Private and confidential - not for wider sharing, for the intended recipients only

Draft proposal for the development of the Employment Support Scheme across secondary care

Comments from those attending the workshop on 24 March are welcomed on the proposals and content outlined in this document to inform the secondary care pilot scheme

Summary

  1. This proposal sets out the ambition to deliver an Employment Support Schemeacross secondary care. Separately the scheme for primary care will be run byNHS England. Both primary and secondary care schemes form part of a strategy to support both staff and employers when a disclosure hasbeen made.Both NHS Improvement and NHS England have an interestin information that is provided in relation to quality of care, financial governance and leadership and improvement capability. These areas are often areas of concern whistleblowers raise.
  1. The key aim of this Scheme will be to support NHS workers and former NHS staffwho are having difficulty finding employment in the NHS who can demonstrate that this is related to having made protected disclosures and where there are no outstanding issues of justifiable and significant concern relating to their performance.
  1. The Scheme will be delivered through a number of key functions which are set out in detail below. It is proposed that the Scheme will be set up as a pilot initially and start with a small cohort of around 10 individuals who are seeking to return to work. Individuals will be invited to express an interest in participating in the pilot phase of the programme. This invitation will be aimed at those individuals who have worked within a secondary care organisation i.e. an NHS trust or foundation trust. The invitation will be sent via a range of networks including whistleblowing organisations.
  1. There are a number of considerations and decisions that will need to be addressed prior to the final proposal being developed. This will build upon the ongoing engagement with whistleblowers and NHS employers to ensure that the Scheme is fit for purpose and supports all parties involved.

Introduction

  1. The Freedom to Speak Up Review was announced on 24 June 2014 by the Secretary of State for Health and was led by Sir Robert Francis QC. It was an independent review into creating the open and honest reporting culture in the NHS.The aim of the Review was to provide advice and recommendations to ensure that NHS staff in England felt safe to raise concerns, confident that they will be listened to and the concerns will be acted upon.

“Just as patients whose complaints are ignored can become mistrustful of all, even those trying to help them, staff who have been badly treated can become isolated, and disadvantaged in their ability to obtain appropriate alternative employment.”

Sir Robert Francis, Freedom to Speak Up Review, 2015

  1. The review made 2 recommendations:

Recommendation 1

All organisations which provide NHS healthcareand regulators should implement the Principles and Actions set out in the report in line with the good practice described in the report.

Recommendation 2

The Secretary of State for Health should review at least annually the progress made in the implementation of these Principles and Actions and the performance of the NHS in handling concerns and the treatment of those who raise them, and report to Parliament.

  1. NHS England and NHS Improvement are working in partnership to respond to those recommendations and this has included the production of a standard integrated policy[1] which was developed for NHS organisations in England to adopt as a minimum standard to help to normalise the raising of concerns for the benefits of patients
  1. This proposal aims to meet the following principle and action set out by Francis:

Principle 12 – Support to find alternative employment in the NHS

Where a NHS worker who has raised a concern cannot, as a result, continue in their current employment, the NHS should fulfil its moral obligation to offer support

  • Action 12.1 - NHS England, the NHS Trust Development Authority and Monitor [now NHS Improvement] should jointly devise and establish a support scheme for NHS workers and former NHS workers whose performance is sound and who can demonstrate that they are having difficulty finding employment in the NHS as result of having made protected disclosures.
  • Action 12.2 - All NHS organisations should actively support a scheme to help current and former NHS workers whose performance is sound to find alternative employment in the NHS.
  1. NHS Improvement offers the support NHS Foundation Trusts and NHS Trusts need “to give patients consistently safe, high quality, compassionate care within local health systems that are financially and clinically sustainable”[2]. By holding providers to account and, where necessary, intervening, we help the NHS to meet its short-term challenges and secure its future.

Proposal

  1. Building on the work to develop an integrated policy, NHS England and NHSIare developing an Employment Support Scheme informed and influenced further through the discussions and contributions of a range of stakeholders and experts who have attended design workshops[3] aimed at developing the thinking about how an Employment Support Scheme could work.

Purpose of the Scheme

  1. The Employment Support Scheme aims to support NHS staff and former staff who are having difficulty finding employment in the NHS who can demonstrate that this is related to having made protected disclosures and that there are no outstanding issues of justifiable and significant concern relating to their performance.
  1. As a minimum, it should provide:
  • remedial training or work experience for registered and non-registered healthcare professionals who have been away from the workplace for long periods of time
  • advice and assistance in relation to applications for appropriate employment in the NHS
  • the development of a ‘pool’ of NHS employers prepared to offer trial employment to persons being supported through the scheme
  • guidance to employers to encourage them to consider a history of having raised concerns as a positive characteristic in a potential employee.

Principles

  1. The principles of the scheme development are
  • Input from stakeholders on the development,design and testing of the scheme will be taken into account.
  • We will create a shared understanding and shared language between participants and the designers
  • A robust processwill be developed to support the Scheme building upon the current best practice from a range of sectors
  • Our approach will be to pilot, test and learn. We will adopt an iterative approach to ensure learning to improve.

