3. Role of the INO
The Scottish Government proposes that the INO role should involve three main areas when investigating whistleblowing complaints. These are summarised in three key questions: Has the local whistleblowing policy been followed correctly? Is the Board's decision and resultant outcome reasonable? Has the person/people who raised the complaint been treated fairly?
The Scottish Government is clear that the INO must add value and not duplicate or interfere with the role of any existing body. In addition, the role of the INO cannot impinge on an individual's contractual arangements as governed by the Employment Rights Act 1996, including claims of detriment suffered by the whistleblower, as this remains the exclusive jurisdiction of the Employment Tribunal.
Against this background, the Scottish Government considers there to be two options on the types of complaints which the INO could investigate. Under Option 1 the INO would consider the application of the whistleblowing process only, examining whether the processes outlined in the relevant Health Board's local whistleblowing policy had been properly followed. Under Option 2 the INO would investigate the process but also examine how the Board came to its decision and the subsequent outcome.
Question 1: What should the role of the INO be?
Option 1: To consider complaints about the application of the local whistleblowing process only.
Option 2: To consider complaints about the application of the local whistleblowing process, including examination on the decision-making and outcomes of the whistleblowing complaint.
54 respondents addressed this question. Of these, a majority of 47 respondents supported Option 2; four respondents supported Option 1; one respondent considered neither of these options to be appropriate; and two respondents provided commentary only without indicating their preference.
Recurring views in support of Option 2
The most common rationale given in support of Option 2 was that this provided a holistic approach to examining complaints, carrying weight, increasing likely effectiveness of the INO role and avoiding what was perceived as the overly narrow focus of Option 1. Comments included:
"Our view is that this would create a robust framework" ( NHS Education for Scotland).
"We favour option 2. It is important that the INO has powers which are as robust as possible" (Royal College of Nursing Scotland).
"Opting for Option 1 and limiting to the process of "whistleblowing" will create an impression of the postholder working with both hands and feet tied behind their back and merely scrutinising "process" rather than the whole of the complaint" (Individual).
"Limiting its powers to reviewing procedure would materially reduce its effectiveness" (Thompsons Solicitors and Solicitor Advocates).
Another recurring view in favour of Option 2 was that this remit for the INO would instil confidence in complainants that the INO would deal with their complaint thoroughly and transparently. Option 2 was envisaged as helping to build trust in the INO role as an effective element in the whistleblowing framework. Examples of comments included:
"Option 2 would give the opportunity to have the decision substituted or overturned. Without this power, the INO may be considered to be ineffectual which may result in frustration on behalf of the public and a lack of confidence or trust in the role. It may also result in a lack of respect for the role on the behalf of organisations" ( NHS National Services Scotland).
"View it as a further means of helping bring confidence to those wishing to raise concerns, as well as providing an important element of external review and assurance that genuine concerns are being treated seriously and investigated appropriately" (General Pharmaceutical Council).
"It adds a level of external scrutiny to the NHS Board's process and therefore will provide additional assurance to the whistleblower" ( NHS Greater Glasgow & Clyde).
A third repeated argument in favour of Option 2 was that this would provide independence and an impartial scrutiny of cases. One respondent remarked:
"The person must be outwith any health board member or employee and be autonomous, someone any member employee can seek out as an impartial listener and able to consider complaints. They must be able to examine the decision and outcome...." (Individual).
Other views in support of Option 2
A range of other views in support of Option 2 were provided, each by only a few respondents:
- Option 2 remit will ensure the INO adds value and does not simply duplicate the respective roles of existing professional bodies.
- The remit will provide closure on cases, benefitting ultimately the NHS and the whistleblower.
- Avoids giving out an air of legitimacy to procedurally correct but otherwise poor employer decisions.
- The scrutiny function provides an added layer of protection, provides a safety net for whistleblowers.
- Enables lessons to be learned from the examination of the decision-making process.
- Prevents the INO role being simply a tick-box exercise:
"Reviewing the handling of concerns can be very paper based and a tick box matching of policy rather than the actual facts and outcomes to the worker or to the patient/environment/issue" (Individual);
"Though whether an organisation has followed the whistleblowing policy or not is important, focusing the role exclusively on this may result in the process resembling a tick box exercise, rather than a thorough investigation" (Public Concern at Work).
- In-keeping with usual grievance investigative procedural roles.
- Minimises whistleblower frustration over outcome:
"The early experience of Ombudsmen in Scotland was that restricting their remit to process issues alone added to the frustration felt by complainants when a high proportion of complaints were ruled out of remit or when the Ombudsman's report dealt only with the way things had been handled, not the substance of the complaint" (Royal College of Physicians of Edinburgh).
Views in support of Option 1
Amongst the small minority of respondents who supported Option 1 a number of arguments emerged. A few considered that the outcome is a decision for the relevant organisation to take and should not be re-visited by the INO. It was remarked that outcomes may be based on several factors only some of which the INO and whistleblower may know about. One respondent posed the question, who is to say that the decision of the INO is the correct one? A few expressed concern over the scale of the task set out under Option 2, one respondent stating:
"I'm not clear what Option 2 means by "examination" of decision making and outcome. To do this effectively would require access and scrutiny to all information - effectively reviewing the decision and outcome and I don't think this is workable, achievable or realistic" (Individual).
View supporting neither Option
One respondent called for a wider remit to include impact on the whistleblower's employment:
"....given (that) concerns about the impact on their employment is often raised by and a key issue for whistleblowers, any investigating body that cannot consider the whole response of the organisation being investigated to the allegation will come up against restrictions which will limit its effectiveness" ( SPSO).