Proposed healthcare whistleblower should have power to compel public bodies to act

A new healthcare whistleblower should be able to compel public bodies to take action, according to the Law Society of Scotland.

Proposals to introduce an independent whistleblower role for healthcare matters in Scotland have been put forward by Shona Robison MSP, following recommendations from the “Freedom to speak up?” review for NHS England in 2015.

The proposed role of Independent National (Whistleblowing) Officer (INO) is intended to provide an independent and external review on the handling of Scottish healthcare whistleblowing cases.

The Law Society said the role should have prescribed powers if it is to address any gaps not covered by existing policies and that the INO should provide a “best practice” whistle blowing policy that all health boards adopt as a minimum standard of practice.

Alison Britton, convener of the Law Society of Scotland health and medical law committee, said: “If this role is going to be able to address any gaps perceived to exist under the current structure then the INO would need to have clear and accountable prescribed powers.

“Without enforcement powers the role would simply be advisory and would mean that health boards could choose to ignore the advice offered. The powers should include the ability to compel a public body to provide evidence and to enforce recommendations if required.

“It is essential that there is clarity around the role. If the INO is to be introduced, it needs to be clear that he or she would have no role in determining whether or not a member of staff has suffered detriment and that existing legal protections and policy mechanisms will continue to apply.

“For example those contained within the Public Interest Disclosure Act 1998 and the current whistleblowing policies which implement the Scottish government’s Public Information Network policy.

“Setting out clear parameters and the powers of an INO would also be essential to ensure consistency in dealing with any issues or complaints.”

The proposals for the new role do not include examining historic cases but the Law Society believes this may be restrictive as such cases could form a necessary part of a review prior to establishing a new role.

The Law Society added that those providing adult health and social care services but who are not employed by the NHS should also be able to access the INO.

Ms Britton said: “The Public Bodies (Joint Working) (Scotland) Act 2014 aims to support the improvement of the quality and consistency of health and social care in Scotland. Health boards and local authorities will be able to arrange to delegate functions and services to ensure effective delivery.

“It’s therefore important that people who may be employed by a service provider other than the NHS, can still access the INO – and it’s our view that the title adopted by the INO should clearly reflect their independence and that they cover wider health and social care provided in Scotland.”