 Fyfwyr na'n gwaith i'r 15 ymddangodau Gweithio Llyfrgell, gyda Gwylfaenol Llyfrgell, a chyfoddolion y gallwn cyfnodd, David Stewart, MSP, Miles Briggs, MSP a Sawaar yw'r sylwedd yw ddwyllfaenol i'r David Stewart. Fy fywch ar y ddweud erbyn i'r ddweud oherwydd ei ffordd y ffordd a'r ddweud i'r ddweud i'r ddweud i'r ddweud i'r ddweud i'r ddweud i'r ddweud i'r ddweud i'r ddweud i'r The first item on the agenda is subordinate legislation consideration of a superaffirmative instrument. The order is subject to the superaffirmative procedure involving an additional stage of scrutiny, which is today where parliament considers a proposal for a statutory instrument before the instrument is formally laid. This procedure is used for instruments such as this one, which requires a particularly high level of scrutiny. Today's session is in relation to the Scottish Public Services Ombudsman Healthcare Whistleblowing Order 2018 in draft, and we will take formal evidence on this proposed draft today. I should put on record that we did invite Unison, John Stuttick QC and Sir Robert Francis all to give evidence today, but all for various reasons we are unable to attend. However, I am delighted that we do have with us Rosemary Agnew, Scottish Public Services Ombudsman, Rona Adkinson, non-executive director vice chair and whistleblowing champion at NHS Grampian, Alison Mitchell, non-executive board member and whistleblowing champion at NHS Lothian, and Bob Matheson, head of advice and advocacy at Protect the Whistleblowing Charity. We will now move directly to questions. I encourage colleagues to indicate and come in with questions through the chair on any aspects that are raised in the evidence. I look forward to hearing from the witnesses what the witnesses have to say. Clearly, it is an important step, an important order and an important to get it right. While it has been understood for some time that the independent national whistleblowing officer would be located within the purview of the Scottish Public Services Ombudsman, I think that the decision that the two persons, the two roles that should be heard by the same person, is perhaps not something that was quite as widely anticipated. I start by asking all of the witnesses, but including, of course, the Ombudsman, what their view is of this proposal and of the benefits or disbenefits of the two roles being carried out by the same person. Who would like to start? Would you like me to start? It seems a logical place to start. I think that it is worth remembering and reflecting on why it is the same person. That was in response to Government consultation and it was a response to that consultation that suggested the Ombudsman because of our independence. I say our because I think of myself as a whole office. We all deliver the service. We are independent. We have a track record and a lot of knowledge about complaint handling. I fully accept and we all understand that whistleblowing is not exactly the same as complaint handling. There are some significant differences, but some of the underlying skills that we will need when being involved in investigating and setting the standards are already there, so we were able to hit the ground running. In terms of it being the same person, the challenges that that will present to me within the organisation are to ensure that, whilst I as an individual have both of those duties and areas of responsibility, I must ensure that our processes, that our internal approaches, recognise the difference, particularly when it comes to confidentiality, because there may be occasions where we are investigating complaints about an organisation at the same time as we are looking at whistleblowing issues. On the whole, I think that the benefits completely outweigh any of those procedural issues. The important thing is that we recognise them. For me, it is the independence, the ability to scrutinise, the ability bearing in mind that this order builds on powers that I already have, it is the ability to shine a light on things, to encourage learning, to encourage engagement, and I think the opportunity to try and develop and contribute to a national culture where openness and trust are the norm, as opposed to having to rely on a process that is bolted on at the end, if you like. I will stop there and let some of my esteemed colleagues have their say. I would concur with what you have just heard. The two roles in one hold no disadvantages, I think, for the NHS, but it does hold significant benefits. There are distinct differences between complaints and whistleblowing, one that escalates to become a whistleblowing. Obviously, it might also cover some aspects that would not be part of a complaint. My experience of the ombudsman in handling complaints within the NHS is that, when you have to go to that level, you get conclusion, but you also get very positive feedback about how you can learn for the future. If we could tap into the experience that the existing ombudsman staff have and relate that to the specifics around whistleblowing and complaints in the NHS, then there is great benefit to be had by all. I do not think that we can underestimate the experience that those people have and the learning that we can take from them. I agree with my colleagues here. I would say that it is absolutely imperative that there is an independence and that the ombudsman brings that in great quantity. The distinction between whistleblowing and complaints is really important. Therefore, the definition of what is deemed whistleblowing is also important if the ombudsman rolls to be effective. There can often be conflation between whistleblowing matters of public interest or patient safety with personal grievance. It is very important to understand what area the ombudsman would be covering in terms of their jurisdiction. I am very content that the skills that they bring, the advice, the support that they give in terms of complaint handling has been nothing but beneficial to the NHS in my view, and I do believe that they will bring that core skill set. However, I do have certain concerns when I start to read about model procedures and efficiency. Those things are important, but culturally, whistleblowing issues tend to be somewhat different from standard complaints or factual operational complaints, and they, by their nature, are pretty comprehensive. When we talk about efficiency and references made to that, I am concerned because the most important thing about investigating whistleblowing complaints is that they are done thoroughly and appropriately, sensitively, in many cases, and by the right people. Those kinds of investigations can take time, and it can take time to identify appropriate individuals to undertake those investigations, sometimes having to be drawn in from outside the organisation because of the nature of the issue under scrutiny. Taking that in hand and taking account of that, I say no reason whatsoever why they should not sit very comfortably with the ombudsman. There is maybe a small bit of background for the committee members that are not aware of protectable denial work. We are whistleblowing charity, and that is the thing that we specialise in and are expert in. We are based down in London, but we are UK-wide. Because I think that we speak to an awful lot of whistleblowers, and I speak to a lot of whistleblowers in my day-to-day job, I am very fortunate perhaps to understand the nuances in being able to deal with these sorts of problems. If there is an obvious issue or challenge with placing the in-wo inside of SPSO, it is this distinction between complaints and whistleblowing, which for a very, very long time has been a clear difference between them. What I would add to what is already said around that is that the big difference is the position of the person that is reaching out to the oversight body. In a complaint, you are very much the person affected ordinarily. Something has happened with your care or with the health treatment that you have received. Whereas the ordinary place of the whistleblower is as the witness, and that is a really, really important distinction. Whilst, obviously, the in-way will be playing a role in looking at how the whistleblower has been treated and in that sense they are complaining about what has happened to them, I think that it is really, really important that we do not lose sight of the whistleblower as the witness and the concern as the focus of what we are trying to achieve here. Ultimately, whilst we want to make sure that whistleblowers are safe in the health service, we also really want to make sure that the concerns that they are raising are heard and listened to. The main difference that comes out of that, really, is expectations around what can be expected as part of the investigation process from a complainant in a complaints process in a whistleblower is different rights for the different sorts of groups, different sorts of address, things like that. That is the obvious challenge. I do not think that it is insurmountable at all and I think that the SPSO has already done lots and lots of work in thinking about how they can adapt their processes to make sure that they can meet the needs of whistleblowing, which is quite different from complaints. I think that so long as that is an ongoing process and there is training for their staff to make that adjustment and there is ongoing stakeholder engagement, I do not see that being too big of a problem. I think that certainly when you look at the advantages of placing it in this organisation, personally and from my organisation's perspective, the pros definitely outweigh the cons. I think that the fact that it is an established organisation with processes already in place, staff that are already there, it is going to be much quicker to get it off the ground and of course it is trusted and seen to be independent. Thank you very much. The Royal College of Physicians of Edinburgh was one of the respondents to our consultation on this order, who said that there is a concern that the intended potency of the independent whistleblowing officer could be lost and merely absorbed into a multitude of other functions. There is a question clearly for the SPSO of being able to accommodate what is a very significant new set of responsibilities within already existing very significant sets of responsibilities. Can I just ask you to confirm or to respond to the Royal College's concern and explain how you intend to address that going forward? First of all, I would like to say how grateful we are to everybody who has responded to this and to our own consultation on the draft standards that we have put out. I completely understand and can appreciate why there may be concern about whistleblowing is not complaint handling and we haven't lost or ignored that point all the way through the development of the standards, our collaboration, our talking to multituder stakeholders. I think that the best assurance that I can give is that we are not looking at currently in terms of our own function and structure of absorbing whistleblowing complaints, as they are referred to, within our general workload. We are actually looking at a specific team who are there to handle whistleblowing concerns because there are a number of things immediately that strike me as being the significant differences and it picks up on some of the points that are made here. The first is that one of the most significant differences between a complaint about service and something that is escalated from raising a whistleblowing concern is that there are likely to be one or two things at the core of these coming to us. One is patient safety in the public interest and the other is the treatment of the individual and these can't wait. They have to be addressed relatively quickly. Picking up on your point about the witness, I think that what people have to say, actually physically say, is equally important. What that is leading our thinking on subject to all the responses that we get into the consultation is that we will have a different approach for this team in terms of how we try to address these concerns, partly to address them thoroughly, partly to ensure that learning is picked up and fed back, but also to try and ensure that something happens quickly. If there is a patient safety issue, it shouldn't necessarily have to wait all the way through an investigative process if it's something that should have been, obviously should have been put right straight away. Whilst I can't say definitively we're going to do X, Y, Z, I hope that by sharing our current thinking with you about how we see this being part of the organisation gives some reassurance. It does, however, raise one of my major concerns and that is about resourcing. When I talk about resourcing, I'm not just talking about the SPSO, it's actually the NHS itself because if this is going to work as it's envisaged, if it's going to contribute to more robust governance, to open and trusting cultures where people are confident to raise concerns long before it becomes called whistle blowing, where it's just part of your everyday work, then it has to be adequately resourced to ensure that investigations can happen quickly where they're raised. I'd like to put this down as a marker that I think it's one of the success factors that both the NHS themselves and the SPSO are adequately