight in to issues and the workings of the area being scrutinised.
Birth is no longer a simple service, and with something as complex as maternity care, one has to be able to understand it as an entity and then further as it sits within the even more complex area of the NHS structures and processes; how they work together and alone; both in theory and reality.
Patients First has been supporting midwives and collecting their stories for fuller forensic inquiry.
Elsie Gayle
Lead Midwife Patients First
11 December 2013
Steve Bolsin – A whistle-blowing hero of our time honoured by his peers (PF press release)
PRESS RELEASE> October 23rd 2013
The Society of Anaesthetists are honouring Professor Steve Bolsin with an award as a ‘hero of our time’. Professor Steve Bolsin is the anaesthetist who exposed through careful documentation and diligence the scandal of excessive deaths from poor heart surgery in Bristol in 1995.
Patients First, the campaigning organisation which supports NHS whistle-blowers is delighted to see Steve Bolsin’s courage and integrity being recognised by his peers.
Doctor Kim Holt, founder of Patients First and herself a whistleblower who the establishment tried to gag said, “The award to Steve Bolsin has been a long time coming but it is thoroughly deserved. It required courage and integrity to blow the whistle on children dying when the people in positions of power who should have taken action chose to ignore his warnings, undermine him and ultimately drive him to Australia to find work because he was in effect blacklisted by the NHS. Such selfless acts should be the norm, and not the exception.”
She went on to say that she hoped other professional and clinical bodies would follow the example of the Society of Anaesthetists and recognise the sacrifices made by whistle blowers whose honesty, courage and integrity would not let them remain silent when those around them chose to turn a blind eye, or even worse persecuted them. Many of these whistleblowers are now unemployed having been driven out of their posts, whilst their concerns are potentially forgotten.
Dr Holt campaigns for a Truth and Reconciliation Commission to health the wounds of failing NHS care and persecution of whistle-blowers (Holt, 2013). The award to Steve Bolsin by the Society of Anaesthetists is an example for others to follow and to begin the healing process.
For more information on the lifecycle of a whistleblower visit Patients First, www.patientsfirst.org.uk
http://www.rcoa.ac.uk/news-and-bulletin/rcoa-news-and-statements/professor-steven-bolsin-receive-medal-work-patient-safety
Health professionals wanting some support and practical advice email us on [email protected]
HOLT, K., & JOHNSTONE, D. 2013. Time for truth and reconciliation in the NHS [Online]. Available: http://m.hsj.co.uk/5060343.article [Accessed September 19th 2013.
The Life Cycle of the Whistle-blower (summary of PF evidence to Whistle-blowing Commission)
The lifecycle of the whistleblower – Roger Kline
This is an amended and shortened version of part of our evidence to the Whistleblowing Commission. Every single step described here has been reported to Patients First multiple times and experienced by many Patients First members
Until policy makers grasp this reality they can convince themselves that banning gagging clauses or improving policies and the law are the answer when the real answer is a fundamental change in culture.
Patients First is a network of health professionals and their supporters campaigning for an open and just culture where every member of health service staff who raises a concern will be supported and safe.
Research published by Public Concern at work earlier this year showed that it can be difficult in many cases for frontline staff to have a concern listened to. Unless organisations take account of the human aspects of this issue, an organisation will be unlikely to develop an open culture, and we will continue to hear about tragic stories of poor patient care, and cover ups.
If a concern is not listened to or accepted by the second attempt it is less likely to be raised again. If a concern is not accepted then the response might well be a formal criticism or even turned into a disciplinary matter, and the individual suddenly finds themselves the target of retribution. In the experience of those who advise and support these victims of punishments, we hear that they may well be ignored, obstructed or victimised, notwithstanding the layers of supposed statutory protection, employer policies and numerous Ministerial assurances.
This summary of the typical cycle of events which whistleblowers repeatedly describe to Patients First and others is based entirely on real life examples. This is not universal but these responses remains regrettably common in healthcare despite the Francis Report on Mid Staffordshire and the flurry of Government announcements and policies since.
in the new spirit of openness and transparency, raising concerns should be part of normal everyday healthcare.
Our own experiences and numerous surveys of NHS staff, confirm that many staff still fear the consequences of raising concerns. Such staff concerns are borne out by the experience of others who have raised concerns, but also be actual bullying events that have followed an earlier attempt to raise a concern.
The “lifecycle” portrayed here is one many whistleblowers will recognise in part or in full.
It is based on advising, and occasionally representing, very large numbers of hundreds of whistleblowers in health and social care.
Colleagues in Patients First will testify it accords with the additional knowledge that comes from being a whistleblower oneself, and we have recorded in our case files.
It is set it down here, not least so that those to whom this happens can make sense of what happens to them is typical and not somehow their own responsibility. I’ve used the term “whistleblower” but many of those who do raise concerns have no idea what they are letting themselves in for. What is described here is the strategy too many employers, or parts of employers, still adopt in individual department, occupations or across the organisation.
