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The Day judgement reveals either the law needs correcting or public policy on junior doctors is unwell


Whilst the machinery of how the operations and strategy work in the NHS may leave many people baffled, even the hardened specialists, patient safety undoubtedly touches us all.

As you’d expect, all registered Doctors, including obviously those with a ‘national training number’ denoting the Doctor has been selected for the demanding higher specialist training, are regulated by the General Medical Council. The statutory duty of the General Medical Council is, inter alia, “to protect, promote and maintain the health, safety and well-being of the public”.

There is therefore a positive obligation on all registered Doctors to promote patient safety, and this includes speaking out on such matters if need be. The regulator’s official line is to be sympathetic to the concerns of “whistleblowers”, but there exists a sad litany of victims who have blown the whistle who have failed to achieve gainful employment ever again.

There has been much concern about whether the Public Interest Disclosure Act (1999) as a statutory instrument is essentially “fit for purpose”. A general consensus is that it, in fact, isn’t.

Benedict Cooper is an excellent article in the New Statesman explains how Chris Day’s specific case has come about.

“It all started one night back in January 2014. Day was working through the night on ICU at Queen Elizabeth Hospital, part of Lewisham & Greenwich NHS Trust. When two locum doctors failed to turn up to work on another ward, Day found himself dangerously stretched having to treat critically ill patients outside of ICU. Under what’s known as ‘protected disclosure’, he raised the matter and urged his manager to find locums ready to come in. It sounds innocuous enough – it’s been anything but since. Why? Because his case has revealed a major flaw in the system; a flaw that has cost him dearly. Unlike almost every other branch of the medical profession, junior doctors aren’t protected when they blow the whistle in the way Day did that night.”

The Chris Day is truly David v Goliath stuff. Health Education England, like the NHS in general, has access to powerful expensive corporate lawyers; and yet lawyers often talk of decisions being made ‘on public policy grounds’ referring, as the former Master of Rolls Lord Denning did, to “deep pockets” and “floodgates”. A consideration, albeit a pretty immoral one, is that Chris Day’s case might open other litigants to take action against Health Education England which has a huge budget.

The actual judgment is as follows.

For me, and I really do go into this with an open mind, the judgement was concerning as to how the decision-making of judgements occurs. There was, for me, a sense of reverse engineering of making the law fit the conclusion the Judge wanted to produce. This is a well known logical fallacy called “post hoc ergo propter hoc” fallacy.

The law always look behind the substance behind the form, so the English law is more interested in what the employment relationship is rather than what is called. It’d have been much more helpful for the Judge ‘to go back to basics’, in thinking about the nuts and bolts about the nature of Day’s daily work as well as his training, through the lens of the seminal Ready Mix Concrete v Minister for Pensions [1968].

The Judge should not have got wound up in detail but should have sought to produce an accurate picture of Day’s daily duties.

This is indeed advised in Hall v Lorimer [1993].

Nolan L.J. agreed with the views expressed by Mummery J. in the High Court where he said:

“In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.

The process involves painting a picture in each individual case.”


The Judge then curiously pinned his reverse logic, which of course he is entitled to do as a lawyer of high standing, on what ‘parliament must have intended’.

This is, arguably, the most jaw dropping clause in the whole judgement.


But the law as presented is left with startling lacunae, if the Judge is definitely correct.

Take for example this observation from Day himself on Twitter:

This based on the issue that s.43(k) Employments Right Act gives protection for a student nurse watching the operation ‘whistleblowing’, but not the doctor himself on the Specialist Register doing the said operation.

Normally, even the most junior law students would be advised to seek out any statutory aids to help to guess what Parliament might have intended. But only one year previous to the Employment Rights Act (1999), parliament enacted what it thought was extensive protection for whistleblowers, including in the NHS, in the Public Interest Disclosure Act (1998) as discussed here. Therefore, the same parliamentarians, led by the first Blair executive, were responsible for both statutory instruments. It is therefore inconceivable that it could be intended that junior doctors in training would be given protection in one statutory instrument, but not the other.

