Abstract
The whistleblower is protected from detriment, such as demotion or discipline or dismissal, if he makes a protected disclosure (Employment Rights Act 1996 ss 43A-43H, 103A, and 235(1), as inserted by the Public Interest Disclosure Act 1998). The protected disclosure is an exception from the normal duty of confidentiality between employer and employee, or whatever the confidential relationship between parties may be, so as to prevent “gagging” and victimisation as a result of a disclosure in the public interest. The issue can arise in many aspects of work, including the medical world, although most of the cases come from the non-medical world.
The employee, the “worker”, a word which includes the provider of medical services such as a GP, and anyone who works for a primary care trust or other hospital authority, and many other “self-employed” workers for health (s 43K(1)(ba), and 43K(1)(c)), believes that “something is wrong”, so is minded to blow the whistle. The consequence is that he suffers “detriment”. For example, he is denied work, or denied promotion, or he is demoted, or disciplined, or suspended, or dismissed. Does he have a remedy? He may be concerned about a crime, the breach of a legal obligation, a miscarriage of justice, a breach of health and safety, or a threat to the environment, and concerned that the employer will conceal or destroy the evidence; and wherever the matter complained of occurred, e.g. in a French hospital to which an English patient had been sent by the NHS. Provided that he is acting in good faith, he honestly believes his accusations to be true, he is not seeking personal gain, and his conduct is reasonable, i.e. he has made a “qualifying disclosure” to a “prescribed person”; then he is protected, he has made a protected disclosure, and he has a remedy. A consequent dismissal is deemed to be unfair. There is no minimum qualifying period of service. One would expect a complaint first to be made to the line manager or other appropriate person in the organisation; but to “get nowhere”. The matter complained of should justify the action. The disclosure, outside the organisation, should be to an appropriate person or organisation. The whistle-blower should not go straight to the media, such as the popular press. He must behave reasonably and responsibly. The element of public interest should always be considered. Factors which might bear on the reasonableness of a disclosure would be the seriousness of the failure or problem, whether or not it is continuing, to whom the disclosure is made, and whether any other more appropriate channel is available and should have been tried, at least first. Irresponsible unfounded alarmist accusations could damage public confidence, e.g. in a medical procedure or medical treatment. Disclosure because of an ulterior motive, such as antagonism or revenge, is not made in good faith (Street v Derbyshire Unemployed Workers Centre [2004] EWCA Civ 964, [2004] 4 All ER 839, [2005] ICR 97).
Disclosure to a solicitor in the course of seeking legal advice and assistance is fully covered by absolute legal professional privilege. Similarly disclosure to the GMC Fitness to Practise Panel enjoys absolute privilege (White v Southampton University Hospitals NHS Trust [2011] EWHC 825 (QB), [2011] Med LR 296).
“Gagging” provisions, or confidentiality clauses, in contracts of employment and in settlements are void insofar as they cannot legally stop or penalise the genuine whistleblower.
The whistleblower may be vulnerable to a defamation action, but may always defend himself on the basis that what he said was true, or fair or honest comment, even if in fact he was in error.
If the employee makes a protected disclosure, thereafter the employer or fellow employees must not in response act to the detriment of the whistle-blower, e.g. by giving less work, e.g. if on a commission basis, or removing managerial or senior responsibilities, or unpleasantness in the workplace (Fecitt v NHS Manchester [2011] ICR 476, [2011] IRLR 111, EAT).
Burden of proof
In accordance with the general employment law principle, once the employee proves the dismissal the employer must prove it to have been fair (s 98; Nunn v Royal Mail Group Ltd [2010] ICR 162).
Examples from the cases
The employee, a college lecturer, who happened to be an American citizen, thought that some Muslim students were planning a 9/11 attack in London. He reported the matter to his manager who advised no action. Concerned, he reported the matter to the CIA and FBI, and informed the college of what he had done. He was victimised by the college and forced to resign. It was held that if he genuinely believed what he said was true, namely a criminal offence was being committed, and this was objectively reasonable, then although his belief on both counts proved in the event to be wrong, nonetheless he had made a protected disclosure (Babula v Waltham Forest College [2007] EWCA Civ 174, [2007] ICR 1026).
A teacher employed by the local authority happened in the course of her duties to interview a person suspected of rape and she reported the matter to the police. The police carried out investigations and interviews, and interviewed the teacher's manager (not a suspect). The manager was annoyed at the trouble caused, and branded the teacher a troublemaker, to her detriment. Reporting to the police in these circumstances was a protected disclosure (Hibbins v Hesters Way Neighbourhood Project [2009] ICR 319, EAT).
A lecturer at a university clashed with the head of department on a number of matters. He claimed to be harassed, intimidated, coerced into a severance arrangement, the victim of misleading statements, and prevented from complaining. He referred the matter to the Chancellor and Vice-Chancellor. The issue for decision was whether the lecturer genuinely believed what he said was true and that it was reasonable to complain to the Chancellor and Vice-Chancellor (Darnton v University of Surrey [2003] ICR 615, [2003] IRLR 133, EAT).