It is important to note that raising concerns does not mean that the staff member is necessarily right but that they have a genuine worry about something that either they have observed or they feel might impact upon patient safety, or is fraudulent.
Stage one
- Fail to acknowledge the concern being raised in a timely manner leaving the whistleblower concerned that the matter of concern is being ignored or even continues. The NHS staff survey confirms this is very common.
- Fail to accept that the concern is genuine and/or serious on the grounds such as that “no one else has complained” or “we disagree with your view.”
This can be difficult for an experienced individual especially where there may be risks to patients. It is the more senior professional that is more at risk of being dismissed for whistleblowing possibly because they are seen as more of a threat. More junior people are more likely to be ignored. At this point the individual is advised to check the organisational whistleblowing policy and seek advice and support before escalating the concern.
- Explain that nothing can be done because “there are no additional resources or staff” and appeal to the member of staff to “be patient” because ”everyone is doing their best.” There is research evidence linking staffing to patient safety, again a dilemma for the individual concerned who might be genuinely worried for patients in their care. The same decision making needs to happen as 2.
- Explain that the concern has been “addressed” when it self-evidently hasn’t been. This can be done by use of an “ investigation”, which is often neither independent nor a proper investigation taking account of all perspectives, or properly scrutinising available data. The whistleblower is often not kept informed of the investigation nor given a copy of the full report and evidence if one is produced.
This is often when many whistleblowers begin to feel more distressed and confused about what is happening. When an employer responds in this way this is an early warning sign and PF would strongly advise seeking some external support.
- Point out that the concern raised can be seen as criticism of colleagues and should it not turn out to be true then this could result in a “difficult situation” or indeed in disciplinary action for a malicious or vexatious complaint. Some policies are explicit about this. However thanks to the perseverance of the NHS Manchester nurses, and PF nursing lead Jennie Feccitt, this issue of vicarious bullying has now been recognised, and there should be some additional safeguards made by employers to prevent this. Advice on what constitutes bullying should be sought, and notes taken of any episodes that feel like harassment, carefully kept. It can be useful to challenge such instances as they happen but this is an area that may need additional training or support and is not easy to do.
- Invite the whistleblower to withdraw their concern, reminding them directly or indirectly that this “doesn’t look good” on any future reference. That would be one example of harassment.
- Even if that isn’t done, the whistleblower will generally have been completely taken by surprise by the management response and may well withdraw the concern, or go off sick, due to the anxiety created by the responses, possibly never to return.
- If that doesn’t work suggest that the whistleblower withdraws the concern and agrees that the manager will look at it “less formally” and then proceed to “encourage” staff to raise incident concerns informally with the manager before submitting them, to vet them, whether or not this accords with the Trust procedure.
- As far as possible, a poor employer will ensure that the concern raised doesn’t go anywhere near the trust “risk register”. Indeed such an employer may prefer for no written record of any concerns at all to be kept. If a regulator askes to see the risk register, of course this concern will not be recorded.
10. Continue to give no feedback on whether anything has been done arising from the concern raised so the member of staff has no idea whether it is being ignored. At this point the individual may be so stressed due to a hostile response that trying to chase up a response becomes secondary to trying to protect themselves.
Stage two- if an employer wishes to make life difficult for a whistleblower, encourage a resignation, or “ moving on”.
11. Marginalise the whistleblower by missing them off the invites to meetings that they would normally be attending, or miss then off emails they would normally be included in, or invites to training events/CPD they would normally attend.
12. Undermine or overload the whistleblower by withdrawing essential resources or simply not providing them. These might include administrative support, equipment, failure to provide sick cover for colleagues that might normally be provided, increasing the caseload or workload, changing their shift patterns or their work base or working area. There are many subtle ways that staff can be undermined and treated differentially to their colleagues, which increases the level of stress on individuals and makes many feel like resigning.
13. Excessively scrutinise the whistleblower’s work by calling in records, increasing inspections, more one-to-ones, or bringing forward appraisals.
14. Advise work colleagues that it wouldn’t be a good idea to give support, be a witness or over-fraternise with the whistleblower. Suggest that they are not well, have “problems at home” or imply that the whistleblower has been critical of colleagues even if they haven’t. This can be done more or less subtly but is sometimes done openly. If an employer is trying to drive out a whistleblower then this sort of behaviour might even be encouraged. There are examples of colleagues who have supported a whistleblower being themselves targeted and driven out. This is most likely to happen when a supporter is a senior colleague, and a particular threat.