resourced to be able to deliver this service in the way that the policy and the order envisage it. Just on the back of that and thank you convener, good morning everybody. What level of funding has been projected or estimated that would be required for for this in-wall rule? We haven't currently come to a figure, we're still in the planning stage within our own office and it's something that is part of the ongoing programme with Government to discuss at some point. Our relationship with the development of the policy and Government up to now has been very positive but I think that part of the reason I raised the point is not necessarily because there is an issue, it's the fact that it's a success factor but it's not just about the SPSO, it's also about the NHS. The funding, would it come from the Government then or would it come from the NHS pathway funding? I would expect it to come from the Government, where the Government divert it from, bring it from, I think is a matter for them. Is it a matter that NHS boards are sighted on, Alison Mitchell? It's something that we are very concerned about in putting together NHS Lothian's new policy procedure and investigative process. It's very clear, particularly when these issues tend by their nature to be quite complex, the time, the management time to do this comprehensively and appropriately properly is very significant. Those managers are people who are pulled in to do the investigation and have full-time day jobs. They are NHS under huge pressure, delivering against the seas of other targets and they want to engage and it has to come as far as possible from within the organisation because this is about encouraging a culture change, it's about the organisation listening to the individual, not some outside organisation imposing that listening upon the organisation. It would be concerned that if we have been held to targets and certain model procedures, how can that be delivered alongside the data without additional resource? NHS Lothian just recently has gone beyond policy and procedure because the organisation feels that this is a culture change, it's not a process, it's not a transactional thing to hear whistleblowing concerns. NHS Lothian has just recently appointed two speak-up ambassadors and is about to support those ambassadors with a network of speak-up advocates of about 20 individuals across the organisation to support whistleblowers, to encourage whistleblowers and to ensure that they have the proper support and treatment throughout any whistleblowing process. Again, those people have been taken from day jobs and this is additional work, so I think that everyone needs to be aware of just what, if we're going to commit to this and do it properly, this isn't a box-taking exercise, this is a real commitment and passion to ensure that we create an environment where concerns can be raised freely and without fear for the benefit of all. In taking forward the whistleblowing champions role, we've tried to look at two things, and that is should something have got to the extent that it becomes a serious complaint and or whistleblowing, then whoever makes that stance is fully protected and they have a process to go through to allow them to get to conclusion. In parallel to that, we are trying very hard to look at not getting to that extent and that is where the resource really needs to go. We're looking at different forms of mentoring and support, listening skills, how you handle complaints when they come towards you and actually putting your hand up as a manager and asking for help to do those kind of things because everybody is under a great deal of pressure on the front line and there will be slip-ups and there will probably be more slip-ups and unintended but they will escalate but it's finding space to allow people almost like a duty of candor in the staffing cohort to say, we need time out to look at this, discuss it and get to a better place to stop it escalating. So we're trying very hard in gramping to take it down both routes. We appreciate that some will not be resolved that way and rightly so and they will escalate on to being either more serious complaints and if we're really unlucky to whistleblowing. So we're trying to push both sets of processes through. It's a huge cultural change. I'm with resource implications again. I rose from the ad new and then I'll come back to both. Thank you. I just wanted to pick up two points really. One was really echoing what you're saying Rowna and that is one of the significant differences between the whistleblowing standards that we're currently consulting on and the complaint service complaint handling is that they explicitly and deliberately recognise that whistleblowing, formally whistleblowing, is actually not the beginning of the process. The probably more important bit is what we refer to as business as usual where if you have any form of concerns, this is where the culture change needs to be. You just raise them as part of your job, your everyday work and that is really where the concept of efficiency, if you like, comes in. It's not efficiency as in pound notes, it's as in picking up things early, developing an environment of trust and confidence of getting the right outcome in relation to patient safety at the earliest possible time. The other point I'd just like to pick up as well is the timescales one because there's perhaps something lost in translation. The model or standard procedures that we're consulting on do have timescales attached to them but they're not absolute targets as in you're held to account if you don't meet them. They are there as these are the expected but if there is a situation where you need to extend them then you extend them as long as there are good reasons for it and the reason we've included this is not to try and impose something unrealistic but to ensure that within the process things keep moving and that's something we've learned from complaint handling so understand entirely the concerns and if there is a way that you think we could articulate that better, be very happy to discuss that. Thank you. I think committee's work well when we have negotiation in public. I think firstly maybe just to pick up on this what is whistleblowing point which is really central tool of this and certainly the standards that I've seen don't envisage whistleblowing as just that final escalation point up to an outside body that they see whistleblowing as raising concerns with your organisation as well and certainly the vast vast majority of people I advise never go beyond raising their concerns with their line manager or they might escalate it up to a senior manager you know and that's the norm that's what's happening in the main and these people are still suffering so I think that is important when we're considering just in the kind of wider perspective of what this all is about and also in terms of funding because what I would go on to say is that whilst I would absolutely support calls certainly for the SPSO to receive the funding that it needs and I think it probably is going to need quite a lot of funding to do this role which is a really big role and I would certainly support the NHS receiving more money to be able to do this. It's also important to recognise that what we're asking organisations to do here is what they should already be doing and I think also it's what the public expects them to do. What we're looking for is just when people raise concerns with them about people getting hurt or about risks that they're listened to properly and dealt with quickly and that those people aren't targeted as a result we're not actually asking the organisation really to do much more different as a bit more admin may be involved in it. What we're introducing as I see it is someone to oversee that process and to make sure that they are doing it properly so yes I would absolutely support the call for more funding but I think it's also to put it into the perspective of this isn't a cherry on top for the health service in Scotland this is what we should be expecting them to do anyway and it's just important I think that we have someone to help and support and oversee them doing it to make sure that they are doing it. Thank you very much. Can I bring in Brian Whittle and then I'm sure we can have some further discussion around these questions. Brian Whittle. Thank you. Good morning to the panel I think. The approach around definition of what or how we're defining what constitutes whistleblowing is going to be within the complaints handling procedure rather within the order itself and I wondered whether you consideration given to whether there should be a legislative oversight of that definition. Should it sit within the order? So it's in the standards but it's not in the order that's the point isn't it so yeah. You've hit up under the second of my concerns. I'm comfortable personally in myself and my organisation that we have understood and defined whistleblowing and I'm comfortable with the fact that this is the result of a lot of collaboration and co-production. What I'm not comfortable with is that it sits somewhere where it is entirely down to the ombudsman not because I don't feel we can do this but there isn't the same level of scrutiny that there would be if it were in something or an instrument that has parliamentary oversight and there are two ways that we think this can be done. The obvious way is to actually include in the order a non exhaustive definition so one that a bit like the one in our standards doesn't restrict you to exactly one specific thing but gives you a good definition that you can work with and is relatively flexible in light of experience. The other place that we think it could go if not in legislation is actually in the principles that we are required to lay before Parliament and this is part of my wider SPSO powers. I have to lay complaint handling principles and this will include laying the whistleblowing complaint principles as well and that is another area where obviously it's down to government but if it were not in the legislation itself where it could be because that again goes before Parliament and would have an element of scrutiny in public too so yes it's a concern for me that it's within the areas of drafting that are purely down to the SPSO at the moment. Do other witnesses have a view? Clearly one must assume that it's legally competent but the question of whether it's the appropriate mechanism I guess. Does anyone have a view? No. Brian, did you want to follow up? Yeah, I just think that the issue of presenting legislation without defining specifically about what the legislation is pertaining to is an issue. I also think that this legislation is dependent on third parties who are not subject to parliamentary scrutiny and I wonder whether they had any other examples of whether that's the case or whether that's fairly unique. It's a very fair question, it may be that it's one for the cabinet secretary later but I don't know if Rosemary Agnew is aware of any other cases where definitions of matters, effectively matters of law, are left outwith the legislation and left to the... I can't think of any but it's a question that I'd like to take away and come back to you on a phone. I think we may come back to it later in the session as well. Thank you very much. Now I think that Sandra had a brief supplementary and then I'll come to all of it. Thank you very much. Before I do my brief supplementary, can I declare an entrance as a member of the Scottish Parliament corporate body? It was two small issues that I wanted to raise. Rosemary Agnew, you mentioned about the timescales and it's extensive and I picked up on a point that I may be wrong but I wondered if you're talking about if it's a difficult case, there's no cut-off point when you're investigating. Is that correct or will there be a cut-off point? I think that the timescales we were referring to are for the NHS in terms of how long they take. There is provision within this that if an individual feels that something is taking too long, they can come directly to us and say, I raised this and it doesn't seem to be moving, nothing much is happening, then people can come to us before that. So to an extent it's within the gift of the individual if they feel it's taking too long but I think from my experience of complaints, as long as there is not huge impact that needs addressing straight away, a thorough investigation where the organisation concerned are learning for themselves or maybe identifying deeper issues, other things that are sitting around this, that is the best place for the learning to be and it's not that I'm trying to do us out of work but I would much rather be providing the support on how to do good investigations than having to put resource into picking it up at the final stage. It's all right if I ask Mr Matheson in regard to that. You quite right I hadn't heard of your organisation and I apologise for that. I welcome your comments. How many cases have you actually, your organisation, picked up cases from the Scottish Parliament and various other guys or the NHS? In terms of how many cases, it's about 3,000 individuals that come to us for advice each year. They're not all what we would see as whistleblowers or directly within our remit but the vast majority are. In terms of the cases that we have in Scotland, we