Time to Replace the Public Interest Disclosure Act

Anyone who has read the Eye over the last 20 years will know that the Public Interest Disclosure Act 1998 does not always protect whistle-blowers, nor even assure that their concerns are investigated. Even worse, it gives whistle-blowers false hope that they will be acknowledged and protected as they swim up the salmon trap of self-funded litigation against public bodies bent on protecting reputations using the might of tax-funded lawyers. The end results are predictably disastrous; whistle-blowers too often lose everything – house, job, friends, family, pensions, mental and physical health – while the issues they raise are buried in compromise deals, non-disclosure agreements and corporate inaction.

The consequences for patients and relatives of suppressing whistle-blowers are even worse. Encouraging staff, patients and carers to speak up, and then investigating and acting on those concerns is crucial to patient safety, and far more effective than any amount of top-down regulation and risk management. How ironic that the 20^thanniversary of PIDA should coincide with the start of the Ian Paterson and infected blood inquiries, and the publication of the Gosport Hospital Inquiry, where hundreds of lives could have been saved from needless opioid overdose if whistle-blowers had been taken seriously. And in the scramble to blame GP Dr Jane Barton for prescribing such high doses of opioids to patients who were not terminally ill until they were given them, we should not forget this was another massive failure of consultant-led care. Barton’s consultant colleagues were responsible for reviewing their patients care and the drug charts, so why did they not step in?

Rogue breast surgeon Ian Paterson was employed by the Heart of England NHS trust in 1998 – the year PIDA came into force – despite having been investigated and suspended by another trust. He clearly should have been closely supervised and scrutinised, but it was five years before an audit found he was not removing enough tissue during mastectomies. Despite this, he was allowed to carry out hundreds of unnecessary, unrecognised or inadequate breast cancer operations on women over a 7 year period to 2010 in private and NHS hospitals. Some staff did blow the whistle, many should have done more, but no one stepped in quickly to stop a narcissistic liar and bully who was clearly diverting wildly from the accepted guidelines for managing breast cancer. What’s needed is stronger whistleblowing law that not just protects staff but ensures action to protect patients too.

On July 18, Dr Philippa Whitford MP for Central Ayrshire secured a Westminster Hall debate on NHS whistleblowing and the need to replace the UK Public Interest Disclosure Act. The government acknowledged that there were serious concerns about the Act and agreed to consider a review of the law, but in MD’s view it needs to be replaced. Leading the charge for change is Dr Minh Alexander, an NHS whistle-blower and former Consultant Psychiatrist, who has organised a meeting of the reform of the law at the CQC offices in London on October 19. Dr Alexander and her whistleblowing colleagues have identified many additional problems with PIDA. ‘Whatever the outcome, the whole process is hugely inefficient and wasteful. PIDA only relates to harm caused by employers and fails to address harm caused by regulators and other parties, it doesn’t protect human rights, there is no structure to enforce any changes that may be needed to protect the public, and there is no requirement for regular review of its own efficacy.’

Dr Alexander proposes a new whistleblowing law that serves the public interest in all respects, ensures timely follow up of whistleblowers’ concerns, requires pre-detriment protection, provides for civil and criminal penalties for reprisal and provides redress and relief from reprisal which does not require the whistleblower to litigate. It should also provide fair remedy for loss, restoring a whistleblower to a position they would have occupied, but for whistleblowing and its consequences. Alexander also wants a dedicated enforcement structure that is independent of government, that has powers to investigate where local investigation has failed, to protect and take corrective action against reprisal and to apply penalties and prosecute where there have been criminal breaches. It should also be regularly reviewed by parliament to ensure any difficulties with implementation are addressed. As the academic lawyer and former doctor Peter Gooderham, who was a fierce advocate of whistleblowers until his death in 2011, summarised; “Criminal sanctions should be enforced against individuals and NHS bodies for the victimization of whistleblowers and the corporate manslaughter of patients who are harmed as a result of the failure to act on the whistleblowers’ concerns.”

