Strike a chord: Whistle-blowing

Blowing the Whistle: changing culture

Mary Higgins qualifi ed in Ireland and has been a consultant in Emergency Medicine for twenty years. She currently works at East Cheshire NHS Trust where she is Medical Appraisal Lead and Local Negotiating Committee (LNC) Chair. Mary has undertaken a Masters in Employment Law and has interests in equality, discrimination, fl exible working and the gender pay gap. She runs for headspace and has run several marathons!

Jenny Vaughan is a neurologist in London. She is a leading campaigner for reforming the law on gross negligence manslaughter and was instrumental in getting the conviction of surgeon David Sellu overturned. She is a council member of the Medical Women’s Federation and the Royal College of Physicians and Learn not Blame lead at The Doctor’s Association UK. She campaigns for a “just culture” in healthcare and seeks to highlight the importance of speaking up in patient safety.

Whistleblowers play a vital role in society and are the fi rst line of defence against criminality and corruption.1 Effective whistleblowing protection could return 2 billion pounds of misused public funds to the UK annually in the area of public procurement alone.2

Numerous scandals in the NHS were brought to light by whistleblowers, notably a whole-system failure at Mid-Staffordshire NHS Foundation Trust.3 There is a clear relationship between lower levels of bullying and harassment in the National Health Service (NHS) and better Care Quality Commission (CQC) ratings.4 Yet, 56% of whistleblowers suffered negative treatment during the recent lockdown: 26% were victimised or disciplined, 21% were dismissed, 2% were bullied by co-workers, a further 6% resigned and 2% were suspended.5

Tension exists between healthcare professionals’ contractual duty of confidentiality to their employer and the right to disclose information. The Public Interest Disclosure Act (PIDA) 6 allows a ‘protected disclosure’ provided certain conditions are met – the right information must be disclosed in the right way to the right person or organisation.

‘Right type’ of information

1. Information that is disclosed must be in one of six categories: a. criminal offence b. failure to comply with legal obligation c. miscarriage of justice d. health and safety – the most relevant in a patient safety context in the NHS e. environmental damage f. attempts to cover up any of the above7 2. A disclosure must be of information rather than mere allegation or opinion. 3. The whistleblower must have ‘reasonable belief’ that the subsequently proven not to be the case. Healthcare workers would not be expected to have an in-depth knowledge of health and safety legislation if whistleblowing about lack of personal protective equipment (PPE). 4. The information disclosed must be in the public interest.

Concerns about patient safety clearly qualify here.

Making a disclosure in the right way to the most appropriate individual

Whistleblowers must make the disclosure to the relevant individual or body in order to have legal protection. A tiered approach exists, with more exacting requirements with progressive tiers. The first tier is to the employer or through the employer’s whistleblowing policy. NHS organisations have a statutory requirement to have a whistleblowing policy called ‘Freedom to Speak Up (FTSU)’. FTSU is acknowledged by the National Guardian for the NHS, as being central to patient safety. The second tier is to organisations known as Prescribed Persons8 and include MPs.9 Whistleblowers must have reasonable belief that the subject of the disclosure is within the remit of the Prescribed Person and that the information is true.10 Organisations are chosen for expertise or authority in their field and are frequently

information disclosed is correct. It is irrelevant if this is regulators. Relevant organisations in the context of the NHS include the Care Quality Commission (CQC), the General Medical Council (GMC) and the Health and Safety Executive. Of note is that Trade Unions are not Prescribed Persons and although they can offer advice, they are unable to act directly. A whistleblower is not legally protected if information is disclosed to their Trade Union. The third tier is external, directly to the public and to mainstream or social media. The legal requirements for making such a disclosure are complex and are difficult hurdles to overcome. Certain conditions must be met to enjoy protection. Whistleblowers are strongly advised to seek legal advice from their Trade Union if contemplating such a disclosure.

Who is covered to make a Protected Disclosure?

All NHS employees are covered under PIDA. Cover also extends to student nurses and midwives, agency staff and, uniquely to the NHS, job applicants. Trainee doctors did not come under the scope of PIDA until the case of Dr Chris Day, a trainee in Anaesthetics who raised concerns about safe staffing levels at the Trust where he worked. It was initially held that Health Education England (HEE) could not be regarded as an employer despite having significant control over junior doctors’ training and paying the bulk of their salary.11 This was overturned by the Court of Appeal and so extended whistleblowing protection to 54,000 junior doctors,12 though with considerable consequences for him personally and for his career. The NHS and HEE spent £700,000 of public money defending this case, as highlighted in the House of Commons (Table 1).13 Chris Day relates his personal experiences in Table 1.

