Wes Streeting, the health secretary has promised new protections for whistleblowers but do they go far enough? Dr David Ward gives a detailed list of proposals that the NHS should implement and calls for lawyers and courts to play no part in the process.

NHS whistleblowers are obliged by law to raise patient safety concerns and are punished having done so. (Arising out of conversations with other doctors particularly members of Justice For Doctors. https://www.justice4doctors.co.uk ).

1. All “whistleblowing” issues should be formally logged by the Trust (hospital) in which they have arisen and in a statutory, independent central register which is open to scrutiny and auditable. Isn’t an audit trail essential for regulatory and financial reasons?

2.Hospitals should be banned from dismissing a doctor who has raised safety concerns as they are obliged to do by MHPS, Duty of Candour laws and the Hippocratic Oath. This is a simple idea which could be implemented without complex regulatory amendments. Devices such as dismissal by “Some other substantial reason or “SOSR” are convenient for the dismissing Trust to bury all sorts of evidence. NDAs are another trick which could impede investigation of evidence. It reeks of “dodginess”

3.Hospitals and their managements should be compelled by statute to urgently investigate concerns raised by a whistleblower. Failure to do so could be regarded as some sort of Tort because harm to patients could (and probably will) recur. (The concerns cannot be investigated if they are not known, doh!). Investigations should be conducted independently not by internal personnel because these are known to be biased (no, really?). External investigators (whether MHPS or otherwise) can be paid large sums by the Trust. The results are not infrequently “favourable” to the Trust. A new, more open and accountable system should be introduced.

4.The problems reported by a whistleblower should be remedied as soon as possible to reduce the risk of further harm. This hardly needs stating, does it? But a remedial approach (even if it is instigated) nearly always takes second place to hyper-investigation (persecution) of the doctor who has reported the problem. Imagine if such vigour could be directed toward correcting any shortcomings, improving processes, enhancing safety and so on. It could even save money as well as improving patient safety. “A stitch in time….”
5.NHS Trust Managers should be formally regulated by a statutory independent body. They should be subject to regulatory bodies just as the medical professions are – and disciplined if they “manipulate” the truth. There are examples of “wild west behaviour” by managers which would be stopped immediately if regulation were in place.
6.“Maintaining High Professional Standards” (MHPS) investigations are internal and unregulated. (See St Helier Hospital saga on this blog). “Marking one’s own homework” comes to mind. Investigators can be “hired guns” who will produce a report favourable to the Trust for a “fee” (taxpayer funded of course). Corrupted or what? (Let me be clear, I am not suggesting any cause-and-effect relationship between the fees paid and an outcome “favourable to the Trust”). Data about any of these matters which are prevalent all over the NHS is, unsurprisingly, not available (see 1).

7.Stop the wastage of £millions of taxpayers’ money on lawyers defending Trusts at Employment Tribunals against the unfunded “claimant” (the solution is at 2). This egregious inequality of arms should be disallowed but if (2) was implemented it would not arise. Another way of putting this is “stop persecuting whistleblowers who are doing their duty”. It is the Tribunal system which endorses a Trust’s decision to dismiss a doctor (if the dismissed doctor seeks the support of a Tribunal he is unlikely to succeed: see 15) . (How much taxpayer funded money is expended on law firms supporting Trusts against the claims of a dismissed doctor? This is my FOI request February 2023:

Expenditure by NHS Trusts defending allegations by “whistleblowers”

The answer was “DHSC does not hold information relevant to your request”. Perhaps not but I am willing to bet it is kept somewhere.

8.Lawyers and Courts have no place in the investigation of patient safety issues (see 2 and 6). Lawyers have little or no appreciation of health issues and the operation of a hospital. They are not best placed to investigate patient safety issues which are, unsurprisingly, central in whistleblowing cases.

9.Patient safety is prime. There should be no stigmata or detriments attached to raising patient safety concerns. Failure to raise or conceal a concern could be an offence.
10.Non-disclosure agreements (NDAs) about safety issues should be banned. They may be abused to conceal safety evidence. Information which is not disclosed cannot be tested can it. Could this be an intended (or unintended?) consequence of NDAs?
11.PIDA 1996 (section2, 47b (1): “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure”. So, no whistleblower can be dismissed because they have “made a protected disclosure” as that is forbidden by PIDA. But they can be dismissed (conveniently) “having made such a disclosure” just not for that reason. Usually one of the 5 “fair” reasons for dismissal is invoked including, “committing some form of misconduct” and “SOSR” (see 13). (See the case of Martyn Pitman on this blog). The section of PIDA referred to above is a loophole which is open to (possibly deliberate) misinterpretation. Perhaps it was written like this for a reason, who knows. Shouldn’t the loophole be closed and PIDA updated?