Furthermore, in response to the lengthy well articulated submissions on behalf of Dr Chris Day concerning article 10, freedom of expression, the Judge provides barely any discussion at all. This dismissal of fundamental human rights, brought into our domestic law through the Human Rights Act (1999), also legislated for by that first Blair government, is staggering.

The Supreme Court recently had to correct the law as interpreted by the lower Courts on joint enterprise. It is not inconceivable that they will have to correct the lower courts again this time on the Day case. But it is an important policy point – that registered medical doctors in training, despite having a duty to promote patient safety, are not protected in doing so. At a point when Jeremy Hunt’s popularity arguably is at its lowest ebb, his special advisors could do no worse than to encourage Hunt to correct the legislation urgently, a low hanging fruit that would make a huge difference on principle even.

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.


Is the answer to abject failure of medical regulation yet more regulation?


There are parallels with the discussion of whether the financial sector was too lightly regulated in the events in the global financial crash. This also happened under Labour’s watch. And Labour got a fair bit of blame for that, despite the Conservatives appearer to wish the regulation in that sector to be even “lighter”. Despite uncertainties about the number of people who actually died at Mid Staffs, for statistical reasons, there is a consensus there are clear examples of care which fell below the standard of the duty-of-care. Such breach caused damage, within an accept time period of remoteness, causing different forms of damage. The problem in this chain of the tort of regulation is that there appears to have been little in the way of damages. It is clear that the regulatory bodies have found it difficult to process their cases in a timely fashion in such a way that even some members of the medical profession and the public have found distressing and unproductive. The medical regulators are, however, fiercely concerned about their reputation, which is why any rumour that you have beeen involved in a cover up, ahead of patient safety, is potentially deadly.

There is a mild sense of panic amongst government ranks, with the introduction of a ‘Chief Inspector of Hospitals’, conducting OFSTED type assessments, and a “legal duty of candour”. It is proposed that this new legal duty might apply to institutions rather than individuals, unless Don Berwick, currently running for Governor of Massachussetts, has any better ideas in the interim. Here is the first problem; the GMC and other clinical councils take a punitive retributive approach (if not restorative), rather than rehabilitative, and Sir Robert Francis QC has emphasised that this is a wider culture malaise where it is difficult to find ‘scapegoats’. Organisations such as Cure however point to the fact that nobody appears to have taken responsibility, and are reported to have a shortlist of people who they’d like to see be in the firing line over Mid Staffs. The GMC is not in the business of blaming organisations, only individuals. In fact, its code (GMC’s “Duty of a Doctor”) is set up so that Doctors can report other Doctors to the GMC, and even report Managers to the GMC.

There is a possibility that NHS managers are not even aware of the professional code of the Doctors who comprise a key part of the workforce, but paragraph 56 of the GMC’s “Duties of a Doctor” is pivotal in demanding Doctors see their patients on the basis of clinical need. This is this clause which provides the tension with the A&E “four hour wait target”, but it is perhaps rather too late for medics to flex their professional muscles over this years after its introduction.

56. You must give priority to patients on the basis of their clinical need if these decisions are within your power. If inadequate resources, policies or systems prevent you from doing this, and patient safety, dignity or comfort may be seriously compromised, you must follow the guidance in paragraph 25b.

Paragraph 25b provides the trigger where Doctors have a duty in their Code to let their NHS manager know:

25. You must take prompt action if you think that patient safety, dignity or comfort is or may be seriously compromised. (b) If patients are at risk because of inadequate premises, equipment*or other resources, policies or systems, you should put the matter right if that is possible. You must raise your concern in line with our guidance11 and your workplace policy. You should also make a record of the steps you have taken.

