New legal powers and regulations brought in over the last 18 months will provide ‘the stick’ to force the NHS to change the way it treats whistleblowers, Sir Robert Francis QC has told HSJ.

He also rejected suggestions his review of how the service deals with whistleblowers, published today, lacked the power to force change in the NHS. He argued it needed to be viewed in light of legal changes already made following his 2013 report into Mid Staffordshire Foundation Trust.

In an in-depth interview, Sir Robert told HSJ chief executives and managers faced a choice of whether to “seize the opportunity” as leaders to behave differently or dismiss his Freedom to Speak Up review and similar reports as being too difficult. But he warned that the public would not accept managers continuing to avoid responsibility for failure.

He said: “The stick is already there. Where things are going wrong, you might engage the attention of the independent national officer who will have the implied authority of the regulators. They already have the powers that are necessary to deal with this.

“Firstly, the [Care Quality Commission] requires in its fundamental standards that organisations are well led and they are safe. People or organisations that ignore staff who raise concerns are not safe and they are probably not well led, and there is a regulatory consequence to that.

“If a chief executive or medical director is allowing or conniving in personally bullying staff then questions must arise as to whether they are fit and proper persons to be in those positions and we now have regulation in law which will allow that to happen. Some of this will also be about a breach of the statutory duty of candour; so the regulatory tools are there.”

Sir Robert said his recommendation on changing the law in relation to employment discrimination, which the health secretary has accepted, would mean “people who are denied jobs elsewhere in the NHS because they have raised a concern are being discriminated against and that would open up remedies in discrimination law that aren’t currently available. So there are teeth.”

Robert Francis

NHS leaders have to grasp the need to change the services culture, Sir Robert Francis said

Sir Robert said leaders in the NHS had to grasp the need to change the service’s culture. He said when chief executives or managers were faced with a report like his “there is a choice you can make as a leader”. He added: “You can say this is all very difficult and I don’t know what to do, or you can seize it as an opportunity and, I am glad to say, I think large numbers of people I have met have seized this as an opportunity and that it has freed them up as leaders of organisations to behave and speak in a way they probably didn’t dare to do before.”

“I don’t think people ought to be worried about the penalty side, obviously [penalties] are there if things have gone badly wrong but they are a last resort.

“Unless we point these things out we carry on fooling ourselves that everything is all right or alternatively we need to do things but it is much better to do them behind closed doors. We can’t accept that in a public service.”

Sir Robert said the recent pressure on accident and emergency departments, which forced some hospital trusts to declare “major incidents”, was evidence of people being more open and transparent.

He said: “I think five or six years ago that would have been a career limiting factor for chief executives. Now it’s not, and people accept these are people trying to do the best they can. I think it strengthens people’s position to be able to tell the truth about what is preventing them from providing the service they want to provide.

“These measures [recommended by the review] are a support for all staff and leaders at all levels to do the right thing. I think the public will increasingly not accept that people who have mismanaged things and really get it badly wrong, and most importantly, don’t seem to accept they have got it wrong, should be allowed to wander off and run another such organisation and perhaps run that one into the ground as well.”

Francis rejects public inquiry calls

Sir Robert Francis told HSJ he was not persuaded by the calls from campaigners and former whistleblowers for a public inquiry into the issue warning he didn’t believe it would be able to reach useful conclusions.

The leading barrister and QC said he had listened to the evidence of people’s experiences as part of his review adding: “I don’t personally see what a public inquiry could bring apart from prolonging the process over quite a long period of time. It’s pretty expensive and at the end of the day I believe a public inquiry would find it really difficult to come to judgments on many of these cases.”

He added: “Public inquiries are not a great place in which to form binding judgments about the rights and liabilities of individual cases and in a field like this with lots of individual cases I don’t know how productive that would be. As for the limitations of proof and evidence those would exist with a public inquiry as well.

“We have to lay these issues to rest and the best way of doing that is to change the culture.”

Asked whether he felt the NHS was safer now as a result of the last two years he said: “I think I do see changes in behaviour and [the NHS] is a freer place which in itself makes it safer. Is there a way to go, yes.

“We have been through a time of ever increasing pressure, and no doubt this will continue, on staff and hospitals in terms of demand and resources. Therefore it is much more important that we preserve this openness and transparency.”

He gave the Five Year Forward View as an example of candour in its message of how the NHS needs to transform to cope adding: “I am not sure a few years ago we would have had that conversation. If nothing changes what [the Five Year View] says is we won’t have a safer effective health service. Now that is candour big time. I am optimistic for the future that what has happened will make it easier for the NHS to do the right thing.”