The Duty of Candour and Whistleblowing

This paper supplements the debate that took place between Angus Moon QC and Rad Kohanzad at the Duty of Candour seminar on 24th September 2015 entitled “Duty of Candour (“DOC”) and whistleblowing”.

Whilst the talk assumed little knowledge of whistleblowing, this paper provides the background to the subject matter of discussion and explores the interrelationship between the duty of candour and whistleblowing.

The phrases “whistleblowing” and “duty of candour” are now often used in conjunction with each other but even to seasoned lawyers, the precise relationship between the two is not entirely clear.

At its simplest, as Sir Robert Francis QC observed in Freedom to Speak Up: An independent review into creating an open and honest reporting culture in the NHS, they are part of a range of measures which help enable or ensure staff speak up. Before exploring the relationship between the DOC and whistleblowing, it may be worth providing a brief summary of the evolution of whistleblowing legislation.

The legislation 

Rights for whistleblowers have a relatively long heritage with their roots going back to the Piper Alpha, Clapham rail and Zeebrugge ferry disasters of the late 1980s when it became clear that staff had not raised safety concerns because they feared the consequences.

Whistleblowing legislation is found in the Employment Rights Act 1996 and was introduced by the Public Interest Disclosure Act 1998. It provides that those who make protected disclosures (i.e. “blow the whistle”) have the right not be treated detrimentally, including being dismissed, for having done so.

The reader may also be aware that there have been some recent changes to the legislation brought in during the last Parliament. Most of those provisions are designed to further foster an open environment. However, the changes introduced by the last government were not all favourable to whistleblowers.

What is particularly interesting about the passage of the recent Enterprise and Regulatory Reform Bill, which introduced the changes, was that the government’s original intention appeared to be to restrict whistleblowing claims, but during the last Parliament Sir Robert’s report was published and there were the phone hacking and banking scandals, so the Government responded by suggesting that whistleblowing needed to be encouraged rather than discouraged. So we have ended up with an Act which largely encourages whistleblowing.

Who is protected? 

Whistleblowing protection is only afforded to “workers”. A worker is someone working under a contract to provide services personally. Widening that protection, the last government extended the definition of “worker” to agency workers and certain types of NHS contractors including, for example, self-employed GPs and pharmacists. Demonstrating the willingness of courts to provide an expansive approach to whistleblowing protection, in the recent case of Keppel Seghers UK Ltd v Hinds the EAT upheld the finding that Mr Hinds was a worker even though it was his limited company (rather than him as an individual)  which had been engaged by Keppel Seghers. The EAT took a purposive approach to the legislation further strengthening protection for whistleblowers.

The main questions 

In whistleblowing cases, the three broad questions that need to be asked are (i) whether the worker has made a protected disclosure, (ii) whether s/he has been treated detrimentally and (iii) whether the reason why s/he has been treated detrimentally was because s/he made the protected disclosure. By far the most legally complex of those questions is the first: whether the individual has made a protected disclosure. However, the most important question for those dealing day to day with complaints is the last question: what is the reason why the person has been treated in the manner alleged?

To be afforded statutory protection (i) the worker must have made a disclosure of information; (ii) the information disclosed must fall into one of six categories; (iii) the person making the disclosure has to have a reasonable belief that the disclosure is in the public interest and tends to show one of the statutory categories of failure; and (iv) the disclosure must have been made in the manner prescribed.

What is a disclosure of information? 

A disclosure of information has been distinguished from an allegation. The most commonly cited distinction, borrowed from the healthcare sector, is where an individual might have said, “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around”, in which case the disclosure may attract protection and the statement “You are not complying with Health and Safety requirements”, when the statement will not attract protection. The first would be a disclosure of information, while the latter would be a mere allegation which would not qualify as a protected disclosure. Whilst this distinction is legally interesting (to lawyers), more often than not an allegation will be accompanied by information to support it, which would therefore satisfy the requirement of a disclosure of information.

