The Lucy Letby case has propelled NHS whistleblowing into the headlines once again. It has already been revealed that senior doctors acted as whistleblowers and reported their concerns, but these were not acted upon by management.
Rob Behrens, the health service ombudsman, has warned that more babies will be harmed unless “systemic changes” are made to end the “defensive leadership” and unacceptable treatment of whistleblowers in the NHS.
Protect, a charity that supports whistleblowers, and campaigns for changes to the current law, commenting on the inquiry into the Letby case noted that:
“Whistleblowing is key to safeguarding patient safety and the opportunity to improve whistleblowing in the NHS should not be missed. The inquiry promises to look at how concerns raised by clinicians were dealt with. We want the terms of reference to include leadership and accountability of senior managers in ensuring that whistleblowers are not ignored.”
So, what is the current situation on whistleblowing in the UK?
In the UK, whistleblowing is defined as the raising of concerns in the public interest, such as about wrongdoing, risk or malpractice, by a worker, whether to their employer or externally through a range of designated channels. The channels could be regulators, MPs or the media.
Whistleblowing is covered by the Public Interest Disclosure Act 1998, or PIDA. It is part of the Employment Rights Act 1996 (ERA). The law should protect whistleblowers from negative treatment or unfair dismissal.
PIDA makes it unlawful to subject a worker to negative treatment or to dismiss them because they have raised a whistleblowing concern. Raising a whistleblowing concern is also known as making a ‘protected disclosure’ in law.
Whistleblowing rights under PIDA are day one rights. This means that the worker does not need the same two years’ service that is needed for other employment rights.
PIDA also has a wider definition of worker than other areas of employment law. This means protection is granted to employees as well as certain workers, contractors, trainees and agency staff who make a protected disclosure.
However, there are gaps in the law which mean that some workers do not necessarily qualify for whistleblower protection, including the self-employed, volunteers or job applicants (other than in the NHS).
Whistleblowing in the NHS
Whistleblowing in the NHS has over the years been an essential method for protecting patients and staff. Whistleblowers have brought to light a number of high profile scandals, including the serial murderer GP Harold Shipman, the Bristol heart surgery scandal, and the rogue breast surgeon Ian Paterson.
Whistleblowers were key to revealing the failings in care at Mid Staffordshire NHS Foundation Trust between 2005 and 2009. The subsequent Francis Inquiry led by Sir Robert Francis, examined the causes of the failings. It found that there were serious issues in how whistleblowers were treated in the NHS and how easy it was for staff to report concerns. It was clear that the PIDA legislation was not sufficient to protect or encourage whistleblowers to report concerns and something more had to be done.
This led to the Freedom to Speak Up Review, chaired by Sir Francis, that in 2015 recommended a package of measures to ensure in future NHS staff are free to speak up about patient safety concerns.
The review led in 2016, to the creation of the office of National Guardian for the NHS, which leads, trains and supports a network of Freedom to Speak Up Guardians in England. Currently it reports that there are over 900 guardians in NHS and independent sector organisations, national bodies and elsewhere.
Is the system working?
It has now been 25 years since the PIDA legislation and seven years since the creation of the Freedom to Speak up Guardians, yet despite legal protection whistleblowers continue to suffer negative consequences from their actions and scandals continue to be uncovered.
The annual report of the National Guardian for the NHS for 2021-22 suggests that the number of NHS staff suffering retaliation after speaking up is on the rise and that support from senior leaders has fallen.
The report highlighted the NHS England report into West Suffolk NHS Foundation Trust and the report by Donna Ockenden into maternity services at Shrewsbury and Telford Hospital NHS Trust as examples of high-profile cases that have eroded trust in the speak-up process.
In West Suffolk, Dr Patricia Mills, the whistleblower who raised concerns about a doctor injecting himself with drugs while on duty, was subjected to a disciplinary investigation that verged on “victimisation”. In December 2021, she was completely exonerated in an independent NHS review that was highly critical of the way she was ignored.