A teacher believed the school computer system to be insecure. So he hacked into it, in order to demonstrate the insecurity, and then told the headmaster what he had done. He was then disciplined for his “irresponsible conduct”, not the disclosure, which was not protected (Bolton School v Evans [2006] EWCA Civ 1653, [2007] ICR 641). The teacher was perhaps unlucky; perhaps he should have just spoken to the headmaster and sought permission to demonstrate his belief. Leave to appeal to the House of Lords (now Supreme Court) was refused. A refusal by the headmaster to listen or to allow a demonstration might have then justified a complaint to the governors.
In the famous case of Dr Bodkin Adams of Eastbourne, accused of murdering his patients by administering increasing doses of morphia in the knowledge that this would hasten death, ultimately acquitted, it appears that the matter was first brought to the attention of the police by the Coroner.
In 1973 Stanley Adams blew the whistle on price fixing in Hoffmann La Roche, reporting the matter to the European Economic Community (EEC) competition commission. He was accused of industrial espionage and imprisoned. He spent many years trying to clear his name, and eventually recovered £200,000 from the European Union (EU). See Roche v Adams, Jonathan Cape, 1984.
In 1998 Dr Rita Pal blew the whistle on alleged elderly patient neglect at the North Staffordshire NHS Trust Stoke-on-Trent and subsequently found herself involved in litigation: Pal v General Medical Council [2004] EWHC 1485 (QB) and R (Pal) v General Medical Council [2009] EWHC 1061 (Admin). The litigation was ultimately settled.
In 2010 Kay Sheldon, an actual board member on the Care Quality Commission (CQC), blew the whistle on the serious troubles at the Mid-Staffordshire Hospital.
In 2011 there was widespread public concern about the treatment of patients and residents in the Winterbourne Care Home and whistleblowers provided material for the BBC to make a disturbing Panorama television programme showing abuses.
The Strategic Health Authority (SHA) and the Primary Care Trust (PCT) decided to re-organise the medical services in the area, and decided upon a public engagement exercise instead of a full public consultation. The chief executive of a hospital, a senior health worker, disagreed, took counsel's opinion, and was advised that the SHA and PCT proposal was unlawful. He told his board. He was suspended and then dismissed. Held, his action was a protected disclosure, because he had taken legal advice, the proposed public engagement was or might be unlawful, and his conduct in disclosing to the board was reasonable (Royal Cornwall Hospitals NHS Trust v Watkinson [2011] Med LR 636, EAT).
Child protection cases can present real problems for health professionals. Serious criminal implications may be involved, e.g. non-accidental injury (NAI), such as Baby P; conversely false accusations, e.g. in the event it was only accidental injury, can have most distressing implications for the family. So if the health professional feels that disclosure is required then taking the matter, stage by stage, to the appropriate persons or organisation requires the utmost restraint and caution (Southall v General Medical Council [2010] EWCA Civ 407, [2010] Med LR 235 and [2010] EWCA Civ 484, [2010] Med LR 252 – accusation of murder). The disclosure to the public that the tripartite rubella vaccine was alleged to cause autism led to a worrying public response.
Accusations have been made against social workers alleged to have improperly labelled parents as mentally ill or otherwise unsuitable so as to take children into care.
A train driver complained about train safety to Her Majesty's Railway Inspectorate and was forced to resign by his employer. He succeeded in an action: Holden v Connex, Croydon Employment Tribunal, May 2004.
A consultant obstetrician complained about the infant mortality rate and allied matters and was dismissed. She succeeded in an action for unfair dismissal: Awotona v South Shields Hospital, Tyneside Employment Tribunal, May 2004.
In February 2010 Gary Walker was dismissed from his post as chief executive on the United Lincolnshire Hospitals NHS Trust arising out of whistleblowing as a result of disputes over targets and priorities and safety. The matter was settled, but the inclusion of “gagging” provisions in the settlement led to public discussion. See also the case of Dr Kim Holt in dispute with St Ann's Haringey.
In February 2012 whistleblowing led to action by the Government with Back to Work, headed by Emma Harrison, an organisation contracted to Government to find jobs for the young.
Dr Cox
Dr Cox attended to a patient in severe pain with rheumatoid arthritis, which heroin did not assuage. She was marked not for resuscitation and she expressed the wish to die. With the agreement of the family he gave her a fatal dose of potassium chloride. A nurse who disapproved of the conduct of Dr Cox “blew the whistle” and Dr Cox was prosecuted (The Times, 22 September 1992; (1992) 12 BMLR 38; (1994) Medico-Legal Journal; GMC tempers justice with mercy in Cox case (1992) 305 BMJ 1311; Law and Medical Ethics, JK Mason, 8th edition, 595–601). He was convicted of attempted murder, and given a one year suspended prison sentence. He was admonished by the GMC, who recognised his good faith in a mercy killing. The nurse subsequently suffered much criticism and hate mail and other unpleasantness.