have for quite some time now run NHS Scotland's advice line for the health service so we get an awful lot of cases through that and are quite experienced in advising those sorts of individuals. Thank you. It's just a wee sup about the definition of whistleblowing because the whole process and I declare an interest as a former clinical educator and nurse in NHS of reason Galloway who used to look at issues around central line infections for instance and things like that and patterns in care or behaviors or whatever. The whole process is about escalating concerns or addressing concerns and most of it will be dealt with in a business as usual manner and it's when we're looking at somebody that might feel under, I don't know, threat or not losing their job necessarily but from intimidation processes. So this whole issue is about a step process where the whistleblower would be the final part of maybe something that could have been dealt with if leadership processes had been better and I know the cabinet secretary has talked about changing the whole culture in order to address processes where you don't need the whistleblower in the first place. So the definition should allow us to be flexible in the approach because many of the cases or presentations will be quite varied so I wouldn't suggest that we would need to lock down a really tight definition of what is whistleblown. Is that what is appropriate down there? Yeah I think that's what we mean by wanting a non-exhaustive definition so if you look at the definition that we've actually put in the draft standards it covers a number of things that quite clearly says it is non-exhaustive because there's always something that comes from left of field that doesn't get covered in specific wording but actually within a general definition. I think the other reason why a definition of what is whistleblowing and raising a concern is important is very often whistleblowing and whistleblower get conflated and whistleblowing is a very specific thing where an individual has chosen for whatever reason to make it part of a more formal process that gives them the protections that whistleblowing brings so in a way a lot of this comes from this non-exhaustive definition but I agree entirely it shouldn't lock us down to the point that it restricts other things being able to be brought into it. I look all hot. Sorry yes. As a tiny addition to that and I mean this is probably just repeating a little bit what I said before but it is very very important that we don't cut out from what we see as whistleblowing that day-to-day activity because what's very common in the people that I speak to is they won't realise that they are quote-unquote whistleblowing they will have some concerns they will speak to their line manager and then it will hell wall break loose and they might never say anything again because they're sufficiently scared of doing anything else that they then be quiet. That sort of situation we absolutely have to have the in-way looking at. I mean it would completely undermine its purpose if we said well they weren't doing that formally or they weren't calling it whistleblowing and because of that reason we can't treat it under the process so I really think we need to be careful not to cut out the business as usual stuff which actually is just as much whistleblowing as escalating it somewhere on the question of definition you almost have to turn it on its head if you give a very tight definition it will become too easy to measure any negativity against the definition as opposed to looking at negativity in its own right so you would use it to interpret is that whistleblowing as opposed to is that not a good situation by looking at the situation and doing something about it so you almost stop things being taken the full course of resolution if you put in too tight a definition. Good morning to the panel thank you for coming to see us today. Policy change is only ever as good as the difference it brings about and this committee and other stakeholders in the health community is still reeling from the revelations of the Sturrock review into NHS Highland and the bullying and systemic problems there. I recognise what you said Rosemary Agnew about whistleblowing not being a replacement for normal grievance procedure and much of the Sturrock review revelations are around the handling of grievances and interstaff relationships but some of it is systemic as well so can I ask you do you think that had this policy change been in effect prior to the revelations about NHS Highland that things might have been different or been handled differently? There's always the answer yes probably I think it's difficult to say yes definitely I think the opportunity to handle it differently would have been there because there would have been much more focus on integrating this with governance with HR procedures with the way the organisation is run and encourages at every level and I concur with some of the points that some of this is it's not about management this is just about how you as a team may operate as well as how you relate to the organisation you're in I think where it would have strengthened and perhaps averted things is it would have come out into the open a lot sooner because one of the things that the approach that we're taking recognises is that there are occasions where as business as usual you may have a concern over something and is it grievance or is it whistleblowing? I think one of the challenges we all have is whistleblowing is not particularly well recorded at the moment so what it would have given individuals more empowerment to do is to say no I want this to be recognised as whistleblowing or I want this to be recognised as a grievance against individuals but it also gives them the safety net of if the organisation had decided to go down one route when they thought it should be the other they could actually come to the inwo to say we think this is more suitable to either grievance or to whistleblowing and that the issue of bullying and harassment is a really interesting one in the context of whistleblowing because it's one of the areas I think where I've heard a lot of concerns raised about are you going to stray into human resources policy territory because no we're not and bullying is probably a good example of how that might work in practice you could as an individual say I am being bullied by ex that is a grievance I would suggest against an individual but if you were to say there is a pervasive culture of bullying in this organisation that means I am afraid to speak up with things that I see are wrong that is whistleblowing so at the outset it's important to explore just what the individual is trying to raise and to fully understand it the other place where it may raise itself is at the other end of the process where it's the treatment of the individual I raised these issues and I now feel I'm the subject of bullying and harassment and I think in that context if you reflect on the output of the Starwick report what you see is that there is more safeguard earlier on but equally a recognition that within those safeguards you also have to dovetail this with good bullying and harassment policies with wider organisational approaches to how you develop your organisation so whilst I can't say that it would have changed anything what I think I can say with a degree of confidence is that it is likely to have been different or have been escalated quicker can I thank you for that can I unpack that still further with you and you give several examples of how it stops being a grievance issue and is a recognition of the culture my concern and I hope that this would be dealt with by this that the way we're going to do things differently and perhaps you can clarify that my concern is for those staff who don't have any faith in the HR processes of their health board or their locale because of a culture and maybe it's linked maybe they started getting bullied because they started asking questions or they started raising concerns about it or the bullying came first and the bullies that are in the strata of the processes that they are expected to complain through is there an opportunity for those people to circumvent local processes and go straight to you or the whistleblowing function and if that is the case how can we get that message out to staff so that they feel confident that if things are so bad in their locality that they can circumvent Rosemary Agnew. I'll try and unpick that one. I think that the short answer is yes, there is provision in there that says although this is the process that you are expected to go through whereby you raise it with the organisation and there's a two stage where they will try and resolve it or investigate it in detail there is also a recognition that for some people this may not be ideal for them so they would have the opportunity of contacting us directly now we may at that point and this is where I think it's very case dependent and it's very dependent on the individual or group of individuals um we could do a number of things we could theoretically look at it ourselves from the beginning we could raise it with the organisation and say you should be looking at this and having done that that would give a very different level of expectation I think because the organisation would be very clear that they're under the under the spotlight here but the important thing is that there are more there is more than one route the other thing that this raises and to an extent this comes back to resources as well it's really important that organisations put time and they will have support from us into awareness and training of how concerns can be discussed both as business as usual and as under the whistleblowing procedures that everybody is aware of how to signpost so if you're a line manager how you signpost and advise what somebody can do and if without that awareness you run the risk of isolation of I don't know where to go so there are two things in there one is building trust in the system which can only be done I think through showing it works and the reassurances but also the other is about ensuring that people are familiar with where and what they can do and it's why organisations like protect who also give advice and why our own advice function would pick those issues up. Yes can I add to that NH has long been one of the larger boards in Scotland you know up to 26,000 people it's multi-site in fact although we have an underlying culture and values every site has a different culture a different feel you know people have different management systems different tiers of management wherever they are and wherever they're disciplined so one of the reasons that when I heard some feedback after investigations ceased for whistleblowers they told me that they didn't know where to go they didn't know they couldn't complain within the unit because it involved the people they were working with for instance and they needed someone to tell them and they had no way of understanding so this is what we're trying to address in terms of appointing guardians and advocates it's about an education there's a massive communication exercise about to commence at NHS Lothian so that people who don't have access to online systems for instance many of our people don't have computer terminals or computer access have somewhere to go somewhere to find out this information and as the OMS minister said it is about raising the awareness and the culture change will take time trust takes time to build and we know people will be sceptical and we hope eventually that this will be completely superfluous we won't need whistleblowing champions we won't need the ombudsman to interfere because it'll become second nature but NHS Lothian has recognised that having a policy alone was named contact so we knew you can but if you can access that policy or you know it exists that's a start so there's this huge educational initiative and NHS Lothian also has a mediation service to try and you know resolve grievances at the lowest level we're trying at the moment to do things informally to have staff speak up at local level and address it at the local level not formally reporting it just dealing with it and be seen to be dealing with it and that builds the trust and the culture but there's a huge learning curve for all involved and I would say that we just need to give this time and the investment the commitment from the top it has to be a leadership driven exercise it can't be imposed upon an organisation and I think the organisation has to learn for itself I think that point was very very valid it's not about someone else coming and telling you how to do this it's about you finding out where you've gone wrong and putting it right within the organisation. Good morning I just wanted to follow up on Alison Mitchell's point about the trust and culture I think that's a really important point and I take what Rosemary Agnew said around having the right framework having the right structures having the guardians having the champions but we've also got to live in the real world and in the real world there are NHS staffing bullied every single day in every health board probably in every hospital and almost every setting across the country and unless you change the culture where you've got lots of busy people doing lots of work with