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The GMC needs to get its house in order, before it starts lecturing others
















I still personally find the death of Jack Adcock devastating.  The reason for this is that I know how stressful it can be to be a carer experiencing the NHS, and my own cousin lives with Down’s syndrome.


Anyway – we can all agree that the BBC and GMC are both “national treasures”.


No – that didn’t quite sound right.


Both the BBC and GMC are funded from members of the public and all Doctors akin to taxation. They both misuse public funds to go on witch-hunts, and court popularity in doing so. And they both act as if they are above the law.


We live in a democracy, where freedom of expression is cherished, even though under no interpretation can GMC cases be seen as ‘entertainment’ from the BBC.


Patient campaigners have long warned about ‘cover ups’.  But they indeed strangely disappointed when the Court of Appeal judged in favour of Dr Hadiza Bawa-Garba. To rule in the GMC’s failure, erasing her from the GMC medical register, would have led to the most enormous of cover-ups.


“Nothing to see here”.


It is easy to underestimate how truly appalling the monitoring of Dr Hadiza Bawa-Garba was, with numerous postgraduate qualifications in the difficult discipline of paediatrics. The differential diagnosis of a child who is clearly not himself is huge. The full power of the media were able to whip up the narrative of a Nigerian doctor committed an offence ‘against one of us’. That is the most alarming aspect of the whole business, along with how racially biased fitness-to-practise cases are in front of the GMC.


This was never about #BawaGarba in a way, but as they say in the latest Mission Impossible film, ‘everybody was expected to play their part’. #TeamHadiza surprisingly paid a big part by crowdfunding a massive cover-up by the GMC into discussing system factors in healthcare.


This week, I revisited a postgraduate medical course which I had last done in 2002, before a monumental cover-up into how sick I was was effected. I nearly lost my life in 2006, but I live to tell the tale (just, despite the cardiac arrest.)


In that course, many Doctors had told me about very sick patients they’ve had to face, obviously without breaking any confidentiality, and how medicine is not always entirely predictable or an exact science. You could give a therapy that could worsen the actual diagnosis, because the details of the actual diagnosis have not revealed themselves yet. Learning not blaming is critical for this.


On Twitter only today, I was told by a member of the general public that dementia is a normal part of ageing. That is, however, fake news, and it is hard to deny that there exists an information asymmetry between doctors and patients.


Suddenly, many patients became experts on how easy it was to diagnose sepsis.


Think to yourself about a thought experiment. Imagine if the details of the Bawa Garba case had been anonymised, so that you knew nothing about her identity. Pretend it’s like judging a paper for peer-review. Now imagine that it could never have been reported upon in the media, identifying the person.


Would this have altered the balance of ‘public interest’ or ‘interesting to the public’? I believe so certainly.


“Public confidence” cannot be measured accurately if the regulator depends on the Daily Mail’s readership for support, I feel.


Bawa Garba was given the same degree of knee-jerk hostility as Cliff Richard, with both parties knowing very little about the facts mostly.


And they’ve both had to pick up the pieces, with a few people conveniently forgetting that they would require rehabilitation.


One could argue that they are both indispensable, after all, depending on how much you ‘like’ them.


We need to have a debate about “human factors”, or whether ‘medical manslaughter’ needs to be better defined where the dividing line between risk and uncertainty is sometimes blurred.


We need to have that debate urgently on ‘learn not blame’. The GMC admits it ‘got it wrong’. A concession is that it does not intend to appeal the Court of Appeal judgment at the Supreme Court. The GMC could perhaps use the money, and its statutory duty in medical education, to improve yet further the clinical skills of this Consultant to be.


I strongly feel the regulator misused its power, and, if you’re talking about accountability, I think Charlie Massey ought to resign as he hasn’t ‘raised a difficult issue’ in a helpful way, but actually has done a considerable amount to decrease confidence in the medical profession. But everyone makes mistakes, even the GMC, even if ‘sorry’ is the hardest word for it.

The GMC needs to be a good citizen too

Weltkarte, Lupe, Europa, Krise, rot, Eurokrise, Suchen, Lösunge

The topic of how corporates act as ‘good citizens’ has been significant in recent years, for example the synthesis of work on strategy and society.

Broadly speaking, this work has identified a number of different concepts which are vital to corporate social responsibility.

The first is a ‘moral obligation’.

This must include honesty and integrity, and directly relates to domain 4 of the code of conduct “Good medical practice” for standards in trust and probity from the “General Medical Council” (GMC). Moral behaviour and legal regulation are dissociable. A legal ‘duty of candour’ or ‘wilful neglect’ are enforcement mechanisms for people telling the truth and protecting against deliberate malicious behaviour. But these are undeniable moral imperatives too. If the clinical regulator finds itself in dealing with a case in an unnecessarily protracted length of time which is disproportionate to reasonable standards, the clinical regulator should make an appropriate apology, ideally.

Sustainability is important if the clinical regulator is to be ‘in the long game’ rather than grabbing headlines for being seen to be tough on misfeasance from individuals. This means in reality that the clinical regulator should be sensitive to the environment and ecosystem in which it operates. If it is felt, for example, that politically and economically it is expedient to pursue ‘efficiency savings’, the regulator must have a sustainable plan to ensure that it is able to ensure that such savings do not impact on patient safety. The raison d’être of the GMC is supposed to be promote patient safety. A proportion of the Doctors will be unwell. The legal precedent is that conduct which is so bad cannot be condoned whatever the reason. However, it is also true that ‘but for’ alcoholism, for example, certain problems in misconduct and poor performance would not have occurred. An ill doctor is about as much use economically as somebody out of the service entirely, so it is an economic sustainable argument that the health of doctors should be an imperative for the NHS. A ‘patient group’ within the GMC would go a long way to demonstrate that the GMC is capable of playing its part within a wider ecosystem. I know of no other important entity which does not have one.

Thirdly, there should be a license-to-operate. This cannot be overstated. ‘Mid Staffs’ commanded much momentum in the media which was a problem for both the medical profession and its integrity, and yet there is still an enduring issue whether the GMC were able to regulate this as best they could under the confines of the English law and codes of practice. The GMC are also yet to report on the deaths of Doctors awaiting Fitness to Practise hearings, and the outcome of this will be essential for Doctors to ‘buy in’ literally into wishing to pay their subs.

Last of all is reputation. This goes beyond the popularity on a Twitter stream. At the moment, there is concern that neither the medical profession nor the public feel very satisfied about the performance of the GMC. There is uncertainty what the public perception of the GMC is; many feel that it is a general complaints agency, when it is, in part, to regulate the performance of individual Doctors. There’s no statutory definition of what ‘unacceptable misconduct is’, and hugely relevant to the reputation of the medical profession. This had been addressed in the English Law Commission’s proposals for regulation of clinical professionals, which are yet to see the light of day. Without this definition, the GMC can simply come down heavily on behaviour which it feels is embarrassing with impunity, whatever the potential other contribution of that doctor might be. It is quite unpredictable what the consistent set of standards where members of the public feel wronged might be for this; the GMC is very unwilling to be seen as a ‘light touch’ against members of the public who want tough sanctions.

There are so many aspects how the GMC could demonstrate its willingness to be a good citizen, which could help with the four points above. I feel as a person who has been through the whole cycle of having been regulated, who takes his credentials of being a NHS patient and being a student lawyer regulated by the Solicitors Regulation Authority rather seriously, there are constructive ways to move forward.

Firstly, I would like to see a ‘user group’ of Doctors who’ve been through the regulatory process, and who have had bad health, who might wish to volunteer on helping the GMC with improving its operational output. Secondly, I understand the temptation to throw ‘red meat’ at the readership of certain newspapers. But likewise, the GMC could make more effective use of local dispute resolution mechanisms, looking at what the Doctor, the Trust and the member(s) of the public would like as a compromise to problems. This could have the aim of having a Doctor where reasonable corrective action has taken place finding himself or herself being able to return to work. The current situation has evolved through history as being adversarial, and this can err towards catastrophising of problems rather than wishing to solve them. Likewise, there is a public perception that some issues are completely ‘shut down’ before any attempt to investigate it. Thirdly, the GMC must be aware, I feel, of the evolving culture and landscape of the medical profession across a number of jurisdictions. This means the GMC, patients and professionals could be, if they wanted to, united in their need to uphold the very highest standards of patient safety. Clinicians work in teams, and techniques such as the ‘root cause analysis’ have as an aim finding out where the performance of a team has produced an inadequate outcome. Furthermore, there is no point in one end of the system urging learning from mistakes and organisational learning with the other end of the system cracking down heavily on individuals, with the effect that some individuals never work again.

