Inquiry protocol on whistleblowing for interviewees

Introduction

1. This protocol explains how the Inquiry will treat individuals who wish to provide information relevant to the matters under investigation by the Inquiry, but who are concerned about a risk to them, or others, if it becomes known that they have shared the information with the Inquiry. For the purpose of this protocol such an individual will be known as a ‘whistle-blower’ and the information they provide will be known as ‘protected disclosure’.

2. The steps the Inquiry may take to assist a whistle-blower are set out in this protocol. The matters set out in this protocol are not exhaustive. Each case will be treated on its merits.

3. As a starting point, if someone is treated as a whistle-blower this will mean that the Inquiry will seek to protect their identity in its final report and/or from those involved in the Inquiry. It is important that anyone who may wish to make a protected disclosure is aware of this so that they feel safe to provide information to the Inquiry.  This will help to ensure that concerns arising from the issues in the David Fuller case can be fully investigated and lessons can be learned.

What is whistleblowing?

4. For the purpose of the Inquiry, an individual may be treated as a whistle-blower in the following circumstances:

• They wish to provide protected disclosure about matters within the scope of the Inquiry’s Terms of Reference.  This may include information about –
  • alleged wrongdoing by David Fuller;
  • a failure in systems or policies to protect patients, staff or others from the actions of David Fuller;
  • a failure in systems or policies to protect the dignity of the deceased from David Fuller;
  • information about incidents similar to those carried out by David Fuller; or
  • other matters under investigation by the Inquiry.

• The whistle-blower has a reasonable belief that the information they wish to provide in the protected disclosure is true and accurate.

• Often the information in the protected disclosure will be about events in the workplace, but it does not have to be.

• The information in the protected disclosure may concern an incident or incidents that are currently taking place, that have taken place in the past, or that the individual thinks may occur in the near future.

• The whistle-blower is concerned about the adverse impact on them of providing the information in the protected disclosure to the Inquiry.  Examples of what may be an adverse impact include:
  • adversely affecting their ability to perform their current job if it becomes known they have disclosed the information to the Inquiry;
  • adversely affecting their ability to apply for another job if it becomes known they have disclosed information to the Inquiry;
  • creating a real and immediate risk of harm to themselves or another if it becomes known they have disclosed information to the Inquiry.

Important information for interviewees

5. If an individual wishes to be protected as a whistle-blower they should contact the Inquiry as soon as soon as possible by email (contact@fuller.independent-inquiry.uk) or telephone (020 7972 1444) and indicate their concerns.  It will help if they can indicate that they wish to be treated as a whistle-blower so they can make a protected disclosure.

6. If an individual is due to be interviewed by the Inquiry they should do their best to flag any interest in being a whistle-blower before their interview takes place.  This will help the Inquiry to put measures in place before the interview to help the person seeking whistle-blower status to give their best evidence.

7. The Inquiry will consider requests for whistle-blower status made during or after an interview but a request must be made as soon as reasonably practicable.  This will allow the Inquiry to consider the merits of a request, seek any further information and ensure that the individual seeking whistle-blower status has the opportunity to discuss their request with the Inquiry.

How the Inquiry will treat someone with whistle-blower status

8. If an individual asks the Inquiry to treat them as a whistle-blower, the Inquiry will carefully consider the reasons for this in order to determine if they should be given whistle-blower status. The individual will be asked to provide as much information as possible to help the Inquiry understand (a) the basis of their reasonable belief in the protected disclosure; and (b) why they feel that the information in the protected disclosure may compromise their future career, negatively affect their day-to-day working life, or have any other negative impact on them. It will be for the Inquiry to determine the relevance of the protected disclosure it receives.   

9. If the Inquiry decides to treat an individual as a whistle-blower, it will carefully consider how to handle the information that is provided by them and determine what may be included in any information it publishes or discloses to those involved in the Inquiry. The Inquiry will anonymise the identity of a whistle-blower by removing any personal data that could link the protected disclosure to the whistle-blower.  If that is not possible, for example because the whistle-blower may remain identifiable to those with prior knowledge of the matters in question, the Inquiry will discuss with the whistle-blower how, if at all, the protected disclosure can be used safely and to assist the Inquiry’s investigation.

10. If there are concerns about a real and immediate risk of harm to a whistle-blower, it may be necessary to seek a risk assessment from the police or others before a decision is taken about what information, if any, can be safely published by the Inquiry.  Such decisions will remain under review and will be considered on a case-by-case basis.

11. In making decisions on whether it is necessary and appropriate to protect the identity of a whistle-blower, the Inquiry will need to balance the risk of harm to the whistle-blower or others with the public interest in the Inquiry fulfilling its terms of reference, for example by producing a publicly available report on its findings and recommendations.   

Other considerations

12. Individuals who work for the NHS owe a duty of candour, which is also set out in legislation in The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (legislation.gov.uk). This means that employees must be open and honest with their colleagues, employers and relevant organisations, and take part in reviews and investigations when requested. They must also be open and honest with their regulators, raising concerns where appropriate. This also means that someone should not be stopped from raising concerns if they wish to do so.

13. If an individual, notwithstanding their status as a whistle-blower, has information about behaviour or alleged wrongdoing that may give rise to criminal offences or safeguarding issues, the Inquiry may need to report the information to the police and other authorities so that it can be investigated.  It may also be necessary for the Inquiry to report information provided by a whistle-blower to a professional regulator.  If information provided by a whistle-blower is passed to the police, a professional regulator or others, as far as is possible, the individual will first be notified that this will be passed on.