For those dealing with such complaints, if someone raises an allegation unaccompanied by any factual allegations, then it is likely that a request for the evidence supporting the allegation would be made.

The six categories 

The information disclosed must relate to:

(i) a criminal offence;

(ii) breach of a legal obligation;

(iii) miscarriage of justice;

(iv) the endangering of an individual’s health and safety;

(v) the environment being damaged; or

(vi) information tending to show any of those matters being concealed.

The above categories are phrased in the past, present and future tense in the legislation so the information can relate to, for example, a criminal offence that has, is being or is likely to be committed.

Courts and Tribunals tend to take an inclusive approach to these definitions. Given working environments at large institutions, and because workplace stress (perhaps due to overwork or poor management) can endanger an individual’s health and safety, it is easy to see that a great many everyday complaints made by a worker would fall into one of these categories.

Reasonable belief in the accuracy of the disclosure

It is very important to bear in mind that the disclosure does not have to be factually correct. The individual merely has to have reasonable grounds for believing that the information that s/he is conveying tends to show one of the statutory categories of failure. This test introduces two grey areas – reasonable belief and tends to show, both of which lower the bar for establishing a qualifying disclosure.

When an individual raises a complaint, it is natural for those investigating it, or who are the subject of it, to focus on the validity of the allegations. However, it is worth taking a step back and considering the possibility that the individual may have made a protected disclosure, regardless of the rights and wrongs of the complaint.

The public interest requirement 

Many cases before the Employment Tribunal have involved allegations of breaches of an individual’s contractual terms. Tribunals would find that the employee had raised a complaint about a potential breach of contract and by doing so they had made a protected disclosure because they were complaining about a breach of a legal obligation.

This type of claim has always been relatively controversial because whistleblowing protection was supposed to protect those who made disclosures in the public interest. After all, the Act introducing the protection was called the Public Interest Disclosure Act 1998.

To close that lacuna, the last government introduced a public interest test into the legislation. So that for a disclosure of information to be a protected disclosure, it has to be made in the public interest. That requirement has made it harder for someone to make a disclosure because they have to show that they had a reasonable belief that their disclosure was in the public interest.

The ambit of what is in the public interest was recently explored in the case of Chesterton Global Ltd v Nurmohamed before the Employment Appeal Tribunal. In that case, Mr Nurmohamed made three disclosures relating to the alleged deliberate misstating of costs, which reduced his earnings. Whilst matters which related solely to an individual’s contract would not on the face of it afford whistleblowing protection, here the misstating of costs had an effect on the earnings of over 100 other senior managers and so the disclosure was held to be in the public interest.

Therefore, whilst the statutory changes have made it harder to establish a protected disclosure by the introduction of the public interest test, this has been tempered first by the requirement only to show a reasonable belief, and second because even when disclosures of information relate to the individual, they may be protected if a wider group of people could be affected by the issue raised.

Good faith

There is no longer a requirement that a disclosure has to be made in good faith for it to be protected. This is as a result of an amendment introduced during the last Parliament. Previously, if the individual had an ulterior motive for making the disclosure (even if the allegation was true), then it was not regarded as having been made in good faith. The idea behind removing (or more accurately, repositioning) the requirement was to encourage people to make protected disclosures as it was thought that the requirement might deter some from making disclosures. Now, although good faith does not go to whether the disclosure is protected, if a protected disclosure is not made in good faith, the whistleblower’s compensation may be reduced by up to 25%.

Manner of disclosure 

If a disclosure satisfies the requirements above it will be a qualifying disclosure. It is only if the qualifying disclosure is made in the correct manner that it will become a protected disclosure. The provisions concerning the manner of disclosure are relatively complex. In summary, they require that the worker should raise his/her concerns with their employer first before resorting to external organisations to complain.