Like whole person care in policy, the clinical regulator should be concerned about all the needs of an individual, including health needs, public safety promotion, and the needs of the service as a whole. I have every confidence that the GMC can rise to the challenge. It’s not a question of light touch regulation, but the right touch regulation. 

And, as per medicine, sometimes prevention is better than cure.




It is a massive honour to be able to return to the GMC Medical Register. A dream come true.

Facundo looking sideways

Yesterday, I went for lunch with my friend and colleague, Prof Facundo Manes. Facundo kindly wrote a Foreword to my book ‘Living well with dementia”, an essay on the importance of personhood and interaction with the environment for persons living with dementia. We were just a stone’s throw from all those bars and pubs in Covent Garden I knew well in a former life.

I spent nine years at medical school, and very few as a junior doctor.

I’ve now been in recovery for just over seven years.

But in that time I do remember doing shifts starting at Friday morning and ending on Monday night. I remember the cardiac arrest bleep in Hammersmith at 4 am, and doing emergency catheters at 3 am in Norfolk.

I had an unusual background. I loved medical research at Cambridge. In fact, my discovery how to diagnose the behavioural variant of frontotemporal dementia is cited by the major international labs. It is in the current Oxford Textbook of Medicine.

Being ensnared by the General Medical Council in their investigation process devastated my father. He later died in 2010. I remember kissing him goodbye in the Intensive Care Ward of the Royal Free, the same ward which had kept me alive for six weeks in 2007.

I of course am completely overwhelmed by those events widely reported, especially in the one in 2004. The newspapers never report I was blind drunk. The media when they do not mention my alcohol dependence syndrome are missing out a key component of the jigsaw.

Until I die, I will never be safe with one alcoholic drink. I will go on a spiral of drinking, and that one event I am certain would either see me in a police cell or in A&E.

One event did change my life. I was blue lighted in, after a year of heavy drinking after I was erased by the GMC in 2006, having had a life-threatening epileptic fit. The crash team attempted emergency intubation, but I ended up having a cardiac arrest which was successfully resuscitated.

I do not wish to enter any blame games about what happened a decade ago. It turns out that the Trust which reported me as dishevelled and alcoholic, and having poor performance simultaneously, is in the Daily Mail this morning for a running a ‘chaotic’ A&E department.

It also turns out that another Trust in London which reported me as dishevelled and alcoholic, and having poor performance simultaneously, had its A&E department shut down this week.

I have written previously here about my experience as a sick doctor.

I was in denial and had no insight. Hindsight is a wonderful thing, but I needed sick leave and a period of absence and support. But I do not wish to blame anyway for those events I wish had never happened some time ago.

But the GMC referrals were absolutely correct. I had a proper medical plan put in place for me when I awoke from my coma. I followed religiously my own GP’s advice too.

I am now physically disabled, and have had no regular salaried job since 2005. But I am content. I live in a small flat with my mother in Primrose Hill. I regularly go out to cultural events. I maintain my interest in dementia, going to a fourth conference this year for Alzheimer’s Europe in October, where I have been chosen to give one of the research talks. It’s actually on an idea which David Nicholson inspired me over.

I’ve done four books on medicine, including one on living well with dementia. The Fitness to Practice panel in their judgment note my contribution there, which I am pleased about.

The Panel also crucially made the link in their judgment that my poor performance in conduct and competence coincided with my period of illness, the alcohol dependence syndrome, for which I am now under a psychiatrist.

I go to AA sometimes, and the weekly recovery support group at my local hospital. Being in contact with other people who are starting the same process of getting their life back continues to inspire me. I also attend the suspended doctors group for the Practitioner Health Programme, which helps me understand myself too.

I believe that there is no higher law than somebody’s health. I understand the pressures of why trainees preventing them from seeking help in the regulatory process.

But I do have an unusual perspective. First and foremost, I am a patient myself, and proud of it.

Secondly, I am regulated by the Solicitors Regulation Authority. I can become a trainee solicitor, if I want to be. I had a careful due diligence process in 2010, and I thank the legal profession for rehabilitating me.

Thirdly, I will now be regulated once again by the General Medical Council pending a successful identity check on October 7 2014. Having my application to be restored to the UK medical register is a massive honour for me. I caused a lot of hurt to others during my time with the medical profession last time, and this time I would like things to be different, and be of worth.

This, I hope, will mean a lot to my late father.

I am grateful to all the people at the Medical Practitioners Tribunal Service, and to the GMC prosecutor for presenting a fair case on behalf of the GMC who need to promote patient safety.

I am encouraged that the GMC’s new Chair, Prof Terence Stephenson, “gets” change for the better for the profession, and has an excellent track record as a clinical leader.

I genuinely feel it’s only a matter of time before the giant supertanker which is the medical profession changes its bearings to acknowledge that sick people in their profession exist. Dr Phil Hammond has done a superb article on this.

I love my law school, BPP Law School. They got me through this. I have become a non executive director of their Students Association now. There’s a lot of work to be done there, but I am lucky that there are two colleagues there of mine who are simply the best: Shahban Aziz and Shaun Dias.

I am now about to be regulated by two professions. I could not be happier.

Thanks for your support. I couldn’t have done it without you.

The 11 Cs – can we avoid another Mid Staffs one year after the last Francis Report?

This is the NHS leaflet on the 6Cs here.

Even for the official 6Cs, powerful forces are at play in undermining the acute medical take.

The 6Cs still, though, potentially form the ‘greater good'; that of the ‘ying Cs’.

But it’s how they engage with the 5 other ‘yang Cs’  which will determine whether there’s another Mid Staffs, more than one year on from the last Francis Report.

Final 11Cs good 6Cs  bad 5Cs

1. Care

Care is described as a “core business”, perceiving each event with a patient as a transaction which is a potentially billable event.” Caring defines us and our work” indeed is true; as it defines to some extent how people get paid. Unfortunately, the way in which care goes wrong is pretty consistent in the narrative. For example, nurses may be too ‘posh’ to care. In this version, nurses who are too academic are incapable of caring for which there is little published evidence. The other more likely version is that junior nurses are “too rushed to care”. This is understandable, in that if there are ten people still waiting to be clerked in, it can be hard for all professionals to focus on taking a proper history and examination without cutting corners, for examination in completing an accurate neurological examination of the cranial nerves. However, the emergency room often cultivates a feeling of a conveyor belt, with a feeling of “Now serving number 5″. A patient experience is not going to be great if the doctor, nurse or AHP appears rushed in clerking in a patient. The patient feels more like they are in a sheep dip as “continuity of care” between different medical teams suffers.

2. Compassion

“Compassion is how care is given through relationships based on empathy, respect and dignity.”  Again there is some irony in the same management consultants outfit recommending compassion by healthcare professionals, when the same professionals have recommended ‘efficiency savings’. Compassion in the NHS can of course be extremely difficult to deliver from the nurses remaining after there have been staff cuts, and the remaining nurses are having to work twice as fast ‘to beat the clock’, or a target such a “four hour target”.

3. Competence

“Competence means all those in caring roles must have the ability to understand an individual’s health and social needs.” This is of course is motherhood and apple pie stuff. The problem comes if the NHS ‘productivity’ is improved with lateral swapping of job rôles: that some functions are downgraded to other staff. Health care assistants might find themselves doing certain tasks which had been reserved for them. If there’s mission creep, the situation results of receptionists triaging a patient, rather a physician’s assistant doing a venflon. Competence of course cannot be delivered by untrained staff delivering an algorithm, as has been alleged for services such as NHS 111.

