Moorfields Eye Hospital Nhs Trust

Whistleblowing Policy

Version 2 November 2009

Whistleblowing Policy v 2 1 Version history

Version Date Issued Brief Summary of Author Change 1 August 1998 Created K Gold 2 November Reviewed M Ryan 2009

For more information on Ken Gold the status of this Director of Personnel document, please Moorfields Eye Hospital NHS contact: Foundation Trust City Road London

Email: [email protected]

Tel: 020 7566 2044

Author Ken Gold Date of Issue August 1998 Reference HR/0059 Last Update November 2009 Next Update Approved by Trust Board Date of approval Distribution/Availability All MEH

Whistleblowing Policy v 2 2 Contents

Version history...... 2

Contents...... 3

1. Introduction...... ………………. 4 2. Policy Statement..…………………………………………………….. 4 3. Scope of Policy………………………………………………………… 5 4. Safeguards……………………………………………………………… 5 4.1 Protection………………………………………………………. 5 4.2 Confidentiality………………………………………………….. 5 4.3 Anonymous Allegations………………………………………. 6 4.4 Retaliation……………………………………………………… 6 4.5 Unfounded Allegations……………………………………….. 6 5. Procedure for Raising Concerns…………………………………….. 6 5.1 Initial Action……………………………………………………. 6 5.2 Next Steps……………………………………………………… 7 5.3 Outcome……………………………………………………….. 8 6. External Disclosure……………………………………………………. 8 6.1 Disclosure to a Statutory Regulatory Body…………………. 8 6.2 Public Disclosure………………………………………………. 8 7. Audit……………………………………………………………………… 9

Appendix 1 The Public Interest Disclosure Act 1998………………….. 10 Appendix 2 Guidelines for Staff………………………………………….. 12 Appendix 3 Guidelines for Managers……………………………………. 14 Appendix 4 Reporting Form………………………………………………. 17

Whistleblowing Policy v 2 3 1. Introduction

All of us may, at some point, have concerns about what is happening at work. Usually these concerns are easily resolved by raising matters internally with our line manager. When it involves the safety of the Trust patients, public or colleagues, professional misconduct or financial malpractice however, it can be difficult to know what to do.

The Public Interest Disclosure Act (PIDA) 1998 provides a framework within which organisations can promote responsible whistleblowing and aims to help employees raise concerns about irregularities within an organisation without fear of recrimination or reprisals by their employer. It has three purposes:

● The Act provides legal protection for whistleblowers by extending and strengthening remedies for employees’ actions that are available through the Employment Rights Act 1996. ● It adds a new right under the Act: the right to not be victimised at work. ● The Act also serves a larger positive purpose, to make institutions more transparent and accountable, where a culture of openness and constructive criticism within and between professionals is encouraged.

A brief summary of the Act is given in Appendix 1.

The Whistleblowing policy aims to help all Trust employees to raise relevant concerns with management where the interests of others or of the Trust are at risk, as soon as they learn of them or have suspicions. These concerns can include clinical care (including malpractice such as abuse of patients), failure to comply with any legal duty, danger to the health and safety of any individual, suspected fraud, a criminal offence or breach of codes of conduct or rules over gifts and hospitality.

The policy does not apply to concerns over possible fraud, workplace grievances, diversity or as a means of making a complaint about the Trust’s services. These are covered by dedicated policies within the Trust and individuals with concerns relating to these areas should follow the relevant policy.

2. Policy Statement

The Trust is committed to the highest standards of integrity, openness and accountability. It seeks to conduct its affairs in a responsible and transparent manner, and to conform with appropriate standards in public life; it recognises that individual members of staff have a vital role in ensuring that this is achieved. Members of staff will usually be the first to know when an improper act has taken place. The Trust has therefore agreed a procedure to facilitate disclosures and remedy poor performance, which is consistent with the terms of the PIDA.