Scheme offer

  1. The Scheme will offer as a minimum[4]the functions set out in paragraph 9. These areas are in development and comments are welcomed.
  1. Relevant suppliers will be commissioned to deliver the functions outlined in para 12 where necessaryand a pool of employers will be identified to offer opportunities for work experience / trial employment.
  1. The applicant and scheme representative will be required to sign an agreement to confirm the commitments on both sides and the consequences of non-compliance.
  1. Payment for work experience / trial employment will be dependent on whether the provider can fund this. Basic travel expenses may be paid [TBC[MR1]]. Where FTs and NHS trusts are offering placements, they will need to ensure that they are complying with all relevant employment legislation in relation to the placements and adhering to their own policies and processes.
  1. The scheme will consider what support can be offered to clinicians and professionals with regards to managing maintenance of their professional status e.g. revalidation

Current status of the primary care scheme

  1. Phase 1 of the Scheme in primary care has commenced and is being led by NHS England. This phase of the Scheme is a pilot and is being tested and reviewed.
  1. Individuals have been invited to express an interest in participating in the pilot phase of the programme. The invitation was aimed at those individuals who have worked within a primary care organisation e.g. former PCT, CCG or general practice. The invitation was sent via a range of networks including whistleblowing organisations. A small mixed cohort of around 10 individuals has been identified following this process. The scheme itself will additionally include individuals whohave raised a concern and are still in their employment, but this group will not be included in the pilot scheme. These individuals will be identified through the regional NHS England Commissioning Teams who are supporting individuals at a local level, where the opportunity of taking part in the team will be discussed and offered if deemed appropriate. Any participants who enter the pilot scheme through this route will not be required to be assessed by the independent panel, due to their current status of being in employment.
  1. It is proposed that the pilot for secondary care led by NHSI is likely to mirror the principles of the pilot for primary care set out in paragraphs 17-18led by NHSI and aimed at individuals who have worked in secondary care but are currently unable to secure further employment.

The Scheme design

  1. The following proposed structure for the Scheme is informed by reflection of the results from the engagement and discussions that have taken place to date with a range of stakeholders.

Accessing the Scheme

  1. Eligibility for the scheme will include those who are having difficulty finding employment in the NHS who can demonstrate this is related to having made protected disclosures and that there are no outstanding issues of justifiable and significant concern relating to their performance. This may extend at a later stage to those as above but where they are still in employment. [MR2]

Support for employers

  1. NHSI will work with NHS Employers andHR directors in FTs and NHS trustsin development of the scheme guidance and support for trusts to help whistleblowers return to employment, and the identification of associated work placements.

Application process

  1. To ensure applications can be assessed fairly and objectively, individuals currently out of NHS employment wishing to access the scheme will need to apply to join the scheme and be assessed through a panel process. The pilot application process outlined in this proposal is based on stakeholder feedback which raised the need to ensure:
  • equality and fairness in access to the scheme;
  • the development of eligibility criteria; and
  • the provision of evidence and documentation to support eligibility
  1. The application process has also been informed by a review of some of the existing panels and processes utilised elsewhere in the NHS.
  1. In the main scheme after the pilot is concluded there may be the option for movement between the primary and secondary care schemes where individuals have relevant or transferable skills.

Eligibility criteria

  1. The main areas of eligibility are in development but will be informed by the recommendations set out in the Freedom to Speak Up report and with reference to the eligibility criteria in the primary care scheme (see appendix 1)
  1. Eligibility will be based on existing or former employment in the NHS in England only. Additionally geographical location may need to be a criterion where placements are limited to particular areas and individuals are unable to travel or temporarily relocate.
  1. Applicants may be required to undergo occupational health assessment prior to undertaking placements etc to confirm fitness for work.

Documentation to support application

  1. To access the scheme individuals will need to complete and submit an application form and will be asked to provide evidence demonstrating that they meet the eligibility criteria for the scheme. The application form provides the opportunity to set out supporting statements outlining the individual’s interest in applying to the pilot Employment Support Scheme and summarising how they meet the eligibility criteria for the scheme. Examples of documentation that might be suitable supporting evidence are outlined on the application form for guidance and information. All applicants will be required to submit a brief chronological timeline of events from whistleblowing and subsequent events as they occurred to support their application. [MR3]
  1. In providing evidence of eligibility to the Employment Support Scheme, it is important to highlight that the application is an opportunity to demonstrate suitability and eligibility to apply for the scheme and to focus on employment aims and support needed to return to employment. It should not be used to raise specific whistleblowing concerns or re-iteratewhistleblowing experiences. How the whistleblowing case was handled or the management actions that were taken as a result of any employment disputes will not be reviewed as part of the process to join the scheme.
  1. All evidence submitted will be kept confidential and will only be reviewed by the Employment Support Scheme Panel to assess eligibility to the scheme and for no other purpose.

