The proposed healthcare whistleblower should have power to compel public bodies to take action, according to the Law Society of Scotland in its response to a Scottish Government consultation.
The Society has commented on the independent whistleblower role for healthcare matters in Scotland, put forward by minister Shona Robison, following a similar recommendation from the Freedom to Speak Up Review for NHS England in 2015.
Ministers made a commitment to develop and establish the role of an Independent National Whistleblowing Officer (INO) to provide an independent and external level of review on the handling of whistleblowing cases in NHSScotland, in the wake of the review by Sir Robert Francius.
In its response the Society believes the role should have prescribed powers if it is to address any gaps not covered by existing policies, and that the INO should provide a "best practice" whistleblowing policy that all health boards adopt as a minimum standard of practice.
The proposals for the new role do not include examining historic cases, but the Society believes this may be restrictive, as such cases could form a necessary part of a review. It also believes that those providing adult health and social care services but who are not employed by the NHS should also be able to access the INO.
Alison Britton, convener of the Society's Health & Medical Law Committee, said: “If this role is going to be able to address any gaps perceived to exist under the current structure, then the INO would need to have clear and accountable prescribed powers. Without enforcement powers the role would simply be advisory and would mean that health boards could choose to ignore the advice offered. The powers should include the ability to compel a public body to provide evidence and to enforce recommendations if required.
“It is essential that there is clarity around the role. If the INO is to be introduced, it needs to be clear that he or she would have no role in determining whether or not a member of staff has suffered detriment and that existing legal protections and policy mechanisms will continue to apply – for example those contained within the Public Interest Disclosure Act 1998 and the current whistleblowing policies which implement the Scottish Government’s Public Information Network policy.
“Setting out clear parameters and the powers of an INO would also be essential to ensure consistency in dealing with any issues or complaints.”