4. Communication

Communication is central to successful caring relationships and to effective team working. The overall “no decision about me without me” mantra of course has been made a mockery of, with unilateral variation of nursing and medical contracts (with adjustments to terms and conditions, and pay, of staff by NHS managers without any dialogue.) If you don’t communicate any errors in clinical care to the patient (reflected in the ‘lack of candour’ below), the patient and relatives are bound to leave with an unduly glossy version of events of the acute medical assessment. This can of course bias the outcome in the ‘Friends and Family Test’.

5. Courage

“Courage enables us to do the right thing for the people we care for, to speak up when we have concerns.” Take the situation where your Master (senior nurse) is wishing to implement a target, but you’re the one rushed off your feet with missing drug charts, no investigations ordered, no management plan formed as the patient was shunted out of A&E before the 4 hour bell started ringing? Are you therefore going to be able to speak out safely against your Master when your Master is the one who determines your promotion? If you’re made of strong stuff, and completely fastidious about patient safety, you might decide ‘enough is enough’ by whistleblowing. But the evidence is that whistleblowers still ultimately get ‘punished’ in some form or others.

6. Commitment

“A commitment to our patients and populations should be the cornerstone of what we doctors, nurses, and allied healthcare professions do, especially in the “experience of the patients.””.  Of course, if you get a situation where junior staff are so demoralised, by media witch hunting, it could be that people are indeed driven out of the NHS for working for other providers, or even other countries. A commitment to the public sector ethos may have little truck if you’ve got more interest in ‘interoperability’, or ‘switching’, which are of course the buzzwords of introducing ‘competition’ into healthcare systems.

There can be some downright ‘yang Cs’ epitomising danger for the acute medical take and hospital.

7. Crisis

When things get out of hand, some of the more hyperbolic allegations might conceivably happen. With people lose the plot, they are capable of anything. And if the system is too lean, and there’s a road traffic accident or other emergency, or there’s an outbreak of rotavirus amongst staff, there may be insufficient slack in the system to cope.

8. Cuts

Whilst patient campaigners have been right to emphasise that it’s more of a case of safe staffing rather than a magical minimum number, there’s clearly a number of trained staff on any shift below which it’s clearly unsafe for the nurses to deliver good nursing care. Cuts in real terms, even if that’s the same budget (just) for an increased numbers in an elderly population, can of course be a great motivator for producing unstable staffing, as the Keogh 14 demonstrated. That might be especially tempting if ‘financially strained’ NHS FTs are trying to balance their budgets in light of PFI loan repayments.

9. Collusion

This can affect a nurse’s ability to communicate problems with courage, if senior nurses are colluding with certain consultants in meeting targets. This means that medical consultants who are recipient of the non-existent drug charts, non-existent management plans, or non-existent investigation orders can probably take one or two weeks to ‘catch up’, but the ‘length of stay’ gets extended. Frontline staff might take the risks. But senior nurses might collude with the management to deliver ‘efficiency savings’ and promote themselves. That’s not fair is it?

10. Lack of Candour and Ensuing Crap 

This target-driven culture of the NHS, and excessive marketing of how wonderful things are, must stop.  A lack of honest communication with the patient through candour can lead to patients never knowing when things go wrong. This is a cultural issue, and it may be legislated upon at some point in the future. But without this cultural willingness by clinical staff to tell patients when things have unnecessarily got delayed through the missing drug charts etc., they will only get to know of things going badly wrong.

11. Complaints and Regulatory Cock-ups.

If things go badly wrong, they may generate complaints. These complaints may as such not matter if the system completely ignores complaints. For example, there has been only one successful judicial review against the PHSO since 1967. The recent review of the complaints process  for NHS England has revealed how faulty the process is. There has been criticism of the clinical regulators in their ability to enforce patient safety too, particularly in light of Mid Staffs.

As you can see, the system is delicately balanced.

If transparency is the best disinfectant, it’s time to reveal the other five Cs for a start?

The most important thing of course may be Culture, the 12th C. If the culture is toxic, as happened in Mid Staffs, it may be hard to analyse the problem in terms of its root causes.

What precisely is Jeremy Hunt legislating for in ‘wilful neglect’ which would have prevented a Mid Staffs?

Police ethics

 The Leveson Inquiry had to work out why the culture of journalism had gone so badly wrong in places, even with enforceable criminal law, such as the interception of communications or tresspass against the person.

Hunt will be keen to provide enforceable ‘end points’ of the Francis Inquiry. But again, there is an issue here of what went so badly wrong in culture, where there were theoretically enforceable aspects from regulators such as the GMC or NMC.

There has been an intense debate about how many people may have died as a result of poor care over the 50 months between January 2005 and March 2009 at Stafford hospital, a small district general hospital in Staffordshire.

Clearly Hunt feels that there was a ‘culture of cruelty’ in the NHS, as he said yesterday (report in Hansard):


The report published on 6 February 2013 of the public inquiry chaired by Robert Francis QC was the fifth official report into the scandal since 2009, and Francis’s second into the hospital’s failings.

According to s.1(1A) Medical Act 1983, referring to a body corporate known as the “General Medical Council” (GMC)

The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public.

The difficulties that the GMC has had in successfully prosecuting Doctors over ‘the Mid Staffs scandal’ are comprehensively discussed elsewhere, and are therefore not the focus of this article.

Similar dead-ends have been experienced by the NMC (for example here), and are  not the focus of this article either.

It was reported recently that Doctors and nurses found guilty of “wilful neglect” of patients could face jail as new legislation from the Government.

Wilful neglect will be made a criminal offence in England and Wales under NHS changes as a response to the Mid Staffordshire and other care scandals. The offence is modelled on one punishable by up to five years in prison under the Mental Capacity Act. So how does Jeremy Hunt envisage what this law will do?

Jeremy Paxman presented his interview with Jeremy Hunt, the Secretary of State for Health, last night on “Newsnight”. Paxman asked Hunt directly to give an example. At first, he spoke around the subject, talking about the need for criminal sanctions “for the most extreme cases”.

Hunt finally provided this answer:

Well I think an example might be someone who was responsible for caring for a dementia patient who didn’t give them [sic] food when they needed it and when they knew they needed food. That’s the kind of them I’m thinking about. It’s for people who deliberately neglect people. It’s a very small minority of people and they should feel the full force of the law.

The phrase “when they knew they needed food” is highly significant.

At no point did Hunt specify this was an older patient with dementia.

Since 1 April 2007, vulnerable people have been afforded an increased protection by the Mental Capacity Act 2005. The Mental Capacity Act (2005) created the criminal offences of ill-treatment or wilful neglect under Section 44 based on existing principles. This offence could be distinguished from the one contained in section 127 of the Mental Health Act 1983 which creates an offence in relation to staff employed in hospitals or mental nursing homes where there is ill-treatment or wilful neglect.

Statutory provision

The offences can be committed by anyone responsible for that person’s care.

As can be clearly seen, the elements of this offence are that the offender:

  • has the care of the person in question OR is the donee of a power of attorney OR is a court-appointed deputy;
  • reasonably believes the person lacks capacity (or they do lack capacity);
  • ill-treats or wilfully neglects the person.
  • It can be expected that ill-treatment will require more than trivial ill-treatment, and will cover both deliberate acts of ill-treatment and also those acts reckless as to whether there is ill-treatment.

Wilful neglect can only apply to those who have a duty of care towards people who lack capacity.

Helpfully, part 14.3 of this Code of Practice (Code) accompanying the Mental capacity Provision gives examples of the kind of act that may constitute abuse and ill treatment. Specifically that Code includes “neglect” and “acts of omission”. This, it states, may include ignoring the person’s medical or physical care needs, failing to get healthcare or social care and withholding medication, food or heating. This appears to be alluded to in Jeremy Hunt’s example of a patient with dementia being denied a need – food.

Wilful neglect was supposed to represent a serious departure from the required standards of treatment and usually requires that a person has deliberately failed to carry out an act that they were aware they were under a duty to perform. Neglect or acts of omission could, therefore, include not responding to a person’s basic needs, i.e. assisting with feeding, drinking, toileting or in meeting personal care needs, preventing someone else from responding to those needs, or withholding or preventing access to medical care or treatment.