more and more pressure with less and less resource with more and more demand you know you can have the best process in the world you're still going to have people getting bullied every day and not having somewhere to turn how do we change that culture? That's about empowerment and being sure that people have the have the confidence to speak up and note will be carried out and it's something we have to build like we can't just say this is now the culture we're going to listen to you we have to be seen to listen and not just listen but act so it's reflecting back and it's about giving someone at every level someone else to speak to a safe space you know it's often it's a term often used it's the isolation when you're working in a very large organisation it can be very isolating you don't know where to turn smaller organisations that tend to be somewhat more collegiate but we have units which are out in the middle of nowhere but they're very tight in it but if there's a bullying you know there's some individuals there leadership where there's bullying going on we might not see it at centre so my worry is a non executive whistleblum champion is what don't I know what don't I see and it's about trying to get as many people out there to be the eyes and ears and the ambassador's role is to go out and just have conversations not to go into problem areas but just go out and speak to staff and hear you know how they feel about their current culture and we're constantly embedding values and training but we've rolled out huge amounts of training for whistleblowing process and policy but I this is why I feel quite passionate about moving beyond this process and policy it's all about culture you know box ticking having a process and a policy in place does not achieve the goal it is about the way we actually enact that on the ground let me give you a few practical examples just a few cases that i'm currently dealing with for example one a consultant who raises concerns around how some patients are treated and how what kind of resources is used or material is used in individual operations he's viewed as being a troublemaker three other consultants in that same ward gang up on him and say actually we need to reduce your hours it's your clinical practice that's in doubt not our clinical practice he's not going to become a whistleblowing champion because he's not going to get career progression he's going to get his hours reduced he has had his hours reduced and he's now actively trying to find a job somewhere outside Scotland NHS he's not going to become a whistleblowing champion because his seniors aren't going to support him the GP for example who raises concerns around resources at an area where there is higher deprivation higher demand agitates with other gps they're told actually let's look around your own registration let's look around your own background let's find examples of where you have got it wrong and open up investigations about how you operate your own GP practice they're not going to become a whistleblowing champion they're not going to turn to someone where they're going to go a nurse who raises concerns around too much pressure on her again her seniors are telling her look we're all under increasing pressure what we're going to do that there is nowhere to go all these situations aren't going to be resolved by having a whistleblowing champion how do you how do you change that culture the listening problem being seen to hear so it's about perhaps having the issue raised at the right level if it's raised locally amongst others who are blocking it it's this identifying barriers we're undertaking quite a significant exercise at the moment to identify what the barriers to speaking up are what is it that makes people uncomfortable and the most common reasons are fear for career progression or you know direct bullying and until it can be seen to be done that someone who was raised a valid concern has been fully investigated I've actually had a whistleblowing case where an individual very genuinely raised concerns about a situation and very validly raised concerns it was investigated and when it was investigated there were very many technical dimensions but it wasn't found actually to be a flawed or a serious issue but the secret there was to give the whistleblower the feedback and the full explanation as to why something was as it was and was not being changed and then speaking when the investigation was closed because I don't get involved at all during any investigation process the individual said well I accept that now I understand but to me it looked like X, Y or Z so this person felt that they'd been taken seriously that the outcome wasn't any different but they understood what had happened and why and I think that's that kind of feedback that acceptance but that again takes time every single whistleblower will have to have this kind of feedback explanation and at the moment the processes that we have in place aren't doing that and that hence the fact we've appointed these ambassadors and advocates so that they can it's not to represent the individual it's not a representative role but it's an advocacy a support a signposting someone else to go and listen to an external organisation perhaps we could go to the royal college or or whatever it's signposting appropriately and giving the support they need but you're quite right this is just this is the start of a process it's it's going to be organic it's not going to happen overnight but if we if it's driven from the top and if it's driven from all quarters it will grow it will seed and it will grow rosemary agnew and and recognising the critical importance of culture here but also whether the powers within the order are adequate to allow you and others to address that culture is is is central to our consideration i think i'll stop really echoing what between us we said is that this as a process is only part of it the whistleblowing the creation of the inwo the order is only part of something wider and of itself this will not address bullying and harassment but what this will address in a different way is the consequences for individuals so that the question that was coming through my mind when you were speaking is why is there so little faith in the system that people can't speak out and actually if you address why there is so little faith you probably find you won't need such stringent whistleblowing but the other point i'd like to make and and we we keep referring to process and it's it's easy to do that but actually what we are putting in place is whistleblowing standards of which a process is just part and i'm just reflecting on some of the things that are actually in this set of standards and one of them is about recording and learning lessons as the inwo my organisation will have a duty to ensure that as far as we can we are monitoring and we are ensuring that it's not just the whistleblowing but in the way a whistleblowing complaint was looked at did was there also evidence of learning what are the organisation doing to address systemic issues as well so that is where there's a similarity with complaint handling but equally the standards talk about there is a requirement to meet them there is a requirement for for boards and staff and leadership and whilst these are only one bit of it if you like it's this circular thing that if you can start establishing accountability at a different level that is another of the contributory factors towards changing the culture but i i agree this is not going to be an overnight thing but i think it will be a bit like a snowball that once we start this journey we will get to a much better place quicker than if we didn't have whistleblowing standards. So i think it's an excellent question and and it's one that it's not won't surprise you to learn confined to the health service you know how do we change culture how do we make people feel safe and supported and speaking up and i think all of the the work that Alison's talked about is incredibly important in doing that putting things in place in the organisation to make sure that it's got the structures to be able to encourage listening and to train managers so that they can see things in the necessary way and in fact our organisation a lot of what we do is to train organisations so that's all very important but the one thing missing and it's and i think it's an uncomfortable thing to come up against but it is accountability it is about accountability it's about changing the incentives and the disincentives for individuals that would seek to ignore whistleblowing concerns and they do you know i've seen time and time again people will just ignore emails because they're difficult they're hard emails to deal with someone's coming to you with a hard problem all the individuals like the the powerful stories that you talked about that have started to treat that individual differently and i think my reflections speaking to lots and lots of people in these positions is that it does on the whole come down to what are the incentives and the disincentives for them at those points so we do need accountability and we do need to make sure that those individuals that have done wrong are held to account for that and i think that that does feed into this question of what are the powers available to the in-wo and if we're not expecting the in-wo to somehow create that accountability then you know are there other structures within society that we're expecting to do that so health improvement Scotland we're not touched upon the kind of the way that they would interact but but somehow we need to make sure that it's not just the case that when something goes wrong we all write down that it went wrong and we reflect on it etc people need to actually have their situation changed if if if if they've been a wrong to her i think i'm very briefly and then i'll bring in Brian Whittle yes i come back to something i'd said earlier that these powers are additional to the powers i have as ombudsman and i understand entirely why there may be concerns because i don't have binding powers i make recommendations but they're not binding in all the time of the ombudsman including my two predecessors we've never had to exercise the powers we do have to the utmost which is if recommendations are not complied with we can bring the matter to parliament and i think that of itself is a powerful indicator of why when we make recommendations and we follow them up that's the important thing and the way we make recommendations are in relation to personal redress they're in relation to learning and improvement of the service they're also in relation to way complaints are handled so in that context i'm very comfortable that replicating the same way that we operate with complaints is effective and i think it's effective because it's not binding and that might sound contradictory but what that gives you is a very different relationship that you can develop with organisations that's not about cosying up it's not about being on the same side or whatever you want to call it it's about recognising that there are occasions when sitting around a table to talk about something and that might be your recommendations is more effective than an adversarial situation in terms of other organisations this is where i think the importance between recognising for example the differences between whistleblowing concerns and pure grievances is there already provisions in law in relation to things like bullying grievances and those would be a more appropriate place and one of the things that i think that this brings this set of standards is a recognition that there is the ability to share information to get the redress to the right place and that doesn't automatically mean it will be whistleblowing it doesn't automatically mean it would be down the HR grievance route but it's important that we have enough ability between us to share the information to get the right outcome rather than the follow the process slavishly outcome. Thank you very much Brian. Thank you. Just to follow on from what Anna Sauer is saying i think for whistleblowing to be effective and a complaints procedure to be effective it needs to be seen as valid and i think as Anna was alluding to there i think that a lot of management see whistleblowing currently as a threat and you've talked about accountability though but to be accountable there has to be a certain level of training and support for management right the way through to the board member level so i wonder whether or not you feel that that support is in place to support the work that you're currently doing in the whistleblowing element. It's a very valid point that you make in terms of accountability and do we support that? I would suspect that generally no we don't. We live in a very performance driven environment and it's very numerically driven and that tends to lead to people thinking that not achieving or something being wrong is bad, something not being right being wrong is something you can learn from and i think we have to drive that message through the culture just because somebody doesn't agree with something or understand isn't a reflection on them it's a reflection on the organisation you're part of not supporting them to learn or to grow or to develop and for the manager to be able to help them to do that. I think