Brexit and Health

‘No-one takes much notice of doctors, least of all politicians, but all the doctors MD has spoken to are in favour of the UK staying in the EU. Indeed, MD cannot trace one prominent national medical, research, or health organisation that has sided with Brexit. This is partly because of the un-evidence based fantasy bollocks of the Brexit camp and partly because, on balance, doctors and scientists overwhelmingly believe the UK is better off, healthier and safer in Europe.’ So wrote MD before the referendum in 2016, and detailed the risks of Brexit to health and healthcare (Eye 1421 ). As predicted, no one took much notice. Voters reduce complex decisions to simple metaphors. You either feel safe in the arms of the EU or strangled by its tentacles. Facts and risk analyses rarely cut much ice.

But here goes anyway. The 881 days since the referendum have not been kind to the NHS, with growing delays in treatment and alarming staffing shortfalls. There are 12,000 non-UK EU health and social care staff in Scotland and 60,000 such NHS staff in England. The question is not just whether they are allowed to stay – as Theresa May belatedly promised – but whether they want to, having being used as political pawns since June 2016. May’s noisy declaration that EU citizens will no longer be able to ‘jump the queue’ to sort out NHS queues is unlikely to help. And a no deal Brexit could reverse their right to stay. Many aren’t hanging around to find out.  Fertility expert Lord Winston told the BBC how he has lost nearly all his EU laboratory workers over the last few years.In 2015, the UK had a net gain of 3,000 nurses from the EU, but by 2017 this had dropped to a net loss of more than 1,000 nurses per year. Given the NHS has 100,000 staff vacancies and the number of UK trained nurses are declining by 1000 a year, it’s hard to see how Brexit will help solve the manpower crisis and reduce the high agency costs for staff. The bill for agency nurses alone in 2017 was £1.46 billion. As a senior manager in Scotland told MD. ‘Recruitment and retention is tough….we don’t pay enough and we’re competing globally. Brexit is a fucking disaster. There are four anaesthetists in the Western Isles, all Europeans. Scotland’s rural service relies very heavily on European staff.’

There shortfall in health professionals is indeed global, predicted to be 15 million by 2030, which is why Japan is investing heavily in robotic carers for dementia and health secretary Matt Hancock is so enthused by the remote monitoring of patients by new technology.  Hancock is also trying to ‘move upstream’ to stop people getting sick in the first place but – as the recent UN report pointed out – there are 14 million people living in poverty in the UK, including 4 million children and 1.5 million people so poor as to be destitute. Poverty is the strongest predictor of future ill-health, particularly if it starts in childhood. The solution requires more that offering Bingo and Zumba classes on social prescription, but Brexit has diverted attention from the parlous state of public health, and funds away from addressing inequalities. The opportunity cost has been huge. And a no deal Brexit that threatens even more jobs could be catastrophic for public health and the NHS.

Hancock has said he ‘cannot guarantee’ people would not die after a no deal Brexit and he may even be right. Stockpiling of vital medicines such as insulin, 99% of which is manufactured abroad, may not be sufficient. Medical radio isotopes which are needed for 700,000 diagnostic tests a year can’t be stockpiled, and none of them are manufactured here. Quite what Brexit ends up doing to your health depends on how you define it. In 1948, the year the NHS was founded, the World Health Organization came up with a two stage definition. Step one is ‘an absence of disease or infirmity’ which fails just about everyone (we all have a spot of dandruff and dental decay). Step two is equally unreachable – ‘a state of complete physical, mental and social well-being’ – which may fleetingly be reached by orgasm or opium, but probably not by joining the European Research Group.

In 2011, a Dutch conference of medical experts proposed a more Darwinian definition of health – the ability to adapt and self-manage in the face of social, physical and emotional challenges (e.g. Brexit.) MD’s favoured definition of health is via the economist and philosopher Amartya Sen. Health is ‘the freedom to live a life you have reason to value’. Very rarely do NHS and social care have the time to ask and listen to patients about what they really value, which is why so many people end up as slaves to over-medicalisation and unpleasant high-tech death. But at least medicine tries to offer informed consent, allows patients to change their minds as the facts change, and places no obligation on doctors to perform any procedure a patient is demanding if the weight of evidence suggests it would not be in his or her best interests. So it should be with Brexit. Our politicians need to step up.

