Whistleblowing and the role of the board

Daniel Taylor highlights some lessons from a landmark ruling

The High Court recently ruled in favour of a former NHS trust chief executive, Dr Susan Gilby, in a case that may prove a watershed moment for whistleblowing and leadership accountability in the NHS.

The court found that, although Dr Gilby was appointed under a statutory regime, she still qualified as a ‘worker’ under whistleblowing legislation—entitling her to protection after raising concerns about patient safety and governance failings at the Countess of Chester Hospital.

The case will likely be pored over for legal precedent. But the deeper challenge it sets is not legal—it’s cultural.

For NHS boards, particularly chairs and non-executives, this ruling is a moment to pause and ask: what does it really mean to create an environment in which speaking up is safe, supported, and seen as a mark of professional integrity?

And why, in a system so suffused with regulation, is that still so difficult?

The paradox of protection

At one level, the NHS is rich in mechanisms to encourage speaking up: Freedom to Speak Up Guardians, whistleblowing policies, cultural audits, anonymous portals, statutory protections. And yet the system too often still struggles to differentiate between dissent and disloyalty, between scrutiny and sabotage.

The Gilby case matters not just because of the individual facts, but because it reveals an ongoing misalignment between the system’s stated ambitions around openness and the lived experience of many leaders—particularly those at the edge of the boardroom, raising inconvenient questions about culture, safety, or conduct.

The ruling may now extend whistleblower protections to a broader category of senior NHS staff, including those appointed under trust legislation. But it is also a mirror held up to boards themselves.

What messages do we give, consciously or otherwise, about what it means to speak up?

Boards and the burden of tone

If governance is, at heart, a cultural practice—not just a procedural one—then the role of the board is as much about tone as it is about process. And in NHS trusts, the board is uniquely positioned to set that tone.

Boards carry the responsibility of modelling curiosity, listening without defensiveness, and inviting challenge. Chairs and NEDs in particular must ask: are we cultivating a psychologically safe space, not only within the Boardroom but across the executive and clinical teams we are charged with overseeing?

The evidence suggests that when leaders do speak up—especially from within the executive—the support they receive can be fragile at best. Add to this the ambiguity of regulatory action, the pressures of system integration, and the ever-present lens of reputational risk, and it’s easy to see how even well-meaning boards can drift into cultures where challenge is muted.

The silent signals

In the original Sherlock Holmes story referenced in one of our recent insights, the dog that didn’t bark in the night was the clue. We’ve written about this in terms of assurance. So too in governance more broadly, it is often what is not said—or not heard—that matters most.

A whistleblowing incident rarely appears without warning. The signals are there: an executive quietly marginalised; a persistent voice dismissed as ‘disruptive’; a committee briefed around, not through. The board that fails to hear these signals cannot claim surprise when they break through with force.

The task, then, is not only to respond to whistleblowing when it happens—but to create the conditions where it never needs to.

Not so silent signals

We’ve said many times that culture doesn’t just eat strategy, it eats governance too. You can have the most perfect systems, policies, processes and structures but if the culture doesn’t have the right mindset towards governance, and the right values aren’t in place to shape that culture, you won’t get the outcomes good governance should produce.

It’s not just board culture boards need to be conscious of and cultivate, they also need to know how to effectively govern culture in the organisation. We’ve looked at this from a number of angles, done board sessions on how it can be done and have developed a set of tools including:

If we produced an annual paper on the core themes that cut across the 60 or so organisations we work with each year on governance, strategy and leadership, over the past two years freedom to speak up would be top among them. Again, there are things that the executive and the board can do here.

What good boards should do now

In light of the ruling, three practical actions suggest themselves for NHS trust boards and their chairs:

1. Revisit the board’s tone around speaking up
   Use the Gilby ruling as an opportunity to reflect on the culture and psychological safety of your board. Do executives feel heard, valued, and protected when raising concerns? When did the board last have an explicit discussion about this?
2. Scrutinise the ‘Freedom to Speak Up’ function
   Ensure the FTSU guardian is meaningfully embedded, resourced, and visible. Consider whether there is sufficient board-level ownership of learning from concerns raised—not just compliance with reporting requirements.
3. Create safer spaces for reflection and escalation
   Build in formal and informal opportunities for senior leaders—executive and non-executive alike—to raise concerns outside of the formal chain. Remember: whistleblowing often happens when internal routes are exhausted.

A final thought

Whistleblowing is not a flaw in the system. It is a feature—a last-resort indicator that something isn’t working as it should.

The true measure of an NHS board is not whether it can comply with whistleblowing law, but whether it can make whistleblowing unnecessary. That means listening earlier, acting faster, and staying open—especially when the message is uncomfortable.

The law may now offer more protection. But the real protection comes from boards who see their role not as gatekeepers but as stewards of a culture where the truth can be spoken – and heard.