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CHAPTER 1

THE PARADOX OF WHISTLEBLOWING

Many who report wrongdoing in the workplace – whistleblowers – become targets of harassment, intimidation, investigation, persecution and prosecution, to name but some acts of retaliation. The whistleblower may well be protected in law in a number of jurisdictions globally (the UK is one), yet that protection may not save them from the personal damage and professional detriment that is losing their job, career, family and financial security.

Great claims are often heard about the heroism of whistleblowing and whistleblowers. Public Concern at Work (PCaW), a UK whistleblowing charity, paid tribute to the ‘important role that whistleblowing plays in achieving effective governance and an open culture’, and regarded whistleblowing as ‘one of the most effective ways to uncover fraud against organisations’ (PCaW 2013, p.5). Fine words may pour forth from the mouths of politicians, usually long after the mobilization of state-funded retaliation against the whistleblower has done its work. The then UK Prime Minister, David Cameron, said in the House of Commons in answer to an oral question on 24 April 2013 that, ‘…we should support whistleblowers and what they do to help improve the provision of public services’. While it’s always nice to be appreciated, even by a prime minister, the damage and destruction meted out to the whistleblower after they put their head above the parapet to speak out, suggests that relying on any appreciative accolades would be ill-advised. Grand words about the great job the whistleblower may do sit uneasily alongside evidence of the collateral, lifelong damage to lives, livelihoods, relationships, careers and health of those who stepped up to speak out: the whistleblowers.

PATTERNS OF PARADOX

Whistleblowing is the raising of a concern in the workplace or externally, about malpractice, poor practice, wrongdoing, risk or danger that affects others. There is no common definition of whistleblowing internationally. The whistleblower is a person who raises concerns in the public interest. They may not recognize themselves as such at the time they do this. Their concerns may be about the safety of a patient or user of health or social care services, or the integrity of the health or care system itself, as in the case of theft, waste, deception and duplicity (Francis 2015).

Whistleblowing – the act, the response, as well as the deafening silence of those who stand by in the face of wrongdoing – touches some very deep recesses of what it is to be human, to bear witness to wrongdoing, or to turn away. Most employees have observed wrongdoing. But most employers do not act to stop wrongdoing they know is going on (Miceli, Near and Dworkin 2009). These are but some of the paradoxes that whistleblowing presents, and which this book examines.

The UK prime minister quoted above was barely out of college when Stephen Bolsin took up post as a consultant anaesthetist at the Bristol Royal Infirmary (BRI) in England in 1988. From the start of his time in that hospital, Stephen Bolsin was troubled by the very high mortality rates for children undergoing heart surgery. Bolsin’s were very serious concerns, substantiated by data on mortality outcomes. He raised these matters repeatedly with senior consultants in the hospital, with the national Department of Health, and the General Medical Council, the UK regulatory body of registered medical practitioners. When no action was taken by the hospital or the Department of Health, Bolsin took his concerns to the media. This prompted inquiry by the General Medical Council. Dr Bolsin was struck off the medical register. In 1995, he left the UK to work in Australia. Nineteen years after Bolsin first raised concerns, the public inquiry chaired by Ian Kennedy concluded that between 30 and 35 children had died unnecessarily, and that one-third of children undergoing heart surgery at the BRI prior to 1995 had had less than adequate care. The Kennedy Inquiry found Dr Bolsin had been right to persist in raising his concerns. It recommended a new culture of openness within the National Health Service (NHS), with a non-punitive system for reporting serious incidents (Hammond and Bousfield 2011; Kennedy 2001).

Fourteen years after Kennedy reported, the public inquiry chaired by Robert Francis into the failures of care in Mid Staffordshire NHS Foundation Trust reached that very same conclusion: the need for a culture of openness in the NHS. (Francis 2013a, b, c). A few months after Robert Francis reported in 2013, Dr Bolsin was awarded the Royal College of Anaesthetists’ Medal in recognition of his work to promote safety in anaesthesia (PCaW 2013). Such is whistleblowing’s pattern of paradox: blame the messenger for the message and hammer them hard. Then, after significant life-ending failures of care, spend millions of public money on public inquiries which, after several years, conclude that both messenger and message had been pretty much right all along.

