Why Public Interest Disclosure is not working for NHS whistleblowers
Introduction 1) It has been estimated that around one in ten patients admitted to NHS hospitals are unintentionally harmed. Healthcare is complex, rapidly changing and always carries a risk. Yet around 50% of these incidents could be avoided if lessons from previous incidents have been learned, according to a report by the Chief Medical Officer1.
2) The previous government attempted to improve patient safety centrally, with NHS organisations subject to 25 different regulators, yet this has failed to yield improvements. Healthcare regulators are too far from the frontline to provide this. The answer then is, quite simply, greater support for whistleblowers.
3) The NHS publicly supports the whistleblower, and lauds their contribution to patient safety. As recently as last year, the NHS issued a new Whistle blowing policy guide, ‘Speak up for a healthy NHS’ which expounds the virtues of Whistle blowing. In it Andrew Lansley states: ‘It is vital that staff in the NHS feel empowered and expected to speak up whenever patient safety may be compromised or errors occur’. Further to this in October 2011 it was announced that the NHS constitution is to be amended to enshrine the rights of whistleblowers2. Yet far from supporting them the NHS has not solved a number of key issues which in practice allow the whistleblower to be silenced.
4) Such negative experiences are not universal, but remain a serious problem, with a 2008 survey of nurses suggesting that 38% of whistleblowers suffered serious or lasting damage to their careers after raising their concerns3.
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Chief Medical Officer, An Organisation with a memory, 2000 http://www.dh.gov.uk/health/2011/10/whistleblowing/ 3 Public Concern at Work / Nursing Standard Whistleblowing survey 2008, http://www.pcaw.co.uk/pressrelease_pdf/WBsurvey_summary.pdf
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Background: The Public Interest Disclosure Act 1998 5) The Public Interest Disclosure Act 1998 (PIDA) inserts provisions into the Employment Rights Act 1996 and provides protection against dismissal or detriment for workers who raise concerns about wrongdoing. Wrongdoing includes crime, health and safety breaches, risk to the environment, a miscarriage of justice, a breach of a legal obligation or a concealment of any of the above.
6) There are three levels of disclosure protected by the Act (a so called protected disclosure), to a responsible person (i.e. the employer), to a prescribed person (a regulator) or a wider disclosure (e.g. an MP or the media).
7) At all stages the law requires a worker to have a reasonable belief in the information and good faith. The law most readily protects those who raise a concern with their employer. At this point a worker need not be right provided they have a reasonable belief that the information tends to show wrongdoing, meaning that a worker can be protected for raising a genuine suspicion that later proves wrong.
8) A worker is also protected for making a wider disclosure if they have a reasonable belief the information is substantially true and they do not act for personal gain. The worker must satisfy one or more of the following conditions: i.
The worker reasonably believed that he or she would be victimised if he or she has made the disclosure to the employer or to a prescribed person;
ii.
There was no prescribed person and the worker reasonably believed that disclosure to the employer would result in the destruction or concealment of evidence;
iii.
The worker had already disclosed substantially the same information to the employer or prescribed person.
9) However, despite this law, which it should be noted has been labelled by proponents as ‘the most far reaching whistleblower law in the world’ it is sadly not always
effective. Three problems with the current situation, with particular reference to whistleblowing in the NHS, are outlined below with some potential solutions. Problem 1: Gagging Clauses 10) One method frequently used to prevent Public Interest Disclosure by whistleblowers when their employment is terminated is the inclusion of a gagging clause in a compromise agreement. This is essentially a payment to settle the termination of employment, which is conditional upon signing a confidentiality clause. Thus, a whistleblower who has reported concerns internally, but has not seen improvements take place is induced, with taxpayer’s money, to agree to sign away their rights to not take them any further.
11) A Health Service Circular from 1999 expressly prohibits ‘gagging’ clauses in contracts of employment, and compromise agreements which seek to prevent the disclosure of information in the public interest4. However, later guidance, published in a 2004 Health Service Circular states: ‘it is not contrary to the Department of Health’s policy for confidentiality clauses to be contained in severance agreements’5. In this way, the NHS is still regularly including such clauses into compromise agreements of whistleblowers – Foundation Trusts made 105 such pay offs in 2010-116, and it is estimated 90 contained a gagging clause7.
12) By virtue of the 1998 Public Interest Disclosure Act (PIDA), any such clause seeking to prevent an employee or ex-employee from making a Public Interest Disclosure would be void. This is made clear, in both the Act, and in the relevant NHS circular. However, this theoretical legal protection is ineffective in practice for three reasons.
