Chapter 19. Speak Out Safely

The Speak Out Safely Policy

During the period the Inquiry is examining, paediatricians were raising and reporting patient safety concerns that demanded safeguarding measures be taken and further investigation carried out. The Speak Out Safely (Raising Concerns about Patient Care) and Whistle Blowing Policy being used in the hospital in 2015 (the Speak Out Safely Policy) was written before Sir Robert Francis’s Freedom to Speak Up Report was published in February 2015.¹ The Speak Out Safely Policy was designed to prevent recriminations against members of staff who reported patient safety concerns. Designated Officers were the initial points of contact for anyone wishing to make a disclosure about patient safety. Mr Harvey, Ms Kelly and Ms Hodkinson were Designated Officers, as was Mr Higgins and Ms Cooper (RCN Representative).²
The Freedom to Speak Up Review took place because there were serious concerns about the way that staff within the NHS were treated when they reported concerns about patient safety. Sir Robert Francis made several recommendations dealing with this issue, including the appointment of Freedom to Speak Up Guardians in NHS organisations. In light of the Freedom to Speak Up Report, the hospital re-issued its Speak Out Safely Policy in January 2016. The same people were identified as named points of contact for disclosures.³ A number of them held roles which would potentially conflict with the role of Designated Officer, as they duly did.
The Speak Out Safely Policy specified that it applied to situations in which there was a reasonable belief, that is to say, an honestly held belief which was objectively reasonable, that a criminal offence had been committed, or that there was a danger to the health and safety of any individual (see paragraph 12.18, Chapter 12).⁴
Ms Kelly confirmed in evidence that the responsibility of a Designated Officer was to make sure staff who reported concerns in good faith did not experience recriminations.⁵ Mr Harvey said: “I never doubted that Dr Brearey, in particular, had concerns.”⁶ Ms Hodkinson also told the Inquiry that she understood the consultants “were genuinely concerned”.⁷ No executive suggested that they did not think the consultants’ concerns were genuine at the time, nor that the Speak Out Safely Policy did not apply. Nevertheless, it is striking that, when they became aware of the paediatricians’ suspicions and concerns about Letby, none of the Designated Officers took any steps to ensure that the Speak Out Safely Policy was used to protect the doctors from recriminations.
Ms Hodkinson confirmed that no substantive evidence was required to raise concerns under the Speak Out Safely Policy. It provided a route for dealing with concerns regarding criminal acts, and concerns did not need to be raised in a formal manner to be dealt with under the policy.⁸ Ms Kelly also agreed that the Speak Out Safely Policy had provisions for making referrals to the LADO if concerns were raised, or there was an allegation that a person may have harmed a child.⁹
The Speak Out Safely Policy set out that the Deputy Director of HR, Ms Appleton-Cairns, was responsible for undertaking an annual audit to ensure compliance with the policy. Ms Appleton-Cairns confirmed she had ultimate responsibility for this, but she did not personally undertake the audit.¹⁰ It was not clear what form her responsibility took. Her evidence was that Ms Hodkinson and Mr Harvey “chose not to” use the Speak Out Safely Policy in relation to the consultants’ concerns.¹¹
Ms Hodkinson, meanwhile, did not agree in evidence that the Speak Out Safely Policy was not used. She told the Inquiry: “[I]n 2017 I know we formally recorded it as well but it was absolutely badged under this policy.”¹² Speak Out Safely is not just about attaching a badge; it is about making sure that the policy is followed.

