4. Principles and process for raising concerns with the INO
The Scottish Government considers it important to have in place principles to determine the process for raising concerns with the INO. It is proposed that each complaint must comply with each of the following principles:
- the INO should add value and complement the work of existing regulatory or scrutiny bodies;
- the INO should not consider historic cases (it is recommended that under normal practice the INO should consider only cases brought to its attention within 12 months of the conclusion of a case investigated by a Health Board);
- the INO would not normally consider cases that have yet to be investigated by the Health Board, or are still under local investigation (although there may be exceptional circumstances which may require INO involvement at an earlier stage);
- the INO would not investigate or make assessments on employment matters, or issues relating to an individual's terms and conditions, or contract of employment;
- a member of staff would need to have raised a concern that met set criteria for their concern to be valid for consideration by the INO. The criteria include setting out reasons for referring the complaint to the INO and why the complaint is of public interest.
Question 2: Do you agree with the principles and process for raising concerns with the INO?
51 respondents addressed this question. Of these, a majority of 43 respondents stated that they agreed with the proposed principles and process for raising concerns with the INO. Six individual respondents disagreed; one legal body expressed partial agreement; and one regulatory/scrutiny body provided commentary only. A few respondents qualified their support stating that the principles and process for raising concerns should be subject to regular review and refinement.
General views were that the proposed process did not appear overly burdensome; the principles and process corresponded to PIN policy  and legislation; the flow chart outlined in the consultation document to illustrate the process of raising concerns was simple and a valuable tool; and that what was proposed would help to avoid duplication of roles. One respondent called for:
"...the criteria ....to be written in an accessible, clear format and published widely so all potential users of the service are aware of the INO's remit" (General Medical Council).
Several respondents welcomed specifically what they saw as the emphasis on INO being the final stage in the process rather than potentially duplicating existing functions. The term "last resort" was used by a few to describe how they envisaged the INO fitting in to the existing framework:
"....this remains a final independent channel with powers to ask for re-investigation in part or whole" (Individual).
Another respondent highlighted what they perceived to be the benefits of the proposed bar on historic cases:
"We....agree with the principle of not considering historic cases as there needs to be a clear starting point from when cases might be investigated. It would be too easy for the role to be bogged down trying to investigate old complaints which should be closed" (Guild of Healthcare Pharmacists).
Others, however, were more circumspect, agreeing in general with the proposed bar on historic cases, but supporting a degree of discretion in certain circumstances:
"....the principle that 'the INO should not consider historic cases' may be a little restrictive and historic cases may form a necessary part of a current review" (Law Society of Scotland).
One individual commented that historic cases could be important in enabling linkages to be made between one region or sector and another.
A few respondents recommended shortening the time period during which cases require to be brought to the attention of the INO following the conclusion of the respective Health Board investigation. A maximum of six months was suggested rather than the 12 months proposed. This was seen as consistent with current Care Inspectorate and SPSO practice and would ensure that urgent matters are dealt with promptly.
The British Medical Association ( BMA) Scotland supported the five principles for raising concerns but considered that they were not particularly patient/health focused and that consideration could be given to more tailored principles in line with the Public Interest Disclosure Act ( PIDA) 1998.
Concerns regarding the proposals
One repeated recommendation amongst those opposing aspects of the proposals was that the INO should have more explicit powers to investigate cases at an earlier stage, prior to the local investigation being completed. A few respondents shared the concern that some Health Boards may not apply up-to-date policy or may apply processes incorrectly, necessitating earlier intervention by the INO:
"Dealing with whistleblowing requires an element of flexibility. In some cases it would be of no use for a whistleblower to exhaust internal processes within a Board that has a clear history of poor practice and mistreatment of whistleblowers" (Public Concern at Work).
A few respondents requested greater clarity on issues such as when a whistleblower should approach the INO and what "exceptional circumstances" might entail.
Another proposed principle challenged by a few respondents was that the INO would not investigate or make assessments on employment matters, or issues relating to an individual's terms and conditions or contract of employment. Again, some flexibility was called for so as to enable investigation by the INO in certain circumstances or at least have powers to intervene in order to refer investigation to another body.
Finally, one respondent expressed concern that allowing the INO to consider some exceptional cases at an earlier stage, could have:
"....the potential to interfere with the Boards autonomy and /or may compromise the outcome" (Healthcare Improvement Scotland).
Question 2a: Do you feel that there should be any additional principles or changes to the process for raising concerns with the INO?
50 respondents addressed this question, with 25 of them stating that there should be additional principles or changes to the process for raising concerns with the INO and the remainder content with what was proposed.
A few respondents simply referred to their response to question 2; some made a general recommendation for the principles and process to be reviewed regularly in order to fine tune as the role of INO evolves.