Apparently a large proportion of reports of dubious behaviour of doctors come from outraged nurses. Codes of professional conduct should cover these situations.
Dr Shipman
Nobody within the medical profession “blew the whistle” on Dr Shipman, although whether anybody in the medical profession knew enough to “blow the whistle” is unclear. In the event it was the solicitor daughter of one of Dr Shipman's deceased patients who “blew the whistle”.
Duty to blow the whistle
Occasions may arise when it would be a disciplinary or dismissal matter not to make a disclosure, e.g. a failure by a police officer to disclose an unlawful act by another police officer (Lake v British Transport Police [2007] EWCA Civ 424).
A doctor may find himself in serious professional trouble for not blowing the whistle. A doctor has a high professional duty to his own patient, to patients and the public in general, and to the profession. For example, recently a doctor gave a falsely favourable reference for Dr Neale, an incompetent and dangerous obstetric doctor from Canada, upon whom the whistle most certainly should have been blown by all who knew of the situation. The GMC took severe action against the non-whistleblower who gave the false reference.
Former employer
The employee continues to be protected if dismissed by the current employer because the current employer discovered that the employee had made a protected disclosure when employed by a previous employer, so the current employer thought that the employee might be a potential “trouble maker” (BP plc v Elstone [2010] ICR 879, EAT).
The detriment to the employee may continue after the termination of the employment, e.g. because of a protected disclosure the former employer refuses to assist in finding new employment or in providing references.
Employer policy
Every employer should have a whistleblowing policy and an internal complaints procedure, perhaps with a “hotline”. Any intending whistleblower should exhaust the internal procedure before “going public”, unless there are compelling reasons to the contrary. One of the responsibilities of the medical director in the hospital is to receive and deal with matters of concern raised by those working in the hospital.
Advice and assistance
Would-be or potential whistleblowers should take advice before whistleblowing. Solicitors, trade unions and Citizens' Advice Bureaux provide legal advice. The BMA will advise members, see BMA Whistleblowing Guidance. The General Medical Council (GMC) publishes the Good Medical Practice. Similarly the Nursing and Midwifery Council (NMC) and the Health Professions Council. The Advisory Conciliation and Arbitration Service (ACAS) is often willing to assist. The Health and Safety Executive offer advice, also the British Standards Institute (BSI). The Care Quality Commission (CQC), as the regulator for the registration, review and inspection of health and adult social care services, has not always paid sufficient attention to following up whistleblower communications, e.g. in the Bristol Winterbourne View case, as reported by the House of Commons Health Committee. In future they will make unannounced visits to hospitals and care homes. Social care staff in the NHS are now covered by the scheme run in conjunction with the Royal Mencap Society 08000 724 725.
There is a charitable body Public Concern at Work, and the Residents and Patients Association, and Action on Elderly Abuse. Then there are private bodies such as the Whistleblowers Press Agency, Whistleblower.co.uk, and Safecall, who retain secure reports.
The doctor today
The legal and professional protection for the whistle-blower doctor is now fairly clear. The Secretary of State for Health has publicly stated that the NHS will constitutionally support the doctor. The doctor should resist the inclusion of any “gagging clauses” in the contract of employment or in any compromise settlement or agreement. Where he has concern about the safety of a patient or patients or potential patients generally, or any malpractice or wrongdoing, or any inadequacy in risk assessments and protections, or in premises or systems or resources, he should promptly take appropriate action. This will normally involve going to a senior person outside the team or unit. Advice may always be sought from the BMA or MDU or MPS or Royal College or the GMC, and indeed from a solicitor. A proper record of the concern should always be kept. The current GMC advice is to be found in Good Medical Practice 2006 paras 43–45 and Raising and acting on a concern about public safety, March 2012.
Conclusion
At base the whistleblowing law reflects the need for responsibility in the public interest. Doctors, and nurses, and indeed all who work in health, owe an over-riding duty of care to the patient. Observance of this duty of care must prevail. The doctor who sees corruption or malpractice or poor care which is putting or may put the patient or indeed patients generally at risk should act. Line managers can be indifferent, unhelpful, obstructive, intimidating, positively hostile. Whistleblowers have been accused of being mentally ill. Institutions may have a very self-protective culture, all too ready to “close ranks”. An open institutional culture should prevail. The doctor resorting to whistleblowing may need considerable courage. He may be putting at risk his reputation, his career, his job, money, severance pay, future references and stress and health. He may become an “unsung hero”; he may become a martyr, a sacrificial lamb, an “enemy of the people” (Henrik Ibsen). Senior people can make life very difficult for the whistleblower. The whistleblower may be threatened, and coerced or bribed into some sort of confidentiality or “gagging” agreement or settlement. In the ideal world the whistleblower should not require protection. The whistleblower would either be unnecessary or welcome.