The Speak Out Safely Committee and records

The Speak Out Safely Committee, which later became the Freedom to Speak Up Steering Group, dealt with concerns raised by members of staff. In 2016, the group met monthly. In 2017, the group met every two months. Its members comprised the Designated Officers – Ms Kelly, Ms Hodkinson, Mr Higgins, Ms Cooper and Mr Cross.¹³
Ms Hodkinson told the Inquiry that the Speak Out Safely Policy was addressed in relation to the consultants’ concerns at a meeting on 27 June 2016.¹⁴ However, by September 2016, their concerns had still not been logged in any record of the committee. On 21 September 2016, Ms Appleton-Cairns emailed Ms Kelly and Ms Hodkinson and said: “[W]e were going to ask Ian [Harvey] to speak to SB [Dr Brearey] and ask him to formally voice his concerns under Speak Out Safely. I think we need to do this in parallel – any thoughts?”¹⁵ Ms Hodkinson and Ms Kelly both replied, stating that they were unsure whether this had happened.¹⁶
On 28 September 2016, Ms Appleton-Cairns again emailed Ms Hodkinson about logging the consultants’ concerns under Speak Out Safely. She wrote as follows: “I understand you were considering asking Ian Harvey to speak to [Stephen Brearey] and the other Consultants and ask them to explain their concerns in writing under Speak Out Safely.”¹⁷
Ms Appleton-Cairns told the Inquiry that Ms Hodkinson responded to say that she would speak to Mr Harvey about it, and they subsequently decided not to speak to the consultants.¹⁸ Ms Appleton-Cairns also said she told Ms Hodkinson that Letby’s grievance, lodged on 7 September, should run “in tandem” with the Speak Out Safely Policy for Dr Brearey and Dr Jayaram (see Chapter 22).¹⁹
In oral evidence, Ms Hodkinson accepted: “I did speak to Ian Harvey at that stage. I don’t know what Ian did with that.”²⁰ She denied that she and Mr Harvey chose not to follow the policy: “I can see why it, it’s perceived that we didn’t choose to use this policy. But that was not the case, it was considered under this policy.”²¹ I do not accept this; there is no evidence, other than Ms Hodkinson’s assertion, that the consultants’ concerns were considered under the policy. Ms Hodkinson accepted that the consultants’ concerns were not formally logged under the policy until the following year.²²
Mr Harvey conceded the Speak Out Safely process was not followed for some time. He said, “I don’t recall a conversation with Mrs Hodkinson about whether it [the concerns] would constitute Speak Out Safely or not. But I would accept that we were late” recording the concerns under the policy.²³
Like Ms Hodkinson, Ms Kelly said in evidence that she considered the Speak Out Safely process on 27 June 2016. On that date, Ms Kelly, Mr Harvey and Ms Powell had a meeting. A handwritten note of the meeting reads: “Consider SOS [Speak Out Safely] process”.²⁴ Despite considering the process, Ms Kelly told the Inquiry she did not consult the policy and that Speak out Safely processes were “not fully embedded in the organisation”.²⁵ In the case of the concerns raised by the paediatricians, they were not used.
Ms Kelly’s handwritten notes of an executives’ meeting on 8 September 2016 contain the following: “SOS process – IH [Mr Harvey] to discuss SB [Dr Brearey] as he initially raised concerns.”²⁶ Ms Kelly said that a further conversation needed to take place with Dr Brearey to gain clarity in respect of the consultants’ concerns (by this time, Baby A, Baby C, Baby D, Baby E, Baby I, Baby K, Baby O and Baby P had died, and Baby B, Baby G, Baby H, Baby J, Baby M, Baby N and Baby Q had collapsed). Ms Kelly agreed that, “[o]n reflection, looking back, yes”, they should have logged the consultants’ concerns under Speak Out Safely at that stage.²⁷