Employment Support Scheme Panel

  1. NHS Improvement will facilitate and host the Employment Support Scheme Panel in the secondary care phaseof the pilot.
  1. The overall purpose of the pilot panel is to consider applications to the scheme and ensure there is a robust process and decision making framework for the panel/s to reach the best judgement they can and facilitate fair, open and transparent access to the scheme for individuals.
  1. In summary, the role of the panel is to:
  • review evidence submitted by applicants to the scheme;
  • assess eligibility, reach a judgment and make decisions regarding access to the scheme;
  • communicate the rationale for decisions to each applicant; and
  • make recommendations for access to the scheme to be taken forward by the employment support provider and those organisations offering training or work experience.

Membership of the panel

  1. An appropriate constitution for the Employment Support Scheme Panel is essential to ensure fairness, openness and transparency whilst maintaining robustness and credibility of the review process.
  1. The panel should have knowledge and expertise in the areas of whistleblowing, performance procedures and professional standards/education and training and be able to access advice on human resources and personal/professional performance development.
  1. It is proposed that membership of the panel should comprise of the following individuals:
  • A former NHS whistleblower
  • A NHS professional who will understand the applicant’s profession and have the relevant clinical/managerial expertise as far as possible .
  • Executive/senior clinician /manager with experience of any relevant regulations and/or an equivalent NHS manager with the relevant knowledge and expertise.
  • Potential role of placement / training provider representatives on panel?
  • In the pilot phase, there may be an NHS Improvement representative from the Trust Resourcing Team observing the panel to inform the final scheme.
  1. It is acknowledged that many NHS whistleblowers have experienced unfair treatment, disadvantage and discrimination as a result of raising and reporting concerns and have suffered both personally and professionally. In particular, certain vulnerable groups may have had a more detrimental experience when raising concerns than others. NHSI will ensure that those involved in the panel are sensitive to these issues and/or have the appropriate experience in dealing with them.

Panel Review of Evidence

  1. The panel/s will use an evidence review and decision template to support them in reviewing evidence and assessing eligibility and reaching a judgement regarding access to the scheme. This will help ensure consistency and provide a record of decision making by the panel.
  1. It is anticipated that there will be a pre-panel briefing between members of the NHS Improvement Trust Resourcing Team and panel members to identify if any further information or evidence is required from applicants prior to the final panel meeting where the decision whether or not to access the scheme will be made.

Outcome of Panel

  1. The panel will communicate the rationale and outcomes of decisions to applicants in writing.
  1. The panel decision in the secondary care pilot will not be subject to appeal. However,if an applicant is not selected for the pilot, this should not prevent them from applying to the scheme when it goes live following evaluation of the pilot scheme.

Terms of Reference

  1. Terms of reference based on those developed for the pilot phase of the employment support scheme for Primary Care will be drafted to support the operation of the panel/s in secondary care.

Sustainability of the Employment Support Scheme

  1. There are a number of issues that need to be considered to ensure the longer term sustainability and viability of the Employment Support Scheme which are highlighted and discussed below.

Capacity and Resource Planning

  1. Currently, the number or people who may wish to join the scheme in secondary care is an unknown quantity, although it is anticipated this may be quite high. It is possible that the panel will not be able to accommodate all individuals who wish to join the Scheme, even if they meet the eligibility criteria. If this is the case, a fair process will be set up to manage this. Additionally, sufficient capacity and resource to establish the panels will need to be set aside. This should include a budget to cover reimbursement of panel members’ time for both the preparation and meeting time required for the panels, as well as the recruitment of a sufficient number of panel members to ensure there is capacity, flexibility and the appropriate constitution of panels when required.

Recruitment and Training of Panel Members

  1. As highlighted previously, potential panel members will need to have specific knowledge and expertise to ensure fairness, openness and transparency whilst maintaining robustness and credibility of the review process. Some panel schemes in the NHS have put in place appointment processes, competency frameworks and membership agreements for panel members as well as provide specific training to help support panel members with their role. Initial feedback from some panel members involved in the pilot scheme for primary care suggests that some training would be beneficial.

Establishing a Database of Trained Panel Members

  1. This will be important to ensure there are a sufficient number of trained panel members to constitute panel meetings at regular intervals that reflect the diverse backgrounds and experience of applicants.

Developing a Secure Information Portal

  1. Applicants to the scheme are submitting sensitive and personal information and it is essential that the scheme complies with data protection and information governance frameworks governing the use of personal confidential data.
  1. In the interim, the pilot scheme for Primary Care used a secure, dedicated email address for the submission of applications; however, to ensure security of information and sufficient system capacity to deal with a large amount of information, it may be necessary to develop a specific web portal for the scheme.

Proposed Timescales for Implementation of the Scheme for Secondary Care

  1. The suggested timescales below are indicative only and will depend on a number of factors, including resource allocation and recruitment of individuals to support implementation of the scheme.