Whistleblowing Policy v 2 4 3. Scope of Policy

The whistleblowing policy is intended to enable all employees and others (for example agency, volunteers and locum staff) who are expected to comply with Trust policies while working at the hospitals, who suspect malpractice, to disclose information or raise concerns about malpractice.

Examples of malpractice relevant to the whistleblowing policy include:

 a criminal offence (other than fraud)  a failure to comply with any legal obligation  clinical malpractice, including abuse of patients  a miscarriage of justice  danger to the health and safety of any individual  danger to the environment  breach of employee codes of conduct or rules on gifts and hospitality  attempts to cover up any of the above.

Any allegation of or concern about fraud should be referred to the Trust Counter-Fraud Specialist (Appendix 3 for details).

4. Safeguards

4.1 Protection

The Trust guarantees protection from disciplinary action up to and including dismissal, or discriminatory treatment to all staff who disclose relevant concerns, provided the disclosure is made:

(i) in good faith, and

(ii) in accordance with the Whistleblowing Procedure

(iii) in the reasonable belief of the individual making the disclosure that it shows evidence of impropriety or malpractice

4.2 Confidentiality

The Trust will treat all disclosures under this policy in a confidential and sensitive manner. The identity of the individual who makes an allegation will remain confidential where this does not hinder or frustrate any investigation, and where there is no overriding reason for divulging it, (for example, where police involvement is necessary). A similar duty of confidentiality over disclosure to anyone else rests with the person making an allegation.

Whistleblowing Policy v 2 5 4.3 Anonymous Allegations

The Trust encourages individuals to put their names to any disclosure. Anonymous allegations carry less weight, although the Trust may consider them, taking into account the following factors:  the seriousness of the issue raised  the credibility of the concerns  the likelihood of confirming the allegation from alternative credible sources

4.4 Retaliation

The Trust will take disciplinary action against any member of staff who retaliates against a whistleblower.

4.5 Unfounded Allegations

Where an allegation is not borne out by subsequent investigation, no action will be taken against the whistleblower, provided that the allegation was made in good faith.

In cases where subsequent investigation demonstrates beyond reasonable doubt that an individual has made a malicious or vexatious allegation, and particularly where an individual persists in making unfounded allegations, the Trust reserves the right to take disciplinary action against that individual.

5. Procedure for Raising Concerns

5.1 Initial Action

If an individual has a concern about malpractice, we hope they feel able to raise it first with their manager. This may be done by speaking to him/her or in writing. An individual may raise this with a staff representative and ask him/her to accompany them to a meeting, or to help putting their concerns into writing. Consultants should make a disclosure to their clinical director.

If an individual feels unable to raise the matter with their manager, for whatever reason, they should raise the matter with the general manager, or most senior manager for that department or the Director of Corporate Governance. Relevant on- call telephone numbers will be available at site switchboards for contact outside normal working hours.

In addition, confidential advice about disclosure can be obtained from HR Managers for the relevant SDU. Individuals should say if they want to raise the matter in confidence so that appropriate arrangements can be made.

If these channels have been followed and there are still concerns, or if the matter in some way concerns ant of those above, please contact the Chief Executive or ask for the contact details of a non-executive Board member (including Chair) via the Chief Executive’s office.

Whistleblowing Policy v 2 6 Alternatively, you may wish to report your concerns externally to” Public Concern at Work” .This organisation can provide further guidance and information.

5.2 Next Steps

The manager with whom the concerns are raised will, in the first instance consider all the information available to him or her and decide whether or not there is a case to answer.

If the manager believes there is no case to answer, the person who made the disclosure must be informed. Initial notification may be given orally but written notification must be sent giving details of the reasons within 48 hours.

A copy of the letter must be sent to the Director of Corporate Governance.

If the manager believes there is a case to answer, all the information must be recorded in writing and the allegations referred to Director of Corporate Governance. within 48 hours, or sooner if a delay could result in a serious untoward incident or damage to the Trust’s reputation. The contents of an appropriate report to Director of Corporate Governance are given as an example in Appendix 4.

