Whistleblowing
Guidance for providers who are registered
with the Care Quality Commission
November 2013
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Contents
Introduction 2
1. What is CQC? 2
2. What is whistleblowing? 3
3. Is whistleblowing the same as making a complaint? 3
4. Why should my organisation have a whistleblowing policy and procedure? 4
5. What does CQC advise registered providers to do about whistleblowing? 4
6. Where can I get advice on the best way to respond to concerns from staff and providing
my own whistleblowing policy? 5
7. Can a worker give information in confidence or anonymously? 6
How CQC handles whistleblowing disclosures 6
8. Will CQC always act on a protected disclosure? 6
9. What will CQC do with the information in the protected disclosure? 6
10. Will CQC keep in contact with the whistleblower? 7
11. Will CQC give the name of a whistleblower to an employer? 8
The Law 8
12. Who is protected by PIDA? 8
13. What is a protected disclosure? 9
14. What is a prescribed body? 9
15. How does the law protect workers who whistleblow? 10
Appendix: The Public Interest Disclosure Act 1998 11
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Introduction
This guidance is for all providers of health and adult social care who are registered with
the Care Quality Commission (CQC) under the Health and Social Care Act 2008. In this
guidance, the term ‘worker’ refers to a person who is directly employed by the provider,
an agency worker, someone who is in training with them or who provides services to
them. It tells you:
About CQC.
About whistleblowing.
Why you should have a whistleblowing policy.
The protection the law gives to workers who raise concerns.
The benefits of encouraging workers to raise concerns.
What we will do when we receive information from a whistleblower.
CQC is a signatory to the NHS ‘Speaking Up Charter’ and we provide this guidance as
part of our commitment to it. This guidance is in the whistleblowing section of our
website.
1. What is CQC? The Care Quality Commission is the independent regulator of
healthcare and adult social care services in England. We
register providers under the Health and Social Care Act 2008.
We then inspect them regularly to check that they are meeting
the national standards of quality and safety required by law, and
take action against them if they are not. If we believe people are
at unacceptable risk of poor care, we have a range of strong
enforcement powers.
CQC’s role is to regulate providers of care – for example, NHS
trusts, private hospitals, care home owners and dental and GP
practices. This is separate to professional regulatory bodies that
regulate care professionals as individual practitioners.
The national standards cover a range of things that are
essential to the quality and safety of care, such as:
How patients and people are being treated,
The welfare of patients and people receiving care,
The safety and safeguarding of people receiving care, and
people’s dignity and privacy.
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2. What is
whistleblowing?
Whistleblowing is the term used when someone who works for
an employer raises a concern about malpractice, risk (for
example about patient safety), wrongdoing or possible illegality,
which harms, or creates a risk of harm, to people who use the
service, colleagues or the wider public.
Ideally, such concerns should be dealt with by the employer.
However, if the management have not dealt with those concerns
by responding appropriately to them, perhaps by using the
employer’s own whistleblowing policy, or the worker does not
feel confident that the management will deal with those
concerns properly, they can instead make a disclosure to a
‘prescribed body’, such as a regulator like CQC.
The Public Interest Disclosure Act 1998 (PIDA) protects workers
by providing a remedy if they suffer a workplace reprisal for
raising a concern which they believe to be genuine. See
questions 12-15 below for further information.
Disclosures could be about the safety of patients or people who
use services, the failure of a provider to comply with the law or
the national standards of quality and safety, financial
malpractice or risks to staff or other people.
If a worker is concerned that vulnerable adults or children using
a service are not being cared for in a way that keeps them safe,
they can also raise their concern with the local authority (local
council) under their safeguarding procedures. They can do this
as well as whistleblowing to CQC or another body such as the
police.
We also provide guidance about whistleblowing for workers of
registered providers on our website.
3. Is
whistleblowing
the same as
making a
complaint?
No. Whistleblowing is different from a complaint or a grievance
and usually refers to situations where a worker raises a concern
about something they have witnessed at their workplace.
People who use services, their relatives or representatives, or
others, can make complaints about a service using the service's
complaints procedure. This is not whistleblowing.
Good employment practice includes providing a grievance
procedure for staff to use in respect of their employment rights
and conditions of service.
