Dr Megan Smith is a Consultant Anaesthetist in one of the UK’s leading major teaching hospitals and is also an experienced medicolegal expert witness, who acts in clinical negligence and personal injury matters (for claimants and defendants). She has also conducted complex independent serious incident reviews for NHS trusts. Prior to studying medicine, Dr Smith was a practising barrister. She sat her LLB examinations in 1993 for which she was awarded First Class Honours.
Whatever one's political allegiance, it is fairly common ground that the NHS is at breaking point; many of those who work in it would say it is already well and truly broken. In my view, and that of EveryDoctor (the NHS advocacy and campaign group that I work for part-time), it can be fixed; the how and the why is another article for another day, but we firmly believe that with the right political will and appropriate funding, maintaining the overwhelming mandate for a publicly funded, publicly provided, not for profit NHS is completely possible.
The NHS has suffered from the perfect storm of more than a decade of real terms underinvestment, Brexit, COVID and industrial disputes with the current government. These factors have seen the service understaffed to the tune of around 150,000 people, and has meant that 7.5 million patients now languish on waiting lists. Almost all other government-set targets are being missed; ambulance arrival times, A&E waiting times, cancer waiting times, the list goes on and on; and behind the numbers are those that are at the very core of what the NHS exists for, our patients.
When a system is allowed to fail like this, patients and patient safety are casualties. In the last couple of years reports of patients dying in the back of waiting ambulances and on trolleys in A&E have become all too familiar. In January this year the Norfolk coroner’s office issued a Preventing Future Deaths Report to the government warning of the risk to patients’ lives posed by the inability of ambulances to transfer patients from their vehicles to A&E departments for care. This must not be allowed to become normalised; on the basis that access to healthcare is a fundamental human right (something which both I and Everydoctor believe at our core), this is wrong anywhere in the world, but in a wealthy Western nation such as ours, it is an outrage.
Safety critical industries that take these matters seriously (think aviation, rail, oil and gas, nuclear power) actively encourage reporting of safety issues and take action to rectify and learn from problems. Cynics would say that they have to because its the company’s reputation and bottom line at stake; there is some validity in this, but the counter argument is that whilst the NHS is a not for profit organisation, it is funded by the taxpayer who feels the bottom line in their pocket when they receive their payslip, as opposed to a company shareholder who feels it when this year’s dividends are smaller than they hoped for. In any event, money should not be the driver for whether safety is taken seriously.
Speaking up in the NHS
Sadly (and perhaps unsurprisingly given the political football that it represents) the NHS and its associated institutions have a chequered track record when it comes to the treatment of those flagging up concerns.
There is a clear pattern of treating whistleblowers badly in order, it would appear, to protect institutional (some might argue individual) reputations. Even when they adhere to internal procedures and policies, whistleblowers are frequently victimised and retaliated against.
A particularly notable case is that of Dr Chris Day, a junior doctor who raised concerns about patient safety incidents after two patient deaths in the Intensive Care Unit at Lewisham and Greenwich NHS Trust. Rather than address the concerns raised, the Trust dismissed him and Health Education England (“HEE”) removed his national training number, effectively stymying his ability to complete his training. This has resulted in 8 years of litigation (which is still ongoing) and has cost the taxpayer over £1 million.
Rather than addressing the substantive patient safety issues, HEE ran the argument that it was not Dr Day’s employer (nor that of 54,000 other junior doctors). Ultimately, the Court of Appeal disagreed with HEE and ruled that they were bound by legislation that confers protection on those raising concerns which I examine in more detail later in this article.
The merits of Dr Day’s case are beyond the scope of this article, however it is illustrative of the fact that healthcare professionals who raise concerns are often adversely treated. This operates as a significant deterrent and there is clear evidence that when staff are fearful about adverse treatment and retribution they do not report, learning does not occur and patient safety remains compromised.
In another case from 2022, the senior management at a West Suffolk Hospital were strongly criticised for attempting to “hunt” a whistleblower who had raised patient safety concerns. Their behaviour went so far as to request handwriting samples and fingerprints from staff in order to identify who had raised the alarm. This type of intimidatory (and, almost certainly unlawful) behaviour is unconscionable and must not be tolerated. In any other safety critical industry this is simply unacceptable. The same should be true in the NHS.