Prevention Not Always Better than Cure, Mr Hancock

Health and Social Care Secretary Matt Hancock has jumped aboard the prevention bandwagon, telling the International Association of National Public Health Institutes ‘If there’s one thing that everybody knows it’s: ‘prevention is better than cure’’. Sadly it isn’t. Prevention, like any intervention, can have side effects that outweigh the benefits as his predecessor Jeremy Hunt found. After meetings with drug companies researching dementia, Hunt decided that GPs needed to pick up dementia earlier, to prevent it getting worse, so he offered them £55 per new diagnosis via screening. The trouble is, the screening tests are often wrong.  Take 100 people over 65, and 6 will have dementia. Screening will miss 2 of them. Even worse, 23 will have a false positive result. Only when the press found people were panicking, selling up and moving into care homes when they thought they had dementia, only to find they had mild cognitive impairment, did Hunt and NHS England ditch the bribe (Eye ..).

There are three types of prevention. Primary, which aims to stop a  disease occurring at all (e.g. healthy living, vaccination).  Secondary, which aims to control a disease in an early form  (e.g. carcinoma in situ) and tertiary, which aims to prevent the complications of an established disease (e.g. diabetes). None are perfect and not all diseases are preventable or even fully understood, so Hancock must be wary of falling into the ‘if you get sick, it’s your fault’ trap. However, staring across the aisle at a slim Tom Watson has clearly given him food for thought. Watson lost seven stone in just over a year and reversed his type II diabetes with a better diet and more exercise, so why not everyone?

Watson’s success is partly explained by Sir Michael Marmot, who’s research discovered that power, status and social standing are very strong indicators of health and longevity. If you have a measure of control over your job, your life and your environment, with high self-worth and excellent social connections, you’re far more likely to be healthy. Conversely, if you have no job, no house, no self-esteem, no future an no reason to live, you’re less likely to pop down to Waitrose for a couple of oily fish and a punnet of seasonal berries. In the same borough of Kensington, you lose 22 years of life expectancy and gain 20 years of chronic disease, if you move from Harrods to Grenfell.

Watson discovered that successive governments’ public health strategy for the last 40 years ‘to encourage individuals to make healthy choices’ has also given them the wrong information, allowing the food and pharma industries to run riot. Just as it took 50 years from the discovery that smoking kills you to ban it in public places, we’ve known for 50 years that sugar was the prime driver of obesity but instead blamed saturated fat. Doctors have for decades focused on the aggressive lowering of low-density lipoprotein cholesterol to reduce heart disease risk by cutting out saturated fats in the diet and prescribing statins. This in turn encouraged the food industry to aggressively market zero or low fat foods that claimed to be ‘heart healthy’ but were anything but, being crammed with sugar. This slavish mantra of low fat, low cholesterol and ‘statins for all’ has made billions for food and pharma firms but has helped trigger the massive rise in obesity and type 2 diabetes, where the main culprit is the sugar spikes from processed foods. And the solution is not new drugs, but better food.

Hancock’s latest attempt at ‘encouraging people to make healthy choices’ doesn’t even mention sleep.  60% of adults don’t get their requisite 8 hours a night and there is now clear evidence of the risks of sleep deprivation. The less you sleep, the quicker you die from any combination of depression, anxiety, dementia, stroke, heart disease, obesity, cancer, diabetes, suicide and accidents, especially falling asleep at the wheel. ‘Sleep hygiene’ advice may help, but an estimated 400,000 children don’t have a mattress to sleep on. And if you’re living with debt, depression, drug addiction, domestic abuse or dementia, eight hours sleep a night is a pipe dream. Health is still largely socially determined.

Hancock’s enthusiasm for tech solutions to prevention must be evidence-based. Some people are motivated by having continuous feedback of their pulse, blood pressure, calorie intake and activity levels to a smart watch App, for others it’s hell on earth. There are already too many private screening companies offering expensive tests to work out your risk of future illnesses based on minimal evidence, fueling profits and anxiety in equal measure. Large cuts to public health budgets will not help those less well connected than Tom Watson to rediscover their health. And lengthening waiting times are currently causing widespread preventable suffering to millions. Over to you, Matt.