The Director of Corporate Governance will decide, taking advice from the HR Director and other senior managers if appropriate, whether an investigation should take place and in what form. This will depend on the issues raised in the allegation but will take one or more of the following forms:

 internal enquiry  external enquiry  police investigation  referral to a statutory body or prescribed regulator

The person or persons against whom the allegation is made will be informed and given the supporting evidence orally or in writing. They will be allowed to respond to the allegation before any investigation or further action is taken.

If the disclosure raises questions about the legal or professional integrity of the Trust’s services or issues which could damage the Trust’s reputation, the Director of Corporate Governance will consult the Chief Executive, who may then consult with the PR and Communications Manager and Trust Chairman, over the appropriate course of action.

If an internal enquiry is commissioned, the Director of Corporate Governance will appoint a senior member of staff (who has no managerial responsibility for the whistleblower or the person who is subject to the allegation) as Investigating Officer. The enquiry will be conducted as sensitively and as speedily as possible and will report to the Director of Corporate Governance.

Whistleblowing Policy v 2 7 5.3 Outcome

On receiving the report, the Director of Corporate Governance will decide the most appropriate form of action to be taken. He/she will ensure that any recommended action is delegated to an appropriate person or persons, working group or committee for implementation, as appropriate and that this action is followed through with confirmation of such action being provided to the Director.

The Director of Corporate Governance will confirm the outcome in writing to the person who made the allegation and the person who is the subject of the allegation within 20 working days of the initial disclosure.

If disciplinary action against a member of staff is taken as a result of the investigation, the Director of Corporate Governance will inform the whistleblower that “appropriate action” has been taken in accordance with Trust disciplinary procedures.

6. External Disclosure

We hope this policy provides the reassurance needed by an individual to raise anything of concern internally. However, there may be circumstances when an individual may wish to report the matter to someone outside the Trust.

6.1Disclosure to a statutory regulatory body

A member of staff may refer a concern to a statutory regulatory body and be protected under this policy provided the disclosure is made:

(i) in good faith, and (ii) on the basis of a reasonable belief that the concern is substantially true, and (iii) in the reasonable belief that the matter falls within the jurisdiction of the regulatory body.

Regulatory bodies for the purposes of this section are organisations specifically authorised under the Public Interest Disclosure Act to respond to disclosures made to them. They include, but are not limited to, the Audit Commission, the Charity Commission, the Data Protection Authority, the Health and Safety Executive. None of the professional regulators (for example the GMC and the UKCC) are statutory regulatory bodies.

6.2Public Disclosure

Wider disclosure, including to a Member of Parliament, an Ombudsman, the police, a professional or other non-statutory regulator is permissible. However, to qualify for protection under this policy, disclosure must be:

(i) made in good faith (ii) made on the basis of reasonable belief that the concern raised is substantially true (iii) reasonable in all circumstances of the case (iv)not made for personal gain, including financial gain.

Whistleblowing Policy v 2 8 In determining whether public disclosure is reasonable in all the circumstances, staff must consider:

 the nature and function of the person, or body to whom the disclosure is made  the seriousness of the relevant action or failure  whether the action or failure is continuing or likely to continue  whether disclosure is in breach of a duty of confidentiality the employer owes to any other person (for example, a patient).

In addition where a member of staff has not previously raised the concern within the Trust or with a regulatory body, the member of staff must

(i) reasonably believe he or she would have been victimised if the matter were raised internally or with a statutory regulator. or (ii) reasonably believe that a cover-up (for example concealing or destroying evidence) would have been likely and there is no statutory regulator to turn to, or (iii) have evidence that the matter had already been raised internally or with a statutory regulator, and that no appropriate action had been taken.

Such disclosures should therefore be made as a last resort.