Detrimental treatment 

Once an Employment Tribunal is satisfied that a worker has made a protected disclosure, they need to consider whether s/he has been subjected to detrimental treatment for having done so. Detrimental treatment is relatively easy to establish. The individual merely has to show that the worker reasonably viewed the treatment received as being to his/her detriment. Detrimental treatment could be something as simple as refusing to change a worker’s shift pattern.

The reason why

As suggested earlier, what most cases turn on, and probably the aspect of the case that decision makers can influence the most, is the reason why it is that the worker has been treated detrimentally. What the tribunal will be looking for is the reason – conscious or unconscious – why the decision maker took the decision that they did.

Further broadening protection for whistleblowers, the last government introduced vicarious liability for the bullying or harassment of whistleblowers. So employers will generally be held responsible for the bullying or harassment of their employees who have made protected disclosures; thereby bringing whistleblowing in line with discrimination law. This amendment was brought in following the case of Fecitt v NHS Manchester where it was found that the Trust was not vicariously liable for the detrimental treatment of a whistleblower.

The duty of candour & whistleblowing

Turning to the relationship between whistleblowing and the DOC, the first and most important delineation between them is that whistleblowing provisions are designed to encourage workers to blow the whistle on fellow workers or the employer, whereas the statutory DOC is designed to encourage Trusts to admit error or fault.

Whilst the statutory duty of candour has been placed on NHS Trusts, at the same time the GMC and NMC have introduced the duty to those who they regulate. They have, in essence, transposed the statutory duty into an individual duty placed on healthcare professionals.

The idea behind the DOC is that if it is properly implemented it is likely to encourage a more open environment, which means that people are more likely to make protected disclosures. If there is a culture of candidness, then blowing the whistle will be more commonplace. The corollary of that open environment is that whistleblowers are less likely to be treated detrimentally because making protected disclosures would be more routine.

Countering that optimistic description, commentators, lawyers and health care professionals have observed (well before the introduction of the DOC) that it is often employees who are struggling at work who tend to be the ones who blow the whistle. This could be at least for two reasons. The generous view is that as s/he is struggling and naturally wants to find a reason for his/her lack of progression or difficulties. S/he looks for explanations and arrives at the conclusion it is because s/he has blown the whistle (which NHS employees do regularly as part of their job). The less generous view is that weak employees tend to use whistleblowing as a way of covering themselves.

It is certainly arguable that the combination of whistleblowing protection and the DOC could exacerbate that problem, or even create a culture of weak employees disclosing as a form of protection. That is particularly so given the prominence of the DOC. And because the test is reasonable belief tending to show (which is a low bar) it’s easy for weak employees to make disclosures whilst being wrong about the subject matter they are disclosing.

The second counter to the optimistic suggestion that the DOC will create an open environment is that it ignores human nature. Humans do not readily think that they have made mistakes. Psychologically, how many people readily admit they are wrong about something with important consequences? The consequence of the DOC could simply be that lawyers will pressure clients to admit liability faster than they used to, which cannot properly be described as a cultural shift. That argument is bolstered by the fact that doctors have had a professional and ethical duty to be candid for years and if that obligation has had little or no effect, what are the chances of the DOC doing so?

Those in favour of the DOC have powerful responses to the pessimistic note expressed above. In response to the suggestion that the DOC will foster a culture of back covering, it is probably more accurate to describe the consequences of the DOC as being that it will both encourage some genuine people who would have hitherto been reluctant to make disclosures and also enable weak employees to cover their back. If you want to foster an open environment, one of the consequences is that a few people may take advantage of the system. That is simply the price you have to pay.

Similarly, we are of course all reluctant to see (or recognise) our own failures, let alone admit them but one of the purposes of legislation is to change societal behaviour. It used to be culturally acceptable to drink drive. Legislation changed that culture. We don’t tend to recognise or admit our faults but legislation can try and change that. It is arguable that the combination of the statutory duty on the Trust combined with the regulatory duty imposed on the healthcare practitioner could well lead to a change in behaviour and culture, so that we more readily examine our potential failures.

