NHS Whistleblowers

Jim Cunningham Excerpts

Wednesday 18th July 2018 Westminster Hall

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I beg to move,

That this House has considered NHS whistleblowers and the Public Interest Disclosure Act 1998.

It is an honour to serve under your chairmanship, Mr Davies. Gosport, Morecambe Bay, Mid Staffordshire and Bristol Royal Infirmary are NHS scandals that all have quite a few things in common: they went on for a long time and often whistleblowers who might have brought the issue to an end and saved lives were punished or ignored. They were certainly intimidated. The anaesthetist who raised the issue of baby cardiac surgery at Bristol Royal Infirmary ended up in Australia.

The term “whistleblower” suggests a pressure cooker—a build-up of pressure to the point where someone cannot resist it any longer and feels the need to come forward. We are trying to decompress some of that impression by having audit of patient safety through such systems as Datix, where staff get used to reporting every little aspect that does not go smoothly, which therefore creates the habit of coming forward. We still have issues. They often relate to the whole system, the trust or perhaps the behaviour of certain medical or clinical staff. There is no easy way to come forward, and the people seeing that behaviour take a long time to be listened to or to step up.

In the investigation into Mid Staffordshire, which was the worst NHS scandal, Sir Robert Francis’s report spoke about developing a “freedom to speak up” culture, to make doing so normal. Sir Robert suggested only minor changes to the Public Interest Disclosure Act 1998 but, as I will come on to later, I think it needs major change because it underwrites everything else.

[Mr Jim Cunningham (Coventry South) (Lab)]

I congratulate the hon. Lady on securing this timely debate. I had two cases in Coventry, going back 10 or 15 years, in which consultants were suspended for whistleblowing. On the one hand, the Government encourage whistleblowers, but on the other the national health service seems to have a different definition of whistleblowers. One of those cases ended up in court. I do not know the exact figure, but it cost between £3 million and £4 million, and went on for at least 10 years. Meanwhile, back at the ranch, the individual was losing their skills. What does she think about that?

[Dr Whitford]

Obviously, I am unaware of the individual case and the rights and wrongs of it. However, a review of the cost of whistleblowing as it stands shows that having an effective system and effective law would save us money overall.

Sir Robert Francis envisaged “freedom to speak up” guardians in each trust, to whom whistleblowers could go informally to seek advice and support. Such guardians are in all trusts across England. They include a wide range of people, and the appointment system is not altogether clear or transparent. We will have to look at what kinds of staff work best, whether appointments have been appropriate, and whether whistleblower guardians can recognise, if they are clinicians—which many of them are—that there might be a conflict of interest, because the issue might be in their department. The national guardian has been in place since 2016, but her position is non-statutory and sits inside the Care Quality Commission. Her role is described on the website as “leading cultural change” rather than deciding individual cases.

Through all the publicity, there has been quite a change in atmosphere and tone. The whole issue has had a significant airing. In Scotland, we have an alert and advice line run by Public Concern at Work. It is interesting to see the changes from the second half of 2016 to the first half of 2017. The number of concerns that the hospital, or the health board as it is in Scotland, admitted immediately were valid—instead of their having to be proved, or their being put off—went from 0% to 14%. The number of those that were ignored or denied dropped by 30%, and those reported to a manager or a senior manager went up by 30%. That suggests quite a difference in practice. The numbers are quite small, but they suggest a pattern. The data showed that, naturally, the most common group to report is nurses—they are the biggest employed group within the NHS—and the most common reason was still patient safety.

The problem is that that is all still legally underpinned by the Public Interest Disclosure Act, which was passed in 1998. It was a private Member’s Bill very similar to one that had been introduced a few months before. It therefore did not have a Second Reading, and it had only one day in Committee. At the time, it definitely was ahead of what was going on elsewhere, and was a recognition of the importance of whistleblowers, but that was 20 years ago. It really is time for change.

--- Later in debate ---

[Dr Whitford]

I thank the hon. Gentleman, who has set up an all-party group on whistleblowing and on the Public Interest Disclosure Act 1998. I welcome that, but one of my concerns is the issue of bounties.