On 18 November 2016, Ms Hodkinson had spoken with Mr Pace from DAC Beachcroft, where he is noted as explaining that the consultant had raised whistleblowing concerns that needed to be investigated.²⁸ Mr Pace had advised the Trust to deal with the concerns under the Speak Out Safely Policy, and that there was no requirement to put concerns in writing to trigger the policy (see Chapter 22).²⁹
The concerns were not, however, formally logged until 24 April 2017. Before then, and in various meetings (and in the investigation report of Letby’s grievance), it was stated, wrongly, that the consultants’ concerns were handled under Speak Out Safely. For example, on 26 January 2017, in a meeting between the consultant paediatricians and the executives, including Ms Kelly and Ms Hodkinson, Mr Chambers stated that the “Speak Out Safely process had been professionally managed”.³⁰ This was not true. Ms Kelly accepted: “I didn’t challenge Mr Chambers at that meeting about that comment.”³¹ She agreed that she should have challenged this assertion because it was not true, and she knew it.³² The same applies to Ms Hodkinson. Dr Brearey described the consultants as “stunned”³³ by what they were told and labelled the executives “incompetent”. He said: “How you can start a meeting saying you followed Speak Out Safely practices and then tell seven Consultants [in fact eight] who all have significant concerns like this that they are to apologise to the person and that she would be going back to work or else there will be consequences.”³⁴ Dr Brearey’s observations were justified. Contrary to Mr Chambers’ assertion, the Speak Out Safely process had not even been started. Despite Mr Harvey’s assertions that it was fine to raise concerns, experience had shown the consultants that it was not fine, far from it.
In the minutes of a Speak Out Safely Committee meeting, dated 20 February 2017, Ms Kelly’s contribution is recorded as follows: “AK said that we need to consider whether the concerns raised by paediatricians in NNU [the neonatal unit] need to be formally logged.”³⁵ As Ms Kelly confirmed, this was the first Speak Out Safely meeting where the concerns were discussed.³⁶ This was at least seven months after every senior executive knew of the consultants’ concerns, and a stage at which the views of senior executives had become entrenched. After discussion, the committee decided the concerns would not be logged and would instead be managed by other routes. Such other routes would not include protection for the consultants. Ms Kelly’s evidence was that the committee found it difficult because the nature of the concerns did not fit solely within one policy. This is not a reason not to log concerns.³⁷ However, on reflection, she conceded: “I think we should have just put it on the list as per [the] policy.”³⁸ Reflection was not needed. It should have been done when the consultants spoke up; in any event, immediately after the discussions on 24 June 2016 (see Chapter 11).
On 16 March 2017, there was an executives’ meeting. Ms Hodkinson informed the Executive Team that Dr Jayaram had told her that the consultants felt bullied, intimidated and victimised, and that they did not feel reassured by how Mr Chambers and Mr Harvey were managing the process.³⁹ In Ms Hodkinson’s meeting notes, Mr Chambers is quoted as saying: “New comments – deal with … Speak Out Safely”.⁴⁰ Yet no action was taken under the policy. See paragraphs 26.14 to 26.19, Chapter 26.
The concerns were not formally logged under the policy until the meeting on 24 April 2017.⁴¹ There are two versions of these minutes. In the original version, it is noted that:
“Members did not recall agreeing [at the February meeting] not to formally log the concerns raised by the paediatricians about NNU … Ian Harvey had also had a conversation with one of the Consultants, who requested it be logged under SoS [Speak Out Safely].”⁴²

