Increasing transparency – Report on whistleblowing
The first healthcare regulators report on whistleblowing was published on 11 September 2018, collating over 12 months of information from each of the 8 healthcare regulators.
What is the report and why was it commissioned?
The report, designed to provide information in relation to how each regulator dealt with the whistleblowing disclosures it received and what action was taken, was commissioned following legislation in 2017. The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017 prescribed a new legal duty on all Prescribed Persons to publish an annual report on whistleblowing disclosures made to them and for this to be accessible to the public.
The Department for Business, Energy and Industrial Strategy (2017) has commented that ‘the aim of this duty is to increase transparency in the way that whistleblowing disclosures are dealt with and raise confidence among whistleblowers that their disclosers are taken seriously…’ 
Relevant legislation sets out specific circumstances in which workers will be protected against retaliatory action for raising concerns with certain outside agencies (Prescribed Persons). Self-employed doctors, dentists, ophthalmologists and pharmacists in the NHS benefit from the protections. To qualify as a ‘protected disclosure’ the worker must have a reasonable belief that the matters fall within the remit of the Prescribed Person to whom they are reporting matters and that the information which they are providing is substantially true. Whether all of the relevant conditions are met would ultimately be for the Employment Tribunal to consider when adjudicating on a ‘whistleblowing’ claim.
Although Prescribed Persons must accept anonymous reports, relevant departmental guidance notes that the person making an anonymous disclosure may find it difficult to receive legal protections if there is no evidence to link the disclosure to them.
The report’s results varied, from the General Chiropractic Council (GCC) showing no whistleblowing disclosures received during this period, to the General Dental Council (GDC) receiving 61 disclosures. The GDC’s contribution showed that disclosures were not just made to its fitness to practice team. We note that two disclosures related to course providers.
There were a high proportion of anonymous disclosures which presented difficulties for the regulators in taking matters forward, a point specifically flagged by the General Optical Council (GOC). None of the 23 disclosures made to the GMC were anonymous. Furthermore, in the context of anonymous disclosures it is not clear how the regulators determined that the disclosure was made by a worker, so as to fall within the ambit of the protected disclosures regime.
Responses from the regulators
The regulators have been keen to stress that lessons are being learnt from the process. The General Pharmaceutical Council (GPhC), has stated that the results will inform standards and guidance development. The Nursing and Midwifery Council (NMC) has also confirmed that it has been carrying out regulator internal awareness training around whistleblowing and is about to launch an e-learning package for its staff.
The GMC’s Anna Rowland, Assistant Director of Policy, Business Transformation and Safeguarding, commented that ‘we want whistleblowers to feel confident in raising their concerns to us and so we have improved the process by which disclosures can be made, giving people the option to do so anonymously.’ The GMC has also confirmed that it is also providing training for staff on how to recognise concerns.
As a response to the report, the Health and Care Professions Council (HCPC) has confirmed that it will provide additional information to its registrants about scope of practice and how it can assess whether or not activities fall within its remit.
It is clear from the report that many of the whistleblowing disclosures were dealt with in the same way as other fitness to practise concerns raised by complainants who could have no possible claim to statutory whistleblowing protections. Given the high number of anonymous disclosures it is difficult to know the true proportion who were making disclosures to the regulators with a specific expectation of obtaining the statutory protections for whistleblowers. It is early days for the reporting system and we will have to see whether a clearer picture emerges with next year’s report.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.