Feature

It’s no longer a case of ‘speak out at your peril’

As the Public Interest Disclosure Act comes into force, Guy Dehn examines the implications for NHS whistleblowers

Whistleblowing has been a topical issue in the NHS for nearly 10 years. Individuals like Graham Pink, Helen Zeitlin and the sadly missed Chris Chapman were catapulted onto the front pages when their whistleblowing went wrong. Sometimes they were portrayed as the human face of the NHS struggling to hold a burgeoning bureaucracy to account, sometimes as the guardians of a caring, open public service. But all too often the concerns that drove them to blow the whistle were forgotten as the stories about their unfolding personal plight caught the public’s attention. It was as if the messenger had become the message and the lasting message to people in the NHS was ‘speak out at your peril’.

In tribute to these people, let me remind you of their original messages: Graham Pink was a charge nurse who felt compelled to publish details of the inadequate staffing levels on his geriatric ward; Helen Zeitlin was the consultant haematologist who publicly expressed her opposition to the internal market; Chris Chapman was a biochemist who reported his concerns about misconduct in medical research.

Although each of their cases ended unsatisfactorily if not tragically, in personal terms, they did ensure that the NHS had to address the issue of whistleblowing. In 1993, the then Conservative government introduced Guidance on Free Speech in the NHS. While the document was far from perfect, it was unfairly criticised as a gagger’s charter and so fuelled the impression that silent obedience was the order of the day. While that guidance was revised before long to ensure that staff were allowed to raise concerns with their MPs, the new Labour government realised that more had to be done to signal a shift in the culture. Last year then health minister Alan Milburn instructed NHS chairs that gagging staff was unacceptable and insisted that the proposed whistle-blowing law should reach every corner of the NHS.

Meanwhile other events meant that the fundamental importance of whistleblowing to the NHS and its patients could not be marginalised. The unfolding story about high infant mortality rates at Bristol Royal Infirmary revealed that a consultant anaesthetist, Steve Bolsin, had raised his concerns within the hospital and with the Department of Health over a number of years. While a public inquiry under Ian Kennedy is now investigating the issue, it seems that Bolsin’s concerns were not heeded and that he himself received an unwelcome response. Frozen out by colleagues and with his career going nowhere, he left the NHS to go and practice in Australia. More importantly, the high mortality rates continued unchecked and parents were left unaware of any undue risk.

This tragedy and other areas where whistles were not effectively blown (such as defective smear tests) have undermined public confidence in both the NHS and the medical professions. They have also cost the NHS dearly in financial terms, as public inquiries, crisis management and compensation claims have diverted money away from patient care.

Against this background, the importance of the Public Interest Disclosure Act becomes clear. The act, which has been described by US campaigners as the most far-reaching public interest law in the world, comes into force early this year. By providing strong protection for whistleblowers, it will help ensure that employers address the message and not the messenger. As importantly, it provides a clear signal to staff who have concerns about misconduct or malpractice that there are a number of safe ways in which they can raise their anxieties.

The act applies to any concern about patient care or financial malpractice and covers not just employees within the NHS but agency staff, dentists, doctors and other professionals. Protection is most readily available where the whistle is blown internally or to the Department of Health, as in these cases all that is required is a genuine suspicion. There is also automatic protection where people seek legal advice on their concern.

Wider disclosures are protected only where there is good evidence to back up the concern. Where the whistle is blown direct to the Health and Safety Executive or to the District Auditor, there is no assumption that the concern meets a seriousness test nor that it should have been raised internally first. But other wider disclosures (say to the media) do have to satisfy such tests, in that they must be both reasonable and justified.

Importantly the act also controls the use of gagging clauses in employment contracts and severance agreements and this will oblige employers to review their disciplinary procedures and their standard contracts. While there are already many whistleblowing policies within the NHS, these too ought to be reviewed and then promoted. There are two reasons we know this from our activities at Public Concern at Work.

First, of the draft policies we are sent by trusts and HAs, few comply with the new legislation. Doubtless unintentionally, some of them are worded in such a way as to make it more likely that a member of staff will be protected if he or she makes a disclosure to the media. Second, through the free legal helpline we run, we know that many NHS staff have no idea that there is a whistleblowing procedure in place where they work. If this continues to be the case then it is most unlikely that tribunals will expect staff to use those procedures, however good they are.

Advice is available from Public Concern at Work on 0171 404 6609.