See our website for information on how people can make a
complaint or raise a concern about a service and how we deal
with any that we receive. This information also includes
guidance on how to complain about CQC.
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4. Why should my
organisation have
a whistleblowing
policy and
procedure?
A good service provider will create an atmosphere where workers
feel able to report concerns and will thoroughly investigate and
address such concerns within the service. A good whistleblowing
policy is an important tool in creating this atmosphere.
Having an open culture will help staff to be more confident about
raising concerns. Workers are more likely to raise concerns at
an early stage if your policy and procedures are clear and easy
to use. It is also easier for you to deal with concerns at an early
stage.
Employers who promote whistleblowing are more likely to be
seen as better employers by staff and as better service
providers by the public. Your policy and procedure should make
it clear to workers that they can go outside their normal line
management or accountability arrangements to raise concerns.
They should also make it clear to other people who provide
services to you, such as agency workers, that they too can raise
concerns and have the protection of PIDA.
Your policy and advice to workers should also make it clear that
disclosures – whether made in the workplace or externally to an
outside body – that are malicious or knowingly untrue are not
protected under PIDA.
If you don’t have a whistleblowing policy, staff may be less
confident about reporting concerns promptly. This could mean
that:
Bad practice could continue for longer than necessary.
There will be more complaints from people who use the
service or their representatives.
Staff may leave or perform less well.
Your service may receive more negative reports.
Furthermore, if there is no whistleblowing policy, staff are more
likely to go to an outside body in order to protect people in
vulnerable circumstances. Any subsequent public reporting could
result in damage to your reputation that could have been avoided.
5. What does CQC
advise registered
providers to do
about
whistleblowing?
Registered providers must meet the regulations and national
standards of quality and safety.
Our publication Guidance about compliance: Essential
standards of quality and safety focuses on the outcomes that
people who use a service should expect when a provider is
meeting the standards. It includes prompts about how providers
and staff can achieve the outcomes.
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You should look in particular at Outcome 7 ‘Safeguarding
people who use services from abuse’ and Outcome 14
‘Supporting staff’.
Generally, you should ensure that the people who use your
services receive care, treatment and support from staff who are
confident about reporting any safeguarding and other concerns,
without worrying about the consequences.
There should be an open culture in your service that allows staff
to feel supported to raise concerns, both inside and outside of
the service, without fear of recrimination.
Legal protection is very important to encourage staff to raise a
concern about wrongdoing or malpractice, but employers should
also make it easy for staff to raise concerns, and contribute to
good practice. You should make sure that your workers are
aware of their rights under PIDA.
If you are a large organisation, you may wish to identify one or
more senior managers outside of the usual line management
arrangements as having a lead role for receiving concerns from
staff in confidence. An individual provider may identify
themselves as the person to approach, but could also consider
some impartial outside party to perform this role. The
arrangements should reassure staff that their concerns will be
received supportively and addressed appropriately without fear
of reprisals of any kind.
Any such arrangements will support your risk management
systems, but are not a substitute for them.
6. Where can I get
advice on the best
way to respond to
concerns from
staff and providing
my own
whistleblowing
policy?
The Whistleblowing Helpline offers free advice to both workers
and employers in the NHS and social care; you can call the
helpline on 08000 724 725.
The charity Protect offers advice to employers as well as
workers. You can get advice by telephoning 020 3117 2520 or
visit the Protect website.
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The NHS Social Partnership Forum (SPF) has produced a
resource pack for NHS providers, which other providers may
find useful. This is available on its website.
7. Can a worker
give information
in confidence or
anonymously?
Yes. Although a worker will be unlikely to use your
whistleblowing policy anonymously, you should ensure as far as
possible that you respect their confidentiality and you do not
disclose their identity to anyone who does not need to know it.
This is particularly important if the disclosure involves concerns
about the worker’s superiors or colleagues.
How CQC handles whistleblowing disclosures
8. Will CQC
always act on a
protected
disclosure?
There are a number of ways we may respond to a disclosure,
depending on what the worker tells us and how serious the
matter is. In the first place, we need to decide if:
The concern is within the scope of our regulatory duties.
