Legal advisers to the NHS are more focused on avoiding employment tribunals than helping to improve disclosure, a high-profile report on whistleblowing in the health service says today.
The long-awaited Freedom to Speak Up report by Sir Robert Francis QC highlights the role played by lawyers in handling wrongdoing.
Francis said when asked for advice by NHS organisations about issues around public interest disclosure, legal advisers have tended to be influenced by a defensive culture.
‘Lawyers in such circumstances tend to look for potential defences to a claim made under public interest disclosure law, rather than to advise on the positive steps that could be taken,’ said Francis.
‘Their focus is to pre-empt an employment tribunal claim rather than to assist in the prioritisation of the public interest, or to help resolve a dispute informally by sitting round a table.’
The report calls for an extension to legal protection for workers coming forward with disclosure.
It also criticised the lack of counselling and psychological support for whistleblowers and said this could be short-sighted and lead to future litigation.
Francis said workers had little appetite for taking their grievances to an employment tribunal and that this was perceived as their only option because of a lack of complaints process.
‘The only route available to an individual who feels he has been subject to detriment for making protected disclosure is to take a case to an employment tribunal,’ he added. ‘However, most do not want to take legal action: all they want is to be assured that patients are safe and to get on with their jobs.’
The report was set up after a number of high-profile failures by NHS organisations and a suggestion that obstacles faced by people with knowledge of the problems were not being encouraged to come forward.
Francis said some testimonies from NHS staff had been ‘shocking’ and he added that some whistleblowers had even contemplated suicide as a result of their experiences.
The report says the legislation that theoretically protects whistleblowers was the Employment Rights Act 1996, but this was ‘limited’ in its effectiveness and applicability. The report called for a review of how this legislation is applied and a widening of its scope.