management levels within the NHS are under incredible pressure as well and there is a tendency and this came through in the start report as well to to almost focus on the numbers and not the story behind the numbers and i'm not arguing that we shouldn't have performance and we shouldn't have targets but there needs to be some kind of balancing out about what can actually be achieved and taking into consideration and how do we make that a good and safe and honourable place for people to work in and that means giving support to staff and managers to say i don't understand this i don't like this and for there to be space to discuss how to move that forward so the support is needed. I'm a hard one. Kind of just a whee-sup really but it'd be interesting Alison Mitchell to hear how your 20 people that are supporting folk to speak up how is that going to be monitored and measured because that's really interesting to hear about how we create a safe culture and in this direct review it talked about there needs to be the ability to rebuild confidence in managers and a programme of action learning training review coaching and support is essential so obviously that's maybe not happening across nhs boards at the moment but i would you obviously you would support action learning and engagement in education so that people's ability to report and flatten the hierarchy can be part of this learning absolutely the the new role that we've created the the two ambassadors supported by the network of advocates we've actually taken time we've appointed the ambassadors last month we're waiting to be sure that the the processes are robust in place so when the advocates are rolled out they can be effective in the role and part of that because this is a new initiative we've been taking inspiration from the guardianship model down south where we've had we've been engaged with them and found out where the you know that the real wins are to be made and having that kind of structure and we will be building in as an intrinsic part of that process feedback and review to develop the service so that it isn't just a one-off it'll be an organic service and having feedback i think stark actually raises that in his report quite vociferously it's very very important to constantly review what you're doing putting in place there's not a one one-stop shop i've ticked a box i've done a training initiative everyone's trained now that's fine is that training being effective so we will be putting in a continuous improvement feedback process throughout through this whole exercise and already nhs loading which has been subject to you know external review quite recently in regard to waiting times you know uncheck your care whatever at the end of the day um there was an organisational development exercise taken working with managers going into that to find out what they needed so it wasn't supposed we didn't decide they must require we went in there and and as as John Sturrock says in his report collaboratively identified their needs you know work to see what it was together we could do so it's that kind of approach not an imposition but a constant monitoring a constant review and a collaboration to make that successful very much briefly Sandra White sorry chair i was wanting a more substantive question about integration i thought it will come to that we'll come to that shortly can i just ask before before i bring in David Torrance Rosemary Agnew you mentioned sharing information with organisations now the general pharmaceutical council again in response to our consultation suggested that it shouldn't simply be his and bodies you already share information with such as the auditor general but it should also extend to medical or professional regulatory bodies like themselves that that it would assist in improving their the the understanding and action by regulators of professions if you were able and enabled by this order to share information with them too is that something in which you have a view and on which you've garnered other views unsurprisingly i have several views on this partly it's any sharing you can do that enables a more collaborative way of addressing any issue is a good thing we have to balance this with rights of individuals as well as how we look at information sharing i think for me there's a more fundamental issue though and it's to do with my primary legislation and something that we'd actually quite welcome at a different way of information sharing because always naming individual bodies isn't necessarily the most effective way of getting the right information sharing because and i think was the blowing is likely to highlight this the issues can be so varied that you might need different things at different times so yes i think it's a good thing i think sharing information with professional bodies to an extent there are some that we can already do that with under our existing legislation if we think there is a a public safety issue but i think where the information sharing would be of more benefit is on the lessons learned end of things because what works well for one set of professionals may well work well for another and to be able to share information about wider learning like we currently do with the health improvement Scotland intelligence area would enable us i think to pick up some of these issues that we've talked about in terms of organisational learning so what have we learned in relation to an individual complaint that we might want to share wider but because of other restrictions couldn't so yes good thing but i think it's more fundamental that we probably need to look at in terms of our my existing powers as well so in order to enable you to share with professional regulators the order would have to be amended from the draft orders at current distances that your understanding i think at the moment it has to name them it's not a more general information sharing and i'm not sure that the order would be the most sensible place to address the wider things because they've not really been looked at and scrutinised and i wouldn't want the unexpected consequences effect to happen but i do think it is an area not just for the nhs but generally for public sector that we could perhaps step back from because the spso act has been in place for quite a long time now addressing those wider issues though would require primary legislation in relation to the spso act whereas the order might enable you to share more widely with organisations yeah i think the the order as long as it gets the right organizations in there and as in the right spread of them and ultimately that would be a matter for government and we'd happily contribute to that but in terms of wider information sharing i think that's a longer term issue thank you very much David Collins meaner well good morning panel how long does it typically typically take for whistleblown concerns to be investigated internally who would like to offer that Bob Matheson yeah i mean i've obviously spoken to an awful lot of people i mean how long's be string and you know and i'm not being facetious it really is completely context um dependent uh uh so i think it's uh to build that into what we're talking about you know it's a big challenge of the standards to be able to reflect um both that there should be some pressure on the organization not to kick it into the long grass which is does happen and is a way of not dealing with these issues but also is flexible enough so that for the particular facts of the situation it's not putting um completely unreasonable uh expectations on the organization which as you say you know earlier already have day jobs you know some of them may have clinical duties as well okay rona Atkinson it all comes down to to what is the content of the complaint if it can reflect in something we've done in grand pain we were concerned that we weren't recording any whistle blowing which didn't seem right um so we actually went back over some complaints that hadn't been handled as whistle blowing to see that if they were or they weren't in essence they weren't whistle blowing but they were complaints that weren't properly handled so we then took a back step and went back to the people involved everybody and said can we start at the beginning again and see if we can get you a better outcome um and we've learned quite a lot from that one of the things we've learned is just because something's anonymous doesn't mean to say you can't identify where in the organization the occurrence is and find a way to be helpful um we also found that if you move away from management speak language and into everyday language it makes a big big difference um and we've also directed those areas that we went back to we have within grand pain a thing called values base reflection and basically it's um mediated time out for a team that's been under pressure and they sit as a team and discuss given our values and our principles as to why we are here how has today gone and what could we do to each for each other to make it better and that is spreading significantly through the organization because it allows people to bring out things that they're not happy about in the safe environment and for there to be to collective agreement as to how we go forward um so we've learned that you can't really put a time in how long it takes because it depends on what you're dealing with and sometimes you have to break away from the process and the counting of that process to focus on the individuals and the situations that they're dealing with. David Torrance. Thank you again convener um Rosemary you mentioned it earlier that time limits are flexible um and individuals could take their case to next step if they feel internal investigations take too long but do you think to safe confusion would it not be more appropriate for a 12 months time limit um to start once a case internal case had been finished? What as in 12 month time limit for bringing for referral yes to us um I think there's there's probably something to add about existing powers and time limits for bringing them to in world as will be SPSO and that is even within my legislation I have the flexibility to take things outside that time limit and one of the very strong arguments that we do accept and we do take things outside time limits is often the situation of an individual or an overwhelming public interest and I think if something had taken an organisation a length of time to look into to address and the individual had been content with the time that it was taking so they didn't come to us it wouldn't automatically not get looked at simply because it wasn't 12 months there's already the flexibility to accept those there I think what is more likely is that this will test it thank you very much Sandra White thank you very much and good morning everyone we've had a lot about culture and change etc and that's why I wanted to raise the issue of integration we know obviously there's been a lot of changes in the services by health service and social work as well but the order for the SPSO basically the powers and whistleblowing only extends to the NHS and I know that in the SPSO's consultation about whistleblowing they contain a section with advice to iGBs generous boards such as signposting of things that are to appropriate other orders such as care inspectorate audit Scotland or even the INWO which we are going to have in the powers of the SPSO I hate all using all these bits and pieces I know you get very confusing I just wondered what your thoughts are on that the fact that there is integration it is difficult to cultural as has been raised by Anas Sarwar as well and does the care inspectorate have the powers to basically investigate the handling of whistleblowing cases and perhaps probably put you on the spot at Rosemary but perhaps would it be merit in simply extending the powers for whistleblowing in regards to social care to yourselves Rosemary Agnew oh that's a tricky question isn't it I think in terms of extending it beyond health services that's a matter for the policy makers we will do our best to always deliver a good service whatever the scope of the powers I think for me the issue of integration is probably not that dissimilar to some of the issues with complaint handling and it's not a matter of who does it it's a matter of does it get done so the importance of signposting is we want to avoid people being kicked from pillar to post because they're not quite sure where and I think that even within the draft order and within complaint handling if people came to us for advice we are very clear about giving them advice about where to go and if it doesn't work come back to us and ultimately if they want to raise it as a concern about how what they think is a whistleblowing concern was handled we would I think those would be quite good things to raise the issue in to say actually this element is not working that element is not working but it's not whether others have the powers at this point because obviously we're focused on this order and what it means for us for me the integration bit is about helping individuals get to the right place at the right time quickly and that's where I think there is perhaps sometimes general confusion that's not just related to whistleblowing anybody else would like to contribute on a follow-up but it obviously being in the health committee