Back to Jeremy Hunt’s example, the caregiver knew the person with dementia needed food.

This responsibility is important when considering the meaning of the term “wilful” in this context which can be interpreted in two different ways:

  1. The person understood their responsibilities under the Mental Capacity Act and wilfully disregarded them;
  2. The person had a duty of care toward the service user and wilfully chose not to learn about it.

This may be reflected in previous cases such as R v Sheppard [1981] AC394 HL (which may be comparable; see discussion).

In consequence, defences could be raised to the effect that the elements of the offence set out in Section 44 are not made out in the following terms:

  • there is no section 44 relationship (no care/power of attorney/court-appointed role);
  • the person does not lack capacity and/or there was no reasonable belief in such a lack of capacity;
  • there was no ill-treatment or wilful neglect.

It is well known that Hunt has been extensive discussions with patient campaigners for Mid Staffs.

But the problem is posed by the choice of Hunt’s example as a patient with dementia. The legitimate question has to be asked that, with the large number of ‘needless deaths’ repeatedly published in media reports, why reports of successful prosecutions under this provision of parliament might have been comparatively few?

From the timeline of the reported cases of neglect, and when this provision was in force, it would appear that this provision was ‘good law’ at the time. Many of the ‘needless deaths’ are widely reported in the media to have involved individuals who lacked capacity.

Why did the “wilful neglect” provision fail to do its stuff over Mid Staffs or Winterbourne, for example? How has Hunt tweaked it so that the law is actually effective for the public good?

It’s worth looking therefore carefully at the current operation of the section 44 provision.

There is no definition of “ill treats” or “neglects” within the Act so every day meanings of the word provide definition. The definition of ill treatment relies upon the definitions of the types of abuse which include physical, emotional, sexual, discrimination, psychological and financial.

Interestingly,  neither section 44 of the MCA or section 127 of the MHA provides general protection for older people. Under these provisions they must either lack mental capacity or have a mental illness. In a case where an older person with capacity and no history of mental illness was found to be abused, the abuser would face the standard criminal charges of assault and battery (offences against the person in common law and in statute), and in a very extreme case where the sufferer dies, manslaughter.

So far most cases have involved the prosecution of direct frontline carers, where the evidence is very specific of wrongdoing by an individual. Owners and managers of small care homes have also been successfully prosecuted where there is clear evidence of what might be described as “institutional abuse”. Despite some attempts such charges have not been successfully prosecuted against large scale providers or their senior management, and this is still a longlasting concern of the implementation of the law. There is clear room for such NHS managers, care home managers and their private companies to be prosecuted particularly where they have failed properly to manage the delivery of such policies.

In a criminal context, the change must be proved beyond reasonable doubt, However, it is quite possible that guilt might be determined by magistrates or jurors who are likely to be very unsympathetic to care providers and staff.

One may be justifiably concerned, from the jurisprudence perspective, that the current lack of prosecution is based on a lack of appetite or understanding of care sector standards by prosecutors. A change in this attitude could see many more prosecutions. But again this is another ‘required’ change of culture?

Another problem is that the lawyers and regulators may not understand precisely the nature of what they are regulating against. The argument can be dismissed along the same lines as NHS managers do not ‘need’ to have any knowledge of medicine or nursing.

A prosecution of ‘wilful neglect’ Hunt admitted was so that the defendants could ‘feel the full force of the law’.

This document is typical of one of the many professional concerns of an appetite of being seen to punish hard retributively certain actions. The law must be necessary and proportionate, and one can see in principle how this provision could fulfil a worthy aim of parliament regarding patient safety.

Oncologists frequently perceive the discussion about whether or not to use or continue artificial feeding and/or hydration to be difficult. Successful approaches are not customarily demonstrated during medical training. Food and water are widely held symbols of caring, so withholding of artificial nutrition and hydration may be easily misperceived as neglect by the patient, family, or other professional and volunteer caregivers.

The response to the new ‘wilful neglect’ offence from clinical professionals and patients has been noticeably underwhelming.

There is furthermore a worrying aspect that people within the NHS system will be even more deterred from ‘whistle blowing’ under the Public Interest Disclosure Act [1998] than they were before, for fear of retribution over criminal sanctions.

For the offence of ‘wilful neglect’, the example that Jeremy Hunt gave last night has remarkable similarity to the sorts of offences you might have expected from Mid Staffs or Winterbourne View. The question therefore should be legitimately posed what it is that Hunt himself thinks is to be covered by the new law which was not covered previously. In summary, Jeremy Hunt needs to ask himself what his new law will achieve where section 44 of the Mental Capacity Act had failed.

Can you divide hospital Trusts into “good” and “bad” hospitals?


 Ringfencing or Ring-fencing occurs when a portion of a company’s assets or profits are financially separated without necessarily being operated as a separate entity.

This might be, for example, for regulatory reasons, creating asset protection schemes with respect to financing arrangements, or segregating into separate income streams for taxation purposes.

As an example, Royal Bank of Scotland has said it will not split itself into separate so-called “good” and “bad” banks. RBS will create an internal “bad bank”, ring-fencing £38bn of bad assets – such as loans it does not expect to have repaid. The bank remains 81%-owned by the government following a massive bailout at the height of the financial crisis.

The shares were among the heaviest fallers on the 100 share index in morning trading, falling almost 4% to 353p.

Whilst some people have argued against the validity of the separation between “good banks” and “bad or casino banks”, bad banks might be considered to be those with an excessive amount of risk.

Risk for a hospital could of course be a risk in the clinical setting, or risk in an economic setting (embracing financial risk and business risk.)

A political row has long erupted over the legacy of PFI for the health service as trusts face insolvency.

South London Healthcare, a merger of three hospital trusts, first began having problems spending 14% of its income on repayments to a private finance initiative (PFI).

The government said the financial problems are caused by a PFI scheme signed off under Labour, but Labour said that there are wider financial pressures in the NHS, and PFI also delivered many new hospitals.

Only recently the higher courts have ruled on the legal validity of the reconfigurations at Lewisham, but there are another 20 trusts that have declared themselves financially unsustainable in their current form. The current Care Bill amendment might see a mechanism come into play where NHS Trusts are legally allowed to conduct their reconfigurations.

The component of risk for a hospital which is clinical could in a sense be mitigated against through potentially simple steps.

Various hospitals, many of them busy district generals, have been issued with warnings by the Care Quality Commission after its latest inspections. Each was told it did not have enough staff “to keep people safe and meet their health and welfare needs” — the standard every part of the health service must meet.

Of course some argue that the real discussion is to consider whether the whole budget for the NHS should be ‘ringfenced’.

One traditional strategy for avoiding this discussion, as it is so politically totemic, has been to consider what components of the budget should still remain in scope.

Critics have argued that this has produced, willingly or not, an approach of ‘smoke and mirrors’. How, for example, would an incoming Labour government actually achieve safely combined health and social care funding monies which have come from the NHS and local government funding streams respectively?

Speaking to the Today programme’s Sarah Montague, former Labour health minister Lord Warner gave his view that ‘many elected politicians want to appear to protect the NHS’, but it is time to end the special treatment of the NHS. Warner argues that a 1% increase in “real terms”, to cover rising prices.

The problem with the ring-fence is that it “creates the illusion in the NHS that people don’t have to change the way they deliver services,” he explained.

John Appelby, chief economist of the King’s Fund, said that “pressure in certainly felt by hospitals and staff in the NHS”.

Back to the original issue, it might be possible to ringfence hospitals into ‘good’ and ‘bad’. Whilst the term has been bastardised by the NHS as a justification for closing hospitals in some quarters, part of the rationale for ringfencing has been traditionally to ring-fence liabilities.

For example, when financial entities ‘go bust’, they don’t take the rest of their empire with them.

Now that the privateers have got their way with the market, the public is left with a bundle of ‘economic activities’ comprising the so-called “NHS”.