THE WHISTLEBLOWER’S PROTECTION

The Public Interest Disclosure Act 1998 (PIDA) went onto the UK statute book some years after Dr Bolsin had raised concerns about child mortality rates, been struck off the medical register and relocated to another continent. The UK was one of the first EU states to legislate to protect whistleblowers. PIDA is intended to provide protection to people who make protected disclosures. Yet, in another paradox, the experience of people who blow the whistle on poor, corrupt and unethical practice, is seldom anything other than negative. Witnessing what happens to whistleblowers does not inspire others to do likewise, the House of Commons Health Committee concluded in 2014 (HOC 2014).

The use of so-called ‘gagging orders’ in the NHS was another twist in the tail of whistleblower protection. Payment of these gags in the UK NHS was halted in 2013, meaning special payments made outside an employee’s contract have to make clear that nothing in such an agreement prevents the individual whistleblowing in the future.

That these gagging orders existed at all was denied in 2013 by the then Chief Executive of NHS England, David Nicholson (Ramesh 2013). Nicholson claimed some people ‘felt they’d been gagged’; and that the case of the whistleblower contacted by NHS lawyers, who threatened to demand repayment of their settlement agreement if they spoke out, ‘was a mistake’ (Aitkenhead 2013). Be that as it may, a request made by a Member of Parliament under UK Freedom of Information legislation revealed that the NHS had spent over £2m on over 50 ‘gagging orders’ between 2008 and 2013 (Hughes 2013).

Nicholson’s denial that gagging orders existed (it is important to notice the syntactical sleight where people are said to feel gags existed) was news to Gary Walker, who had been sacked as chief executive from United Lincolnshire Hospitals Trust in 2010 (Walker 2015). As chief executive, Walker had raised patient safety concerns about hospital capacity to meet government targets for non-emergency care. Walker was later dismissed for allegedly swearing in a meeting, an allegation he denied and said a witness statement disproved. Walker intended to present that statement, and other evidence, to the scheduled 15-day employment tribunal hearing in 2011. On the first day of this tribunal, his NHS employers offered Walker £320,000 to settle the claim. With legal fees, Walker estimated the NHS spent over £500,000 getting rid of him. This seems a remarkable sum of public cash to fork out if there were no patient safety concerns. It would be a truly incredible amount to pay to silence someone alleged to have sworn in a meeting. When, in 2013, Walker went public about his patient safety concerns, he was threatened with legal action by his erstwhile NHS employers. That would seem, prima facie, a threat to silence – or, in the vernacular, a gag.

LIVING WITH PARADOX

The paradox of whistleblowing stretches much wider yet than a semantic ‘gag’ or ‘no gag’. From outside health and social care services, say from the perspective of the patient or user of one of those services, speaking out about bad practice or mistreatment of adults or children vulnerable through sickness or circumstance, is a no-brainer. Why would a trained professional, or any concerned observer, not raise their concerns? But then, when they do, why are there so few whistleblowers who, unequivocally, say they are glad they broke ranks to speak out, and that their disclosures were an excellent career move that they commend to others?

These paradoxes show up in UK public attitudes towards whistleblowing, and use of the term itself. A British survey of 2000 people found eight in ten believed it was more important to support, and not punish, people who blew the whistle. But fewer than half (47 per cent) thought British society found whistleblowing generally acceptable, or that managers were serious about protecting whistleblowers (Vandekerckhove 2012). Inevitably, and reflecting these conflicted attitudes, the word ‘whistleblowing’ itself attracts a negative valence, with the anodyne ‘raising concerns’ suggested as a preferable substitute to use with employees (OPCW 2012). Changing a word is one way of ducking the paradoxes. Another is to look at those conflicted contradictions head-on, and wonder what it is we do to people, organizations and health and social care, when we can’t name what is going on before us.