Table 1 Due to a discovery made by a Telegraph journalist in 2019, it has now become clear that the law allowed junior doctors to have whistleblowing protection from Health Education England all along and that the rulings in the Day case were a result of misleading arguments and a failure in disclosure of a key contact governing junior doctors’ employment (the Learning and Development Agreement). This was a subject of much debate in the House of Commons by two MPs who are former employment lawyers. First, Justin Madders:

“Health Education England effectively sought to remove around 54,000 doctors from whistleblowing protection by claiming that it was not their employer.”

Sir Norman Lamb stated:

“Is the hon. Gentleman aware that the contract between Health Education England and the Trusts, which demonstrates the degree of control that Health Education England has over the employment of junior doctors, was not disclosed for some three years in that litigation? It was drafted by the very law firm that was making loads of money out of defending the case against Chris Day. I have raised this with Health Education England, but it will not give me a proper response because it says that the case is at an end. Does the hon. Gentleman agree that this is totally unacceptable and that it smacks of unethical behaviour for that law firm to make money out of not disclosing a contract that it itself drafted?”

Due to a payment of £55k to Dr Day and a questionable settlement agreement these issues were never explored in Court. There is now a legal regulator investigation that is now over a year old. Dr Day commented:

“What I’m worried about is the message this case sends which is that public bodies can gang up to stop a whistleblowing case being heard and that medical leaders and regulators will turn a blind eye. If they can get away with this, what message does that send to someone who is considering speaking up or someone who is considering supporting or listening to someone who speaks up to them?”

Detriment

The use of Non-Disclosure Agreements (‘gagging clauses’) as part of Settlement Agreements to prevent whistleblowers from discussing the subject of a protected disclosure is illegal.14 Examples of detriment include intimidation, bullying, harassment, exclusion, denial of training opportunities, bogus performance management, disciplinary action and demotion.15 There is no protection under PIDA for ongoing detriment and no statutory duty for employers to take measures to prevent it. This is a significant gap in current legislation, as evidenced by the experience of Dr Kim Holt, a community paediatrician at Great Ormond Street Hospital in the ‘Baby P’ case. Her personal experience is outlined in Table 2. Table 2 Dr Kim Holt was part of an effort by the Trust to rebuild paediatric services following the death of Victoria Climbie and the subsequent inquiry. Concerns were raised by her and the paediatric team about staffing resources and an oppressive culture. Over 60 clinical incidents were raised related to systemic issues, such as, lost follow up, missing notes and lack of robust Child Protection systems between 2004 and 2006. Two of Kim’s colleagues resigned in 2006 and she became increasingly isolated. Despite this she continued to raise concerns to the highest level in the Trust – directly to the Chairman, Chief Executive and Medical Director. The outcome was increased hostility, removal of support and increased isolation. Kim was advised to go on sick leave by her doctors due to work related stress in February 2007. During this period the consultant workforce had been reduced to two: Kim and one other substantive consultant. Dr Al Zayyat was recruited as a locum and started work in 2007. On a fateful day in August 2007 Dr Al Zayyat was asked to cover a clinic and Peter Connelly (Baby P) was brought by his mother and a friend for assessment. Two days later he had been killed by his carers. Dr Al Zayyat was pilloried. Despite having recovered from her work-related stress Kim was not permitted to return to work as Occupational Health believed workplace culture was risky to her mental health. GOSH placed Kim on special leave and in November 2007 offered her a year’s salary to leave (and sign a confidentiality clause). The saga dragged on for a further four years before Kim was reinstated and received an apology. Dr Al Zayyat has been pressured to take voluntary erasure and became seriously unwell. She was unable to continue to work for the Trust.