Cumulatively, the Labour and Conservative Parties have made a mockery of the mantra, “no decision made about me without me.”

Does speaking out safely under the Public Interest Disclosure Act (1998) work?

















The irony is that, if as a junior doctor you spend an extra three hours unpaid checking that all the results for your unwell patients are in, nobody will thank you, but if any mistake is made the system can come down on you like a tonne of bricks. This aggressive blame culture is at odds with the much-needed openness many love talking about but actually fail to practise. How clinical staff, and indeed managers, are able to speak out safely about problems in the system, such as inadequate levels of staffing for the clinical workload, has never been a more important issue as the NHS seeks to make £20bn efficiency savings in the next few years.

The employer in English law is supposed to have a duty of trust and confidence in the employee, and this is supposed to be mutual. This is often called “the duty of fidelity”. There is therefore a problem if any part of the English law is perceived to come down noticeably in favour of one political party. The number of examples of ‘successful whistle blowers’ is relatively small. Whilst thought leaders in business management have advocated that whistleblowers should be visibly promoted in an organisation to bring about a cultural change, nothing in reality could possibly be further from the truth in the current English NHS.

To be a ‘whistle blower‘, you have to be very brave. The accounts here in this Channel 4 report are truly horrific.

The stories of the culture of fear are remarkably similar.

Management styles in a particular Trust were described as ‘coercive, vindictive, and bullying’. The Care Quality Commission have now prioritised learning from whistle blowers, symbolising a dramatic change in direction. As this video above explains, the temporary result has superb NHS clinicians have left to practise abroad.

The life cycle of the whistle blower is indeed fascinating. Here’s the a very recent description of it from Patients First, which makes for most interesting reading (thanks to the author Roger Kline – @rogerkline – for sharing; it formed evidence to the ‘Whistle-blowing Commission).

The NHS is not unique, and an initial problem may indeed arise from a law which is designed to cover a number of different sectors. Health and safety disasters (for example, the sinking of the Herald of Free Enterprise, the Lyme Bay drownings and the Piper Alpha explosion), financial scandals (for example, at Maxwell pensions, Doncaster Council, Barlow Clowes, Barings Bank and BCCI) and the work of the Committee on Standards in Public Life, all emphasised the need to provide greater protection for whistle blowers in the UK.

Whistle blowing is ‘the disclosure by organization members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organisations that may be able to affect action’ (Near and Miceli, 1985). ‘Blowing the whistle’ was, in fact, a relatively unknown expression in the English jurisdiction when the Public Interest Disclosure Act (Pida) became law in 1998, providing workers with overdue protection against dismissal or victimisation for raising concerns about illegal or unsafe practices. But since compensation is uncapped, employees are sometimes tempted to use the law tactically to get around the £70,000 to £80,000 limit on unfair dismissal compensation.

The ‘patient safety’ issue in the NHS in England

In the English NHS, one of the major findings of the Francis inquiry into care failings at Mid Staffordshire Foundation Trust was that staff who raised concerns about patient care were not taken seriously. It is commonplace to hear that even if a large volume of complaints many of them are not actioned. Some complainants are said even to be bullied and threatened, and receive no protection from their employer. Sadly, it is now impossible to claim that the situation at Mid Staffs is far from unique – many staff working for the NHS and other healthcare providers have raised concerns within their organisations and have suffered personally and/or professionally. They have been bullied by colleagues, discredited by their employers or even lost their jobs. This is not a problem which solely rests in the public sector either, as the events in Winterbourne for example have demonstrated.

The “Nursing Times Speak Out Safely (SOS) (@NursingTimesSOS) campaign aims to help ensure that healthcare providers listen to, support and value staff who raise concerns about the quality of care, and learn from the issues they raise. One  of its aims is to encourage NHS organisations and independent healthcare providers to develop cultures that are honest and transparent, to actively encourage staff to raise the alarm when they see poor practice, and to protect them when they do so. So far, the uptake has been good, and one cannot imagine intuitively why NHS England Trusts should not wish to be involved in such an important campaign.

Personal sacrifices

The issue of personal detriment to whistle blowers, however, is a tragic one. Rothschild and Miethe (1999) found that over half the whistle  blowers they interviewed had family problems. They found that two-thirds of whistle blowers ‘‘lost their job or were forced to retire’’ and ‘‘were blacklisted from getting another job in their field.’’ Consequently, two-thirds of them also had severe financial problems. They also found that 84% suffered from ‘‘severe depression or anxiety’’ and over two-thirds of them also had ‘‘declining physical health.’’ That Gunsalus (1998) wrote an article entitled ‘‘How to blow the whistle and still have a career afterwards’’ is in itself sad.

A whistle blower mentioned by Oliver (2003) ‘‘estimates that his legal costs have exceeded $130,000.’’ Alford (2007) sees suffering as an essential part of whistle blowing: ‘‘the whistle blower is defined by the retaliation he or she receives. No retaliation, and the whistle blower is just a respon sible employee doing her job to protect the company’s interest.’’ If ‘‘often the protest is most effective if one has already resigned from the organization’’ (Harris et al., 2005) then one can only choose between a total self-sacrifice and a partial and pointless self-sacrifice. A further problem is that it is clear that the NHS has been putting aside a considerable amount of money regarding ‘gagging clauses’, even if the Department of Health had considerable problems in being open and transparent about their existence for some time.

A former boss of a hospital which was being investigated over high death rates told senior MPs in the prestigious Commons Select Committee there was a culture of “sheer bullying” in the NHS. The brace Gary Walker, former United Lincolnshire Hospitals Trust CEO, said he was sacked because of a row over an 18-week non-emergency waiting list target. He said he was threatened by the East Midlands Strategic Health Authority when he flagged up capacity problems. Mr Walker was officially dismissed in 2010 for “gross professional misconduct”. The NHS stated he was sacked for allegedly swearing in a meeting and denied Mr Walker’s claims he was “gagged” by a compromise agreement for raising concerns about patient safety.

A study commissioned by PCAW from Cardiff University covering the period January 1997 to December 2009 found that 54% of the national newspaper stories represented whistle blowers in a positive light, while only 5% of stories were negative. The remainder (41%) were neutral.The most commonly reported form of wrongdoing was financial malpractice, which was the subject of 27% of the newspaper articles. One in five cases (20%) of media coverage of whistle blowing dealt with concerns about public safety and 63% of it related to the public sector.

Problems with the common law

There were problems in the common law which were known to legislators before they dealt with drafting their new Statute.

The common law has never given workers a general right to disclose information about their employment. Even the revelation of non- confidential material could be regarded as undermining the implied duty of trust and give rise to an action for breach of contract. In relation to confidential information obtained in the course of employment, the common law again provides protection against disclosure through both express and implied terms.

The duty of fidelity can be used to prevent disclosures while the employment subsists, and restrictive cove- nants can be used to inhibit the activities of former employees after the relationship has ceased. However, post-employment covenants will only be enforceable if they can be shown to protect legitimate business interests and are reasonable in all the circumstances.

Even in the absence of an enforceable post-employment “restrictive covenant”, ex-employees are bound not to reveal matters learned in confidence during their employment. Where employees have allegedly disclosed confidential information in breach of an express or implied term, they may seek to invoke a public interest defence to a legal action. Although the common law allows the public interest to be used as a shield against an injunction or damages, it has proved to be a weapon of uncertain strength.

Statute law: the Public Interest Disclosure Act (1998)

The Public Interest Disclosure Act 1998 (c.23) is an Act of the Parliament of the United Kingdom that protects whistleblowers from detrimental treatment by their employer.

Influenced by various financial scandals and accidents, along with the report of the Committee on Standards in Public Life, the bill was introduced to Parliament by Richard Shepherd and given government support, on the condition that it become an amendment to the Employment Rights Act 1996. After receiving the Royal Assent on 2 July 1998, the Act came into force on 2 July 1999.

It protects employees who make disclosures of certain types of information, including evidence of illegal activity or damage to the environment, from retribution from their employers, such as dismissal or being passed over for promotion. In cases where such retribution takes place the employee may bring a case before an employment tribunal, which can award compensation.

