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.

1 Chief Medical Officer, An Organisation with a memory, 2000

2 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

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.

4 Health Service Circular, HSC 1999/198, The Public Interest Disclosure Act 1998, p.3

5 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,

Supplementary written evidence from the Department of Health, 14th

April 2011 7 A Channel 4 Investigation showed that 55 of 64 NHS compromise agreements sampled had gagging clauses

attached – approximately 86%.

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 Public Concern at Work briefing for Members of the Health Select Committee, p.2

9 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

10

http://www.nhscareers.nhs.uk/details/default.aspx?id=766 11

General Medical Council, Confidentiality, p.16 http://www.gmc-

uk.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

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.

13

Public Concern at Work briefing for Members of the Health Select Committee, p.4 14

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

Para 58 of Elias LJ’s Judgement in Fecitt & Ors v. HNS Manchester 17

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

http://www.midstaffsinquiry.com/index.html 19

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.