They act as ” judge, jury and executioner” when whistleblowers raise patient safety issues

By David Ward, a former consultant cardiologist at St George’s Hospital, Tooting, London

All staff working in the healthcare professions should be regulated for very obvious reasons. Most of them are but NHS Trust managers (non-medical) are not. Why? Given that managers have enormous and disproportionate powers to initiate investigation, (enlisting private investigators is not unknown) restrict activities, refer to disciplinary hearings and regulatory bodies such as the GMC [ General Medical Council ] and the CQC, [Care Quality Commission] suspend and dismiss healthcare staff – most notably well-meaning, hardworking doctors for raising concerns about patient safety – shouldn’t managers should be regulated just like other NHS workers?

Doctors are obliged to raise concerns if they see problems which may affect patient safety (Duty of Candour, Reg 20 HSC Act 2008 and 2014) pejoratively called “whistleblowing”. It is a matter of patient safety. We know that the reactions by Trust managements to doctors raising concerns can destroy careers and family lives. Suicides of staff under persecution are not unknown. A few courageous people may resort to the corrupt Employment Tribunal process after dismissal. Trusts spend £millions (yes, really!) to defend their untenable self-appointed positions as “judge, jury and executioner”. Where does this money come from? You and me, the taxpayer. Does the victim (whistleblower) have equal access to such resources? Of course not! In fact, they are often sent the bill (aka a cost threat, a merciless device not worthy of a civilised society and in this context used to force the claimant to concede the case) for the huge legal expenses of the Trust’s lawyers. (I’ve seen a well-known law firms’ cost sheet, it’s mind-blowing).

Who initiates the actions that can result in these disastrous consequences? Yes, the Trust managers; sorry, but it’s true. (OK, sometimes medical managers are complicit as we have seen in recent dismissals – shame on them). This process must be taken away from management and regulation could incorporate this. As many recent cases illustrate, PIDA (1998) forces a Trust to deny that “whistleblowing” had any part of a dismissal despite the prior narrative being clearly laden with raising patient safety concerns. It urgently requires updating.

No winners in this egregious process

There are no winners during these egregious processes. Trusts are deprived of money that would be better spent on care. Doctors and nurses who have families to support but may be left without employment even in times of severe need such as the recent pandemic, their careers and family lives in ruins. Mental problems are not uncommon, why wouldn’t they be? Doctors who are required to cover for suspended and dismissed colleagues have to put in more hours. Dismissed doctors often find it difficult to get work in other Trusts. I know of cases where the management at the index Trust interferes with (including preventing) the appointment of a whistleblowing doctor elsewhere.

Managers (and their acolytes) should be banned from acting as “judge, jury and executioner”*. That’s not in keeping with open and fair justice, is it? (Human Rights Act,1998, Article 6). Stop disciplinaries just initiate prompt investigation (thereby reducing risk of further harms) of the concerns, analogous to the inquisitorial French system of discovering the facts – not the damaging adversarial approach prevalent at present in these situations.

Stop trusts wasting £millions on law firms

No wasting £millions on law firms and costly (very costly) barristers, no claimants (victims) forced to sell the family house, move abroad, give up the profession, no months of waiting for court hearings (often many, recurring over years – I know of at least 2 cases of dismissed doctors whose cases in the Employment Tribunal system have dragged on for a decade or more), less mental illness.

Pastoral care for staff who raise concerns? That would be a constructive, cost effective and beneficial alternative approach, wouldn’t it?

Just one last thing: in any given Trust does anyone remember the patient safety concerns that triggered all the iniquitous nonsensical sequence of particular events, what they were about and whether steps have been taken to rectify the deficiencies which led to the concerns in the first place (which may have included avoidable deaths)? Have they been documented other than by the person who initially raised the concerns? Were they formally registered? I doubt it. They are usually buried in a fog of emails and shrouded by a cloud of managerial vengeance directed toward the whistleblower. Perhaps some of the simple and inexpensive ideas mentioned here could be explored.

Does anyone really think that NHS managers should be exempt from regulation?

There is of course one simple solution: ban the suspension and dismissal by Trusts of medical staff who raise patient safety concerns in good faith. They are doing society a favour. *The Political State of Great Britain, for October 1717, Vol.XIV:398]