And indeed following the legal trail, according to the CPS, a person holding “public office” can have committed the offence of “misconduct in a public office” if he or she does not act on such concerns, according to current guidance:

Misconduct in public office is an offence at common law triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office. The Court of Appeal has made it clear that the offence should be strictly confined. It can raise complex and sometimes sensitive issues. Prosecutors should therefore consider seeking the advice of the Principal Legal Advisor to resolve any uncertainty as to whether it would be appropriate to bring a prosecution for such an offence.

(current CPS guidance)

It is a legal point whether a NHS CEO meets the definition of a person holding “public office”. However, few will see little point in a Doctor, however Junior or Consultant, reporting a hospital manager to the GMC for lack of resources. The GMC indeed have a confidential helpline where Doctors can voice concerns about patient safety, even other colleagues, but this itself is fraught with practical considerations, such as when data are disclosed beyond confidentiality and consent, or a duty for the GMC not to encourage an avalanche of vexatious and time-consuming complaints either.

Indeed, the whole whistleblower affair has blown up because whistleblowers feel they have to make a disclosure for the purpose of patient safety in an unsupporting environment, often directly to the media, because nobody listens to them at best, or they get subject to detrimental behaviour (humiliation or bullying, for example) at worst. Clinical staff will not wish to get involved in lengthy GMC investigations about their hospital, and it would be interesting to see how many the actual number which have resulting in any form of sanction actually is. This is even amidst the backdrop that more than half of nurses believe their NHS ward or unit is dangerously understaffed, according to a recent survey, reported in February 2013. The Nursing Times conducted an online poll of nearly 600 of its readers on issues such as staffing, patient safety and NHS culture. Three-quarters had witnessed what they considered “poor” care over the past 12 months, the survey found. Understaffing in clinical wards has been identified as a cause of nurses working at a pace beyond what they are comfortable with, and the subsequent effects on patient safety are succinctly explained by Jenni Middleton (@NursingTimesEd) and colleagues in their video for the “Nursing Times Speak Out Safely” campaign.

In the same way, the cure for recession may not be more spending (this is a moot point), the answer to a failure of medical regulation may not be yet further regulation. The temptation is to add an extra layer of regulation, such as an OFHOSP body which goes round investigating hospitals, but we have already introduced a ‘Chief Inspector of Hospitals’. At worst, further regulation encourages a culture of intimidation and secrecy, and Prof Clare Gerada clearly does not believe the NHS being caught up in yet further regulation is practicable or advisable:

Clare Gerada

And yet most would agree, following Mid Staffs and the revelations over CQC at the weekend that ‘doing nothing is NOT an option’ (while conceding that a “moral panic” response cannot be appropriate either.) The fundamental problem is that this policy gives all the impression of being designed in response to a crisis, how acute medics work in ‘firefighting’. Likening patient safety to the economy, it might be more fruitful to focus attentions to the other end of the system. This is the patient safety equivalent of turning attention from redistributive (or even punitive) taxation to predistribution measures such as the living wage. Some advocates call for a greater emphasis on compassion, and reducing the number of admissions seen in the Medical Admissions Unit or A&E, but in a sense we are coming full-circle again in the underlying argument of an under-resourced ward being an unsafe one. Transplant on this a political mantra that the main parties have had divergent views about whether NHS spending is adequate now or has been adequate before, in apparent contradiction to the nearly £3bn savings which were not ploughed back into patient care. or the £2bn suddenly found for the complex implementation of the Health and Social Care Act (2012). The existing regulatory mechanism for complaints to be made about under-resourcing affecting patient safety is there, but the intensity of the incentive for professionals using this mechanism appears to be low. Professionals will argue that they have a professional duty to maintain patient safety regardless of yet further regulation, but professionals have reported the mission creep of deprofessionalism in the NHS for some time now. Here, the medical professions have a mechanism of holding the NHS to account, and, if adverse reports were investigated quickly and acted upon, it is possible that NHS CEOs are not overly rewarded for failure. But if this mechanism is considered unfeasible, along with a “new improved” performance management system incentivising somehow ‘whistleblowing’, it’s back to the drawing board yet again.

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