Parliamentary Written Question (Correction)

Wednesday 9th March 2011 Written Statements

[The Parliamentary Under-Secretary of State for Health (Anne Milton)]

I regret that the written answer given to the hon. Member for Gravesham (Mr Holloway) on 11 February 2011, Official Report, column 477W, was partly incorrect.

Having given further consideration to the issue raised, I realise that the answer provided did not make it clear that while the protections provided to “employees”, under the Public Interest Disclosure Act 1998 (PIDA), do not apply to general practitioners (GPs) who provide primary medical services as independent contractors engaged under general medical services (GMS) contracts for services by local primary care trusts (PCTs), there are certain other protections under PIDA which do apply.

PIDA, which is inserted into the Employment Rights Act 1996 (ERA), is primarily designed to protect individuals who raise certain whistleblowing concerns (as defined in PIDA) relating to their work or workplace from suffering a detriment as a result of speaking out. This legislation has two layers of protection.

The first is for those who are “employees” of a particular organisation, who are protected from dismissal as well as other detrimental treatment such as being overlooked for promotion, denied training or a bonus. The second is for “workers”, which is defined in section 230(3) ERA, and includes those who work under a contract to personally perform work where their status is not that of client or customer. They have a more limited level of protection of not being subject to a detriment but they do not have unfair dismissal rights.

Generally, “workers” would not include self-employed individuals such as self-employed doctors. However, for the purpose of whistleblowing, PIDA has widened the definition of “worker” specifically to include other individuals. Section 43K(ba) ERA, includes a person who

“works or worked as a person performing services under a contract entered into by him with a Primary Care Trust under section 84...of the National Health Service Act 2006”.

Section 84 of the National Health Service Act 2006 relates to GMS contracts with GPs, and accordingly GPs who enter into such contracts with PCTs will be deemed to be “workers” for the purposes of PIDA.

Therefore if a GP raises a concern in the public interest (that falls within the PIDA criteria), relating to their GMS contract to the PCT with which they have the contract, this would be a protected disclosure. They would have a right to bring a claim under PIDA if they should suffer a detriment as a result.

While the Government’s priority since May 2010 has been to raise awareness for NHS employees about their rights and protections and to ensure that staff have a contractual right to raise concerns, the hon. Member for Gravesham has raised an important point about awareness of existing protection for GPs.