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 20thanniversary 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.”