Note: the further outside an organisation a disclosure is made the more difficult it becomes in qualifying for protection. Members of staff are strongly advised to take professional advice or independent legal advice before raising a concern publicly.

“ Public Concern at Work “can provide further guidance and information.

7. Audit

The Director of Corporate Governance will provide a report to the Trust Board on activity arising from the operation of this policy.

The report will include information on:

 how often the policy has been activated formally  types of issues raised  how many allegations were upheld, how many were rejected wholly or partly and for what reasons  resources used in implementing the policy  achievements against the set timetable to respond (usually four weeks)  improvements of services resulting from the process.

Whistleblowing Policy v 2 9 Appendix 1 – The public Interest Disclosure Act 1998

Summary

The Public Interest Disclosure Act 1998 promotes accountability in the public, private and voluntary sectors by encouraging members of staff not to ignore malpractice in the workplace. It provides rights and remedies, which protect staff from recriminations and reprisals by employers as a result of raising concerns or allegations over malpractice. There is a new right, the right not to be victimised at work. The remedies include protection from dismissal or demotion. The aim of all this is to ensure that organisations address the message rather than the messenger and resist the temptation to cover up malpractice.

Malpractice

The law applies to people at work raising genuine concerns about crime, illegality, miscarriage of justice, danger to health and safety or the environment and any cover up there of. Since the Act became law, concerns raised within the NHS as malpractice have included abuse of patients, financial impropriety and personal use of the services of hospital contractors.

Individuals Covered

The Act applies to most employed people, including NHS employees, trainees, agency staff and home care workers. The usual employment law restrictions on minimum qualifying periods and age in seeking redress against an employer under the Employment Rights Act 1996 do not apply over rights and remedies under the Public Interest Disclosure Act. The Act however does not apply to self-employed people, volunteers, the intelligence services, the armed forces or the police.

Internal Disclosures

A public interest disclosure of alleged malpractice should primarily be made to the employer. This must satisfy three tests; the disclosure must be in good faith, in the reasonable belief that it tends to show impropriety and in accordance with the employer’s whistleblowing policy.

Regulatory Disclosures

The Act makes special provision for disclosures to statutory regulators approved by Parliament to act thereon. They include the Audit Commission, the Charity Commission, the data protection Authority and the Health and Safety Executive. Professional regulatory bodies are specifically excluded. Disclosures to approved authorities will be protected where the whistleblower meets the test for internal disclosures and in addition honestly and reasonably believes that the information and any allegation therein are substantially true.

Whistleblowing Policy v 2 10 Wider Disclosures

Wider disclosures (for example to MPs, the police, professional regulators and the media) are protected, if in addition to the test related to statutory regulators, such disclosures are reasonable in all the circumstances and are not made for personal gain.

There are two parts to the reasonableness test. Firstly, the whistleblower must reasonably believe that he or she would be victimised and secondly, the concern must have been raised privately with the employer or a statutory regulator. Provided these provisions are met and an Employment Tribunal is satisfied the disclosure was reasonable under all circumstances, the whistleblower will be protected.

Full Protection

Where a whistleblower suffers detriment at work, such as victimisation or dismissal, in breach of the Act, he or she may pursue a claim to an Employment Tribunal. Any claim must be within three months of suffering detriment or dismissal. The Tribunal has the power to fine an employer and award compensation to the whistleblower. Where an employer dismisses a whistleblower, he or she may apply to the Tribunal for immediate reinstatement provided the application is made within seven days of the date of termination of employment.

Gagging Clauses

Gagging clauses in employment contracts and severance agreements are void where they conflict with the legal protection given to employees under the Act.

Public Concern at Work can provide further guidance and information.

PCaW Contact Details Public Concern at Work, Suite 301, 16 Baldwin Gardens, London EC1N 7RJ Telephone (general enquiries and helpline): 020 7404 6609, Fax: 020 7404 6576 Email: [email protected] UK Helpline: [email protected] UK Services: [email protected]

Whistleblowing Policy v 2 11 Appendix 2 – Guidelines for Staff

All of us may have concerns about what is happening at work and usually these concerns are easily resolved. However, when they are about unlawful conduct, clinical malpractice (such as abuse of patients), inappropriate financial practices or dangers to the public or the environment it can be difficult to know what to do.