Individual and public reaction to whistleblowing and to the whistleblower are, then, riddled with paradox. These paradoxes conflict us all, whether whistleblower, bystander, or victim of wrongdoing. Culturally, certainly in the UK and the western world, the rugged individualist is venerated; but then of course we love the team player. Social pressures to fit in, coexist with those pushing us to stand out. The workplace demands that employees do things right; the public wants people who’ll do the right thing. Whistleblowers may be the butt of retaliation; yet their retaliators escape scrutiny. News, film, culture, love the lone ranger, yet loathe the oddball who wonders out loud if the emperor really is wearing any clothes. The whistleblower is feted, yet crushed; hailed as a hero, punished as a scapegoat.

SPEAKING OUT AS NOT BEING HEARD

Public reaction to the caricature of ‘care’ provided in some parts of the Mid Staffordshire NHS Foundation Trust in England between 2005 and 2009 was shock, dismay, distress. Yet many people working in those very services had raised concerns, only to find themselves ignored, marginalized, ostracized or scapegoated. Most simply gave up trying to get anything changed (Francis 2013a). In the face of this, few could take issue with the House of Commons Health Committee which, in its report on complaints and raising concerns in the NHS, said a ‘means must be found for health and care service workers to be able to speak up safely about professional concerns’. Still less, that ‘there is an unambiguous professional duty on professional registrants to speak up, but that equally there is a similar duty on employers to establish an open culture which encourages concerns to be raised and acts to address and resolve them, rather than punish the person raising them’ (HOC 2015, p.35). This Committee concluded that the detriment so many whistleblowers suffer has undermined public trust in the system’s ability to treat whistleblowers with fairness and, crucially (as if that were not enough), that this lack of confidence had implications for patient and citizen safety.

The paradox of all this is that whistleblowing is an act of loyalty, a commitment to doing right, to doing no more harm. That is prosocial behaviour, not deviance. The whistleblower’s ‘crime’ is their acting against the code of silence – that organizational omertà – which is, in dysfunctional organizational cultures, inexplicably conflated with loyalty. They may be vilified, typecast as a rat, snitch or ‘difficult’; as mentally ill, malicious or vengeful. (The particular slant of denigration varies.) Or, conversely, once the wrongdoing has been exposed to public opprobrium, they may enjoy 15 minutes of fame and be celebrated as a hero, before they turn to face the toll that speaking out has exacted on their future career prospects, personal relationships, and any possibility of financial security in what remains of their lives.

The more systematic the wrongdoing, the greater the reprisal. Speak out about wrongdoing that is widespread – the ‘new normal’ of the organization, say – and which involves a lot of cash, then those reprisals are likely to be whistleblower-crushing. Most whistleblowers don’t work in their employment field again. Some lose their homes, profession and health, to depression, alcoholism, family break-up. Still more, the greatest shock to the whistleblower is likely to be what they learn about the world in its reaction to their speaking out (Alford 2001).

These paradoxes lie at the heart of whistleblowing and they affect us all. That rugged, autonomous individual, so beloved of media or marketers, is quashed when the organization mobilizes its ‘vast resources in the service of the individual’s destruction’ (Alford 2001, pp.3–4). Alford, a psychoanalyst and political scientist, suggested we listen to that individual – the whistleblower – so that ‘we may learn something, not just about individuality, but about the forces that confront it’ (Alford 2001, p.4). This book sets out to contribute to that learning.

WHAT THIS BOOK IS ABOUT

This book starts from ‘the point’ (in both senses) of these paradoxes, that is, their location and their meaning. Its premiss is this: unless and until we wake up and face in to see these paradoxes at play in responses to whistleblowing, then the familiar, formulaic responses to shocking failures in health and social care – expensive public inquiries years after the event; retribution and silencing of those who spoke out, ‘tightening up’ of standards and targets that missed the point first time round, to name but some – will fail those who use those services, and those who speak out about problems in them. The irreplaceable public goods that are publicly-funded health and social care services are simply too precious to allow a systemic wilful blindness to these paradoxes, and their consequences, to prevail. Shining a light on those and on their systemic backcloth is what the whistleblower does and, in so doing, pays the price. Maybe it’s time for those who are elected to serve, lead, regulate and run those organizations to look, listen, and share that load a little.

