NHS Whistleblowers

Stephen Kerr Excerpts

Wednesday 18th July 2018 Westminster Hall

[Dr Whitford]

I thank the hon. Gentleman for his intervention. I hope that this is just the first little step towards putting the matter on the agenda. The tragedies at Gosport brought the whole issue back. A nurse had come forward years and years ago, and could have saved hundreds of lives had she been listened to. Not being listened to is almost the least that can happen to a whistleblower, in that often they suffer detriment or reprisals and even lose their jobs.

The one change that Sir Robert Francis suggested to PIDA that has been made in England and Scotland is redress for discrimination regarding new employment—that is, applying for a new post within the NHS. Work is under way to introduce that in Wales as well. However, the main Act remains as it was. The first key weakness of PIDA is that it does not ensure an investigation of the whistleblower’s concern. Given the risks they take when they come forward, the detriment they may face, and the months or years of tribunals or other stages, it is crucial that the concern that made them step forward is not either overshadowed or completely ignored. I think that is their biggest frustration.

The Act most certainly does not protect whistleblowers. It describes itself as protecting whistleblowers from detriment, intimidation and reprisals, but PIDA can be used only for litigation after the detriment. Once someone has lost their job they can take their employer to an employment tribunal and attempt to have redress. The problem at that point is that the whistleblower has to prove that it was their disclosure—their coming forward and speaking up—that drove the loss of their job. Of course, employers will find all sorts of other excuses, such as, “Oh, they didn’t get on with their colleagues,” or, “They were a trouble maker,” or, “They were late for work.”

The success rate of litigation under PIDA is 3%, which is appalling, and shows how utterly weak the law is. Whistleblowers suffer further detriment while going through litigation. They know that they may face being landed with the costs. They may face bankruptcy, and stress that could go on for extended periods. Furthermore, between 2013 and 2017, people had to pay for employment tribunals. That, of course, closed that avenue off to many whistleblowers.

I make the simple case that we need a new public interest disclosure law. It should not sit inside employment law. It should not be a tweak to what we have now. We should recognise that the Public Interest Disclosure Act covers all sectors. The NHS may be one of the most common sectors to have whistleblowers, but the Act covers finance, research and business. We need a specific law.

It must be utterly clear that such disclosures are in the public interest, and that is where I disagree with the hon. Member for Stirling (Stephen Kerr), who may speak later. I do not agree with paying bounties to those who would disclose. Whether or not it creates a conflict of interest, it certainly gives the impression of doing so. It is utterly important, in the defence and protection of whistleblowers, that they can show that the only reason they have come forward is to protect patients or whoever the consumer is in their service.

[Stephen Kerr (Stirling) (Con)]

Just for clarity, I am not advocating bounties. It is one of the options to be looked at, but there are reservations about it, which I know the hon. Lady shares.

--- Later in debate ---

[Stephen Kerr (Stirling) (Con)]

It is a privilege to serve under your chairmanship, Mr Davies. I congratulate the hon. Member for Central Ayrshire (Dr Whitford) on securing this debate and on her compelling and powerful speech. I find myself agreeing wholeheartedly with what she had to say. It is a noteworthy event when Scottish Conservatives and Scottish National party Members agree unanimously, but it has happened twice today—it happened in the main Chamber, too.

I welcome the hon. Lady’s description of the work being done in NHS Scotland. She described the patient safety system, which has been in place for some time. Work on it is subject to continuous improvement, which is the correct approach. The different parts of the United Kingdom can share things with and learn from each other, and this is a good case in point.

As the hon. Lady has said, I was recently elected co-chair of the all-party parliamentary group on whistleblowing—I declare that up front. Time and again, inquiries into healthcare scandals, such as that at Gosport War Memorial Hospital, expose cases of people who spoke out to warn those who should have taken action but who were suppressed because healthcare leaders know that PIDA has no effective mechanism to address cover-ups and retaliation. The NHS continues to forensically investigate and penalise whistleblowers, while concerns go unheeded. PIDA has not changed that. It leaves patients at risk because it does not require the investigation of the whistleblower’s concerns. It is, in short, no deterrent. More than 19% of calls to Public Concern at Work and 30% to WhistleblowersUK are from the healthcare sector. Very few complaints proceed to an employment tribunal. Only 3% of claimants who make it to an employment tribunal win a PIDA claim, as has been mentioned. That is not good enough, and it is not a fair reflection of reality. Furthermore, the cost to the whistleblower can be far reaching and include complete ruination, while the institution can remain unaccountable—“It’s only taxpayers’ money”—but for a few forgettable headlines.

Inquiries into healthcare scandals such as those mentioned by the hon. Lady show that we are still not there on measures for whistleblowing. People who spoke out to warn those who should take action were suppressed, as I have said, and that happens because of the lack of an effective mechanism under PIDA. Punitive investigations and penalties are still part of the reality of life for a whistleblower. The Act does not go far enough to protect whistleblowers against that.

For whistleblowers, the cost of bringing a PIDA claim often exceeds £100,000 and they often find themselves on trial, as has been said. They suffer from retaliation and financial ruin. In the health service, as in so many sectors, institutions use attrition to wear down whistleblowers and can bring to bear uncapped resources and lawyers who use strategies to exhaust their funds, wearing them down mentally as well as financially and into submission. Whistleblowers are left without any money or resources, with their professional reputation undermined and their health impaired.

When a whistleblower acts, it is from a sense of duty to the public and to their vocation. In the case of health, that is in pursuit of patient wellbeing. When institutions react, it is often with an attitude of legalistic defence rather than in the spirit of embracing the opportunity to improve, or to right a wrong. Take the case of Dr Raj Mattu who exposed the preventable death of patients. After a fight of more than 10 years—this case may have been the one referred to by the hon. Member for Coventry South (Mr Cunningham), but I did not catch the name he used—Dr Mattu’s case was upheld by a judge. It had cost taxpayers anywhere between £6 million and £22 million, according to various estimates. Furthermore, Dr Mattu had been a leading cardiologist but now, at the age of 59, he is having to retrain. That is a waste of talent, and he was someone who did the right thing and has been proven to have done the right thing. A vast amount of money was spent to defend a legal position and to fight against a whistleblower, instead of being used to right the wrongs that Dr Mattu identified—all because a route of legal challenge was followed.

The main upshot of such cases is to channel NHS funds to firms of employment lawyers. That cannot be right at any time, because resources are always scarce. The case for legal reform is evident. The APPG will gather evidence to support changes to the law, which is what is required. Our objective is to bring together Members on both sides of the House, including those with different views on the finer details, to continually highlight the issue of whistleblowing and what happens to those who have the integrity and courage to act. The objective is to build consensus on certain issues and, we hope, to draw sufficient attention from Members across the House to achieve that change in the law.

We need to look closely at the idea of an independent investigatory authority, as has been discussed—I completely support what the hon. Member for Central Ayrshire said in that regard. We must also look at having independent and transparent investigations, and at the provision of arbitration, which has also been mentioned. We need to keep the law under review and up to date—it is 20 years since this law was looked at in any detail, and that is a long time—because the landscape changes, loopholes become apparent and new legal strategies can be deployed to shut down whistleblowers. Most of all, we need to look at the issue of protection for whistleblowers. Our job in this place is to formulate law, and we should do so to give genuine whistleblowers the protections they need. They may need financial help, and their professional reputations will almost certainly need protection. Most importantly of all, however, they need to know that we as legislators have their back through not only our words but our actions.

I hope that this important and valuable debate will continue. I also hope that the Minister will suggest that the Government have taken heed of the need for improvements to be made to the way in which whistle- blowers are treated, because we still have a long way to go.