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Health Service Circular, HSC 1999/198, The Public Interest Disclosure Act 1998, p.3 Health Service Circular, HSC 2004/001, Use of confidentiality and clawback clauses in connection with termination of a contract of employment, p.3 6 Amounts authorised by HM Treasury in respect of special severance cases in NHS Foundation Trusts, th Supplementary written evidence from the Department of Health, 14 April 2011 7 A Channel 4 Investigation showed that 55 of 64 NHS compromise agreements sampled had gagging clauses attached – approximately 86%. 5
13) The first, as noted by Public Concern at Work, is that ‘low awareness of the provisions of the PIDA, specifically in relation to gagging clauses – which are prohibited under s.43J, has been particularly damaging to PIDA’s purpose of protecting the public interest’8. In other words individuals who sign such agreements are not aware that the provisions which seemingly gag them are void. As a result they believe they are bound by the gagging clause attached to their compromise agreement, and as a result do not take their concerns forward. In addition, this point raises concerns over the lawyers who should be award to the invalidity of such clauses, yet are willing to include them to compound the confusion.
14) The second is that even if one is aware of the provisions of the PIDA as they relate to gagging clauses, the risk of litigation, and its associated costs are too great to consider a challenge. If the individual subject to the gagging clause threatens to go public, then the NHS can counter this with the threat of legal action. It has been noted that there has been a recent trend of trusts engaging expensive lawyers and top QCs to put forward arguments that attempt to undermine PIDA9. As a result, in order to reach an even playing field, a whistleblower would be forced to spend vast amounts of money.
15) This is further compounded by the fact that for this type of case, whether in the Employment Tribunal or Civil Courts, no legal aid is available. If the case is in the Employment Tribunal, costs are generally not awarded, so even if they win the whistleblower will normally have to pay their own legal bill. This is not so in the Civil Courts, as they do award costs, but this is a double edged sword as it means that the whistleblower is exposed to an even greater, and perhaps catastrophic bill if they should lose. Solution 1: Outlaw the use of Gagging Clauses in all circumstances 16) Both of these scenarios show that whilst the law is technically on the side of the whistleblower in that gagging clauses are technically void when covering issues of 8 9
Public Concern at Work briefing for Members of the Health Select Committee, p.2 Public Concern at Work briefing for Members of the Health Select Committee, p.8
Public Interest Disclosure, it is ineffective in its application. The fact that such clauses have been preserved under certain circumstances is at best a politician’s fix. It allows pro whistleblower rhetoric to be made, whilst also allowing NHS trusts to cover up a significant number of the problems raised.
17) There would appear to be no information which needs to have such a clause, rates of pay for example are public10 and patient confidentiality is covered in other ways. For example, the General Medical Council (GMC) has published guidelines on confidentiality. However, it should be noted that even these can be broken under certain circumstances in the public interest. Point 37 of the GMC guidance states: ‘Personal information may, therefore, be disclosed in the public interest, without patients’ consent, and in exceptional cases where patients have withheld consent, if the benefits to an individual or to society of the disclosure outweigh both the public and the patient’s interest in keeping the information confidential’.11
18) Therefore, the action which needs to be taken in respect of this point is to have a new NHS circular issued outlawing the use of gagging clauses in any compromise agreement. This would remove any ambiguity about the validity of such a clause and remove the risk of litigation, but not risk the release of any truly confidential information. Problem 2: Victimisation by Employers 19) In addition to the use of gagging clauses, victimisation, by both employers and by fellow employees, is used to silence the whistleblower. Those who chose to blow the whistle are often made to feel that they are the problem, and perhaps more seriously, often find themselves subject to retaliation or disciplinary action. In 2009 the Chairman of the British Medical Association noted that: ‘There can sometimes be a culture of threats and bullying that stops whistle-blowing’12. He went on to add
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http://www.nhscareers.nhs.uk/details/default.aspx?id=766 General Medical Council, Confidentiality, p.16 http://www.gmcuk.org/static/documents/content/Confidentiality_0910.pdf 12 BBC News, Doctors must root out bad care, 16th April 2009, http://news.bbc.co.uk/1/hi/health/8002900.stm 11
that staff could be ‘beaten down by the system’.
20) Peter Gooderham, an academic lawyer and former doctor who specialised in this area, found that various methods are used to achieve this. These include inflicting subtle sanctions on whistleblowers such as cutting secretarial help and teaching budgets, blocking appointments and informally briefing against them. Other ways include gathering dirt, either on actual or invented misdemeanours as an official way of taking action against them.