Three distinct strands give shape to the book’s architecture. First is the significance of organizational culture and leadership in shaping the possibility that people will step up to speak out about poor practice. Organizational culture and its leadership (and that includes its political, policy and regulatory dimensions) can make or break the likelihood of whistleblowing, with or without further duties to report wrongdoing being imposed on professionals. Leadership (its style, culture and manner that are imprinted throughout the organization), and organizational culture, are interdependent, and – for better or for worse – overwhelmingly powerful influences on what happens in organizations, and to the whistleblower.

Organizational culture, with its norms, values, beliefs and behaviours is a dynamic, fluid, social construction. At any moment, people act in line with social norms, conventions and expectations (Warren 2003). The dynamics of working in teams – their power relations, group pressures to conform, to fit in, be a good team player – receive passing attention, at best, in a drive to pin blame on ‘someone’, occasionally on ‘something’, when things go wrong. Well-established findings on, for example, bystanders (why do people ignore somebody in pain?), silence (why do people keep quiet in the face of wrongdoing?), punishment (why do otherwise well-adjusted human beings inflict suffering on others when an authority tells them to do so?) and administrative evil (why do people not recognize that the bit part they may play in organizational life may contribute to larger destructive consequences?) receive little explicit attention. What are these saying about the organization’s response to the whistleblower or to the concerns they raise?

In his independent review into creating an open and honest reporting culture in the NHS, Freedom to Speak Up, Robert Francis concluded that there was a need for culture change in the NHS (Francis 2015). Francis disaggregated various domains of culture as follows. Safety was first; then a culture of raising concerns; one free from bullying; a culture with visible leadership and one of valuing staff; and finally, a culture of reflective practice. This book upends that order; it puts reflective practice first. Without that, we cannot realize the others. Without reflective practice that fronts ethical and moral action (to provide best possible care and to speak out about shortcomings), we cannot ensure patient and user safety. There can be little value to visible leadership unless it reflects, models, expects, lives and breathes ethical health or social care. Without reflection – going beyond the superficial – we will not understand, still less tackle, bullying, the abuse of power, scapegoating and the other mucky stuff that whistleblowing throws up. Without reflection – staring out some some blunt truths about how relationships of power, authority and obedience play out in organizational life – any chance of realizing a brave new world where people speak out as a matter of routine about shortcomings of health and care will remain remote.

The book’s second strand argues that, at its core, the act of whistleblowing is a moral activity. It has moral consequences, for good or bad, for the person raising concerns, and the person(s) or practice(s) those concerns are raised about. Yet the ethics and morality of whistleblowing, or of practices and behaviours and what goes on in the workplace, are seldom construed as such. The concept of ‘morality’ doesn’t play out well in political, public and professional discourse that is hell-bent on reducing genuine understanding of what went wrong and why, to reprisal, retaliation and retribution, as well as production of the obligatory action plan with accompanying statements that lessons have been learned. It’s too academic, too vague, too well-meaning to get the attention of the politician needing a headline. But the ethics of health and social care are the core, the basis, the means and the infrastructure of how we do our business together as people who need the care of others at points throughout our lives.

To give this traction, the book considers the four elements of an ethic of care – attentiveness, responsibility, competence, responsiveness – originally developed by Fisher and Tronto (1990). These four elements are used to propose an ethical structure that drives, imprints and manifests an ethic of care throughout health and social care delivery. This includes its leadership, management, policy-making and regulatory framework. Laying duties to deliver an ethic of care onto just one part of this structure – the individual delivering health or social care – will not ensure ethical care, without the wider health and social care system underwriting that duty, and supporting it explicitly, in word and deed.