within a lot of work and integration and it has been a difficult job with social work and health and the reason for raising it is the fact that obviously social care whilst they're integrated is looked upon differently from health and therefore when we look at this and of yourself Rosemary it do get these powers through this order you would envisage or perhaps people in local government or social care will envisage that the people who work in the health service have a better service via whistleblowing than the other in local authorities do and I wouldn't like to think that that would be the case but you're saying that the powers at the moment that people can come to yourself even if the new powers come forward and whistleblowing and bypass other parts of their organisation such as local authorities or particularly social care they could come just straight to you yourselves anyway they come to us to bypass but if they had concerns that they thought that they were raising something that came within the remit of whistleblowing but actually was about care rather than health that it's important that there are organisations who make sure that something happens and that that's where the signposting is important as regards the wider issue of is it different levels of service I think that that is an argument that could apply to the whole of public service so for the sake of the sanity of myself and my office we have focused on health thank you thank you chair thank you very much and can I can I say thank you to our witnesses today that's been extremely helpful and we will no doubt come back to these issues when we come to consider the matter formally we will of course be hearing in a few moments from the cabinet secretary and some of the points that we have raised with yourselves I'm sure we will raise with the cabinet secretary too but we will suspend briefly and resume in five minutes with new witnesses thank you very much thank you very much and we will now resume our meeting and welcome to the committee gene freeman cabinet secretary for health and sport and dr Stephen Lee Ross head of workforce practice with the Scottish Government to consider further the super affirmative instrument that we have been considering this morning um can I perhaps start the questions by asking the cabinet secretary welcome and and ask you about the decision that in wo the the role of the independent national whistleblowing officer should be carried out by the Scottish public service ombudsman rather than simply within that within her uh uh remit but to combine the two posts in a single individual clearly we've had we've heard this morning support for that position we've also had submissions which raised some questions about that position in particular about whether it runs the risk of whistleblowing being absorbed among many other responsibilities and I'd be very interested to hear the Scottish Government's propositions on that matter so it seemed to us very clear that the independent nature of the SPSO role and office is very well established and very well respected and is an office that carries considerable influence in our public sector so our interest then was it seemed sensible that rather than create something entirely separate with an entirely separate bureaucracy and so on and so forth was to have those conversations and discussions to see in fact how SPSO office and the SPSO herself felt about that and whether she believed that it could be accommodated and was a fit without detracting from other areas of work or being subsumed in other areas of work happily the ombudsman herself believes that this is the right place to put it and so it seemed to me perfectly sensible place and decision to take is to say it should be in that office because of its clearly established independence from any part of the public sector and from government. Thank you very much Emma Harper. Thank you convener good morning cabinet secretary. I raised a question earlier about the resources that would be assigned or the costs because we don't know how busy the whistleblower is going to be or because we don't have projections at the moment so I'm wondering what work has been undertaken to estimate the likely workload or the resources that will be required. So some of that I'm going to ask Dr Lee Ross to respond to some of the detail around that because it is as you say quite it's not straightforward to estimate what the likely workload would be but that's all part was all part and part of the discussions with the ombudsman because obviously they want to be clear that in terms of additional workload that they have the resourcing to meet that partly also to be sure in answer to the convener's question that one side of there or one part of their business doesn't lose out in terms of how it's dealt with when an additional responsibility comes along but perhaps you might want to do some of the detail on that. Oh currently as part of our staff governance monitoring exercise we ask all health boards in Scotland the number of stage 2 whistleblowing complaints they have under their existing policy and process. That reveals currently that there is a fairly small number of cases overall for instance NHS Lothian reported they only had five cases live in the monitoring return and similar numbers are bound across the piece. We absolutely recognise that the introduction of this function may rightly increase the number of individuals who seek redress through the inwall and that is a fundamentally sound proposition from that perspective. We are in active discussion with the corporate body around monitoring the likely number of cases that will be heard particularly during the transition period and obviously have given an undertaking to meet the costs associated with that but we do anticipate that numbers will rise above their current small crop. I take it from that then I think you said that the government has given an undertaking to the corporate body that whatever the level of resource acquired it will be met by government and that will come from government rather than from NHS scotland. The definition of what constitutes whistleblowing is going to be handled by the complaints handling procedures and I wondered what consideration it would be given to the fact that it would be presenting legislation without defining in the legislation what it is meant to deliver and we are really leaving that definition of that legal term to the SPSOs. Is there a danger now? There may be a small degree of risk there. I think that there is a greater risk in doing it without using the SPSOs clarity around her standards that she sets. There isn't actually, to the best of our knowledge, we have not found a UK or internationally agreed definition of whistleblower. If we had found such a thing, we might well have used it but it seems to us to make sense to have the standard set by SPSO and for her to work from that on the basis that that allows a more effective allocation of what she is there to do. That was the subject again of considerable debate and discussion and Dr Lee Ross may want to add something to what I have said. To pick up on that point, we deliberately, after discussion, left this matter to the ombudsman to define in the context of their model complaints handling procedure. The reason for that logically is obviously that the definition of what might be considered a whistleblowing matter or who might therefore be considered a whistleblower can evolve over time. We wouldn't want to arbitrarily exclude people from bringing legitimate cases simply on the basis that there is a definition set on the face of legislation that excludes them, arguably, or unnecessarily, from bringing such a complaint. In addition to that, the ombudsman is currently consulting on the standards and her own proposed definitions. We felt that there was a measure of transparency around what the function is going to look like in terms of who can be a whistleblower and what a whistleblowing complaint is. We were listening to evidence before. I think that there was a little bit of nervousness from the SPSO and the fact that it is the ones that are defining a legal term. The suggestion was that there would be a non-exhaustive definition of whistleblowing set within the legislation. Is that something that you considered? We had considered that and we had taken advice on that point. There is a legislative issue in the sense that, by definition, you do not put non-exhaustive definitions on the front of legislation because, when it comes to them being interpreted, they are interpreted exhaustively. We had also considered putting that definition in terms of the principles, but the existing legislation only requires a single set of principles for all model complaints handling procedures that cut across the under-dermine jurisdiction. As such, we felt that the safest place was to allow that to be placed in the complaints handling process. What that means is that the legislation will be dependent on third parties who are not subject to parliamentary scrutiny. I wonder if there are any other examples of that that you have that you can share with the committee. Can you just explain what you mean by that? The definition of the legislation will be left to a third party in that particular situation. That is not subject to parliamentary scrutiny. I was wondering whether there are any other examples where a third party has that level of input into legislation. In other words, leaving the definition out of the order means that it is not part of the primary of the legislation. What Brian Whittle is asking for is that there are other examples that you can offer of where such an important definition has been left for another party to include in subsequent provision? I cannot think of anything offhand. The process that we have chosen to pursue in allowing the ombudsman to bring forward those definitions through the model complaints handling process is commensurate with the process that is undertaken for the ombudsman to exercise any of its other complaints handling functions. One thing that we did take advice on as I raised slightly earlier was the risk of arbitrarily or potentially accidentally excluding folk from being able to bring a complaint. It is logical that if we are giving the ombudsman the capacity to set what the model complaints handling procedure is, it will then determine whether a complaint is sound on the basis that it has discretionary authority to take that complaint forward. I am still a bit concerned about the nature of the answers that we have had on the point of where the definition should lie. Stephen Lee Ross said that a non-exhaustive definition should not be included in legislation because it might be exhausted, but I can think of many examples of where legislation says that such and such shall include but shall not be confined to. That is quite a standard provision in law, is it not, for matters of this kind? Well, certainly, you are right, convener, in that it is not as much as I have seen that elsewhere, but the logic of the position that we have taken is exactly as Dr Lee Ross has outlined. That seems to us to be the correct approach, given what the ombudsman is there to do, given how other matters are dealt with by the ombudsman is to proceed in this fashion. Okay. One last point, question on this point, from Brian Whittle. Just more on my own understanding here is that what we are suggesting here is that we will not put a non-exhaustive definition into legislation, but my understanding is that the SPSO definition will be non-exhaustive, so I do not quite understand why it is all right for them to sit with a non-exhaustive definition, but we cannot sit with that within legislation. Stephen Lee Ross? The discretionary authority that we have given the ombudsman is precisely to allow them to for the definition to evolve over time. I think that the point is that it more readily does that in the context of that complaints handling process than it does on the face of the order. Okay. Thank you very much. Alex Cole-Hamilton? Thank you very much. Good morning, Cabinet Secretary, and good morning, Dr Lee Ross. We had obviously the ombudsman in before you, and I'll ask you the same question that I started with her. That is that policy change is only as good as the difference that it makes, and given that we are still all absorbing the findings and recommendations of the Starwch review into NHS Highland, are you confident that things would have been different had this change been in effect before things got bad in NHS Highland? Well, I think that I'd make a couple of points in response to that. I think that, for me, the Starwch report is actually about a great deal more than whistleblowing. It is about a workplace culture that was operating poorly to the extent that, in particular, four individuals felt compelled to raise their concerns publicly. Had that been in place, then it may well have been that they would have raised that through this office. However, that does not detract from the fact of what compelled it to be raised in the first place. Where this may be advantageous is where you have individuals. It is a hard thing to do to raise such a matter in a public fashion and to then cope with the personal exposure that that brings. It takes a degree of personal confidence and resilience to do that. I do not want