21) Such experiences are also noted by Public Concern at Work who have said: ‘Recent media coverage of the issue [whistleblowing] suggests that any doctor who speaks up will be ignored, suspended or dismissed. This does correspond with the experience of every professional who calls us, but it is a sadly familiar story’13.
22) Such individuals are offered legal protection by the Public Interest Disclosure Act 1998 against victimisation on the grounds of their whistle blowing, yet as noted above, what actually happens in practice is very different, and the law in ineffective in preventing this.
23) Just one example is Dr Raj Mattu who highlighted failings at Coventry and Warwickshire NHS Trust. He was suspended on an allegation of bullying, and subsequently the Trust sent 200 further allegations about him to the General Medical Council. He was subsequently cleared by an inquiry by an independent QC and the GMC dismissed every allegation14.
24) Yet once such allegations are raised, the damage is often done, with at any rate the life and career of the whistleblower turned upside down. This paints a picture where it is the whistleblower, and not the wrongdoer, who is most at risk from failings being exposed. It is no surprise then that they may be unwilling to come forward.
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Public Concern at Work briefing for Members of the Health Select Committee, p.4 Private Eye, Dr Phil Hammond and Andrew Bousefield, Shoot The Messenger
25) Also, such allegations can be used to force whistleblowers to give up, through using leverage of the NHS’s lawyers in the Tribunals Service, where even a victory can feel like a defeat. As noted in the previous section, there is no legal aid available for Tribunal Hearings, and, unlike the civil court, as a general rule they do not award costs against the losing party. This can leave the whistleblower seriously out of pocket even if they win when defending themselves against victimisation due to their whistleblowing. For example, Consultant Surgeon Ramon Niekrash was dismissed from Queen Elizabeth Hospital, Woolwich, ten weeks after raising concerns. He succeeded before the Tribunal, yet still had to settle his £160,000 legal bill. Solution 2 A: Changing Attitudes in the NHS 26) What needs to be done is not simple. The framework of statutory regulation already in place would seem sufficient in theory, but not in practice. There is also a substantial amount of guidance on what constitutes best practice on whistleblowing. However, whether this is actually translated into good practice on the ground is a moot point.
27) One way however which may change the culture is that regulators such as the General Medical Council and Nursing and Midwifery Council should be required to take a much harder line on doctors and nurses who have victimised genuine whistleblowers. The view of Public Concern at Work is that this should be treated as a disciplinary offence by the trust or an issue of professional misconduct by the professional regulators.
28) This would not only send out a strong policy message across the NHS that victimisation is serious and that action will be taken, but it would also make colleagues less likely to take part in what would appear to be trust sanctioned action against whistleblowers as their own career would be on the line if they were discovered.
29) It is also possible to learn of best practice in either other areas of the NHS or other high risk industries. Within the NHS, Tower Hamlets PCT has been described as ‘a beacon of how patients, clinical staff and managers should work together’15. It has worked with whistleblowers and patients to remove 23 unacceptably bad GPs between 2003 and 2010.
30) Other solutions have included the introduction of criminal sanctions for those that victimise whistleblowers by Peter Gooderham, whilst back in 1998 Dr William Pickering suggested the creation of a specialised investigations team, independent of the NHS, which openly published its findings. Solution 2 B: Compensatory Awards of Costs in Tribunal under certain circumstances 31) A further solution to this problem may be giving the Employment Tribunal the discretion to award costs against a losing party, not only due to conduct in the case (as is the position now), but to compensate an individual who has won a case relying upon the Public Interest Disclosure Act 1998. This would not only further discourage those organisations who at the moment would appear to be sanctioning victimisation, but it would also rectify the current situation where those who win at tribunal may have in essence lost due to their legal fees as illustrated above. Problem 3: Victimisation by fellow Employees 32) In addition to the problems of victimisation by employers, there is also the problem of where the whistleblower suffers at the hands of fellow employees. Specifically this reveals a loophole in the current law, which either allows employers to escape responsibility for actions they may have unofficially sanctioned, or allows employers to escape liability where through negligent inaction they have failed to protect their employees.
33) This has been highlighted by the recent Manchester Nurses Case, heard in the Court of Appeal in 2011. In this case, as a direct result of making a protected disclosure about the qualifications of a colleague, three nurses were subject to unpleasant 15
Private Eye, Dr Phil Hammond and Andrew Bousefield, Shoot The Messenger, p.18
behaviour by fellow employees which led to them being isolated and prejudiced.