Added to that, whilst of course doctors have had a professional and ethical duty for many years, which did not create an open and transparent environment, a renewed emphasis on an already existing duty can create cultural change. The Equality Act, for example, was largely a consolidating piece of legislation but one would not realise that from the vigour with which employees up and down the country cite it.

What has and should be created by these changes is multifaceted pressure brought to bear on Trusts and healthcare professionals to comply with the DOC, the idea being that the pressure will create openness. However, returning to the human nature of a doctor who is naturally reluctant to admit a fault because s/he believes that s/he has not made a mistake. S/he may well genuinely decide that there has not been a notifiable incident. However, if s/he is wrong about that, s/he could then face internal capability proceedings for the original failure and internal misconduct proceedings for the failure to comply with the DOC. Breaches of the DOC may well be considered to be gross misconduct, even if the underlying failure would not have led to dismissal.

Added to that, s/he could face fitness to practise proceedings by the GMC for both the underlying failure and the failure to comply with the DOC. Whilst all of that is hanging over him or her, the Trust could lose the indemnity provided by the NHSLA. This is a huge amount of pressure flowing from a potentially notifiable incident. Prior to the introduction of the DOC a doctor might have been inclined to make an admission in the cold light, once the dust has settled. But now, since the introduction of the DOC, if a doctor fails to make a timely admission in line with his duty, there is a perverse incentive not to make one at all because the consequences for failing to make an early admission could result in dismissal or erasure – even if the underlying failure is minor.

There is clearly a tension between the ideals of creating a more open environment and a natural resistance to recognising or admitting our own failures – meaning that whether or not the DOC has had a negative or a positive impact on the whistleblower, it may (at least in the short to medium term) lead to an increase in litigation.

Sir Robert’s recommendations 

Sir Robert has set out a number of principles in relation to whistleblowing. They are largely, although not exclusively, found in the Freedom to Speak Up report, are set out below:

  1. Every organisation involved in providing NHS healthcare should actively foster a culture of safety and learning in which all staff feel safe to raise concerns.
  2. Raising concerns should be part of the normal routine business of any well-led NHS organisation.
  3. 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.
  4. All employers of NHS staff should demonstrate, through visible leadership at all levels in the organisation, that they welcome and encourage the raising of concerns by staff.
  5. Employers should show that they value staff who raise concerns, and celebrate the benefits for patients and the public from the improvements made in response to the issues identified.
  6. There should be opportunities for all staff to engage in regular reflection of concerns in their work.
  7. All NHS organisations should have structures to facilitate both informal and formal raising and resolution of concerns.
  8. When a formal concern has been raised, there should be prompt, swift, proportionate, fair and blame-free investigations to establish the facts.
  9. 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.
  10. Every member of staff should receive training in their organisation’s approach to raising concerns and in receiving and acting on them.
  11. All NHS organisations should ensure that there is a range of persons to whom concerns can be reported easily and without formality. They should also provide staff who raise concerns with ready access to mentoring, advocacy, advice and counselling.
  12. Where a NHS worker who has raised a concern cannot, as a result, continue in their current employment, the NHS should fulfil its moral obligation to offer support.
  13. 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.
  14. Everyone should expect to be held accountable for adopting fair, honest and open behaviours and practices when raising, or receiving and handling concerns.
  15. There should be an Independent National Officer resourced jointly by national systems regulators and oversight bodies and authorised by them to carry out the functions described in this report.
  16. There should be coordinated action by national systems and professional regulators to enhance the protection of NHS workers making protected disclosures and of the public interest in the proper handling of concerns.
  17. CQC should recognise NHS organisations which show they have adopted and apply good practice in the support and protection of workers who raise concerns.
  18. All principles in this report should be applied with necessary adaptations to education and training settings for students and trainees working towards a career in healthcare.
  19. All principles in this report should apply with necessary adaptation in primary care.
  20. Legal Protection should be enhanced