It is vital that NHS staff feel empowered and safe to speak up when they feel that patient safety is in jeopardy and, in the face of the aggressive and intimidatory type of behaviour described already, the protection that the law offers them is of paramount importance.
EveryDoctor’s whistleblowing platform
EveryDoctor is a campaign organisation that advocates for doctors, patients, other NHS staff and the NHS more generally. It is unashamedly an anti-NHS privatisation organisation. EveryDoctor is a not-for-profit company limited by guarantee rather than shares. The founding documents of the organisation prohibit the retention of a profit by any of the directors or employees of the company. Any surplus must be reinvested in the clearly stated, legally binding objects of the organisation.
Many healthcare professionals have approached Everydoctor in the last four years asking for advice, support and assistance in relation to safety concerns that they wished to raise. We have helped them on a case-by-case basis. Some of our recommendations have been to speak to an internal manager, others have involved advice to approach a “prescribed person” as defined by statute (see below). However, in some cases and for various reasons, the appropriate course of action is to raise the concerns with a non “prescribed person” external to their own organisation.
Rather than continue to deal with these cases on an “as and when” basis, and against the backdrop of the growing crisis in the NHS, EveryDoctor has established a secure whistleblowing platform that can be accessed by healthcare workers, patients and members of the public. Reports can be made anonymously or as a named individual.
The platform went live on 7th June 2023 and can be accessed here: https://www.everydoctor.org.uk/whistleblower-portal
We have partnered with the developers of a widely used, industry standard, secure software platform which forms the basis of the portal through which anyone can report.
Once made, the disclosure will be assessed by the EveryDoctor team and a plan for how to proceed will be made with the whistleblower. This may simply involve signposting them to their organisation’s internal procedure and helping to guide them through that. Similarly, it may involve advising them about the appropriate prescribed person set out in law to whom they should disclose their concerns.
However, and as discussed already, in our experience, staff are sometimes reluctant to do this for fear of retribution and victimisation. EveryDoctor has extremely close links with skilled and experienced investigative journalists who have dealt with matters such as these for many, many years. They have helped government whistleblowers, public body whistleblowers, whistleblowers in the military and others to make their concerns known in the wider interest of the public. They fully understand the gravity of the potential consequences for whistleblowers and are skilled and highly experienced at dealing with these scenarios; we trust them and their exceptional professionalism implicitly.
The legal framework
Most hospitals and community based institutions have internal “whistleblowing” policies and guidance. These tend to seek to summarise and echo the provisions of the Public Interest Disclosure Act 1998 (“PIDA”) and the Employment Rights Act 1996 as amended by PIDA (the “ERA”). I will refer to the ERA for the rest of this article to mean that statute as amended by PIDA.
Broadly speaking, the ERA makes it unlawful to subject a worker to negative treatment or dismiss them because they have raised concerns; in law, the facts underpinning whistleblowing are referred to as ‘protected disclosures’.
In order to be protected, the following requirements of the ERA must be met:
• There must be a “qualifying disclosure” within the meaning of the ERA.
• The disclosure must be in the public interest.
• It must be made to an appropriate or prescribed person or body as defined by statute and case law.
What is a qualifying disclosure?
In summary, in relation to healthcare, a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following has happened/is happening/is likely to happen:
• A criminal offence.
• Failure to comply with any legal obligation.
• That the health or safety of any individual is in danger.
• That the environment is being damaged.
• Deliberate concealment of any of the foregoing.
What is a reasonable belief?
The worker does not necessarily have to be correct about the concerns that they raise; it is sufficient if they have reasonable grounds to believe that the information that they disclose is substantially true and they honestly believe it to be true.
What is in the public interest?
Again, the worker must reasonably believe that the disclosure that they are making is in the public interest. In healthcare this requirement is likely to be satisfied provided that the person making the disclosure is not simply seeking to resolve a personal grievance (e.g. in reality the complaint is about bullying or discrimination that affects only them rather than other members of the public).
What or who is the correct body or person?
This will usually be the worker’s employer (i.e. an internal “person”), however disclosure can be made to an external body or person in certain circumstances and the worker will still enjoy the protection of the ERA.