You may be anxious about raising these issues or may want to keep the concerns to yourself believing that there is you have no strong supporting evidence. You may believe that raising the matter will be disloyal to colleagues, managers or to the Trust. You may decide to say something but find you have spoken to the wrong person or raised the issue in the wrong way and are unsure about what to do next.

Moorfields Eye Hospital NHS Foundation Trust has introduced a whistleblowing policy to help you raise these concerns at an early stage in the right way. It is primarily for concerns where the interests of others or of the Trust itself are at risk. We would rather you raise these matters when they are just a concern than wait for proof.

If you are concerned about your personal position, for example you are being subjected to bullying or harassment; other policies can be used, such as equal opportunities or grievance. If financial irregularities are involved you can raise the matter with the Local Counter Fraud Specialist in the Internal Audit Team under the fraud policy and response plan. You can also contact the NHS Fraud Hotline telephone. If at all possible, approach your manager first to discuss your concerns.

Our Assurances to you

Your Safety

The Trust Board is committed to this policy. If you raise a genuine concern you will not be at risk of losing your job or suffering any form of retaliation. Provided you act in good faith it does not matter if you are mistaken. However this does not apply to someone who maliciously raises a matter they know is untrue.

Your Confidence

We will not tolerate harassment, victimisation or any other form of retaliation against anyone who raises a genuine concern. However, we recognise that you may nonetheless want to raise a concern confidentially under this policy. If you ask us to protect your identity by keeping your confidence, we will not disclose it without your consent unless an overriding reason makes it necessary. An example would be where we have to refer your evidence to the police. We will discuss the decision with you.

Remember that if you do not tell us who you are it will be much more difficult for us to look into the matter, to provide you with appropriate support or to protect your position or to give you feedback. So while we will consider anonymous reports we will have to look at the seriousness of the issue raised, the credibility and the likelihood of confirming the allegation from another credible source before we can pursue it.

Whistleblowing Policy v 2 12 How we will handle the Matter

Once you have told us of your concern we will look into it to assess what initial action should be taken. This may involve an internal enquiry or a more formal investigation. We will tell you who is handling the matter, how you can contact them and whether your further assistance may be needed. If you request it, we will write to you summarising your concern and explaining how we plan to handle it.

When you raise the concern, you may be asked how you think the matter may best be resolved. If you have any personal interest in the matter we will ask you to tell us at the outset.

While the purpose of this policy is to enable us to investigate possible malpractice and take appropriate steps to deal with it we will give you as much feedback as we possibly can. However, we may not be able to tell you the precise action we take if this would infringe a duty of confidence we owe to someone else.

Whistleblowing Policy v 2 13 Appendix 3 –

PCaW Contact Details Public Concern at Work, Suite 301, 16 Baldwin Gardens, London EC1N 7RJ Telephone (general enquiries and helpline): 020 7404 6609, Fax: 020 7404 6576 Email: [email protected] UK Helpline: [email protected] UK Services: [email protected]

For more specific concerns such as fraud, safeguarding children or vulnerable adults, the following steps should also be taken:

Fraud The Trust is committed to combating fraud within the organisation. Victoria Dutton is the nominated counter fraud lead for the Trust, she can be contacted on 02079538631

Safeguarding Children Any worker, who believes that a child may be suffering, or may be at risk of suffering significant harm, should always refer their concerns to the Trust leads for safeguarding children. The Trust has a designated nurse and doctor for child protection and safeguarding children to support and help with this process.

Mally Scrutton, Matron, RDEC, ext 2595 Alison Salt, Consultant Paediatrician, RDEC, ext 2344 or the Local Authority Children’s Services Department .