Section 1 of the Act inserts sections 43A to L into the Employment Rights Act 1996, titled “Protected Disclosures”. It provides that a disclosure which the whistle blower makes to their employer, a “prescribed person“, in the course of seeking legal advice,

In addition, the disclosure must be one which the whistle blower “reasonably believes” shows a criminal offence, a failure to comply with legal obligations, a miscarriage of justice, danger to the health and safety of employees, damage to the environment, or the hiding of information which would show any of the above actions. These disclosures do not have to be of confidential information, and this section does not abolish the public interest defence; in addition, it can be the disclosure of information about actions which have already occurred, are occurring, or could occur in the future.

The list of “prescribed persons” is found in the Public Interest Disclosure (Prescribed Persons) Order 1999, and includes only official bodies; the Health and Safety Executive, the Data Protection Registrar, the Certification Officer, the Environment Agency and the Secretary of State for Trade and Industry. An employee will be protected if he “makes a disclosure in good faith” to one of these people, and “reasonably believes that the relevant failure…is a matter in respect of which the person is prescribed and the information is substantially true”.

If an employee does make such a disclosure, Section 2 inserts a new Section 47B, providing that the employee shall suffer no detriment in their employment as a result. This includes both negative actions and the absence of action, and as such covers discipline, dismissal, or failing to gain a pay rise or access to facilities which would otherwise have been provided.

If an employee does suffer a detriment, he is permitted to make a complaint before an employment tribunal under Section 3. In front of an employment tribunal, the law is amended in Sections 4 and 5 to provide compensation, and to reverse the burden of proof; if an employee has been dismissed for making a protected disclosure, this dismissal is automatically considered unfair.

Moving forward

Unfortunately, it appears that PIDA 1998 may be too pro-employer. Given the imbalance in resources and expertise in defending legal claims from the NHS compared to claimants, this is clearly a potential problem. It is too easy for the NHS to be accused of operating “bully boy” tactics, when there are petrified whistleblowers who find themselves totally disenfranchised in the system.

Sadly it appears that PIDA 1998 has not adequately protected whistleblowers.

There might be ways of moving this situation forward.

This list has been adapted from an excellent article entitled, “Ten years of public interest disclosure legislation in the UK: are whistle blowers adequately protected?”, by David Lewis [Journal of Business Ethics (2008), 82: 497-507]

  • Workers could be given a positive right to report concerns. However, the scope of reprisals is enormous, so imposing a contractual duty to disclose concerns may be difficult to enforce in practice.
  • Workers should be protected if they raise concerns about serious wrongdoing even if it does not amount to a breach of a legal obligation. To know what is a legal obligation itself requires some knowledge of the law, and, with the cutbacks in legal aid, it may be impossible for an employee to obtain good quality legal advice.
  • Workers should be protected not only if they have made a protected disclosure but also if they are victimised for attempting to make such a disclosure. There is noticeably no provision in the law for such victimisation, although victimisation is currently legislated for in a different context (the Equality Act 2010).
  • Legislation could outlaw discrimination against whistleblowers at the hiring stage. Although cynics will argue that victimisation in the recruitment process can easily be concealed, Parliament has already marked its disapproval in relation to discrimination on the grounds of sex and sexual orientation, race and religious belief, age, disability and trade union membership. The major difficulty about this is how enforceable this could be, and whether the system could cope with genuine complainants who felt they had cause for umbrage. It could be that an employer might not take on a new whistleblower, regardless of his or her previous history as a whistleblower, and an employment tribunal might prefer to take on the side of the employer in such circumstances upholding a presumption of innocence. A solution might be for individuals, with a past history of whistle blowing, to have no obligation to put it down on employment applications, but this might undermine the mutual duty of trust and confidence even before the employment contract has started. Such a philosophy though might be in keeping with the philosophy of ‘spent convictions’ in the rehabilitation of previous offenders legislation.
  • There should be no investigation of a person’s motive for making a disclosure? Here the critical issue is why the individual had intended to make a disclosure rather than a motive of why a person wanted to make a disclosure. This would bring the PIDA into line with the current jurisprudence of establishing the mens rea in the criminal law? A perfect valid intention, legally proportionate in its justification of promotion of patient safety, might be to prevent any further harm to patients. Workers should be protected if they have reasonable grounds to believe that the information they disclose is true or “likely to be true”? The “likely to be true” could lower the bar for a whistleblower to make a complainant, otherwise a whistleblower might simply wait until the ‘case’ against the employer is ‘water tight’, when the risk of harm to patients is still materially significant.
  • There could be a statutory duty on employers to establish and maintain adequate effective reporting procedures? Legislation might also ensure that authoritative guidance (for example, via ACAS) is provided about the role and contents of such procedures. Clearly, there has historically been a problem with clinical regulators sharing information about risks to persons to patients, and this problem has caused unnecessary delay and confusion in the system.
  • Union representatives could become prescribed persons so that workers who raise concerns with them would be protected. In future, it is hoped by some that union representation might become more easily available in both the private and public sector?
  • An actual Public Interest Disclosure Agency could be established. Such an agency might receive disclosures, arrange for their investigation by an appropriate authority, provide advisory and counselling services and protect whistle blowers from reprisals.  Whistle blowers have often complained how quickly the system has been to label their genuine concerns as ‘vexatious’. Such a body could build up experience and specialist expertise, through valid mechanisms for organisational learning, for spotting ‘genuine cases’ early, and for dealing with them speedily.

Reprisals against the whistle blower

One of the most important aspects perhaps is that out English legislation should relieve individuals of civil and criminal liability for making a protected disclosure.

At present it would appear that if a reasonable belief turned out to be incorrect, defamation proceedings could be brought against a worker who has made a protected disclosure. This is clearly ‘extremely problematic’, to put it mildly.

As regards possible retaliation, those who genuinely fear adverse treatment in their employment should be entitled to seek a transfer.It is unlikely that whistleblowers would wish for reinstatement into the organisation, to which they are devoted but have gone through hell in speaking out against.

Where workers have lost their jobs they should also have the option of choosing reinstatement or reeengagement somewhere else. It could be that some whistle blowers do want to rejoin the organisation they have been committed to, and clearly one of the defining factors here is the genuine attitude of the employer. Unfortunately, whistleblowers report a systematic exclusion from the activities  of the organisation (e.g. no longer being invited to meetings, no longer appearing on organisation emails).

There could be specific statutory protection against post-employment detriments by outlawing victimisation which ‘‘arises out of and is closely connected to’’ the employment relationship. This would be entirely consistent with the notion that whistleblowers should be protected against all forms of discrimination, and would deal with the common problem of refusing to provide a reference.

In the last three years, the percentage of conciliated settlements has been rising in many jurisdictions. However, the PIDA average of 40.7% is well above the 28.3% average for all jurisdictions and second only to disability claims (44.7%). As regards withdrawals, the percentage in PIDA cases has been falling recently (30.8% in 2008/09), but this is generally in line with tribunal cases overall (33% in the same year) and the anti-discrimination jurisdictions.

Experience from other jurisdictions

Whilst the legal route is an important one, in the current ethos of rationing ‘access to justice’, it might be more valid in tackling the problem in its ‘root cause’ – i.e. by making it easier to speak out about problems in the NHS in an open and transparent culture.

However, whistle blowing poses formidable legal and ethical issues.

In some countries (such as Belgium and Germany) the political debate focuses on whether or not whistle blowing should be a protected right, whereas in other countries (such as the US, the UK and the Netherlands) the whistle blowing debate is more focussed on how to get more reports of wrongdoing in order to fight fraud.

In countries such as the UK and US, whistle blowing tends to be perceived as a duty and knowledge about wrongdoing as a liability.

It should be noted that in a 2003 Communication the European Commission acknowledged the part that whistleblowers can play in the fight against corruption and urged Member States to provide protection for them.

Subsequently three whistle blower organisations from Germany, Norway and the UK have requested the European Commission to take action.

The Commons Health Select Committee

The Commons Health Select Committee could not be clearer on their conclusions.