12.Is the Dunning-Kruger effect (qv) relevant?  Yes. It could apply to elements and procedures of the British Establishment – such as the Judiciary and the Employment Tribunal system. “The Dunning–Kruger effect is defined as the tendency of people with low ability in a specific area to give overly positive assessments of this ability”. (Wikipedia). Take a moment to think about D-K in the context of the treatment of whistleblowers. It rings true, doesn’t it.

13.Dismissal of an employee can be for any one of the 5 reasons specified in the Employment Rights Act 1996, Section 98. The last of these is “SOSR” or “some other substantial reason” which need not be specified (obviously) which is very convenient (see 11). Some reasons are specified but these are not exclusive and there is no need to specify a reason – which is why this clause exists, right? I need not enlarge on why this is another fudge but it is open to abuse. The notable observer and blogger, Dr Minh Alexander has ascertained (via an FOI request) that over 10,604 staff were dismissed by the “SOSR” method between 2010 and 2018 (Yes, she does provide a detailed breakdown of the figures, see link). This is a staggering statistic which surely points to a profound failure of process.

The Dismissal of over Ten Thousand NHS Staff via ‘Some Other Substantial Reason’

14.Resurrect the “problems of whistleblower persecution” for debate in Parliament with an emphasis on “protection”. I believe several proposals are under consideration including some by the Rt Hon Wes Streeting MP, Secretary of State for Health and Social Care, who will become a hero to many if he achieves what is required.

The Dismissal of over Ten Thousand NHS Staff via ‘Some Other Substantial Reason’

15.Doctors who have been whistleblowers and subsequently dismissed are well advised to avoid the legal profession. One thing that does emerge from my exploration of this fraught topic is that doctors (as a retired medic I can speak for this profession) who have been “dismissed” should not go anywhere near a law firm or engage the Employment Tribunal process for all the reasons I need not enumerate here. Fewer than 3% who do so will emerge victorious. Some have been bankrupted by the process. Open and fair justice? I don’t think so

Who are the ultimate losers in all this ? You may ask why make such a fuss? I will answer directly. It’s not primarily about the Judiciary, or the Employment tribunal system, or hospital managements, or even doctors and healthcare staff. On the contrary it is fundamentally about sick people, or “patients” when they seek medical advice. It is these “end-users” of the NHS who suffer when doctors (or any HealthCare professionals) who speak up about patient safety (aka whistleblowers) are subjected to kangaroo courts and persecution culminating in their dismissal and whose lives are consequently ruined: loss of a career, loss of self-esteem, disruption of family life, possible financial ruin (lawyers bills really are “astronomical”), and even more extreme consequences. If you think I am exaggerating read the story of Mr Martyn Pitman FRCOG, Consultant Obstetrician a man of high integrity and whistleblower who lost his career at the whim of a Tribunal sitting before a judge who probably has no idea what a Fallopian tube is. The Tribunal stated:

“Our issue was never about the concerns raised by Mr Pitman, but about concerns

raised by others of disruptive behaviour and then a breakdown in working

relationships. These factors are damaging in any workplace, but in a healthcare setting, which is by its nature an intense and pressurised environment, their destabilising effect

is even more serious.” https://www.theguardian.com/money/2023/oct/29/whistleblowing-cost-hampshire-doctor-dearly-after-he-loses-tribunal

The judgment refers to “bullying and undermining behaviour” or similar 6 times but the word “concerns” appears 123 times. Have I made the point?

Anyone who knows anything about the modus operandi of Employment Tribunals will see through this obfuscatory gobbledegook immediately. I doubt even the Tribunal persons who wrote it knew what they were talking about. What is happening to justice in this country?

David Hencke at Westminster Confidential dissects the absurdity of Judge Gray’s “reserved judgment” in this case. https://davidhencke.com/tag/judge-jonathan-gray/