Vulnerable Adults “There can be no secrets and no hiding place when it comes to exposing the abuse of vulnerable adults.” No Secrets (Department of Health, 2000) Staff who have information relating to the abuse of vulnerable adults should advise Tracy Luckett, Deputy Director of Nursing, ext 2595.

Whistleblowing Policy v 2 14 Guidance for Managers

1. Introduction

If you are approached by a member of staff wishing to invoke the whistleblowing policy you will need to make some judgments about the most appropriate way of dealing with the concerns they want to discuss with you. This appendix offers guidance on the information you may wish to gather before making your decision.

2. Initial Meeting

2.1: Please complete the reporting form included in the policy (Appendix 4). Copies are available through the Trust Intranet site where this policy can be found or alternatively from the HR directorate.

2.2: The form will be retained as a record of all contracts for the purpose of auditing the policy and establishing resources required in the future to support it.

2.3: You may wish to use the following questions as a basis for your initial report:

 What are the main issues or concerns of the individual(s)?  Why are they concerned?  Do they have evidence, names, dates and times, examples of practice or events over which they wish to invoke the policy?  Have they raised the issue before with anyone? If so whom? When? What was the outcome?  What has prompted them to come forward at this time? Has something new happened or changed?  What would they like to happen as a result of meeting you?  What do they hope to achieve?

3. Decision

3.1: When you have the information, you will need to consider whether the whistleblowing policy is the appropriate policy under which to raise the concerns. Consider the following points, which are of crucial importance:

 Are these legitimate concerns?  Do the issues relate to the individual’s employment? If so they should be dealt with under the Trust grievance procedure.  Do the issues relate to bullying, victimisation, harassment, or discrimination? If so, they should be dealt with under the Trust Single Equality Scheme.  Are financial irregularities involved? If so, they should be dealt with under the Trust’s fraud policy and response plan.  Has the member of staff raised a local minor problem? If so, it should be resolved at a ward or departmental level.

Whistleblowing Policy v 2 15 3.2: If the concern raised by the member of staff relates to:

 failure to comply with a legal duty  miscarriage of justice  danger to health and safety or the environment  malpractice  criminal activity  covering up any of the above

It should be dealt with appropriately under the whistleblowing policy.

4. Subsequent Action

You will then need to consider whether the concern needs to be referred to the Director of Corporate Governance or whether you can deal with it yourself and inform him/her of the outcome. If at any time you are unsure or wish to discuss the matter with him/her for advice or reassurance, please do so at once.

You must inform the member of staff who raises the concerns of your decision, the reasons for your decision and the action you will take. This may be done orally in the first instance but you must confirm it in writing to them within 48 hours.

If you believe there is a case to answer you should record all the information you have gained in writing. You must ensure that it is received by the Director of Corporate Governance or the nominated deputy, within 48 hours, or immediately if you believe a delay could result in a serious incident, injury or adverse publicity for the Trust.

If you do not believe there is a case to answer, a copy of the letter you send to the member of staff who raises the concern with you, must be received by the Director of Corporate Governance within 48 hours.

Whistleblowing Policy v 2 16 Appendix 4 – Reporting Form

Name and title of person raising concerns:

Ward or department:

First contact, date and time:

Meeting date and time:

Communication with [ ]

Informed immediately: YES/NO

Date, time, name of person informed:

Inform nominated director within 48 hours: YES/NO

Date, time and name of person informed:

Action required by nominated director: YES/NO (for information only)

Additional information attached: YES/NO

Name and signature of manager completing this form:

Date and time of signature:

This section to be completed by [ ]

First informed of this issue: Date, time, by: Name, signature: Please give details of issues/concerns raised/case outcome:

(Use additional sheet if necessary)

Whistleblowing Policy v 2 17 Action Plan Following Initial Meeting

Person Action Agreed Target Date Date Completed Responsible

Whistleblowing Policy v 2 18