Dr Chris Day part 94

In a perfect NHS, we wouldn’t need whistle-blowers. Managers would thank staff for raising concerns and act swiftly to prevent avoidable harm to patients, as happens in many hospitals. But not all. If managers refuse to act and staff refuse to shut up, a protracted legal dispute is inevitable, with the odds stacked heavily against the whistle-blower. In Dr Chris Day’s four year legal struggle against Lewisham and Greenwich NHS Trust and Health Education England (HEE), he at least secured the badge of honour of a ‘good faith’ whistle-blower and managed to extract £55,000 in costs from HEE because of its earlier flawed conduct. Day and his legal team also exposed and then closed a loophole in the law that had previously excluded 54,000 junior doctors from any statutory whistleblowing protection (Eyes passim). But Dr Day found, as many others have, that such protection is very flimsy. After suffering six days of cross-examination by two tax-funded QCs, Dr Day decided not to risk financial ruin like Ed Jesudason (Eyes passim) and agreed to drop his claim. In return, Dr Day will not be pursued for eye-watering costs. In a fantastical joint statement, the two sides who had previously ridiculed each other’s claims decided that the tribunal was likely to find that everyone had acted in good faith towards each other after all, and that Dr Day had not been treated detrimentally for whistleblowing five years ago.

In August 2013, Dr Day was training in Emergency Medicine and was placed by HEE in the intensive care unit (ICU) of Queen Elizabeth Hospital Woolwich. With no prior experience in anaesthetics and intensive care, Day was alarmed to find a single junior doctor was responsible at night for up to 18 ICU patients, plus any ICU ‘outliers’, and was expected to admit new patients. Dr Day raised the concern that this was unsafe. In response he was told that ‘the system has worked well for years.’ Day discovered four other ICU juniors with no prior experience of intensive care or anaesthetics. In November 2013, core standards were published for ICUs which stated that there should be no more that 8 patients per doctor, and immediate access to an anaesthetist skilled with advanced airway techniques. In Woolwich, the on-call anaesthetist was also covering operating theatres and was not always immediately available. In November and December 2013, two patients deaths happened at night under the care of the ICU, with non-anaesthetic trained junior doctors. They were declared as Serious Untoward Incidents (SUIs) and went to Coroner’s inquest. In one, a chest drain punctured the liver and the patient died from haemorrhage. Another patient died because of a failure to investigate the cause of low blood pressure and to admit in a timely manner to ICU. Both SUIs were somehow excluded from the safety investigation into Dr Day’s concerns, which concluded the night time ICU staffing was ‘acceptable’.

Traditionally, junior doctors were expected to shut up and get on with it. However, the General Medical Council now places a duty on all doctors to speak up about serious risks and errors, including their own,  but may – as in Dr Bawa Garba’s case – wrongfully strike them off if they do.  Dr Day completed his attachment at Woolwich including 6 months as an anaesthetist where he was praised by his clinical supervisor for his competence, compassion, cheerfulness and communication skills (evidence that was excluded from formal investigations). However, he refused to move onto his next training placement until the ICU safety concerns he had raised had been investigated, and smears against him had been retracted. The ET witness statement from the trust’s Assistant Medical Director stated; ‘although medically competent, he may not make a good consultant because he refuses to accept authority and will not accept a reasonable explanation. He is markedly self-centred and hid behind a façade of patient safety.’ Another email stated ‘His inability to let these issues go is starting to worry me. I would consider not employing him again.’ But Dr Day was right all along. In 2014, the GMC staff training survey found that Day’s serious safety concerns were shared by many other doctors, and there were numerous ‘red flags’. The Dean of HEE London admitted that leaving ICU in the hands of junior doctors not trained in intubation was ‘totally unacceptable… consultants will have to get off their backsides and start supervising.’ In 2014, the CQC reported that QEH ‘requires improvement’. In 2017, a report on its ICU by  South London Critical Care Networkfound ‘a complete lack of medical leadership, low consultant staffing levels, inadequate clinical governance, significant concerns  and poor culture.’ In the CQC’s 2018 report, every single key domain (safe, effective, caring, responsive, well led) still ‘requires improvement’ as does the emergency department and intensive and critical care. End of life care is simply ‘inadequate.’ The question is, does the NHS need doctors like Chris Day who refuse to let these issues go? Or do we accept the NHS is – and always has been – understaffed, underfunded and dangerous, and just keep covering the harm up?

