The Times Thunderer Column, Friday March 15th 2013

Time to celebrate whistleblowing

The announcement by health secretary Jeremy Hunt that gagging of whistleblowers is to be outlawed caused more wry smiles than celebrations in the NHS. Such gagging clauses were made illegal by the Public Interest Disclosure Act (PIDA) in 1998, and very specifically in a Department of Health directive a year later. Assorted health secretaries have reminded the NHS that silencing legitimate safety concerns is illegal, but local managers desperate to avoid scandal have kept using them, in agreements drawn up by aggressive, NHS-funded lawyers. Yet no-one has ever been prosecuted for gagging whistleblowers. So why should Hunt succeed?

I applaud him for trying, but time is not on his side. On April 1^st, he will be completely powerless to act as control of the NHS is handed to Sir David Nicholson’s ‘independent’ Commissioning Board. Hunt’s plan needs a strengthening of legislation to succeed, but would still only apply to gags that are accompanied by payments signed off by the treasury. Locally agreed gags will remain hidden from view.

Of course, whistleblowers are under no obligation to accept a gag, or a silencing payment, but in over twenty years of supporting them, those who take that route have already lost their jobs and future employment prospects, and the toll on their health and personal life has been huge. Some need the money simply to live and avoid eviction. The NHS has developed countless ways of punishing whistleblowers. Cutting secretarial help, teaching and research budgets, blocking appointments and “briefing against” informally. Whistleblowers are said to have “attitude problems”, be obsessed with historic issues and not prepared to move on. Notes are trawled to find an error the whistleblower has made and this is used as the official reason for action against him or her. Allegations of mental illness are common and may be self-fulfilling as a whistleblower buckles under the stress.

The trust may refuse to disclose documents the whistleblower needs to support the case, and they breach the data protection and freedom of information acts with impunity. Reprisals are taken against supportive colleagues, and the whistleblower may be threatened. Dr Peter Brambleby, ex-director of public health for Norwich PCT, was told he might “end up in the woods like David Kelly”. Whistleblowers who are brave enough to keep going usually end up at an employment tribunal and, even if they win and refuse a gag payment, they don’t get their costs paid and may end up £200,000 or more out of pocket.

Going to the press is the best chance for whistleblowers to get their concerns taken seriously, but it is career suicide to do so openly, as employment law trumps the scant protection of PIDA. Whistleblowers may be threatened by trust lawyers with libel suits if concerns that could affect the corporate reputation of a trust are to go public. The Department of Health is hopeless, refusing to intervene in ‘a local employment matter.’ And the regulators do not respond rapidly enough, if at all. Indeed, the General Medical Council is more likely to investigate vexatious complaints against a whistleblower than the concerns he has raised.

Trusts may be forced to arrange their own ‘independent’ investigations by, say, a Royal College or a small company run by former NHS managers, but they usually control the terms of any inquiry and how much of its findings are made public, often in redacted form if at all. Jeremy Hunt’s announcement is a small step in the right direction, but there is a long way to go to make the NHS safe for whistleblowers at patients.

We should start be celebrating whistleblowers. Steve Bolsin, the heroic anaesthetist who exposed the Bristol heart scandal, should be flown back from Australia and given an award. Dr Kim Holt, the brave Baby Peter whistleblower who refused to take a gag, should be on the NHS Commissioning Board. And spare a though for Professor Ed Jesudason, a brilliant paediatric surgeon recently forced out of the NHS for raising concerns at Alder Hey hospital. Whistleblowers don’t want sympathy, they want a better NHS for patients and an end to bullying. And they want their jobs back.

Nicholson Stays, Jesudason goes

David Nicholson should resign as chief executive of the NHS over the Mid Staffordshire scandal, but he won’t. Charlotte Leslie, the North Bristol Tory MP, has proposed an early day motion calling for him to go, with cross part support, but he won’t budge. The scandal happened under Labour’s watch, but the government owe Nicholson for keeping a handle on the money during Andrew Lansley’s disastrous health bill, and the next few years could be far worse. The market regulator, Monitor, has recommended Mid Staffs goes into administration, 25 more acute hospitals are on the verge of bankruptcy and up to a quarter of Clinical Commissioning Groups may not be financially viable when they ‘go live’ on April 1. The combination of a bust trust and a broke CCG in the same area could quickly lead to another Mid Staffs. Can Nicholson ‘keep a grip’ on it before the election?

Just as problematic for the government is that the vast majority of NHS staff are not ‘engaged’ in its reform program, and many actively oppose it. Section 75 of the Health Act is supposed to explain how procurement should work, saying commissioning groups must “treat providers equally and in a non-discriminatory way, including by not treating a provider, or type of provider, more favourably than any other provider, in particular on the basis of ownership”. In English, this could reduce the NHS to a franchise which licenses private interests to dominate the NHS. Monitor could in theory stop this, but it is run by market fundamentalists, so don’t hold your breath.

Nicholson, a former Communist Party member, is the most powerful person in the NHS and is seen by some on the left as the best chance of stopping the fragmentation of services from market driven reforms. But if he was true to his roots, he would have resigned over Lansley’s bill and publically explained why it is so bad for the NHS. This might even have killed it off. But despite briefing against it initially, he decided to help out the government, force through the reforms on a deeply resistant workforce and walk into the top job on the NHS Commissioning Board (NHSCB) unopposed.

The fact that the NHS CB has given unanimous public backing to Nicholson demonstrates how unaccountable and lacking in insight this unelected uber-quango is. Continuous political interference in the NHS has done it untold damage over the years, but the pretence of setting up an ‘independent’ board appointed by politicians to ‘depoliticize’ the NHS and serve patients is simply deception. Local doctors, nurses and managers need to be held to account at Mid Staffs, as do the regulators, commissioners and Royal Colleges that failed patients. But the overall responsibility for a catastrophic system failure that went on for so long and resulted in nearly 1200 deaths that were clearly flagged up by published death rates rests squarely with Labour and the Department of Health. Nicholson going will clearly not, alone, make the NHS safer for patients. But his staying will simply embed the same culture and politically-driven enforcement that allowed the disaster to go on for so long before action was taken.

Nicholson has now told the Public Accounts Committee three times that the NHS does not have a problem with whistleblowing. It would be hard to be more wrong, as readers of Shoot the Messenger (Eyes passim) will attest. Many of the Eye’s stories have belatedly become headline news across the media, but spare a thought for Professor Ed Jesudason, a brilliant paediatric surgeon and researcher who has never had a patient complaint against him, who blew the whistle on his colleagues at Alder Hey hospital (Eyes  passim), refused to take a gag and has now resigned with his NHS career in tatters.

Jesudason raised concerns about many issues. Fellow surgeons were doing procedures on vulnerable children that were unnecessary and experimental, without any research approval or informed consent. Senior surgeons were complaining of severe stress and burnout due to workload and this was accompanied by eyesight and other health concerns. Children were at risk because major errors went unreported and even those that were discussed went uncirculated as minutes. The senior surgeons and Clinical Director showed no urgency to have better scrutiny so errors repeated themselves. There was a culture of widespread and severe bullying by stressed senior surgeons. And then two colleagues fabricated a suicide claim against a whistleblowing colleague, leading to his suspension. As Jesudason puts it: ‘This was a point where it was clear we were dealing not with misfeasance but clear malfeasance.’ So why did he lose his case in the High Court? Read Eye next.

RETURN TO THE KILLING FIELDS

A chronicle of deaths foretold

Private Eye mid staffs final