15. Find a complaint to use against the whistleblower and if one doesn’t exist, encourage someone to make one. This can be a colleague saying “X is a difficult person to work with”, or “i have some concerns about your work”. Every member of staff makes mistakes. Instead of being “learning events” these become opportunities for harassment. A fishing trip in anyone’s work is likely to find something wrong, missed or unclear. There are a number of cases where whistleblowers have been referred to the GMC or NMC and have suffered prolonged investigations before being told they have no case to answer, but the damage has been done by then.
16. Express concerns about the impact on the health of the whistleblower arising from the act of whistleblowing up to and including “you seem very stressed” “are you sure you should be at work” or even “I think you may be a bit suicidal”. Then suggest or insist on a period of sick leave. These comments could constitute harassment.
17. Suspend the whistleblower on the grounds that there needs to be an investigation into their work, or behaviour. If the whistleblower wasn’t stressed before, they certainly will be now. Suspension is an aggressive act in itself.
18. Ignore Tribunal decisions suggesting suspension may often not be appropriate (UKEAT/0338/10/DA Crawford and Another v Suffolk Mental Health Partnership NHS Trust. At Para 79).
19. Emphasise to the whistleblower that the suspension is a neutral act but also that they must not contact any work colleagues or discuss what has happened – even if their best friends or family are workmates. This is an aggressive act intended to isolate.
20. Take plenty of time to conduct the investigation, the longer the better. Many staff off work more than few weeks never return to work. (Carol Black. Working for a healthier tomorrow – a comprehensive review of work and health. (2008)) Being suspended is a lonely, demoralising and humiliating existence and is often intended to be. However if unwell through depression a period of sick leave may well be in the persons best interest and allow a period of reflection and enable some support to be accessed.
21. Consider a restructure of the team, department or the work itself after which the whistleblower may be redundant, demoted, transferred to a different team or department. We have evidence of staff being got rid of in a “redundancy” when in fact it was unfair dismissal.
22. Spread the word round the department or team that the whistleblower is unlikely to come back, including moving their desk or changing their role, even clearing their desk.
23. If at all possible make sure an investigator is appointed who understands that a decision that there is “a case to answer” on all or some of the allegations should be found. If NCAS are involved make sure a convincing set of management witnesses are lined up.
Stage three – on the exit path, may be months or years later.
24. Meet the whistleblower and outline the steps underway to either make them redundant or restructure them. At this meeting suggest that there might be an alternative way forward which, in the light of “differences with colleagues” or
“what is best for their career” or their “health” might involve:
- retirement on favourable terms due to ill health or restructure
- redundancy on favourable terms (which might not otherwise be available)
- leaving with a good reference before any disciplinary process gets underway (or even during it)
25. If the whistleblower is on sick leave remind them that payment will not be for an unlimited period. Keep chasing them.
26. Refer the whistleblower to the professional regulator (e.g. NMC, GMC, HCPC) or warn them that this is under consideration – and the potential implications
What won’t happen once matters have reached this stage?
27. Extremely unlikely that anyone will say “sorry we made a mistake”.
28. Extremely unlikely that anyone will say “thank you for highlighting this problem, we’re going to deal with it”
29. Extremely unlikely that if a disciplinary hearing is held that the outcome will be to clear the whistleblower of all charges.
30. Extremely unlikely that any counter allegation of bullying, abuse of process, or breach of duty of care by the employer will be upheld or even properly investigated. Discourage witnesses.
How will it end?
31. The whistleblower will start to realise that whatever now happens their career in this particular employer has a serious cloud over it and they may better off leaving.
32. It is likely that the whistleblower will feel anxious, depressed, and in some cases be suffering from PTSD, due to the intensity of the victimisation. Their health must take priority and so continuing with a long drawn out dispute may be detrimental to their recovery. This is a real tension for those who really care for patients and wish to have the issues addressed and not buried. Also of course at this stage they are at risk of losing a career they have been very committed to.
Fig 1. The effects of going through a dismissal process on various domains of well-being, depending on the severity of the impact
| Mild Impact | Moderate Impact | Severe Impact | |
| PROFESSIONAL | Insecure | Deskilled, Difficult to Get Work | Unemployable |
| REPUTATIONAL | Stigma | Spurned by Others | Reputation Destroyed |
| FINANCIAL | Strain | Use Most of Savings | Have to Sell Home |
| HEALTH | Minor Complaints | Major Illness | Death |
| EMOTIONAL | Anxious | Depressed | Suicidal |
| SOCIAL | Isolated | Marginalised | Ostracised |
| FAMILY LIFE | Disrupted | Major Strains | Divorce, No Contact with Children |
A Better NHS. http://www.ajustnhs.com/case-histories-of-victimised-nhs-staff
33. The pressures from family and friends may convince them to find a “way out”
34. The worry of being dismissed or being unemployable will become more important
35. Their lawyer or trade union official (or both) may suggest that some sort of “compromise agreement” might be the way out of this situation, partly for their health and partly because either the “legal advice” is they their chances of winning in court are not good, or because what the Trust are offering is as much as they would win in court without the upset and stress – and they will get a reasonable reference without which a future career is impossible.
