Protecting Whistleblowers?

Well done the British Medical Association.  Having taken some flak for negotiating compromise agreements with gag clauses for doctors leaving employment (see Shoot the Messenge, STM), it hosted a conference on  October 2 called ‘Protecting Whistleblowers’ with the campaign group Patients First (MD is a patron).  Dr Kim Holt spoke about whistleblowing at the clinic run by Great Ormond Street Hospital (GOSH) where Baby Peter was treated (see STM). She was proud to be a whistleblower, but lived in fear of the GMC. A common thread amongst many whistleblowers is that their NHS employers engage in vindictive counter-accusations and referrals to the GMC or NMC. Dr Raj Mattu, the former consultant and internationally respected cardiologist at University Hospitals Coventry and Warwickshire NHS Trust (UHCW) probably holds the record for this, with what he believes are over 200 allegations made against him by UHCW (who decline to clarify the number).

Mattu first blew the whistle in 1999 because he believed a patient had died as a result of UHCW’s policy of putting 5 patients in a 4 bedded bay to meet waiting time targets. This made it impossible to resuscitate effectively in an emergency (see STM).  In 2001, a Commission for Health Improvement review found the comparative death rate for non emergency admissions including cardiology was 160 (compared to the English NHS average of 100). Mattu continued to raise concerns and was suspended on full pay for eight years from 2002, despite an independent inquiry recommending his reinstatement in 2005. He was sacked in 2010. He persistently refused to take a pay-off with a gagging clause and instead pursued an unsuccessful claim against UHCW in the High Court.  Next month, Mattu and UHCW meet at employment tribunal. He has no money and will represent himself. This case is already one of the most expensive in NHS history, costing the taxpayer over £5 million, and Mattu has had  his career, health and vital research slides destroyed. At the time, UHWC’s mortality rates were as bad as nearby Mid Staffs, and it may be that the brutal treatment of Mattu dissuaded other whistleblowers in the region.

Kim Holt did not take the gag money either and was suspended for over 4 years. As she put it: ‘Any employer can sack any employee in any sector. All you can get is compensation.’  She also warned of the dangers of signing a gag clause. ‘The clause will often oblige you to hand back all your documentation,  so you subsequently have no evidence even if you wanted to take it to the regulators. But if the scandal ‘blows’, you will be charged with complicity in the cover up.’

NHS whistleblowers won’t be protected until those who may have suppressed  or failed to act on their concerns are properly investigated, and their Trust boards held to account. On 30.9.2011, MD and Andrew Bousfield asked the GMC to investigate whether Dr David Elliman, a GOSH consultant with responsibility for child protection, had acted appropriately on the concerns raised by Dr Holt. A year later, the GMC is still taking legal advice. On 10.7.2012, we asked the GMC to investigate Dr Barbara Hakin, the NHS Director of Commissioning, in her former role as CEO of East Midlands SHA, to judge whether she had acted appropriately on the patient safety concerns raised by former United Lincolnshire Healthcare Trust Gary Walker, who was sacked and super-gagged by the NHS. On 6.8.12, the GMC  instructed Field Fisher Waterhouse LLP to ‘assist in the investigation’.

Walker also made a protected disclosure to NHS chief executive Sir David Nicholson, who must now specifically and publicly remove the gag from Gary Walker and allow him to present his evidence that patient safety was compromised by government targets that he was ordered to meet. The lifting of this single gag would signal a profound change of culture at the top of the NHS towards protecting whistleblowers. If Nicholson and Hakin have nothing to hide, they have nothing to lose.

Note: The BMA has just produced  Guidance on Whistleblowing

It says, as a key point, ‘You are protected in law from harassment and bullying when you raise a concern.’

In fact, all the law currently does is to compensate a few lucky whistleblowers after they have been victimised. It does very little to protect them

The BMC and Public Concern at Work are at least raising concerns about the potential amendments to Clause 14 of the Enterprise and Regulatory Reform Bill which would make whistleblowers more vulnerable than they already are. At present, it’s all too easy just to suspend or sack them, even if they are members of the BMA.