And that:
“Members agreed conversation with IH [Ian Harvey] should be logged and issue cross referenced on the SoS spreadsheet.”43

In the amended version of the minutes, the section about the members not recalling that they agreed not to formally log the concerns is removed.⁴⁴ This appears to have occurred during the meeting of 6 June 2017. On that occasion, the group again expressed confusion as to any logging of the consultants’ concerns. The group decided to update the meeting minutes from 24 April 2017 to remove this sentence: “Members did not recall agreeing not to formally log the concerns raised by the paediatricians about NNU.”⁴⁵
The committee had got themselves into a difficult situation. Ms Kelly and Mr Harvey both knew that the consultants had been raising serious concerns for more than a year. They had received no protection. The minutes of the February meeting were clear. The attempt to rewrite the narrative in April was pointless. The concerns had not been logged in February 2017. There were only two potential reasons for that: either the concerns were not considered at all, or they decided not to log them. It does not matter which it was. The concerns were not logged until late April 2017. This was not just a question of form. It reflected how the committee was thinking about the concerns and the consultants raising them. I see no explanation for the committee not logging these concerns, other than that they did not regard them as credible, whatever they might have said about believing them to be genuine.
Ms Kelly was asked whether the committee was trying to rewrite the past following the police involvement on 2 May 2017. Ms Kelly denied this and asserted that it was a “genuine oversight that we didn’t remember what we had agreed and the notes had been amended but there was nothing to say that anything suspicious was done around those notes”.⁴⁶ Whatever the reason for the rewrite of the minutes, the central point does not change. The concerns were not logged and the consultants were not protected – not at any stage. This was a serious failure. It arose in part from the absence of any understanding of the obvious conflict between, for example, Ms Kelly as the Director of Nursing, and her position on the committee. The same applied to Ms Hodkinson, who was advising the Board about employment and other matters. Ms Cooper’s position as Staff-Side Chair and RCN representative and support for Letby was impossible. Mr Higgins was on the Board where decisions were being taken in the context of the consultants’ concerns. Mr Cross was advising the Board (and the executives) about how to manage the situation. All members of the committee were conflicted.
Mr Higgins opined that the ‘back and forth’ recorded in the minutes reflected the “indecisive conversations” about how to deal with the consultants’ concerns.⁴⁷ I accept Mr Higgins’ evidence that there was indecision amongst the group on this issue. It was the inevitable result of conflicts between roles held by the same person. Ms Cooper’s evidence was that the consultants’ concerns were “glossed over” by the Speak Out Safely Committee.⁴⁸ She told the Inquiry: “[M]y recollection is nothing was ever really discussed in those meetings about the neonatal unit.”⁴⁹ In his evidence, Mr Higgins was invited to comment on Ms Cooper’s assertion. He said: “I think that’s an accurate way of describing it … I think yes, the group did gloss over them.”⁵⁰
Standing back and looking at the concerns raised by the doctors, there was no reason for indecision (or, rather, a decision not to act, which was what happened). The committee knew that the concerns raised by the doctors involved criminal acts, safeguarding issues for babies on the neonatal unit, and that protection was required for the doctors from recriminations for raising such concerns. The policy should have been effectively deployed. The contrary was the case.
Ms Anne Murphy commented on the executives’ inaction in her evidence:
“I personally feel that rather than Ian Harvey and Tony Chambers being confrontational and threatening towards the Consultants, the Consultants should have been listened to earlier. External agencies could have been involved earlier and had the Executive agreed to involve the police earlier, such as in March [2016], when the Consultants first voiced their concerns about Lucy Letby, the outcome could have been a little different in the fact that several of the babies may not have died, but I think this with hindsight.”⁵¹
Ms Kelly conceded: “I accept that formalising those concerns through the Speak Out Safely process didn’t happen in a timely way.”⁵² It was worse than that. The process was never effective in protecting the doctors. Ms Kelly denied intentionally depriving the consultants of protection via the Speak Out Safely process. Her explanation for the failure to log concerns was that the issue got lost amidst all the other actions that were ongoing at the time.⁵³ That does not excuse a complete failure of protection for whistleblowers.
Despite raising concerns in good faith, the consultants were deprived of protection from recriminations under the Speak Out Safely Policy. This lack of protection was clear from the way the consultants were subsequently treated. Ms Kelly accepted that formalising the concerns would have been helpful to the consultants, and would have provided them with protection from the grievance process outcomes. Instead, they were subject to criticism for voicing concerns about a member of staff; required to apologise to Letby and engage in mediation with her; and reference was made to avoiding a GMC referral.⁵⁴ This is further supported by Ms Hodkinson’s note of the meeting between her and Mr Chambers on 12 May 2017 (see also paragraphs 26.87 to 26.92, Chapter 26).