We are the right organisation to investigate the concern.
Another organisation is best placed to deal with the concern
instead of, or as well as, us. For example, the General
Medical Council will look at the fitness to practise of a doctor,
and we will consider the impact on the people who use the
service where that doctor works, if the service is regulated by
us.
We will always ask if the person contacting us has tried to raise
their concern with their employer but we will still respond to their
concerns if they have not.
9. What will CQC
do with the
information in the
protected
disclosure?
We will do one or more of the following:
Note the concern for information – we will log it and check
whether it adds to existing concerns about the service or
whether it is a new concern. All concerns will be reviewed
by the compliance inspector for the service. The inspector
will consider the information when monitoring the registered
provider's compliance with national standards of quality and
safety.
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Use the information to help us to decide whether to urgently
inspect the service or bring forward a planned inspection.
Raise the issue directly with the appropriate registered
person, that is, the registered provider or the registered
manager of the service. We will protect the confidentiality of
the whistleblower when we do so. See question 11 Will
CQC give the name of a whistleblower to an employer?
Make a safeguarding alert to the local authority if the
information is about possible harm or abuse. We will follow
our safeguarding procedure and actively follow up the alert.
The compliance inspector for the service will monitor the
progress and outcome of the local authority’s investigation.
To support that investigation, we may carry out a review of
the provider’s compliance with the national standards.
Notify another regulator or official body if it is appropriate for
them to look into the concern instead of, or as well as us.
Notify the police if the information is about possible illegal
activity. We can do this as well as any of the above actions.
10. Will CQC keep
in contact with the
whistleblower?
Where a whistleblower contacts us by telephone or in person,
we will always ask them if they want the compliance inspector
for the service to contact them about their concern. If they raise
their concern in an email or letter, and provide contact details,
the compliance inspector will contact them to check whether
they would like us to keep in contact with them, depending on
the nature of the concern, or if they have asked us to contact
them.
If a whistleblower contacts a compliance inspector during an
inspection of the service, we will make a record of their concern
and check whether they want us to keep in touch with them after
the inspection.
In all cases, we will also ask them if they would prefer their
identity to be known or kept confidential. If they would like to be
kept informed of what we do about their concern or would like
feedback on the outcome of what we found, we will do that. If
they don’t want us to keep in touch with them, we will respect
their wishes.
Our local compliance inspector for the service in question will
always follow up concerns. They will be the person who will
keep in touch with the whistleblower, where they have
confirmed they wish us to do that.
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11. Will CQC give
the name of a
whistleblower to
an employer?
No. You do not have a right to know this and we will make every
effort to avoid disclosing the identity of a whistleblower who has
raised a concern with us, if they request this. Where this is not
possible, PIDA may provide them with protection from suffering
a detriment (see below).
However, in some circumstances, we might have to disclose
information that could identify a whistleblower to another body.
For example, we might have to make this disclosure to protect
people from harm, to ensure that national standards of quality
and safety are met, or if we suspect that a serious criminal
offence may have been committed. We may make this
disclosure to the police or another official body, or if required to
do so by a court.
Our website has further information about how we deal with
confidential personal information.
If you believe a whistleblower has given information to us, or to
another prescribed body, you should not try to work out the
identity of the worker. However, it is an opportunity to promote
your own approach to whistleblowing and reassure your staff
that it is safe to raise concerns at work.
If you identify a whistleblower and your subsequent actions
cause them any detriment, you could face a claim under PIDA in
an Employment Tribunal, which may award unlimited
compensation in cases of unfair dismissal and discrimination.
The Law
12. Who is
protected by
PIDA?
PIDA provides protection for people who can make protected
disclosures. These people are:
Workers who are directly employed by the registered provider.
Workers who have left their job after making a protected
disclosure.
Other workers who provide services to the registered provider.
Examples are agency staff, visiting community health staff,
GPs, independent activities organisers, contractors, visiting
hairdressers and trainees, but not volunteers. This is not a
complete list – there will be other types of workers that provide
services to a registered provider.