Kim says “Once I realised that the systemic issues and problems that we had raised concerns about within Haringey were being airbrushed from any inquiry I had to escalate my concerns. I reported them to the highest level internally and to the CQC, NHS London GMC and my Member of Parliament (MP). I spoke up largely because I saw unjust treatment of an inexperienced locum but also because a vulnerable child needed someone to ensure lessons were learned. I refused to sign any confidentiality clause as morally this was akin to taking a bribe. In many ways I was lucky to survive and be reinstated and I thank my MP Lynn Featherstone and the press. No health care organisation supported me. They all acted to worsen the situation and try to persuade me to move on, accept a payoff and go quiet. Government ministers who had been made aware also sought for me to be silenced. I definitely suffered detriment with severe bullying, impact upon my mental health and loss of opportunity to fulfil my potential. On the plus side, I discovered a strength I didn’t know I had – we worked hard to bring about increased awareness of the failures in the system and lack of any real protection for whistleblowers. I am proud to have given evidence to the Health Select Committee, Public Accounts Committee (on gagging clauses) and supported many colleagues going through bullying experiences. ‘Learn not Blame’ is definitely the way forward but I strongly believe in tougher accountability for executives who suppress the truth. I’m certain that the Department of Health to date have not ensured adequate protection exists. This disappoints me.”

Claims can be brought to Employment Tribunals but only once detriment has occurred and the success rate is only 4%. Cases pre-Coronavirus typically took 20 months to complete and the median compensation award was £17,422.16 This can dwarf actual losses. Costs can be prohibitive – whistleblowers were ordered to pay costs of £753,135 in total in one year whereas employers had to pay £183,992.17 There is no protection for costs under PIDA so whistleblowers can find themselves subject to costs orders and, like Dr Chris Day, can feel pressurised to abandon their claims.18

Whistleblowing in the time of COVID

The COVID crisis first came to the world’s attention due to the brave actions of Dr Li Wenliang at Wuhan Central Hospital. He warned colleagues about a new SARS-like virus in December 2019. He was summoned to the Public Security Bureau where he was ordered to sign a letter in which he was accused of ‘making false comments’ and that he had ‘severely disturbed the social order’.19 In the UK, many clinical staff raised concerns about the ability to speak out about workplace issues in relation to PPE and other matters and have felt silenced and ‘gagged’ in doing so.20 The campaigning whistleblowing charity, Protect, advises that if an individual believes that their employer’s protective measures are insufficient and if there is concern about health and safety of oneself, colleagues or the public, concerns can be raised as a whistle-blowing disclosure. The GMC have issued guidance in support of doctors and will take into account the special circumstances of the pandemic during their investigations.21

Proposed developments in legislation

While ground-breaking for its time, PIDA no longer provides adequate protection for today’s whistleblower. Legislation should be consolidated into a Whistleblowers’ Act and should be updated to cover current gaps. A Private Members’ Bill22 and the APPG recommendations are timely.23 An Office for the Whistleblower is proposed with statutory powers to protect and advise whistleblowers and to enforce protections.24 Ultimately, the best protection for whistleblowers in the NHS is an open and fair workplace culture. Legislation will not of itself facilitate this. The Doctors’ Association UK (DAUK) launched a ‘Learn not Blame’ campaign in November 2018.25 This advocates for transformational change of the culture of fear and blame that still prevails in parts of the NHS. It promotes a culture of learning and of enabling staff to speak up in a constructive way when things go wrong. Notwithstanding, individuals who whistleblow deserve better protection and legal reform is urgently required. Our MWF manifesto calls for action to ensure that everyone makes as full a contribution to patient care as they are able to.26 Freedom to speak up is a fundamental part of this as it is a part of how we keep our patients safe.26

References

1 Halford-Hall G, Pasculli L. All Party Parliamentary Group (APPG) report on Whistleblowing. July 2019. Available at www.appgwhistleblowing.co.uk Accessed March 2020.

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4 European Commission ‘Estimating the economic benefits of whistleblowing protection in public procurement’. July 2017. Available at https://minhalexander. files.wordpress.com/2018/06/estimating-the-economic-benefits-of-whistleblowerprotection-in-public-procurement-et0117799enn-en-1.pdf Accessed September 2020. R Francis. Mid Staffordshire NHS Foundation Trust Public Inquiry, HM Government. February 2013. Available at: https://www.gov.uk/government/organisations/midstaffordshire-nhs-foundation-trust-public-inquiry Ac-cessed April 2020. Care Quality Commission. ‘Equally Outstanding’. October 2017. Available at https://www.england.nhs.uk/wp-content/uploads/2018/01/EDC03a-equallyoutstanding-presentation.pdf Accessed April 2020.

5 Whistleblowers deserve better – join Protect in campaigning for legal reform. Available at https://www.transparency.org.uk/whistleblowers-deserve-betterjoin-protect-campaigning-legal-reform Ac-cessed July 2020.

