Dr Peter Gooderham, a doctor turned academic lawyer, devoted much of his working life to the study and support of NHS Whistleblowers. Peter died suddenly and unexpectedly on February 9, 2011 a few days after his 46th birthday. Below is a typically robust letter he sent to the Department of Health’s ‘Whistleblowing Consultation Team’ a few days after Christmas, to point out that Andrew Lansley’s pledge to stengthen support for whislteblowers by tinkering with the NHS Constitution was unlikely to achieve much as the Constitution itself is toothless.
Lansley’s pledge has now been quietly shelved and it now falls on the Health Select Committee to debate and advise on how best to protect, support and encourage NHS whistleblowers, and how to ensure the NHS acts on their concerns.
Whistleblowing Consultation Team
Department of Health
Leeds LS2 7UE
29 December 2010
Response to “The NHS Constitution and Whistleblowing.”
I wish to respond to this consultation in a personal capacity. I am currently a Research Associate at the University of Manchester School of Law and Centre for Social Ethics and Policy. I am a former medical practitioner and have taught various aspects of Law since 2003. My particular interest is in clinical negligence. This is related to prevention of medical error, of which whistleblowing is a major aspect.
In responding to this consultation, I will endeavour to answer those questions which are relevant to my interests. I have included a summary of my perception of the current problems with NHS whistleblowing, and some suggested solutions, in my answer to Q1.
Do you agree the NHS Constitution should be changed to highlight the rights of staff to raise legitimate concerns in the public interest?
I start from the point of view of questioning the value of the NHS Constitution. It seems largely to be a restatement of existing rights, plus a statement of some aspirations, and an attempt to introduce the concept of patient responsibilities. It seems to be window-dressing rather than a substantive development.
All too often, the protection afforded by the Public Interest Disclosure Act 1998 (PIDA) does not work. This consultation exercise, following the Stafford scandal, represents an acknowledgement (if only implied) that PIDA does not work, and that is a step in the right direction.
If PIDA, as statutory protection does not work, however, there is no reason to suppose that amending the NHS Constitution will work.
I have argued that the NHS needs a culture change in order to encourage whistleblowing and stop reprisals against whistleblowers. Amending the NHS Constitution might be part of that, and might reflect it, but seems unlikely to be effective or sufficient on its own.
It might be helpful to list some possible reasons why, it seems to me, PIDA does not work.
a) Many sanctions against whistleblowers are too subtle for the legal protection to operate, e.g. cuts in secretarial help, not appointed to committees, budgets cut, informal “briefing against.”
b) Reprisals may be taken against whistleblowers because they have raised concerns, but using other actual or perceived misdemeanours as the “official” reason for action taken against them. Everyone makes mistakes, particularly in an environment like the NHS where stress is great and resources limited. Coull in 2004 described both trawling the whistleblower’s case load for errors, and also fabrication of problems to discredit whistleblowers. This may include a vexatious complaint to a professional regulatory body such as the General Medical Council or the Healthcare Professions Council. It can be very difficult to prove that action is taken against a whistleblower because he or she is a whistleblower.
c) Reprisals may be taken against people who are not whistleblowers, but who have supported whistleblowers in some way. This might be by speaking up for them informally, or giving evidence on their behalf to an inquiry, a parliamentary committee, a civil, criminal or coroner’s court, an employment tribunal or disciplinary proceedings. This is extremely difficult to prove but is a powerful means of intimidation which may prevent justice being done.
d) Even if an employer is taken to an employment tribunal, the system is biased against the whistleblower. Trade unions not infrequently decline to arrange prompt or adequate legal support for their members, who are likely to use the system no more than once, whereas defendants like NHS Trusts are “frequent players” who have the resources to instruct lawyers. Even the cost of paying compensation to an employee who wins at a tribunal may be viewed as “worth it” if a troublemaker has been removed. The employee may be saddled with huge legal bills even if he/she wins.
e) A report exists of blackmail used against a whistleblower. Although this is illegal, it is difficult to prevent, detect and punish.
f) A culture of openness in the NHS is difficult to reconcile with the widespread use of “compromise agreements” whereby whistleblowers agree to leave their jobs, in return for payment, and the signing of a gagging clause. Gagging clauses are in contravention of Department of Health policy, but these agreements are still used, and are approved by the Treasury. There is a need for joined-up government here. I am aware of one proposed agreement which would also have required the whistleblower to sign a written statement to the effect that all of the concerns had been addressed. It seems to me that this may be potentially fraudulent; it certainly contaminates the whistleblower and makes him or her part of the problem.