Thanks to Dr David Drew (@NHSwhistleblowr) for pointing me to the correct official published record of their findings (found here).

Firstly, they say that disciplinary fora and employment tribunals – inter alia – are often most the best place for a constructive airing for honestly-held genuine beliefs and concerns.


Secondly, they dispute whether the regulatory framework and contractual law work ‘well’ together to produce the current legislative framework.

Legislative frameworkThirdly, the Committee were also clear on why and how there was tragically a place for ‘whistle blowing’ behaviour.

Why whistleblowing is necessary



 As Simon Stevens takes up his new rôle as CEO of NHS England, I am sure he will wish to prioritise patient safety, organisational learning and transparency as key themes in moving the NHS further.

Whilst it is clear that the ‘sustainability’ myth of the NHS has taken foot to the detriment of a mature discussion about whether a safe National Health Service can be funded out of general taxation, it is clear that one thing is not sustainable in the NHS.

That is: the ballooning cost of successful NHS litigation claims AGAINST the NHS, and the personal cost to whistle blowers whose lives have been simply ruined. Their ultimate crime – working for the NHS, parts of which can be incredibly unsupportive to its employees, and wishing to speak out safely.

Possible further readings

Alford, C. F. (2007) ‘Whistle-Blower Narratives: The Experience of Choiceless Choice’, Social Research 74, 223–248.

Gunsalus, C. K. (1998) ‘How to Blow the Whistle and Still have a Career Afterwards’, Science and Engineering Ethics 4, 51–64.

Harris, C. E., Pritchard, M.S., Rabins, M.J. (2005) Engineering Ethics: Concepts and Cases, 3rd Edition (Wadsworth, Belmont, CA).

Near, J. P., Miceli, M. P. (1985) Organizational dissidence: The case of whistle-blowing. Journal of Business Ethics,  4: 1-16.

Oliver, D. (2003) ‘Whistle-Blowing Engineer’, Journal of Professional Issues in Engineering Education and Practice
129, 246–256.

Rothschild, J, Miethe, T.D. (1999) ‘Whistle-Blower Disclosures and Management Retaliation’, Work and Occupations 26, 107–128.


Why speaking out safely and safe staffing are important moral issues for the NHS

Open meetingA culture where staff and patients can speak openly about successes and failures in the NHS, as well as more specifically on safe staffing issues, is essential for the NHS to move forward. Perhaps most intriguingly, the failure of the English law to cherish the need to ‘speak out safely’ in the NHS can be tracked back to four Acts of parliament ranging in the last thirty years uptil the present day.

The focus recently has tended to be about whether things would or would not work, and have either been economic or regulatory in perspective.

The Health and Social Care Act (2012), all 493 pages of it, is fundamentally a statutory instrument which proposes the mechanism for competitive tendering in the NHS (through the now infamous section 75), the financial failure regimes, and the regulatory mechanisms to oversee an emboldened market. It is therefore a gift for the corporate lawyers. It does, though, successfully mandate in law the abolition of the National Patient Safety Agency in s. 281.

There is therefore not a single clause on patient safety in this voluminous document. Patients, and the workforce of the NHS, are however at the heart of the NHS.

The language has been overridden by economic concepts misapplied. “Sustainability” is a very good example. Too often, sustainability has been used as a synonym for ‘maintained’, usually as a precursor for an argument about shutting down NHS services. It quite clearly from the management literature means a future plan of an entity with due regard to its whole environment.

Discussion about regulators can lead to a paralysis of policy.

No sanctions against Doctors have yet been made by the GMC over Mid Staffs, which does rather appear to be a curious paradox given the widespread admissions of  undeniably ‘substandard care’. The regulator needs to have the confidence of the public too. One of their rôles is commonly cited to be to ‘protect the public‘, and this is indeed enshrined in law under s.1(1A) Medical Act (1983).

It is of regulatory interest how precisely the GMC ‘protected the public’ over Mid Staffs, whatever the operational justifications of their legal processes in this particular case.

Strictly speaking, promoting the safety of the public might include promoting the ability of clinical staff ‘to speak out safely’, and this could be an important manifestation of a core legal objective of that particular regulator?

On the other hand, confidence in the regulator is never achieved by any regulator on the basis of conducting “show trials“. This can be always be a big danger, as GMC cases on occasions attract wider general media interest. This will, of course, be to the detriment of defendants with complicated mental health issues.

There is little fundamental dispute about the need for clinicians to be open about medical errors in their line of work. Even the Compensation Act (2006), if you need to cite the law, provides that an apology does not mean an admission of liability in section 2.

There can be disputes about upon whom the ‘duty of candour’ should fall, whether this might be the Trust or an individual clinician, and who is going to enforce it.

But just because there are legal issues about the practicality of it, a civilised society must use the law to reflect the society it wishes for.

There is currently, for example, a statutory duty for company directors to maximise shareholder dividend of a company with due regard to the environment (as per s.172 Companies Act (2006)). There is no corresponding duty for hospitals to minimise morbidity or mortality on their watch.

“Whistleblowers” are often accused of raising their complaints too late.

Whistleblowers can find themselves becoming alien for NHS organisations they are devoted to.

Often, there is a ‘clipboard mentality’ where ‘colleagues’ will raise issues to discredit the whistleblowers. Often these ‘colleagues’ are protecting their own back. Regulators should not collude in such initiatives.

And yet it is clear that the Public Interest Disclosure Act 1998 fails both patients and whistleblowers.

There are ways to bring about change. Most often regulation is not in fact the answer.

A cultural change is definitely needed, and this appears to go beyond corrective mechanisms through English jurisprudence.

This in the alternative requires staff and patients from within the NHS prioritising speaking out safely.

The information which can be provided by ‘speaking out safely’ should be treated like gold dust – and be used for improvement for patient safety in the NHS, as well as in the performance management of all clinicians involved.

Arguably the precise information is much more useful than an estimate such as the ‘hospital standardised mortality ratio’ which does not operate on a case-by-case basis anyway.

A new-found desire to speak openly might also include a wider policy discussion about safe staffing levels. Regulating a minimum staffing level might shut down important debates about ‘what is safe’, such as the skill mix etc. And yet there are equally important issues about how to prioritise this in the law.

The hypothesis that unsafe staffing levels or poor resources generally lead to poor patient safety in some foci of the NHS has not been rejected yet. It’s essential that managers allow staff to be listened to, if they have genuine concerns. Not everything is vexatious.

Most of all, society has to be seen to reward those people who have been strong in putting the patient first.

Small steps such as Trusts in England supporting the Nursing Times’ “Speak Out Safely” campaign are important.

Critically, such support is vital, whatever political ideology you hail from.

It could well be that the parliamentary draftsmen produce a disruptive innovation in jurisprudence, such that speaking out safely is correctly valued in the English law, and thenceforth in the behaviour of the NHS.

Hopefully, an initial move with the recent drafting of a clause of the “legal duty of candour” in the Care Bill (2013) we will begin to see a fundamental change in approach at last.

Advise Alan Barnish MP over any claims in the tort of defamation

Examination Hall


This exam question is in the style of a GDL or LLB(Hons) question for the defamation topic in the tort law course.


The Canned Party and the Lobster Party have been involved in an acrimonious battle over who can run the NHS better over a number of years. There is a recent history of negative campaigning and smearing by the Canned Party.

The Lobster Party has been consistently several points in the lead in the opinion polls. In the mid 2000s, while the Lobster Party was in government, one English NHS Trust was suffering from poor performance.

Simon Berkeley MP, a local MP for the Canned Party near that NHS Trust, has a long history of campaigning on issues in his local area. Alan Barnish MP used to be Secretary for State for the Health in the Lobster Party.

Berkeley had published an article called, “The only way to cure the NHS is to change the way we police failures” in “The Telepole” on 27 March 2013.  “The Telepole” is a national newspaper, published daily, with a wide readership.

In response to a Freedom of Information request from Berkeley, the “We Care Commission”, a public body (“Regulator”), released internal emails on the handling of problems at the hospital.