36. Most whistleblowers find it impossible to keep going and are eventually relieved if still angry that they have left the employer, even if their career may be in ruins and have to turn to employment such as admin work.
37. In most cases the threat of no reference and the enticement of some sort of financial package means that a “gagging clause” is not necessary. The member of staff is already crushed and just wants to put the entire experience behind them
Patients First’s files continue many variations on these themes. Many NHS employers have been adept at turning public interest concerns into employment disputes. Similar variants on these themes are well known (Hammond, P, Bousfield, A. 21 Ways To Skin An NHS Whistleblower (2011)). The impact was well summarised in Fig 1.
Implications
This “lifecycle” is essential to understanding why the existence of whistleblowing policies and the abolition of “gagging clauses” hardly scratch the surface of the problem. By the time the whistleblower leaves, their primary concern is their health, their family, their future job, some financial cushion, and to see the back of their employer. For many, the original whistleblowing concerns pale into insignificance, especially as they will be told they can still raise them but in practice most will not because the price will be that they will struggle to work again in their profession. As research a decade ago put it:
The greatest fear is that of reprisals from the employer, associates of the bully, and powerful professionals, who may close ranks and compromise the career of the whistle blower
Field T, Becker K, Mackenzie GM, and Crossan L. Bullying in medicine. BMJ. 2002; 324: 786.
Research which reviewed one thousand whistleblowers concluded that
“Public inquiries and scandals across many sectors have highlighted the vital role that whistleblowing can play in the early detection and prevention of harm. But too often questions are asked after the damage is done. From the LIBOR banking scandal, the Mid-Staffordshire hospital inquiry and the Leveson inquiry into phone hacking, it is clear that staff did express concern that wrongdoing or malpractice was taking place. The worrying truth is that they are often ignored or worse, discouraged, ostracised or victimised.”
“The combination of the findings in our report demonstrate why speaking up in the workplace may seem futile or dangerous to many individuals. While organisations may be getting better at addressing wrongdoing, they are still shooting the messenger and overlooking crucial opportunities to address concerns quickly and effectively. “
“Too many workers still suffer reprisal which will not only impact negatively on the whistleblower, but will deter others from speaking up and allow a culture of silence to pervade. We must learn from past mistakes and make sure that whistleblowing protects individuals, organisations and society as a whole.”
Conclusion
This is an amended and shortened version of part of our evidence on NHS whistleblowing to the Whistleblowing Commission. Every single steps described here has been reported to Patients first multiple times and experience by many Patients First members
Until policy makers grasp this reality they can continue to convince themselves that banning gagging clauses or improving policies and the law are the answer when the real answer is a fundamental change of culture, albeit one underpinned by effective legal redress.
Roger Kline is a Director of Patients First and Research Fellow at Middlesex University
PF Meeting with NHS Employers
On September 3rd Roger Kline and David Johnstone met with Dean Royles, NHS Employers Chief Executive. This was a follow up meeting from one held earlier in the year at which we identified our areas of common interest and shared values, even if we came to them from different starting points. The discussion focussed on themes where there was potential for working and learning together. The potential areas to work together were
Invitation to PF to contribute to HR Director Network: to present information intended to lead into ‘provocative yet creative discussion;
Patients First Autumn Conference to provide a platform for NHS Employers Organisation and an exemplar NHS Trust to focus on staff care to promote patient centred care.
Profiling Anonymised Case Studies drawn from cases coming to the attention of Patients First which are considered to have significant learning for patient and staff care programmes. Further consideration to be given about how to make best use of such cases.
Webinar / Seminar Programme Invitation to PF to participate in a webinar for NHS managers hosted by NHS Employers.
Meetings between NHS Employers and Regulators that Patients First be invited to contribute to a planned meeting at which the theme was relevant to PF’s programmes.
So watch this space to see what emerges from the link with NHS Employers organisation.
TWELVE STEPS TO SAFE WHISTLEBLOWING by Roger Kline
HSJ Article 2nd Sept 2013
Bullying management is counterproductive and harmful. NHS organisations that engage with their staff provide better patient care, says Roger Kline
Nursing, medical and other staff do not join the NHS intending to do harm. The problem is that staff wishing to raise concerns over patient care often face serious obstacles, not least bullying, which is endemic in the NHS.
‘Staff declare mistakes and the organisations learn from those mistakes’
Last year alone, 24 per cent of staff reported being bullied. Meanwhile, many senior managers fear the consequences of raising concerns as much as their staff do, if not more so.
Evidence of the negative effects of a bullying management in healthcare is clear. Organisations where a “just” culture prevails rather than a “blame” culture, and those that seek out data and experience, deliver safer care; in these instances, staff declare mistakes and the organisations learn from those mistakes.
To read the full article control & click on the link below