How to choose a hip surgeon

If you’re having a new hip put in, would you go for one with an established track record, or a brand new one with slick marketing but no safety data in humans? And which of the 107 cups to put with which of the 139 stems? A big or small head? Metal on metal, metal on plastic or ceramic on ceramic? A total hip replacement or just a resurfacing?  Unsurprisingly, most patients let their surgeon decide for them. Get it right and a hip replacement removes crippling pain and restores mobility for 15 years or more. When it fails – as 8,641did in 2011 – it can be a disaster, requiring extensive, expensive and unpleasant revision surgery that isn’t always successful. But if you ask ten different surgeons, you might get ten different opinions. So who can you trust?

In 1997, following the failure of the Capital Hip, MD advised patients to choose a hip surgeon who used a tried and tested prosthesis and had long term audit to show he or she was good at putting it in. I also campaigned for a compulsory National Joint Registry (NJR) that published comparative data for all surgeons and the joint replacements they used, so that patients could see the evidence and surgeons and regulators could spot a failing hip quickly and avoid unnecessary harm. The registry was finally up and running in 2003, but only this year has it identified hospitals with the highest joint replacement failure rates. Any hospital could have a brilliant and a woeful surgeon whose amalgamated results are ‘average,’ and patients still don’t have access to surgeon specific data. More worrying, regulators didn’t act to stop ASR hip replacements until 2010, even though the Australian joint registry had been flagging problems since 2005. 93,000 were put in worldwide, 10,000 in the UK, with failure rates up to 50%.

Part of the problem is that the UK NJR only became mandatory in 2011. Professor Paul Gregg, who helped set up the registry, strongly lobbied for a mandatory register but the DH under Labour resisted. Voluntary and incomplete reporting has allowed surgeons to hide bad results and almost certainly delayed the NJR identifying failing ASR joints and those surgeons who should have stopped using them. At the very least, the NJR should name and shame the surgeons who have not submitted all their data for independent scrutiny.

A further problem is the freedom given to orthopaedic surgeons to choose any prosthesis. New is often not better, despite what the manufacturers claim, and even small modifications can have untoward effects. And because medical devices aren’t tested in humans prior to use, problems can only be spotted in a timely way by if the registry is complete.  Surgeons in North Tees lead by Tony Nargol were convinced ASR hips would be best for over 400 of their patients, but at least were very diligent in submitting data to the NJR. In the latest NJR report, three out of the eight statistical outliers for hip revision surgery are the University Hospital of North Tees, the University Hospital of Hartlepool and Nuffield Health Tees hospital. North Tees and Hartlepool NHS Foundation Trust has also been issued with an alert because its Patient Reported Outcome Measures after hip replacement show ‘significantly lower EQ-5D Health Gain than the average across England.’

Nargol deserves credit for blowing the whistle to manufacturers DePuy and the MHRA about problems with the ASR, and is reaping rewards now by specialising in researching and revising the failed hips he and his colleagues put in, and as a medicolegal adviser against DePuy. However, the ASR patients of North Tees are not so fortunate. In 2000, NICE advised that ‘wherever possible’, the NHS should use artificial hip joints that can show they last for 10 years or more’ (i.e. with a maximum failure rate of 1% a year). Three years of data was considered and absolute minimum,  and newer prostheses such as the ASR should only be introduced in a proper clinical trial with ethical approval and full consent from patients to show they accepted the longer term risks were unknown.

The Care Quality Commission is now considering an investigation in North Tees. It needs to discover whether a proper controlled trial of ASR hips took place, whether patients consented to the potential risks and complications as they arose, whether patients were selected appropriately, whether surgeons stopped using the ASR brands quickly enough when they identified problems and whether the Trust management tried to stop them. At present, only surgeons and their chief executive have access to an individual’s NJR data and a ‘funnel plot’ of how it compares with the rest of the UK. It’s entirely up to them whether they act on it or bury it. If you’re having any joint replacement, you should demand to see your surgeon’s funnel plot. Outliers are easy to spot outside the funnel. If he or she won’t show you, run a mile. Or hobble out.

MD