Patient safety and employment law

A number of employment law issues arose in respect of the management of Letby and the treatment of those who raised concerns about her. The Inquiry heard evidence from Professor John Bowers KC, an employment law expert.
Professor Bowers KC asserted that, in the NHS: “[T]here’s a tendency to consider employment issues separate to the issues of patient safety.”⁵⁵ He explained:
“[A]s far as the employer is concerned they are looking at the risks that there may be a constructive dismissal case, [potentially] costing tens of thousands of pounds, ten days in an Employment Tribunal.
So they are looking at those risks rather than perhaps the wider risks to patient safety.”⁵⁶
Professor Bowers KC agreed that, if a staff member posed a risk to others, an appropriate safeguarding measure would be to immediately remove that person from the situation. However, he sought to point out that, “from an employment point of view, there’s usually not a right to suspend. So suspension would be a potential breach of contract, could lead to a constructive dismissal.”⁵⁷ As a result, he explained Trusts often opt to exercise their right to redeploy the staff member, as set out in the staff member’s contract, to another unit. In his experience, Trusts commonly use redeployment to avoid a disciplinary process, because it is the “easy option”.⁵⁸ He explained disciplinary action can take a long time, be financially costly and affect staff morale.
He agreed that, if an employment process is followed, which involves redeployment of the staff member, as opposed to immediately suspending them via a safeguarding process, the individual may still pose a risk to patient safety. Professor Bowers KC described this as a “danger” and a “real problem”.⁵⁹
Additionally, Professor Bowers KC cautioned about the use of grievances. He said that grievances are “often used as a defensive manoeuvre” in response to criticism or disciplinary action.⁶⁰ He explained that, when this occurs, Trusts tend to hear the grievance before the disciplinary on the basis that “if the grievance is upheld then perhaps you either don’t go ahead with the [disciplinary] or you do it in a different way”. Professor Bowers KC considered that the people hearing the grievance should put less validity on it if it is clearly a counter manoeuvre to a disciplinary process.⁶¹
Professor Dixon-Woods shared her expertise on the tension between the competing priorities of an HR process and managing patient safety issues. She explained that HR departments must operate in accordance with Acas, and as such are typically:
“focused on essentially ensuring employment — compliance with the expectations governing that process.
The Trust may have very legitimate patient safety concerns or concerns about bullying, harassment …, but they may become subordinated to the handling of this process.”⁶²

Professor Dixon-Woods pointed out the power of unions: “The unions may get involved … and the Trust may become extremely focused on avoiding progression to an Employment Tribunal.”⁶³

Professor Dixon-Woods’ evidence aligned with that of Professor Bowers KC in relation to grievances being used as a defensive manoeuvre. She told the Inquiry:
“[P]eople who are actually behaving badly may be able to engage in all kinds of counterclaims, grievances, they may be strategically advised by their union representatives on what to do in order that they essentially don’t end up with a disciplinary outcome. So these are very complex problems that NHS organisations are having to deal with.”⁶⁴
Ms Appleton-Cairns was informed of Professor Dixon-Woods’ evidence and was candid that this captured the “essence” of the challenge she was confronted with when Letby initiated a grievance.⁶⁵ She described Letby and the RCN filing separate, but simultaneous, grievances as a “pincer movement” that made her feel “under pressure to hear the grievance”.⁶⁶
Ms Hodkinson informed the Inquiry that, “sadly, yes”, she had experience of staff using a grievance as a defensive manoeuvre in response to concerns being raised about them.⁶⁷ She stated that the RCN, who supported Letby to bring the grievance, “put myself and Alison Kelly under significant pressure”.⁶⁸ Whilst that may well be true, the RCN were supporting a nurse. That is what they were there for. It was for Ms Kelly and Ms Hodkinson to do what was right. Instead, they and the other senior managers avoided involving the police and put pressure on the doctors not to do so either.
Ms Hodkinson explained her conflicting priorities as follows: “[N]ot only are you considering the patient safety implications, the workforce implications, you are also considering the potential legal risk … we were at risk of a potential constructive unfair dismissal claim … I was trying to make sure that we were mitigating [that risk].”⁶⁹
Professor Bowers KC recommended that there should be “an overriding objective of some sort to take into account patient safety in all the employment decisions”.⁷⁰ An overriding objective of this type would have proved useful at the hospital. When Letby learnt she was being redeployed, and there were concerns about her involvement in the neonatal deaths, she filed a grievance. The grievance was not recognised as a counter manoeuvre, and despite the subsequent RCPCH recommendation, no disciplinary investigation was ever attempted or undertaken by the hospital in respect of Letby until 2021, when she was in custody. Instead, the grievance procedure focused in part on what the doctors had or had not said. This was directly contrary to the Speak out Safely Policy.