According to Berkeley in various newspapers before 4 October 2013, Mr Barnish had said the following: “There was unacceptable pressure from Barnish on the regulator “to water down its concerns” regarding the Trust, when he was health secretary under the Lobster Party. Lobster tried to cover up failing hospitals before the last general election. Alan Barnish told the House of Commons in July there was no shred of evidence of political interference with the health regulator. But these emails show a clear paper trail of political meddling – leading back to him.”

Jimmy Punt, who now holds the post in the coalition Government which was held by Alan Barnham, seized on the emails in a tweet on 4 October 2013  “shocking revelations on Alan Barnish’s attempts to cover up failing hospitals”. Punt added that, “We’re legislating to make sure this can never happen again,” he wrote on Twitter. Punt, not his Special Advisor, is known to write all his own tweets.

On 5 October 2013, another newspaper Daily Maul published a article with the title, “Calls for former health secretary Alan Barnish to be  sacked over cover-up  of hospital care disaster”.

Both the Daily Maul and Telepole, known actively to support the Canned Party, claimed they needed to publish the stories in the public interest, and they had not been able to get in touch with Alan Burnish to give him a right to reply.

The actual emails tell a different story. The pertinent parts are paragraphs 10 and 11. They relate to a media briefing from the “We Care Commission” press office given without the authorisation of the “We Care Commission” leadership. As the release of information about any hospital failure is a serious matter, it needs to be handled in a considered manner and according to an agreed process. These emails suggest there was no ‘cover up’, there had been no interference with the Regulator, and Parliament was indeed issued with an updated statement at the earliest available opportunity.

The date is now 9th October 2013, and political reshuffles from both the Canned and Lobster Parties are expected imminently. Barnish feels quite distresed by recent events as he feels that these go further than the usual ‘rough-and-tumble’ of English politics.

 Advise Alan Barnish MP over any claims that he may have in the tort of defamation.

Isn’t it time to admit failure in ‘regulating cultures’?

Gordon Brown














It is alleged that a problem with socialists is that, at the end of the day, they all eventually run out of somebody else’s money. Perhaps more validly, it might be proposed that the problem with all politicians is that they all run of other people to blame?

It is almost as if politicians form in their minds a checklist of people they wish to nark off systematically when they get into government: candidates might include lawyers, Doctors, bankers, nurses, disabled citizens, to name but a few.

Politicians are able to use the law as a weapon. That’s because they write it. The law progressively has been reluctant to decide on moral or ethical issues, but altercations have occurred over potentially inflammable issues such as ‘the bedroom tax’. Normative ethics takes on a more practical task, which is to arrive at moral standards that regulate right and wrong conduct.

There has always been a tension between the law and ethics. As an example, to prove an offence in the English criminal law, you have to prove beyond reasonable doubt an intention rather than a motive, for example that a person intended to burn someone’s house down, rather than why he had intended so. Normative ethics involve articulating the good habits that we should acquire, the duties that we should follow, or the consequences of our behaviour on others. The ultimate ‘normative principle’ is that we should do to others what we would want others to do to us.

Parliament is about to get its knickers in a twist once again over the thorny issue of press regulation. However, there is a sense of history repeating itself. A few centuries ago, “Areopagitica” was published on 23 November 1644, at the height of the English Civil War. It is titled after Areopagitikos (Greek: ?????????????), a speech written by the Athenian orator Isocrates in the 5th century BC. (The Areopagus is a hill in Athens, the site of real and legendary tribunals, and was the name of a council whose power Isocrates hoped to restore).

“Areopagitica” was distributed via pamphlet, defying the same publication censorship it argued vehemently against. As a Protestant, Milton had supported the Presbyterians in Parliament, but in this work he argued forcefully against the Licensing Order of 1643, in which Parliament required authors to have a license approved by the government before their work could be published.

Milton then argued that Parliament’s licensing order will fail in its purpose to suppress scandalous, seditious, and libellous books: “This order of licensing conduces nothing to the end for which it was framed.” Milton objects, arguing that the licensing order is too sweeping, because even the Bible itself had been historically limited to readers for containing offensive descriptions of blasphemy and wicked men.

England has for a long time experienced problems with moving goalposts in the law, and indeed the judicial solutions sought have varied with the questions being asked. Lord Justice  Leveson acknowledged that the “world wide web” was a medium subject to no central authority and that British websites were competing against foreign news organisations, particularly in America, which were part of no regulatory system.

Leveson once nevertheless proposed that newspapers should still face more regulation than the internet because parents can ‘to some extent’ control what their children see online, while they could not control what they see on a newsagent or supermarket shelf.

‘It is clear that the enforcement of law and regulation online is problematic,’ said Lord Justice Leveson at the end of his year-long inquiry into press ethics.

An attempt at ‘regulating culture’ was dismissed in the Leveson Report largely through arguing that the offences were substantially already ‘covered’, such as trespass of the person or phone hacking. And yet it is the case that there are ‘victims of phone hacking’ who feel that we are unlikely to be much further forward than we were before spending millions on an investigation into journalistic practices. In recent discussions this week, eyebrows have been raised at the suggestion that Ed Miliband could write to senior members in the Mail-on-Sunday empire to suggest that the culture in their newspapers is awry, and to ask them to do something about it. It could be argued it is none of Miliband’s business, except that Miliband would probably prefer the Mail to write favourably about him. Such flexibility in judgments might be on a par with Mehdi Hasan changing his writing style and target audience within a few years, as the recent Twitterstorm demonstrates.


The medical and nursing professions have latterly urged for an approach which is not overzealously punitive. There have been very few sanctions for regulatory offences in Mid Staffs or Morecambe Bay, for example.

Robert Francis QC still identified that an institutional culture which put the “business of the system ahead of patients” is to blame for the failings surrounding Mid Staffordshire Foundation Trust. Announcing the publication of his three volume report into the Mid Staffordshire Foundation Trust public inquiry, Mr Francis described what happened as a “total system failure”.

Francis argued the NHS culture during the 2005-2009 period considered by the inquiry as one that “too often didn’t consider properly the impact on patients of decisions”. However, he said the problems could not “be cured by finding scapegoats or [through] reorganisation” of the NHS but by a “real change in culture”. However, having identified the problem, solutions for cultural ‘failure’ in the NHS have not particularly been forthcoming.

There are promising reports of ‘cultural change’ in the NHS, for example at Mid Staffs and Salford, but some aggrieved relatives of patients still have a feeling that ‘justice has not been done’. There has been no magic bullet from the legislature over concerns about bad practice in the NHS, and it is unlikely that any are immediately forthcoming. There is little doubt, however, that parliament improving the law on safe staffing or how whistleblowers can raise issues in the public interest safely might be constructive steps forward. There therefore exists how the law might conceivably ‘improve’ the culture, and one suspects that this change in culture will have to permeate throughout the entire organisation to be effective. That is, fundamentally, people are not punished for speaking out safely, and, whilst legitimate employers’ interests will have to be protected, the protection for employees will have to be necessary and proportionate equally under such a framework.

Journalism and the NHS are not isolated examples, however, Newly released reports into the failures of management at several major banks – HBOS, Barclays, and JP Morgan among them – show that some of the worst losses had roots deeper than the 2008 credit crisis. It is said that a toxic internal culture and poor management, not the subprime mortgage collapse, caused billion-dollar losses at some of the world’s largest banks

In an argument akin to that used to argue that there is no need to regulate the journalism industry, the banking industry have long maintained that a strong feeling of internal competition can be healthy for profitability, but problems such as abject fraud and misselling of financial products are already illegal.

The situation is therefore a nonsense one. There is a failed culture, ranging across several diverse disciplines, of politicians wishing to use regulation to correct failed cultures. Cultures of an organisation, even with the best will in the world, can only be changed from within, even if the public, vicariously through politicians, wish to impose moral and ethical standards from outside.

Whichever way you wish to frame the argument, it might appear ‘we cannot go on like this.’ It is a pathology which straddles across all the major political parties, and yet all the parties wish to claim that they have identified a poor culture.

Their lack of perception about what to do with these problems is perhaps further evidence that the political class is not fit for the job.


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