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.

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

 

Conclusion

 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.