15 May 2013

NHS whistleblowers: are they really being protected now?

Health and Social Care Editor

An investigation by Channel 4 News raises serious questions about whether, despite public assurances from the man at the top, the NHS can protect those speaking out about patient safety.

Doubts have been cast on a public pledge made by Sir David Nicholson, the head of the NHS, that if he “caught a whiff” of organisations not providing support to people whistleblowing he would directly intervene.

Channel 4 News has seen a letter Sir David wrote just days after he appeared in front of a the health select committee to a former NHS employee saying he could not help because a “legal process” had been concluded and because foundation trusts are “separate legal bodies” from the Department of Health.

A spokesperson for NHS England said in a statment: “Sir David has always been clear that he would intervene in cases where he believed individuals were being stopped from whistleblowing. Sir David though does not, and has not had, the power to direct NHS Foundation Trusts. However, when contacted directly by individuals who are raising issues of concern relating to Foundation Trusts Sir David has raised these with Monitor and CQC where appropriate.”

However, this would suggest that there may in fact be few circumstances in which Sir David could protect a whistleblower, raising questions now about the statement he made to the select committee.

The fact is very few so-called whistleblowers ever have that status officially recognised, either by their employers or by employment tribunals. But there is often a pattern to the way they are treated.

False accusations

This ranges from being sidelined, bullied and sometimes they will be falsely accused of some misdemeanour. They might be told they are mentally unstable. And more often than not, they lose their jobs. So familiar is this routine that one doctor has described it as the “21 ways to skin a whistleblower”.

Certainly, this is the pattern that followed when Dr “A” repeatedly complained about staffing levels which she believed were putting her patients’ lives at risk. She was bullied by a manager, told she was mentally ill, falsely accused of being abusive, and then she was suspended.

Dr “A” had complained that because of low staffing levels her elderly patients were sometimes left in soiled bedding, their buzzers ignored. Or they tried to get up and fell over. Food was left on trays out of their reach, catheter bags were not emptied, relatives’ concerns were ignored.

After two years in limbo, while suspended, this doctor was given a compromise agreement, which she felt she had no choice but to sign. She was paid off and she was effectively gagged.

Following the publication of the second Francis Inquiry into Mid Staffs, in February the Health Secretary and Sir David Nicholson, the head of the NHS, promised there would be no more gagging clauses, and that even those currently in place could not be ignored because it was a matter of duty for medical staff to blow the whistle if they saw poor or dangerous patient care.

Dr “A” is unconvinced by these promises. She remains too scared to be identified. She is managing to make a living by doing locum work but she does not want her new employers to know what she did, nor what happened to her.

And there is the gagging clause itself. She has shown the document to Channel 4 News. It contains the legally required Public Interest Disclosure Act clause which is meant to protect whistleblowers who speak out on matters of patient safety. But it also includes another paragraph stating she cannot speak out about any matters brought to her attention during to her time as an employee.

There is no agreement as to how enforceable the document is and the doctor is unwilling to test the ground.

In fact, since the Government made the promises to protect whistleblowers, only one has come forward publicly. Gary Walker, former chief executive of United Lincolnshire health trust, spoke out, and was immediately threatened by the trust’s lawyers with having breached the terms if his compromise agreement. It was only ministerial intervention that prevented it from being pursued.

Read more from Victoria MacDonald's blog: NHS whistleblowers gagging to speak out

Dr Peter Wilmshurst, a retired consultant cardiologist, was himself once a whistleblower. But he spoke to Channel 4 News about the case of a junior doctor who complained about something they believed was unethical.

It took the doctor five years to fight the case. They won but only after they had been falsely accused of dishonesty and of being mentally ill. What’s more, the trust spent an estimated £5million to keep this junior doctor quiet.

Dr Wilmshurst and other whistleblowers we have spoken to say the system desperately needs to change. They want, for instance, an independent system so the doctor or nurse is not being “tried” by the very people wanting to get rid of them.


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