Hence, and third, the book’s focus and locus takes in, most certainly, the policy and regulatory system that frames the delivery of health and social care services. It is not a book about practice or practitioners, although failures of health and care find form there, at least superficially. The book, overtly and unequivocally, places the politics, policy and regulation of health and social care into analysis of the ‘failure frame’, and the response to whistleblowers who speak out. What happened in Mid Staffordshire NHS Foundation Trust was not a little local difficulty. It was cultural, systemic, and unambiguously implicated the social policy zeitgeists that surrounded, and corroded the delivery of decent healthcare to so many people.

Mostly UK focused, the book draws on learning, experiences and examples of whistleblowing internationally. Although it does not rehash disasters and scandals in health and social care (they come and go and will happen again if we continue to do what we do), three particular ‘failures’ of health and social care in England crop up from time to time throughout the book. These are the disasters that were the (now dissolved) Mid Staffordshire NHS Foundation Trust (then part of NHS England); Winterbourne View (a private healthcare assessment and treatment facility for people with learning disabilities); and the handling of systematic, prolonged, organized sexual exploitation of children and young people by Rotherham Metropolitan Borough Council and its partners. These three failures are discussed to pull out some common features of organizational responses to whistleblowing and the whistleblower: silence, denial, blame, retribution and turning those blind eyes and deaf ears.

CONUNDRUMS AND QUESTIONS

Overall, the book considers a number of conundrums and questions:

•What is whistleblowing, and why is ‘whistleblowing’ such a loaded word?

•Why don’t people who are paid to lead, manage or provide professional or practical health and social care always raise concerns of poor or harmful practices when they encounter them?

•Why is demonstrably poor practice sometimes not ‘seen’, ‘heard’ or recognized as such in the workplace? Why the silence?

•What happens in the workplace, at the time and subsequently, to those who blow the whistle?

•What is organizational culture, and what part does it play in what goes on in the workplace, on right- and wrongdoing, and whistleblowing?

•What would ethical care, practice, policy, regulation, leadership and management look like in health and social care?

•How can ethical health and care systems be created, bedded in and sustained?

•How can ‘raising concerns’ become a routine, everyday, expected feature of how ethical health and care systems operate?

These questions are discussed throughout the book. Chapter 2 starts that discussion with an overview of whistleblowing, and what is known about the characteristics of whistleblowers. The protection afforded the whistleblower by UK whistleblowing legislation and policy is considered, as are acts of retaliation, retribution and their consequences for the whistleblower.

Chapter 3 moves the spotlight onto features and facets of organizational culture and, in particular, the whistleblower’s action in bringing ‘undiscussable’ aspects of organizational life into the open. This chapter looks at how wrongdoing becomes normalized, rationalized and institutionalized in organizational culture. Individual moral agency of the individual versus the power of a group in shaping moral action are examined, as are the influences on speaking out or staying silent about wrongdoing. This chapter’s elaborate metaphor mix – blind eyes and deaf ears abound in the company of bad apples, elephants in the room and the emperor’s wearing of clothes – hints at the power of language both to contain and to name that which we are unwilling to face head on.

Chapter 4 continues this theme in its discussion of the ‘shapes and sounds’ of organizational silence and denial of wrongdoing. The propensity of ostensibly normal, well-adjusted people to inflict suffering on others when ordered to by authority is considered. The response of Rotherham Metropolitan Borough Council to the prolonged, systematic sexual exploitation of children and young people, over many years, is reviewed. Six ‘devices of denial’ used by the Council are identified to illustrate a systemic, institutionalized denial of harm.

Chapter 5 looks at the social phenomenon that is ‘bystanding’, or standing by and doing nothing when harm is perpetrated. Some of the complex features of self-deception involved in a tacit tolerance of poor, harmful or criminal practice are identified, including the human capacity to overestimate personal ethicality and morality.