g) Similarly, there is a contradiction in the situation in which NHS staff are encouraged to raise concerns, but the employing NHS Trust has instructed a libel lawyer to handle the matter. I am aware of one case in which a prominent individual criticised NHS staff for not involving the national press when other avenues of raising concerns had failed, but a libel lawyer was instructed and the story was pulled.
h) In the Stafford case, a key problem seems to have been that staff have been blamed for not whistleblowing, even though there is evidence that hundreds of concerns were raised over a period of some years.
i) In some cases of reprisals against whistleblowers, to my knowledge, representations have been in their support to the Department of Health. Consistently the Department refuses to intervene, stating that the matter is an employment dispute between the employer and employee. If the Department is serious about supporting whistleblowers, I suggest it needs to intervene in at least some cases.
j) Ultimately, I suspect that if support for whistleblowers is to be effective, issues arising from disclosures in the public interest need to be subject to the oversight of a truly independent body, rather than conducted “in-house” by managers who may not be impartial and may be implicated by the original disclosure. One relevant suggestion is a Centre for Professional Integrity.
k) One issue here is that there is already a professional duty on NHS staff to raise concerns, and on managers who are also healthcare professionals to respond to those concerns. There is no such professional duty on healthcare managers generally to do this. One possible solution to this is to require NHS managers to belong to a professional regulatory body akin to the General Medical Council (GMC). This would have standards, similar to the GMC’s, which would include those relating to patient safety, responding to concerns, and fair treatment of colleagues. The proposed regulatory body would also have a disciplinary process and sanctions. There are also existing contractual and disciplinary measures which might be taken against those who victimise whistleblowers, if the political will exists.
l) Other means of changing the culture might include public rewards and thanks for whistleblowers, including use of the honours system.
m) Ultimately, however, if the government is serious in its desire to protect whistleblowers, stronger statutory protection should be considered. The use of criminal sanctions against individuals and corporate NHS bodies should not be ruled out for the worst cases.
Do you agree there should be an expectation set out in the NHS Constitution that staff should raise any genuine legitimate concerns around safety, malpractice, wrongdoing or other risks at the earliest reasonable opportunity? If not, why not?
NO, not until the threats to whistleblowers have been adequately addressed by a government with the necessary political will.
Do you agree that the NHS Constitution should include a pledge that NHS organisations should support staff when they raise legitimate concerns as defined by PIDA, in the public interest? If not, why not?
If this proposal is to be developed, there needs to be specific reference to disciplinary measures and sanctions to be applied to those managers who fail to abide by the letter and spirit of the provision.
Do you agree with the wording of the pledge? If not, can you suggest how the pledge should be worded?
As above, I think other developments are necessary, including an independent body to support whistleblowers, and a professional regulatory body for healthcare managers. I am not convinced that amending the NHS Constitution will help.
Do you agree that the NHS Constitution should be amended to make it clearer that staff are able to raise any concern with their employer, whether it is about safety, malpractice or other risks, in the public interest without fear of detriment?
No, because it is untrue, and several high-profile cases show this. The Department of Health will be aware of those in which it has refused to intervene.
Do you agree with the wording proposed for inclusion in the NHS Constitution? If not, can you suggest other wording to use?
No. Employees who belong to trades unions and defence bodies would reasonably consult them. This is in addition to the support available from Public Concern at Work. A doctor should certainly take defence body advice. In some cases, trades unions have successfully supported employees against reprisal.
In summary, I hope these thoughts are helpful. Please contact me if further information is required.
 R. Coull, ‘Blowing the whistle.’ At http://archive.student.bmj.com/issues/04/02/careers/64.php Accessed 29 December 2010.
 S. Boggan, ‘It was like a gangster movie – they were trying to blackmail me,’ The Times, 28 August 2010.
 House of Commons Health Committee, Transcript of Uncorrected Evidence, 3 June 2009. At http://www.publications.parliament.uk/pa/cm200809/cmselect/cmhealth/uc151-vi/uc15102.htm Accessed 29 December 2010.
 J. Roddick, ‘The key to effective whistleblowing is interprofessional collaboration,’ British Medical Journal, 2009; 339:b3055 Published 29 July 2010. At http://www.bmj.com/content/339/bmj.b3055.full/reply#bmj_el_218101 Accessed 29 December 2010.
 I previously suggested this in a British Medical Journal rapid response, ‘A triumph of hope over experience,’ 17 October 2009. At http://www.bmj.com/content/341/bmj.c5793.extract/reply#bmj_el_243186 Accessed 29 December 2010.
 For example, see Unite press release, ‘Unite says its member vindicated by decision to investigate Guy’s/St. Thomas IVF practice,’ 6 May 2009. At http://www.unitetheunion.org/news__events/2009_archived_press_releases/unite_says_its_member_vindicat.aspx Accessed 29 December 2010.on February 9 2011