it to be the case that individuals have to have sufficient personal confidence and resilience in order to raise matters in this way. I think that this office provides that safer route by which to do it, but it is, of course, just one part of the overall jigsaw in terms of whistleblowing and the other element of that will be the directly appointed whistleblowing champions attached to each board who have a much more focused local role, almost as advocates at that level and who are directly accountable to the minister. The ombudsman made an interesting point about the distinction between the role of the whistleblowing function and normal HR grievance procedures. For example, if we go back to NHS Highland, bullying ostensibly should be swept up in HR processes and grievances. It is not about a national systemic issue, but there are occasions when bullying is a symptom of a wider systemic problem. Staff need to have the confidence that, if that is the case, that they can circumvent local HR procedures and go straight to the top. Are you confident that all staff firstly will know that they can do that and secondly be able to do that? There are a number of elements in play at the minute. We have this piece of legislation to establish the independent national whistleblowing office. We have the continuation of the helpline. We have the appointment direct to accountable to ministers of the whistleblowing champions. We also have the important piece of work, which is the refreshing of this as an HR policy among other HR policies. On the basis of what is described as a once for Scotland, in other words, it is a policy that will apply across all health boards to all staff and not be open to individual interpretation by different boards. That is actually quite a significant step forward and will be on a number of HR policies. In all those circumstances, there needs to be a parallel piece of work that involves ensuring that all staff are informed of their rights and responsibilities as employees and workers in our health service and know where to go and what to do if they have concerns, either individually in their own employment in terms of how that affects them or other concerns, perhaps around an area of practice or what they believe is practice that is not being undertaken as well as it should be, the impacts on patients or others. All of that, making sure that we get all of that right, is almost as important as all the other elements that we are doing so that people know how to operate the system. However, there will always be the backstop, if you like, of the helpline and the independent national whistleblowing officer to go to when people are unsure or do not feel comfortable in pursuing the local policies. I welcome everything that you have just said and I agree wholeheartedly with it, but the reality is that we can have the best processes in place, the best mechanisms in place, we can have all the whistleblowing guardians and champions we like if the culture is wrong and the trust does not exist. Given how small a place Scotland is and even how small a place Scotland's NHS is, it is not going to work. What are we going to do to change that culture and build that trust? You are absolutely right about that. I am keen that we get all the policies and processes right and that people understand them, both on whistleblowing and standard HR policies around grievance. We get all of that right and involve all the unions and their representative bodies in doing that. The degree to which they are used will be for me the degree to which we either are successful or not successful in changing that culture and ensuring that it is one where people feel able to raise concerns and are listened to and heard. Those concerns are acted on even if the acting on them is to reach a view that concerns are legitimate. There are a number of things that we are looking at doing. One of those is what I said when we published the start report, which is to bring together all the leadership bodies inside our health service that include all our royal colleges, our regulatory bodies, our boards and our unions to look at the role that each of us can play in creating and promoting that positive workplace culture. Some of the royal colleges, as you probably know, are already taking steps themselves. The Royal College of Surgeons, for example, is running its own work called Cut It Out, which is around how surgeons, as clinicians and with their more junior members of the team, how they behave and the kind of working relationships that they promote. Part of it links directly to our patient safety programme. Some of the work inside the patient safety programme does positively encourage the raising of concerns via a route of checking that everything is okay before you start, for example, a procedure, the safety, poison, emergency departments and so on. The other part of the work will be the wellbeing summit, which is again partly around this, but it is also looking at issues of mental wellbeing and stress and so on in the workplace and what specifically do we need to do. We will look outside of the health service. For example, NATS—National Air Traffic Control Service—has now got themselves to a position where they have achieved a culture inside NATS, where mistakes and near-missies are regularly reported, discussed and acted upon, to the extent that people will report themselves for a mistake that they recognise they have made or a near-miss. I am really keen to know what NATS did to get from where they were to that place, because there is a comparator there with what we are doing. That is an interesting example in the context. For example, the Balagarba case, where people can identify self-mistakes, reflection and therefore not pay a price for it. I think that we have a long way to go in the national health service in terms of admitting mistakes, because mistakes have consequences and, sadly, we live in a blame culture, so that makes it much harder in NHSS. What you said earlier on clearly is an issue around independence and anonymity, particularly in the closed working spaces, so how you overcome that anonymity and independence when the people you are working with every single day are the ones who want to report incidences to. That impacts on your everyday working life and on your career progression, so how we build that anonymity and independence is really important. We all accept that pressure on staff is rising. Our staff are telling us that, when you have more and more pressure and you have less and less free time, how can you have that building of understanding and that ability to raise concerns if you simply do not have the time? Well, if you look at something like the surgical pause and the safety pause in the emergency departments, that is about making the time to ensure that everything is safe before you proceed, and everything being safe is also about everybody in your team being safe. So there is an element of all of this, which is about focusing on what is safe and effective for patients and using that to ensure that your team is safe, where people have concerns that there is a space to raise those. That is really at its core all about leadership, and it is partly leadership at the most senior level, but it is leadership at tiers down as well across clinicians but across every other element of the workforce in our health service. We have a very successful project lift leadership programme, but I am keen to ensure that we are making sure that that is delivered at every single level from basic supervisory right through our health service because it is there that you find people responding to pressure in a way that does not open up the opportunity for somebody to say yes, I am going to do that, but before I do, can I just point out that is not right over there, whatever that might be, whether that is the cleaning room that has been closed and therefore we cannot change the water for us as domestics through to the theatre where not all the instruments are where they need to be? I accept all that again, but in the real world of what is happening is do you accept that we work harder to care for those who care for us? While we are doing that, we also accept that there are people being bullied and intimidated every single day across our national health service in terms of the workforce in every health board across the country every single day, and therefore this should be a national priority for us in standing up for NHS staff to change that culture and build trust. I think that I have already made it clear that the mental wellbeing as well as the physical wellbeing of our NHS staff is important to me and that is what we are actively looking at. I also think that it is clear that it is a priority for me, but I need to be really clear too that promoting a positive workplace culture and seeing some of the key changes that we need to see is done against a context where the majority of our staff are still reporting to us that they have confidence in raising concerns, that they are not fearful about raising those concerns, but where we need to make the positive changes to promote that culture is not something that we are going to achieve quickly. We do not change the largest employer in Scotland across the length and breadth of this country with such a wide range of jobs to do. You do not shift that forward in a positive way overnight, so all of the areas that I have talked about combine, in my opinion, to take us forward in that, but that does not mean that we have thought of everything. I will follow on from what Anna Salmond was saying. For Whistleblowing to be effective, it has to be accepted as a valid process by management. I think that we would all accept just now that, in many cases, it is seen as a threat to management. We heard a lot in the last session about accountability, but, to make people accountable, I suggest that you have to make sure that they have the support and training available to them to make them accountable. I am sitting alongside the legislation of Whistleblowing. What are the plans to create that? We talk about a learning environment and we want to learn from our mistakes. I think that the reality is that we know that we are not in that place at the moment with our health service. What do we need to do to support management? I mean from board-level down to accept Whistleblowing as a valid process. Before I answer the question in full, Dr Lee Ross might want to add some more detail to what I am going to say. I am not prepared to accept that, across our health service, all management do not accept Whistleblowing as a positive area. There are undoubted places where people feel threatened by it and that is an issue that we have to tackle. Nor do I accept that we talk a lot about learning lessons but do not learn very many of them because I think that we do. What I said to Mr Sarwar about leadership, quality leadership training is about recognising what responsibility and accountability are and how to promote that in your team that you are leading, as well as in yourself. Therefore, to see people raising concerns, complaints and worries about practice and behaviours are opportunities to continuously improve. That is quite hard for folks to come to terms with sometimes because it can feel personal and threatening. Quality leaders recognise it for what it is—an opportunity to improve the working practice of a team, whatever that team is doing. The area that I am talking about when I talk about leadership training at every level in our health service is about promoting accountability and responsibility and helping people to understand that for what it is. At board and chief exec level and chair level, there are a range of opportunities for people to be supported in that regard. The directorate of health inside the Scottish Government actively provides additional resources, as we are doing at the moment to NHS Highland, to help that board, its chair and chief exec, to take forward the recommendations of the stark report, which for many will be a painful exercise in reading what that report said, but then leading the improvement that is needed in that area. Dr Lee Ross may have some more detail to add to what I have said. In the context of specific initiatives that we are working on to deliver exposed training in the field of whistleblowing, we took the conscious decision in discussion with the ombudsmen that, following the legislation coming into force, there would be a six-month implementation period through which the Scottish Government would work with health boards on getting them to understand the whistleblowing standards and understand fundamentally the context in which our revised whistleblowing policy sits. Basically, to engender the point that you just made about recognising that whistleblowing, in some instances, is a good thing, a supportive thing, which allows us to recognise that something has gone wrong and correct it. In addition to that, we will also be undertaking a specific training and implementation programme when we publish the revised ones for Scotland workforce policies. That training programme will take in leaders at all levels. We recognise that leadership within the health service is very diffuse and that we need to be capturing people at all levels across our service. I accept what you say, cabinet secretary, that the