In a change, if not a lightening, of tone, Chapter 6 discusses two commonly proffered remedies to encourage whistleblowing: paying people to speak up about wrongdoing, and laying a ‘duty to whistleblow’ on professionals. In light of the foregoing, these two ‘remedies’, often to be heard in post-disaster ‘this must never happen again’ pronouncements, are discounted. Ill-informed and simplistic, both fail to grasp the complexity, for the organization and people in it, present when the whistleblower steps up to speak out about poor health and social care.

Chapter 7, on whistleblowing and ethical health and social care systems, makes the case for an ethic of care to be imprinted throughout the health and social care system, including public policy, the regulation of health and social care and the organizations and services that employ health and social care professionals and others. The chapter maps out what this might mean, and how it might manifest. Its crux is the need for ethical care that, routinely and as a matter of course, is intolerant of poor, marginal or downright dangerous action, and which expects and encourages people to speak out.

Chapter 8 returns to the overwhelming significance of organizational culture, and of those in leadership positions, on the behaviour of people working in it. If an ethic of care is to drive the work of the health and social care system, and the speaking out about shortcomings of care, then it needs clear expression and realization by its leadership. The chapter considers what ‘ethical’ leadership would look like, how it would influence the organizational culture and its responses to whistleblowing. The emotional intelligence of the leader, their awareness of self, others, the culture and climate of the organization and its secrets and silence, are put forward as hallmarks of a leadership style that is well-positioned to deal, ethically, with disclosures a whistleblower makes.

Finally, Chapter 9 summarizes the critical need to understand whistleblowing as a moral act that requires a moral response. If the whistleblower is the messenger, why not listen?

WHAT THE BOOK IS NOT

This is a wake-up book, not a feel-good guide. That these things happen to whistleblowers should alert the reader, not render them mute, inert or silent. Nor is this a whistleblower’s self-help manual, how-to handbook or legal sourcebook. There are good sources of help, and the book’s Postscript on its final pages has a few words to say about these to a prospective whistleblower. These can be summarized: get wise and get prepared.

At some points, the author’s weariness with the myopic policy fixation on delivering targets by any means necessary bleeds through. It would be wrong to read this as a call for targets, standards and the related regulatory apparatus to be junked. Not so. The problem isn’t the targets or standards, but the obsession in hitting them, rather than understanding the point of them – the people, humanity, pain and suffering that lie behind the numbers. The problem is believing that targets, ipso facto, safeguard patients and citizens from harm. The problem is their deracination from an ethic of care and from the affective, human dimensions of competent health and caregiving. You may have been seen within two, four or however many hours the target for attention in Accident and Emergency is that day, but if you have a ruptured spleen and you are sent home with aspirin this (achieved) target says zilch about your health, care or prospects of survival.

There is not a great deal of evidence that training employees on ethics and morality has much resilience beyond the training room. In laying out these limitations, the book is not suggesting such training is worthless but that its application back at work is what counts. All that training has to be given the chance to work – in the workplace. If it’s strangled at birth by a disinterested leadership who want the numbers of people trained but not the outcome, then the impact of this training will be negligible. It won’t change a thing: what happens in the workplace will.

TERMS USED

Health and social care are used mostly as conjoined entities in this book, though the reality of health and social care service planning and provision in the UK is far from that. ‘Health’ is used to refer to regulated public or private healthcare. ‘Social care’ includes statutory or voluntary social work, provision of personal care, support to the person, whether adult or child. Aggregating adult and children’s services in this way is done expeditiously. (In some parts of the UK adult and children’s social services have been separated.) The point of the book is not the organizational structures of health and social care. They shift over time. Its concern is what happens inside those organizational entities when people speak out about wrongdoing. That changes much less.

Whistleblower and person raising concerns, and ‘whistleblowing’ and ‘raising concerns’ are used interchangeably, but legally they are different. The person blowing the whistle, if they are making a protected disclosure in law, has such protection as is afforded by whistleblowing legislation in place in their jurisdiction at the time of the disclosure.