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13 Public Interest Disclosure Act, 1998 c23. Available at https://www.legislation.gov. uk/ukpga/1998/23 Accessed March 2020. Employment Rights Act, 1996 s43B(1)(a)-(f). Available at https://www.legislation. gov.uk/ukpga/1996/18/section/43B Accessed March 2020. Public Interest Disclosure (Prescribed Persons) Order 2014, Statutory Instrument No. 2014/2418 Available at https://www.legislation.gov.uk/uksi/2014/2418/pdfs/ uksi_20142418_en.pdf Accessed April 2020. Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2014, Statutory Instrument No. 2014/596. Available at https://www.legislation.gov.uk/ uksi/2014/596/introduction/made Accessed April 2020. Employment Rights Act 1996 s43F(1)(b)(i)-(ii). Available at https://www. legislation.gov.uk/ukpga/1996/18/section/43F Accessed April 2020. Day v Lewisham and Greenwich NHS Trust and another [2016] ICR 878. Available at <https://swarb.co.uk/day-v-lewisham-and-greenwich-nhs-trust-and-anothereat-9-mar-2016/ Accessed March 2020. Day v Health Education England and others [2017] EWCA Civ 329, [2017] IRLR 623. Available at https://www.bailii.org/ew/cases/EWCA/Civ/2017/329.html Accessed March 2020. Hansard: House of Commons Debate 3 July 2019, vol 662, col 1273. Available at https://s3-eu-west-1.amazonaws.com/public-concern-at-work/wp-content/ uploads/images/2019/07/09175924/Backbench-MP-whistleblowing-debateHansard-.pdf Accessed March 2020.

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25 Employment Rights Act 1996 s43J. Available at https://www.legislation.gov.uk/ ukpga/1996/18/section/43J Accessed March 2020. Halford-Hall G, Pasculli L. All Party Parliamentary Group (APPG) report on Whistleblowing, July 2019, pg 21. Available at <www.appgwhistleblowing.co.uk Accessed March 2020. S Dreyfus, S Wolfe and M Worth, ‘Protecting whistleblowers in the UK: a new blueprint’, Blueprint for Free Speech 2016, pg 6. Available at https://www. blueprintforfreespeech.net/wp-content/uploads/2016/05/Report-ProtectingWhistleblowers-In-The-UK Accessed April 2020. Public Concern At Work, ‘Is the law protecting whistleblowers? A review of PIDA claims’ (Protect, May 2015). Available at https://www.bdbf.co.uk/arewhistleblowers-being-protected/ Accessed March 2020. House of Commons Debate 3 July 2019, vol 662, col 1273. Available at https:// s3-eu-west-1.amazonaws.com/public-concern-at-work/wp-content/uploads/ images/2019/07/09175924/Backbench-MP-whistleblowing-debate-Hansard-.pdf Accessed March 2020. Hegarty S. The Chinese doctor who tried to warn others about Coronavirus. BBC News website, 6 February 2020. Available at https://www.bbc.co.uk/news/worldasia-china-51364382 Accessed February 2020. Campbell D, ‘NHS staff ‘gagged’ over coronavirus shortages’, The Guardian, 31 March 2020. Available at https://www.theguardian.com/society/2020/mar/31/ nhs-staff-gagged-over-coronavirus-protective-equipment-shortages Accessed March 2020. General Medical Council. How we will continue to regulate in light of novel coronavirus (Covid-19). 3 March 2020. Available at https://www.gmc-uk.org/news/ news-archive/how-we-will-continue-to-regulate-in-light-of-novel-coronavirus Accessed March 2020. Public Interest Disclosure (Protection) HC Bill (2019-21). Available at https:// services.parliament.uk/bills/2019-21/publicinterestdisclosureprotection.html Accessed April 2020. Halford-Hall G, Pasculli L. All Party Parliamentary Group (APPG) report on Whistleblowing, July 2019, pg 45-49. Available at www.appgwhistleblowing.co.uk Accessed March 2020. Baroness Kramer’s Office of the Whistleblower HL Bill (2019-21) 66. Available at https://publications.parliament.uk/pa/bills/lbill/58-01/066/5801066.pdf Accessed April 2020. The Doctor’s Association. Learn not Blame. Available at https://www.dauk.org/ learnnotblamedauk Accessed April 2020. Medical Women’s Federation. Available at https://www. medicalwomensfederation.org.uk/our-work/our-manifesto Accessed April 2020.