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If a worker makes a disclosure after they leave their job, they
may be protected by PIDA. They may wish to take independent
legal advice. They can get free, independent and confidential
advice from the Whistleblowing Helpline for NHS and Social Care
on 08000 724725. They can also call Protect for free and
confidential advice on 020 3117 2520.
CQC cannot give legal advice to workers or employers. We
have provided this document as guidance only – it is not legal
advice.
Other people who are not workers can raise concerns about a
service with the provider of the service or with organisations such
as CQC, but PIDA does not cover such disclosures and this is not
called ‘whistleblowing’.
13. What is a
protected
disclosure?
For a worker’s disclosure to be protected by PIDA, it must be a
‘protected disclosure’. The worker must:
Make sure the information is of a ‘qualifying’ nature (see the
appendix).
Make the disclosure in good faith, which means with honest
intent and without malice.
Reasonably believe that the information is substantially true.
Reasonably believe that they are making the disclosure to
the right ‘specified person’.
See the appendix for further information about making
disclosures under PIDA.
14. What is a
prescribed body?
A ‘prescribed body’ is one that is identified under PIDA as able to
receive concerns about organisations. Most regulators, including
CQC, are prescribed bodies.
Workers can raise their concerns with a prescribed body such
as CQC, or any other body, if the concern is relevant to that
body. Such disclosures are protected under PIDA, where the
whistleblower meets the criteria for disclosure. They must also
reasonably believe that the matter is substantially true and
relevant to the regulator.
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15. How does the
law protect
workers who
whistleblow?
PIDA provides a remedy for a worker who suffers a detriment or
any form of retribution as a result of their whistleblowing,
provided that:
The information is a protected disclosure.
It is made in good faith.
The worker reasonably believes that information, and any
allegations contained in it, are substantially true.
Making the disclosure does not involve the worker
committing a criminal offence.
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Appendix: The Public Interest Disclosure Act 1998
Recent changes
The Enterprise and Regulatory Reform Act (ERRA) received Royal Assent on 25 April
2013. It includes major changes to employment law, which will affect aspects of
whistleblower protection. For further information, see the legal updates on the Protect
website. You may also wish to take your own legal advice.
The Public Interest Disclosure Act 1998 (PIDA) offers protection to workers from any
detriment from their employer that arises from the worker making a ‘protected
disclosure’.
To qualify as a ‘protected disclosure’ the disclosure must satisfy a number of
requirements under PIDA:
1. The worker must have made a ‘qualifying disclosure’. This is a disclosure of
information which, in the reasonable belief of the worker, tends to show one or more
of the following:
a) That a criminal offence has been committed, is being committed, or is likely to be
committed.
b) That a person has failed, is failing, or is likely to fail to comply with any legal
obligation to which he is subject.
c) That a miscarriage of justice has occurred, is occurring, or is likely to occur.
d) That the health and safety of any individual has been, is being, or is likely to be
endangered.
e) That the environment has been, is being, or is likely to be damaged.
f) That information tending to show any matter falling within any of the preceding
paragraphs has been, or is likely to be deliberately concealed.
A disclosure of information is not a qualifying disclosure if the person making it
commits a criminal offence in doing so.
2. The qualifying disclosure must be made in good faith.
3. The worker must make the qualifying disclosure to one of a number of ‘specified
persons’ set out in PIDA, which include:
a) The worker's employer or, if they reasonably believe that the failure relates solely
or mainly to (i) the conduct of a person other than their employer or (ii) any other
matter for which a person other than their employer has legal responsibility, that
other person.
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b) A 'prescribed person', which includes CQC. However, the worker must
reasonably believe that the information disclosed and any allegation contained in
it is substantially true. The worker must also reasonably believe that the relevant
failure being disclosed falls within any description of matters for which CQC is a
prescribed person.
Where the above requirements are satisfied, a worker who has made a protected
disclosure is protected under PIDA from dismissal or any other detriment arising from
making that disclosure. Detriment can include detriment suffered from a previous
employer where, for example, the employer refuses to give a reference because the
worker has made a protected disclosure. A worker who suffers dismissal or detriment
may bring a claim for compensation (which is unlimited) in the Employment Tribunal. The
term ‘worker’ includes employees, contractors or self-employed people.
You can read more about this on the Protect website.
