What next for NHS Whistleblowers?

The Eye’s Special Report on NHS Whistleblowing  (Eye 1292) triggered an early day motion sponsored by Worthing West MP Peter Bottomley. ‘This House welcomes the Private Eye, Shoot the Messenger articles, on how NHS whistleblowers can be silenced and sacked; anticipates effective action by the Health Select Committee (HSC) and the NHS; and calls for an active central unit to which concerned clinicians can put areas and points that worry them, including details of inappropriate disciplinary action by health employers.’ http://www.parliament.uk/edm/2010-11/2031

The HSC has already considered whistleblowing in its Patient Safety report in June 2009, and found: ‘The NHS remains largely unsupportive of whistleblowing, with many staff fearful about the consequences of going outside official channels to bring unsafe care to light. We recommend that the DH bring forward proposals on how to improve this situation.’

Incoming health secretary Andrew Lansley’s proposal (currently shelved) was ‘to strengthen the NHS constitution’ to oblige staff to raise concerns and managers to act on them. But the constitution is legally toothless window-dressing. When the charity Action Against Medical Accidents asked the Department of Health (DH), under the Freedom of Information Act, for ‘information on any instance of action being taken with regard to an NHS body not “having due regard” to the NHS Constitution from its point of creation’ the reply was telling: ‘Officials responsible for this area of Departmental business are aware of no instance, recorded or otherwise, falling within the terms of your request.’

The Eye would like to see an end to all gagging clauses of any sort in the NHS and the protection of a clinician’s professional right to free speech, including the right to go external to the trust and raise concerns with an MP. Gagging is still widespread, so what will the DH do about it? Anne Milton, the Minister in charge of whistleblowing, gave a revealing interview to Radio 4 (July 7, The Report)

Milton ‘I would be very worried that any employer felt it was necessary to insert a gagging clause’ Simon Cox ‘Who’s policing that? Who says to trusts they shouldn’t be doing that?’ Milton ‘You’re stepping into the realms of employment law and I’m not an expert. There are laws in place but as I say I’m not the expert that you need to speak to….. I’m not absolutely sure what higher authority governs what rights an employee has.’

Back in 2009, the HSC recommended that: ‘All Government policy in respect of the NHS must be predicated on the principle that the first priority, always and without exception, is to ensure that patients do not suffer avoidable harm…. Managers and Boards in NHS bodies have a duty to heed whistleblowers and to afford them protection from victimisation for raising genuine matters of concern. Measures to encourage whistleblowing need to be accompanied by strong measures to protect whistleblowers from dismissal and blacklisting. We recommend that the DH bring forward proposals on how to improve this situation and that it give consideration to the model operated in New Zealand, where whistleblowers (and patients) can complain to an independent statutory body.’

None of the HSC’s recommendations were implemented, so this time it’s started by reminding NHS staff of their ethical duty to report poor care and to call on regulators to take action against doctors and nurses who remain silent. But the Eye special highlighted seven senior managers and consultants whose careers were ruined when they blew the whistle, while the concerns they raised were buried in gagging clauses and in secret reports never seen by the public. As MD argued at the Bristol Inquiry, the NHS cannot be trusted to regulate itself in secret. Peter Bottomley proposes a central NHS email address where whistleblowers can receive a date stamped acknowledgement of their concerns. This would make it impossible for an NHS employer to deny knowledge of a possible problem. MD would take it further. Copies of all clinical complaints from staff and the public, the response of the NHS and an indication of whether the complainant was satisfied should be published, with confidentiality protected. Before the NHS can do no harm it has to count the harm it causes and tell patients when they have been harmed by their care. Without absolute transparency, there can be no trust.

For more whistleblowers stories and campaigns, go to www.medicalharm.org