In most (though not all) cases, the external body or person must fall within a list of “prescribed persons” as set out in the statute.
The legislation adopts a 3-step approach; it is not mandatory to proceed stepwise through each of the 3 steps, however protection becomes harder (though not impossible) to attract if a whistleblower deviates from this sequence. The possibilities for disclosure are:
Internal disclosure
This will usually be to the whistleblower’s employer. Internal whistleblowing guidance ordinarily recommends disclosure to a line manager and, if the disclosure relates to the whistleblower’s line manager, a more senior manager. Institutions usually have Freedom to Speak up Guardians who can also be approached.
External disclosure to a prescribed person
The Secretary of State has set out the prescribed persons for healthcare purposes, the most relevant of which at the date of publication are:
• Care Quality Commission
• Healthwatch England
• National Guardian’s Office
• General Medical Council
• Healthcare Improvement Scotland
• Health Education England
• NHS England
• Nursing and Midwifery Council
• Secretary of State for Health and Social Care
• Medicines Healthcare Products Regulatory Agency
• Health Inspectorate Wales
If a whistleblower reasonably believes that the information they are disclosing falls within the remit of the relevant prescribed person/regulator and they reasonably believe that the information disclosed is substantially true, then they are eligible for ERA protection.
Often whistleblowers will take this approach rather than approaching an internal manager because they are worried about retaliation by their employer, or because they (or a colleague) have already raised similar concerns and no action has been taken by their employer.
External disclosure to a non-prescribed person
This is usually relevant where a whistleblower wishes to disclose information to the press, but it can include disclosure to any non-prescribed person, for example a union representative, relatives of a patient (see the West Suffolk case above), a regulatory body not included in the statutory list, etc. It is possible to do this and still benefit from ERA protection but the legal test is more stringent. Cases of “wider disclosure” (as they are often called) require the whistleblower to satisfy various requirements. We will examine each in turn.
Truthfulness
As already mentioned, the whistleblower must reasonably believe that the information being disclosed is substantially true. This does not mean that the information is actually true, rather that it is reasonable to believe that it is.
No personal gain
The disclosure must not be made for personal gain; this means that in the case of disclosure to the media it must not be for payment or any other sort of benefit.
Precondition of victimisation, cover up, previously raised concerns and/or exceptional seriousness
At least one of these preconditions must be met when disclosure is made to an external, non- prescribed person or body.
Victimisation
The whistleblower must reasonably believe that they will be victimised by their employer if they disclose information to them or to a prescribed person. This is usually the case where others who have raised concerns have been adversely treated. Whilst the appropriate next step would be to disclose to a prescribed person, it may be that the employer has an unusually close relationship with them, or that the prescribed person has been notified previously, has failed to act, and the whistleblower reasonably fears that they will be victimised for making a disclosure to them as well.
Cover up
No prescribed person exists and the whistleblower reasonably believes there is likely to be a cover-up of the information that they wish to disclose.
Same information already disclosed
Where the same (or substantially the same) information has previously been shared with the employer or a prescribed person (and usually no action has been taken, though this is not a specific requirement) then a whistleblower can disclose the information in this way.
Exceptionally serious in nature
In healthcare terms this is usually likely to be because the information relates to a situation where a patient has already suffered harm or is likely to suffer harm and the disclosure is made in an attempt to prevent this.
Conclusions
There is no doubt that the crisis that the NHS currently faces is having an adverse effect on patient care and patient safety.
There is relatively little that clinical staff can do to address what is a politically driven systemic problem. One of the steps they can take, however, is to speak up when they see that patients are suffering. No healthcare worker should ever be mistreated or victimised for doing so.
At present, in part due to political ideology, in part due to crippling funding constraints and in part due to the desire of those in higher positions in the NHS nationally, regionally and locally to protect their/their organisation’s/the government’s reputation, being a whistleblower in the NHS is a potentially risky business. Both I and Everydoctor would encourage any healthcare professional or patient who is concerned about safety to contact us via the whistleblowing portal, safe in the knowledge that we will deal with the issues raised in their best interests, always in line with their wishes and fully in accordance with the law.
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