In the Shrewsbury and Telford Hospital NHS Trust maternity scandal, the whistleblower Bernie Bentick, a consultant obstetrician who worked at a hospital trust, said there was “a climate of fear” among staff who “felt unable to speak up because of risk of victimisation”.
Dismissal of staff by management after they have reported concerns, despite the PIDA, continues to be an issue, and in certain cases management of NHS Trusts have spent millions fighting unfair dismissal cases brought against them.
Recent cases include:
- In June 2022, an employment tribunal awarded £460,000 in compensation to a senior district nurse in County Durham who was unfairly dismissed for being a whistleblower.
- Jasna Macanovic, a consultant nephrologist, was awarded £220,000 in compensation by an employment tribunal in 2022, after Portsmouth Hospitals University Trust spent nearly £680,000 on legal fees and compensation trying to fight the patient safety whistleblowing case she had instigated.
- In September 2022 an employment tribunal ruled that orthopaedic surgeon Shyam Kumar was unfairly sacked as a part-time special adviser by the Care Quality Commission after raising concerns about patient safety, inadequate inspections and bullying.
No discussion on whistleblowing can ignore the case of Dr Chris Day. A full account of Dr Chris Day’s battle with Health Education England (HEE) can be found on the pages of the charity Protect and Dr Chris Day’s website.
In brief, in January 2014, Dr Day blew the whistle to Lewisham and Greenwich NHS Trust, his employer at the time, regarding patient safety concerns in the Intensive Care Unit at Queen Elizabeth Hospital due to understaffing. He also told the training body, HEE. Soon after he was dismissed from his post by the trust and HEE took away his training number. As a result he was no longer able to progress up the career ladder and has worked as a locum doctor ever since.
The case has highlighted a problem with whistleblower legislation – who could, or couldn’t, be accountable under the legislation. HEE said that the whistleblower protection in law didn’t apply to them, as they didn’t directly employ Chris.
Chris was successful in that legal battle and the judgement helped to clarify the position for junior doctors across the country and other workers who are supplied to work for other organisations, who blow the whistle.
It is clear, however, that despite the PIDA and the National Guardians office, whistleblowers are not adequately protected from retaliation by management and people are still being put off reporting concerns.
How can whistleblowers be better protected
In 2021, the charity, Protect, began the campaign Let’s Fix UK Whistleblowing Law, part of which calls for reforms of PIDA, to include the protection of more people.
Protect is calling for the UK’s whistleblowing law to be updated to offer protection to the 5 additional groups: self-employed contractors, non-executive directors & trustees, volunteers, job applicants and workers who are mistaken as whistleblowers.
In addition, Protect is calling for other reforms:
- All employers should be required to meet standards for whistleblowing and follow recognised procedures. Tougher enforcement against employers is needed for those who fail to listen or who treat whistleblowers badly.
- Changes are needed to reduce the burden whistleblowers face at the employment tribunal to ensure whistleblowers can enforce their legal rights.
As Protect notes in its statement on the Letby case:
“Ten years after the Francis Review, it is time to review if whistleblowing is working in the NHS. Too many scandals reveal that staff knew that there was something wrong but were afraid to speak up or were ignored. Every inquiry promises that lessons will be learned so the awful events cannot happen again. They can, and they do. Events of the magnitude of this case are extremely rare, but effective whistleblowing can stop harm soonest.”
If you like our content please support our campaigning journalism to protect health care for all.
Our goal is to inform people, hold our politicians to account and help to build change through evidence based ideas.
Everyone should have access to comprehensive healthcare, but our NHS needs support. You can help us to continue to counter bad policy, battle neglect of the NHS and correct dangerous mis-infomation.
Supporters of the NHS are crucial in sustaining our health service and with your help we will be able to engage more people in securing its future.
Please donate to help support our campaigning NHS research and journalism.