34) This resulted in two of the nurses being removed against their wishes, and the other, a bank nurse, ceasing to work at that location. Management were found to have been in a position where they could and should have done more to protect the individuals who had made a disclosure. However, the court found that employers are not vicariously liable for the retaliatory acts of other workers, and as a result they were able to escape without sanctions applied. This left the whistleblowers who had suffered with their legal protection from victimisation undermined. Solution 3: Make employers vicariously liable for victimisation done by employees 35) As noted by Elias LJ in the Manchester Nurses case the legislation and the problem with it currently stands thus: ‘Parliament has plainly chosen to protect whistleblowers from the acts and deliberate omissions of the employer. If the reason for adverse treatment is the fact that the employee has made a protected disclosure, that is unlawful. But it is striking that no obligation is imposed on other workers not to take action against the whistleblower in these circumstances, particularly since employees are made so liable with respect to the discrimination legislation’16.
36) Thus, a change in the Primary Legislation is required by Parliament to amend the Public Interest Disclosure Act at s.47B, so as suggested by Mr Robert Allen QC, Intervener for Public Concern at Work in the Manchester Nurses case it will read: ‘A worker has the right not to be subjected to any determent by any act, or any deliberate failure to act, by his employer done on any ground that ... it undermines the protection to which he or she is entitled by the legislation and must have if the public interest is to be secured. [Emphasis indicates required addition].’17 Conclusions
16 17
Para 58 of Elias LJ’s Judgement in Fecitt & Ors v. HNS Manchester Para 56 of Elias LJ’s Judgement in Fecitt & Ors v. HNS Manchester
37) As seen above, whilst workers in the UK are protected by some of the most extensive whistleblower protection, there are still serious fallings. The total outlawing of the use of gagging clauses (solution 1) and the change to make employers vicariously liable for the retaliatory acts of employees (solution 3) are two relatively simple legislative changes which could resolve some of the issues. With regards to preventing victimisation by employers the solution is a little more complex. Changes to the awards of costs in the Employment Tribunal may make it easier for those who are victimised to enforce their rights (solution 2B), although this can only go so far. Changes to the culture in the NHS (solution 2A) will be harder to effect, but are imperative, and it is this aspect which will need further work.
Annex 1 – Some Key NHS Whistleblowing Events Failures 2005 - 2009 Mid Staffordshire HNS Trust – up to 1,200 patients may have died due to appalling standards of care. Three previous inquiries have unearthed a culture of fear, secrecy and bullying, where whistleblowers were being punished and silenced18. In June 2010 Andrew Lansley announced that there would be a public enquiry into the events at Mid Staffs, which will build on the earlier independent enquiry and is currently ongoing19. 1999 – University Hospitals Coventry and Warwickshire NHS Trust – In order to meet targets five beds were put into wards designed to accommodate four. This meant that some beds did not have easy access to suction or oxygen. As a result a patient died, as the required suction was not available and the crash trolley could not reach him. In addition other deaths were alleged to be due to the five in four policy. In fact the Trust had even higher death rates than Mid Staffs. Raj Mattu, a consultant cardiologist raised the issue, and was ignored, raised the issue on TV, and was later subject to disciplinary action – but eventually found innocent. The Commission of Health Improvement stated the practice of five in four was ‘wholly unacceptable’. 1980s and 1990s - Bristol Royal Infirmary (aka the Bristol Heart Scandal) – 19 years after concerns were raised a public enquiry concluded that a third of the children undergoing surgery prior to 1995 had received ‘less than adequate care’ and that between 30 and 35 had died unnecessarily, with dozens more being left brain damaged. Stephen Bolsin, a cardiac anaesthetist who blew the whistle, was shocked by what he observed after joining the BRI in 1988. He said: ‘My first indication that something was badly wrong with the technical skill of James Wisehart [one of the failing surgeons] was the incredibly long time he took to complete cardiac operations in children and adults. This involved long cross clamp times, which is when the heart is starved of oxygen, leading to death, serious heart failure and other major complications after surgery’. He was key in exposing the scandal, but was ostracised and briefed against and as a result he left the NHS for a successful career in Australia. 18 19
http://www.midstaffsinquiry.com/index.html http://www.midstaffspublicinquiry.com/
2004 Bradford Primary Care Trust – A single handed GP Dr Louis d’Arcy had practised for over 25 years. In 2004 he was sent a nurse practitioner to do nurse led diabetic clinics. Up to 60 were misdiagnosed and wrongly treated. Dr d’Arcy wrote to the PCT, highlighting his concerns. He was subsequently accused of bullying, challenging management and subject to disciplinary concerns. He was eventually offered more than £100,000 to sign a compromise agreement with a gagging clause attached. Successes Tower Hamlets PCT – this PCT is unusual in that it has managed to successfully work with whistleblowers to remove 23 unacceptably bad GPs from practice between 2003 and 2010.