next travel you want to take, but, in fact, the matter is that we have the start-up review, we have the issue in Ayrshire and Arran at the moment where we have nearly 100 radiographers signing a letter saying that there is a problem, and I would suggest to you that when issues come to MSPs, we are a last resort, and I think that all of us are dealing with issues at the moment. Not to underplay this, cabinet secretary, because the bottom line is that we have to support management in terms of helping them to deal with the issue of whistleblowing. That is the point that I was making. I think that you are absolutely right, because I do not disagree with you in that at all, Mr Whittle. I think that some of the issues that end up as whistleblowing issues end up in that place because, in earlier stages, they have not been responded to appropriately by supervisors, managers, colleagues or whatever. People get to a point where they blow the whistle because they feel that they are not getting anywhere else. To bring back a point of what Anna Sarwar was saying, I do not accept that there is a national blame culture in the NHS, because I have participated in team work and multidisciplinary team approaches as a former nurse educator with consultants, surgeons, anesthetists and everybody, listening exercises and communication exercises, but I do accept that there are people who have had issues, and I have constituents myself who have come to me as potentially a last resort, which is what Brian Whittle is describing. I welcome the education that will be provided to leadership, because that was one of the things that, as a former nurse educator who is involved in this, it is great to see that we have an emphasis on supporting leadership to provide education. I am interested to note how will the office of the national whistleblower work with national whistleblower champions or other leadership? How do they work together in the future? As the education is being provided for leadership, is that something that NES would take forward, or Health Improvement Scotland, or is that part of supporting a collaborative approach across the whole board? Dr Lee Ross will answer your question about how the education element goes in the various parts of NHS that will contribute to that. As a general point, I think that I completely accept what you say. I think that we need to recognise realistically that the NHS as a service does not operate in isolation from the wider polity and public of Scotland. There can be, and we have all seen it, a tendency to want to blame someone in the NHS when something goes wrong. Blame is very different from accountability. We all collectively have a responsibility to consistently be really clear about accountability as opposed to blame. Inside our health service, it is why, when I answered Mr Whittle, I talked about accountability and responsibility. Managers have accountability to varying degrees depending on where in that ladder you are, but so do employees for what they do, and everyone has that collective responsibility. In terms of where all of this sits and the board level whistleblowing champions, their job is inside that health board to ensure that a number of things are happening. First of all, that the standard HR policies and processes are working, then there is a place for people to go if they feel that that is not happening. I raised an issue and I have got nowhere. I raised an issue and it is weak and nobody said anything. I raised an issue and suddenly no-one talked to me. I raised an issue and here is how it worked out and it was good. If we can do that over there in that department, can we not do it over here in that department? That is their focus. Their focus is at the board level. The independent national whistleblowing champion is of a different stripe, if you like. That is when people feel that they have exhausted all of this and they have not got anywhere and they now want to take it further and have that independent office with their powers of investigation and so on and so forth really take this issue forward. Up until now, the whistleblowing champion role at board level has been an additional responsibility for our existing non-executive board member. We will make it a specific role. They will have other responsibilities as a non-executive board member. They have accountability and responsibility on that board, but their focus is on ensuring that, inside their board, the policies and procedures are working but, very importantly, that relationships are working so that people see the value of being able to listen to and hear properly concerns and issues that are being raised. In that respect, once they are all in place and all of that is running, they have a role in that positive workplace culture as well. Thank you very much. I bring it to a specific—oh, certainly on education. Just in terms of education and training point, we made the conscious decision that the new whistleblowing champions will come on stream at the point at which we are entering that six-month implementation period with the independent national whistleblowing officer. That is to allow the whistleblowing champions, obviously, to become orfey with the standards and principles and to act from before day 1 as an advocate within their own health board. The Scottish Government will work with the SPSU in terms of the delivery of that training and implementation and, again, has given an undertaking in terms of the resources that that will require. When it comes to implementing our revised suite of workforce policies, we will be working directly with NHS Education for Scotland, which has some specialist expertise around many aspects of our existing course suite of workforce policies on the implementation phase of that programme. Thank you very much. There is a specific provision in the draft order to allow SPSU or the in-world to share information with a number of bodies besides the ones that SPSU already can do, for example Health Improvement Scotland. One of the submissions that we received from the General Pharmaceutical Council suggested that that list might be extended to include the health professional regulators for mutual benefit in terms of addressing and improving standards. I wonder what the Government's view might be of that suggestion. Yes, that is absolutely something that we consider as part of the consultation process. You do not have a firm view of one way or the other at this stage, so you are prepared to consider the advantages. I think that there will be a bit more positively. We would not be averse to that, and we would welcome just looking exactly at what the rationale for that might be, but I can see why those regulatory bodies would find value in having information shared back with them from the independent whistleblower. Thank you very much. David Torrance. Thank you, convener. Good afternoon, Cabinet Secretary and Dr Lee Ross. The 12-month referral limit. We have heard evidence this morning that there is flexibility about that, but it would not be more appropriate for it to kick in and start once an internal investigation had finished. To start the call, if you like. Yes. For that 12-month referral time to start, once an internal investigation and a complaint had been finished. Yes, so obviously the existing 12-month time limit is a provision within the SPSO act itself and governs all complaints handling processes, not just whistleblowing complaints. Given that it has discretionary authority to consider a case out with those time limits, we think that it is valuable to allow the existing provision to stand on the basis that you should not be encouraging boards to unnecessarily take their time to conclude internal processes. We will be wanting boards to conclude their processes in line with the recommended time limit set out in whistleblowing standards. We need to think realistically about the ability of the ombudsman to effectively investigate when significant periods of time has elapsed and potentially the evidence around the complaints that have been made has degraded. Given the discretionary position that the ombudsman can take in terms of taking a case complaint out with those limits, we do not think that it fundamentally would need revisiting at this stage. There is discretion, but there is a choice as to when to start the clock running. Is there a reason for picking the earlier point rather than the later one? As Dr Lee Ross has said, there is a matter of consistency. We do not want to run the risk that, at a board level, a significant amount of time is taken so that by the time that the clock starts at the end of the local process, if you like, and that local process has itself taken a year, then there is another year. That seems too long for individuals to be waiting. The standards and the model policy should all require, will all require, boards to deal with these matters quickly, but fairly, but quickly. One of the areas that is there when people are frustrated by local processes is the length of time that it feels to them that it takes unnecessarily so, and they do not feel that they have an early resolution to their concerns. Maintaining it within a context of discretion. Allowing the in-mode to have that discretion to take a different view. Thank you very much. I was interested in the integration part of what we have talked about in culture, training, etc. We know that integration of health and social care is a huge issue, particularly with culture as well. The projected powers that the ombudsman is going to have is based on the health service. I know that, through the consultation that has been put out, they mentioned to the IGBs that they follow the process and that they can be signposted to the Care Commission or to Scotland even. I will ask the straight questions that I asked earlier on. Do you think that the Care Commission has sufficient powers to cover the same as what the ombudsman might have? Do you think that it would be a good idea if the social work would be put in along with the whistleblower? I will put it to you in that point. I understand that there is, on the surface, a logic to saying that we should extend it to health and social care. Of course, health and social care provision at local level under the IGB involves our local authorities. That is not something that we could then impose on them. That does not mean that it cannot be something that is in due time discussed with them, with a view to how it might be extended, but it would need to fit as well with individual and collective local authorities, HR policies and processes. There would be an accommodation needed in order to ensure that that happened. However, we have deliberately ensured that that extends to primary care. In terms of the role of primary care in delivering health and social integration, so you are right, it covers health in its entirety. I think that it is also sensible. We have not closed our minds to this, but I think that it is not the time to include this without a lengthy discussion with local authorities. It seems sensible to introduce this now for the health service and to continue that discussion with COSLA and its members, but to allow that to play out and see how the Care Inspectorate and SSC feel about their interrelationship with the independent national whistleblowing officer, and whether or not they want to raise with us an extension of either their role or an extension of that office into health and social care, and how that sits with their respective roles. On that last point, is there a time frame for making that judgment in your mind, or is it simply to see how it goes? Given the time frame that we have at the moment for introducing the office for the local whistleblowing appointed champions, the consultation by the SPSO, we are probably looking at seeing that really start to play out properly. I think that I am right towards the back end of this year, the early part of next year. Probably at some point from the middle of next year on, we would at least have those discussions starting with local authorities to see how they felt that was playing out and what they might want to do. I am happy with that. Finally, Cabinet Secretary, what is the prize for getting this right? What will the impact on patients, staff and services of getting this right in the way that you have described? Fundamentally, having a positive workplace in our health service where people feel able and safe and respected to raise concerns goes straight to continuing to improve patient safety in our health service. I think that the two are intrinsically linked. I believe that introducing the independent national whistleblowing office is a further step of its own. It is not the silver bullet, but it is one of a number of steps that we are taking to give people an assurance of that safe place, where they can raise matters if they have not secured the resolution locally. That has to be an element, the core of which is exactly what Mr Sarwar was talking about and others about relationships, leadership and the quality of workplace culture. Thank you very much and I thank you for your contribution to our consideration today and look forward to seeing the order in its final form coming forward later this year. Thank you very much. We will now suspend to allow witnesses to leave and then resume in a few moments in private session.