Goodbye Hunt, Hello Hancock

Ultimately, a health secretary can only be judged by whether the health service and health of the nation was better on leaving office than entering it. On both these counts Jeremy Hunt – in post for nearly six years – does not fare well. Getting access to the NHS, and the times spent waiting for treatment,  deteriorated across the board from emergency departments to cancer care, with over 4 million on a waiting list. The gap in life expectancy, and years lived in good health, between rich and poor is as large as ever, and steady improvements in life expectancy flatlined between 2015-2017, and remain lower than in many other comparable countries.  Most alarming,  the number of babies dying within a year of being born is on the rise, from 2.6 neonatal deaths per 1,000 births in 2015 to 2.7 for every 1,000 births in 2016. The likely causes are smoking among mothers, maternal obesity, poverty, cuts to public health programs and the England-wide shortage of midwives.

Clearly not all of this was Hunt’s fault, but it seems odd such widespread failure was deemed worthy of promotion to foreign secretary. Hunt’s tenure was blighted by his predecessor’s reforms and Tory austerity that reduced the average funding increase of the NHS from 4% to 1%, crippled social care and cut benefits. If government policies were ranked according to how many people they killed, this would surely come top. The Conservatives in 2015 then made manifesto promises to match the daftest Brexit fantasies; ‘To introduce a truly 7 day NHS than would be the safest and most compassionate health service in the world’ without the funding or staffing to do it. The queues around the block in many emergency departments sparked accusations from the Red Cross of a humanitarian crisis and showed the absurdity of the lies. And a battle with junior doctors and the BMA born out of anger and frustration cemented his dire legacy. Hunt took a keen interest in some aspects of patient safety but ignored what the NHS really needs to be safe and compassionate – legally mandated safe staffing levels.

Hunt could have just handed over all responsibility for running the NHS in England to NHS England, and kept his head down. However, he was always ambitious and keen to be in control, ordering trust bosses to report to him directly every Monday morning. This allowed NHS England CEO Simon Stevens to play him, ensuring Hunt took  the flack for failures in the NHS whilst painting himself as the brave administrator demanding more funding. A pincer movement from Hunt and Stevens probably helped secure the 3% rise in NHS funding from next year to 2023. But nothing can stop another meltdown in NHS services this winter, which now falls in the lap of young Matthew Hancock.

Hancock has much in common with Hunt, ambitious and overly optimistic that technology can save the NHS. It could certainly help. The NHS currently operates on the CATNAP principle (Cheapest Available Technology Narrowly Avoiding Prosecution) and there would probably be significant gains for staff and patients if vital information moved swiftly around the service from homes to high dependency units. Alas, all previous attempts have not managed to join up the myriad different IT systems. Hancock knows he only has a few weeks before winter kicks in and so has been going for quick wins. Within days of taking office, he declared his love for and undying belief in the NHS. He then pledged to “defend and champion undervalued NHS staff.” Legally mandated safe staffing levels would be a good start, but unlikely in a service with 100,000 vacancies, and made worse by Brexit.

Instead, Hancock has specifically endorsed GP at Hand, the Babylon-powered digital GP practice, declaring it to be his GP, and wanting it available to all. MD has nothing against online consultations (we use Skype very successfully for patients with severe fatigue for whom travel is exhausting), but generally those who sign up to GP at Hand, which diverts funding away from their regular GP to the company, are relatively young and fit. So GPs are left with less money to deal with older, frailer patients with multiple diseases who take up the bulk of NHS funding and time, and who are most likely to be failed and harmed by lack of services, and end up in a queue in hospital this winter.

All new services need to be properly evaluated, particularly if they use AI symptom sorters too (Eye Oct 2017), but Hancock knows that this takes time which he doesn’t have. So he’s rolling the dice on ‘disruptive innovation’ knowing that if problems arise, Babylon may fiercely defend their reputation with legal threats, as it has done in the past. It even took the Care Quality Commission to court in 2017, but failed to stop the publication of a report that stated it was not providing a safe service in some areas. If staff, users and regulators aren’t free to voice honest concerns, Hancock and Babylon will fail.