It is important that we have a new PIDA law and an independent, statutory body that is equal to other bodies and can take on the NHS, NHS Improvement and the CQC. It must not be a department in one of those regulators; it must be separate from the NHS to ensure real independence, and it must investigate and act on concerns. If a local investigation has failed or is failing, there should be a mechanism to report that to an independent body. If we get to the point where there is simply a slanging match within a trust, there will never be a satisfactory resolution, so arbitration needs to come in and look at the cold facts and the original facts of the disclosure. Often, what is looked at is the process, but not whether the whistleblower was actually right to raise an issue in the first place.

It is critical that whistleblowers are protected from detriment from the moment of speaking up. They should be protected during the investigation, and they must not be picked on either subtly, as the hon. Member for Strangford (Jim Shannon) said, or blatantly—they must not lose their jobs. It is important that legal penalties for reprisals against whistleblowers can actually be enforced.

There should be a system of redress for whistleblowers that does not involve litigation. Litigation is expensive for the NHS and the whistleblower, and is utterly confrontational. That means that, at the end of the process, even when a whistleblower has been proven to be right and genuine, there has often been such a breakdown in relationships that it is not possible for them to go back to their previous role.

[Mr Jim Cunningham]

I thank the hon. Lady for giving way once again. The case I outlined actually ended up in the courts, and the hospital was told to take the individual back. Well, it never took him back. There was a long, drawn-out process over a number of years, and it was eventually settled through litigation. That individual—Dr Mattu—was a well-known consultant.

Some of the older Members will remember the case, going back 10 or 15 years. We had debates and got the support of Mr Speaker. The hospital tried to use letters I sent to it, in which I raised issues that had been raised with me, in the courts, and the judge ruled it out of order. The hon. Lady is right that we need an independent body, but where it finds that the hospital is guilty, as it were, and that the whistleblower was doing their job, it should have the power to order reinstatement—that is the nub of the matter—to ensure they are not victimised.

[Dr Whitford]

I agree that there should be protection to ensure that whistleblowers are not victimised, but the problem is that if the relationships have been allowed to break down because the system is so confrontational, often even the whistleblower does not consider it possible to go back. That is a tragedy, because it often means losing someone talented, particularly at a time when we are so short of staff in all four NHS systems in the UK.

The body obviously needs to be statutory so it has enforcement powers, but it should also be responsible for developing standards and training to show hospital trusts, health boards and hospitals, regardless of the system, what good looks like. Setting up, speaking up for and reporting on a body structure for the NHS will be for all four nations, because health is devolved, but PIDA still sits above that. It needs to be the underpinning statutory law that gives the body force.

In Scotland, we are still working on our system. Obviously, the Francis report looked at the system in England. We have whistleblower champions in our health boards, but we are working on setting up the independent national whistleblowers office. The difference between that and the national guardian in England is that it will be statutory and independent of NHS Scotland. It will sit in the office of the Scottish public services ombudsman, so it is utterly outside the NHS and clearly sends a message of independence. It will be able to adjudicate in individual cases. Normally, that will be when all local processes have been exhausted, but provision is being considered to allow an earlier referral when the local system has simply broken down and the concern about patients has been lost in the conflict-driven system.

Standards are being developed for all health boards so there is a consistent approach. The standards that sit above everything else are that whistleblowers will be listened to, that their concerns will be acted on and that they will be supported. The former Secretary of State, who is now away to sunnier climes or travelling the world, used to keep saying in the Chamber that whistleblowers are central to patient safety. I have to say that I slightly disagree.

When someone is forced to blow the whistle, it is because the patient safety systems have failed. In Scotland, we have a national patient safety programme, which is the first in the world that is right across the system. People cannot pick and choose whether they do the huddle at the start of an operating list or whether they do the World Health Organisation checks before operating on somebody. It looks at the frontline to try to reduce errors, but we know that there will still be situations that are not ideal, so someone will need to come forward. That is the thing: whistleblowers are a backstop. The patient safety system, the Datix system or the auditing may need to be improved, but whistleblowers provide a backstop to prevent us from going over the cliff, to prevent more people from dying and to allow timely action.

The problem is that, although doctors have a duty of candour laid on us by the General Medical Council, we also see the landscape littered with people’s careers and jobs, as the hon. Member for Strangford said earlier. For an individual, that is really difficult. They think, “If I speak up and step forward, it may be the end of my career. I may be out of a job. I may be out of this hospital.” For patients’ sake, we need a change, we need to get it right, and we need a new public interest disclosure law. We should start work on that now.