Comments regarding the proposed principles
Regarding the first proposed principle that the INO should add value and complement the work of existing regulatory or scrutiny bodies, one view was that a separate principle should focus on sharing intelligence with the Boards and other regulators:
"Our experience shows that gathering and sharing intelligence plays an important role in identifying and managing risk. In its role in providing national leadership on issues relating to concerns raised by NHS workers, the INO could identify themes and trends about concerns raised and share these with the Boards and other regulators such as the GMC" (General Medical Council).
Another proposed additional principle was that of fairness and equality to reflect the different communication and support needs which whistleblowers may have and to ensure they are not discriminated against on account of this.
Proposed principle three relates to cases not yet investigated by the Health Board or still under local investigation. Two respondents called for more guidance on what exceptional circumstances may encompass and the process by which the INO will be involved at this stage. One individual perceived the PIN policy to be dated with key aspects missing and proposed that amendments are made. A professional body suggested that the INO should use guidance issued by trade unions and professional organisations and should also consult with staffside organisations when assessing whether providers have followed correct protocol.
The fourth proposed principle refers to employment matters being outwith the scope of the INO. Two respondents from the legal sector recommended that the INO should be able to receive requests from the Employment Tribunal to submit written opinions or give live evidence to live cases. One individual suggested that the INO provide an advisory role outwith the employment system, to advise potential whistleblowers on whether to proceed.
One professional body called for a further principle relating to finality of case which made clear that no further appeals would be permitted.
Comments regarding the flowchart
One individual respondent called for the title of the flowchart in the consultation document to be amended to, "Concern raised by NHSScotland staff member and private care members". A few others commented that the flowchart assumes that the source of the complaint will always be an employee, whereas they envisaged complaints emerging from independent contractor colleagues such as GPs and dentists or patients, volunteers and other members of the public.
One individual recommended the addition of a final stage in the process whereby final decisions are sent to the appropriate regulators to ensure that organisations' general culture is monitored over time. An NHS respondent considered that a Health Board's final letter to the whistleblower should include contact details of the INO, their remit and the timeframe for handling cases.
Two respondents (professional body and other body) identified an additional training role for the INO post. Both envisaged the INO sharing good practice and lessons learned based on their investigation of cases, viewing this as enhancing the investigative role and improving its effectiveness.
Question 2b: Do you agree with the proposed INO whistleblowing complaint criteria?
52 respondents addressed this question with 44 agreeing and eight respondents across four different sectors disagreeing.
Common views were that the proposed INO whistleblowing complaint criteria were clear, fair and sensible. A few respondents requested that they be subject to review. One respondent considered that the criteria would enable spurious claims to be filtered out:
"The criteria suggested will ensure that only genuine claims are brought forward and not claims where an individual is just unhappy with the outcome of the investigation into their complaint" ( NHS Lothian).
A few respondents suggested that the criteria could be strengthened by providing examples to help make their meaning clear. NHS Education for Scotland requested more information on the processes and principles to which the INO would adhere in determining which cases to investigate. The Royal College of Physicians of Edinburgh considered that it might be helpful to cross-reference the criteria as applied to the Ombudsman and to clarify the limits of discretion.
Concerns regarding the proposals
The most frequently raised concern was that the proposal placed undue emphasis on the whistleblower having to prove their case for INO involvement, using criteria set out in legal language which may discourage them from pursuing a legitimate complaint. A recurring view was that support should be available for whistleblowers in this position, for example local advocacy:
"This duty on the whistleblower to gather all the relevant information and then prove it is correct may deter some people from going to the INO" ( BMA Scotland).
"We would suggest that too prescriptive or technical an approach will discourage individuals" (Law Society of Scotland).
"We would suggest that the INO should develop a standard pro forma and allow for appropriate third party representation which would assist accessibility" ( UNISON).
Very few respondents raised any other substantive concerns. One individual respondent perceived the criteria as currently framed to risk critical information being suppressed and recommended widening the criteria to include cases where the whistleblower anticipates failure in their employer's investigation process, provided the complainant can evidence some basis for their fears.
NHS National Services Scotland commented that for the NHS, the criterion around miscarriage of justice may be difficult to apply.
Public Concern at Work expressed specific concern regarding the proposed use of the PIDA list of wrongdoing, which they considered was generic and not specific to the health sector and risked excluding issues which are in the public interest but do not meet the legal PIDA criteria.
Question 2c: Do you feel that there should be any additional complaint criteria?
Very few respondents proposed any additional complaint criteria.
The BMA Scotland proposed that consideration could be given to including an option to review ongoing decisions that are taking a long time to resolve, as there may be a perception that issues are being inappropriately kept under local review for too long. The General Medical Council suggested including a question about whether the person making a complaint has raised their concerns with another body in order to alert the INO to sources of additional evidence that may be relevant to the case. One individual recommended that the whistleblower should be required to give information about timescales of the investigation to date and give full information on the investigation carried out by the Board along with the outcome.
A few respondents suggested items to add to the PIDA list: financial impropriety; breach by the organisation of professional codes of conduct; and some consideration to complex cases where multiple complaint criteria are identified.