NHS Whistleblowers

Justin Madders Excerpts

Wednesday 18th July 2018 Westminster Hall

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is, as always, a pleasure to serve under your chairmanship, Mr Davies.

I congratulate the hon. Member for Central Ayrshire (Dr Whitford) on securing the debate and on her powerful and knowledgeable contribution. As always, she drew on her many years of experience in the national health service. She listed a series of scandals in the NHS and raised themes common to them all. They lasted too long, and too often those who blew the whistle paid a high personal price for their actions. She raised the real risk of clinicians finding themselves with potential conflicts of interest, which requires further thought, and rightly highlighted the fact that the current legislation does not create an obligation to investigate the original complaint—it is primarily concerned with protection after the event.

In his analysis, the hon. Member for Stirling (Stephen Kerr) suggested that PIDA was intended to be a deterrent but that, given the way it has operated, it is not that at all because whistleblowers are still being punished. Both he and the hon. Lady pointed out the woeful success rates in employment tribunals, which should give us all pause for thought about whether the legislation is fit for purpose. The hon. Member for Stirling talked about how litigation can sometimes be a war of attrition and employers can be very defensive at times, and how at the bottom of all this is an individual—sometimes a highly skilled individual—whose talent has been wasted and lost because they have blown the whistle.

My hon. Friend the Member for Hartlepool (Mike Hill) spoke with great passion and no little knowledge of some of the experiences of those who have blown the whistle. He was right that some employers have not embraced the spirit of the legislation; in fact, they contrive policies to run contrary to what we are trying to achieve here. Having met many of the staff in the NHS, I know they care deeply about the work they do and they want to do the best by their patients. That is why it is so important that we provide an environment where they are able to raise their concerns about things they may be worried are going wrong, without fear of repercussion or unfavourable treatment. They must also be confident, once they have raised those concerns, that action will be taken.

However, despite some notable advances in the protections available in recent years, it remains the case that even the best run organisations, with the most comprehensive policies in place, can still feel very daunting for individuals who want or need to blow the whistle. I know from my many years working as an employment lawyer—although not one who lined his pockets in this particular area—that it is extremely difficult for an employee to raise those issues. As we have heard already, the consequences of doing that can be hugely damaging. They can face anything from being shunned by their colleagues to summary dismissal on spurious charges, and the impacts of the kinds of things they deal with can last much longer than the period of employment to which we are referring.

In that respect, it was deeply concerning to read in the Francis report about staff who were on the brink of suicide because of the treatment they had received after speaking out. One of the few criticisms on the record of the NHS is the fact that many promising careers have lain in tatters as a result of ineffective protections under this legislation, while other people have spent years languishing in the legal system, with the taxpayer racking up tens of thousands in legal fees in the process.

Of course, while protecting whistleblowers is vital across all professions, it should be pointed out that NHS staff also have a professional duty to raise concerns. The NHS England and NHS Improvement policy states:

“If in doubt, please raise it. Don’t wait for proof… It doesn’t matter if you turn out to be mistaken as long as you are genuinely troubled.”

We cannot say that enough; I just wish it was easier to see that delivered in practice.

The Minister recently brought forward regulations to provide some additional protections for the present and future employment prospects of whistleblowers, which we welcomed. I raised a number of concerns during that debate and the Minister was good enough to write to me afterwards setting out some of the responses. However, one issue that I do not think we have got to the bottom of was protections for other workers who support whistleblowers. There is a worrying gap in the existing legislation. It is easy to envisage circumstances, particularly in the health service, where two or more employees might have an issue of concern that they jointly notice, but only one of them, in law, can make that protected disclosure.

When I raised that point to the Minister, her response made clear that the only remedy available to such associated parties would be to register a grievance under their employer’s grievance policy. That is a very worrying omission from existing legislation and I ask the Minister to consider whether she will look at that again, as well as at the many points that have been raised about the deficiencies of the existing legislation.

Another lacuna in the existing law was exposed much more prominently by Dr Chris Day. On 10 January 2014, Dr Day made a protected disclosure about critically low staffing ratios during a night shift on an intensive care unit at the Queen Elizabeth hospital in Woolwich. Unfortunately, the trust and Health Education England decided not to act on his concerns and terminated his contract, based on what Dr Day believes were false allegations, thereby stalling his progress to consultant.

Sadly—like many whistleblowers, as we have heard today—rather than having his rights protected by his employer, Dr Day was instead forced to defend them via legal redress at an employment tribunal. This is because Health Education England contended that

“even if the facts alleged by Dr Day were true, HEE could not be liable in law for any acts causing him detriment.”

That was significant because, while not acting directly as the employer, HEE recruits doctors in training, supplies them to various trusts and appraises them. The result was a wholly unnecessary and extremely lengthy legal battle, whereby Health Education England, which is a body of the Minister’s Department, effectively sought to move around 54,000 doctors out of whistleblowing protection. Despite the clear principles at stake, the Government consistently refused to become involved in the case to prevent the costly and embarrassing outcome that we have now arrived at.

In September 2017, in a written parliamentary question, I asked about the cost to the NHS of defending the legal action brought by Dr Day. I was told that the total legal fees incurred by Health Education England stood at over £100,000, while Lewisham and Greenwich NHS Trust had incurred costs of £30,000. In May this year, Health Education England was ordered to pay Dr Day’s solicitors’ legal costs of £55,000 after it backed down and accepted that it should be considered an employer after all.

After four years and more than £200,000 of taxpayers’ money spent, Health Education England has accepted its responsibility and made a statement that I consider frankly astonishing:

“Having never wished to do anything other than facilitate whistleblowing for doctors in training, HEE is happy to be considered as a second employer for these purposes if it removes a potential barrier for junior doctors raising concerns.”

I ask the Minister to explain why this situation was allowed to go on for so long, when the case was refuted not on the basis of the facts, but on a technicality that flies in the face of everything we have tried to achieve today.

[Dr Whitford]

As in the case of Dr Day, the issue of poor staffing levels or rota gaps is a common incidence for people blowing the whistle because they feel it is unsafe. Scotland has just passed a safe staffing law, and I wonder whether, as with Datix and other systems, we need staffing level reporting to be seen not as whistleblowing but as something that should be done routinely. Whistleblowing would then start to become a smaller and smaller part of what staff might feel they had to do.

[Justin Madders]

That is an important point; we should see reporting issues such as staffing levels as something that would not be such a big deal. As is happening in Scotland, the safe levels should be ingrained not only into law, but into the culture of the workplace.

In conclusion, I repeat the same point that I made when the recent statutory instrument was discussed: that we now have a two-tier whistleblowing system, which provides some NHS employees with a greater level of protection than others working in the health and social care sector—social care workers, construction workers or anyone else who does not happen to work within those particular areas. Social care in particular is an issue. Public Concern at Work found that more than half of whistleblowers also reported some kind of victimisation, with 23% saying they had been dismissed after raising concerns. I ask the Minister, who is of course also responsible for social care, whether she considers that a satisfactory state of affairs.

Whistleblowers should be not just protected, but celebrated for the role that they play in defending the safety of others. Nobody making such a disclosure should do so in fear, wherever they work, nor should they face the risk of having their livelihood taken away. We owe it them to ensure that those protections are as effective as they can be.