Abstract
If society wants people to speak out on matters of public concern, it needs to be acceptable to blow the whistle, says
When Dr Stephen Bolsin raised concerns with senior managers about the high death rate for children undergoing cardiac surgery in Bristol, most of the other healthcare professionals who knew of the excess mortality rate remained silent and failed to support him. That was not an isolated case. Without the aberrant intervention of a whistleblower, poor practice in institutions and misconduct by individuals are usually concealed.
We need to understand why only a minority of people who are aware of matters of serious public concern, such as patient safety in the National Health Service or misconduct, are prepared to be whistleblowers, and the majority of people collude in a cover-up by self-censoring.
Part of the reason is that most people, even whistleblowers, censor the expression of their own views every day. We may think that another person’s clothes demonstrate poor dress sense but we make no comment to avoid giving gratuitous offence to the wearer and precipitating confrontation, because the way people dress is relatively unimportant, is not our business and because we lack confidence in our own opinions. This socially acceptable form of self-censorship about minor matters is considered appropriate. Because of the social mores that people should mind their own business, be cautious when saying things that might cause offence, be certain of their facts before expressing criticisms and give others the benefit of the doubt, there is often reluctance for people to speak out. We teach our children to mind their own business and avoid gratuitous frankness.
As a result of these mores, it can be difficult for people to decide whether an issue is sufficiently serious to speak out. People can generally convince themselves that they should not get involved and that if the matter is serious enough someone else will report it. The knowledge that whistleblowers are treated badly is also a major incentive for self-censorship.
For much of society, a whistleblower is no different from an informer, and no sector in society likes an informer. They are given derogatory names like snitch, sneak and grass. The name Judas has become synonymous with someone who betrays a friend or colleague. Society generally, and some religions specifically, believe that loyalty is a virtue in its own right, even if the underlying cause is dishonourable. As a result, society tends to shun informers or whistleblowers. There is also an element of self-protection, because we might be concerned that a whistleblower will also inform on us. So whistleblowers face penalties from their peers, institutions, the law and society in general, and these are disincentives for reporting concerns.
Many organisations have codes of conduct that require a member to keep silent about misconduct or bad practice by its members. These codes of conduct may be secret or published. It is no surprise that the mafia has a code of omertá. It is more surprising that the General Medical Council (GMC), which regulates and licenses doctors to practise in the UK, has a rule that may impede one doctor raising concerns about another (codified in ‘Good Medical Practice’, its guidance for doctors). I discovered it when I raised concerns about misconduct by a group of doctors and the initial act of the GMC was to investigate me, the complainant, under its rule prohibiting one doctor from disparaging another. Only when I was cleared did the GMC investigate my complaint, determine that my concerns were justified and issue warnings to the doctors about their future conduct. Although the GMC code also encourages its members to take appropriate steps when they believe that a colleague may not be fit to practise, if a doctor risks facing punishment by the GMC for raising concerns about a colleague, most would consider it prudent to remain silent.
The treatment I received contrasts with the way that the GMC dealt with one of its own senior members, who at the time was the chair of the professional conduct committee (the former name of the committee that adjudicates when a doctor is accused of misconduct) and also the medical director of a hospital in which a doctor was found to have embezzled money from the accounts of a medical charity. A severance agreement between the doctor and the hospital management board agreed not to make the scandal public. As a result, the doctor’s criminal activity was concealed. The hospital also destroyed the documentation compiled in its investigation. I reported the doctor to the GMC. The professional conduct committee found him guilty and suspended him from the medical register. The start of the hearing was delayed because the chair of the committee, who had chaired a panel investigating the embezzlement at the hospital, had to stand down from the case and a replacement was appointed. The GMC took no action against the chair, despite requests from me and the GMC’s own lawyers. He subsequently returned to hearing other cases. From these two cases we might conclude that the GMC believes that if a doctor reports misconduct by another doctor it is a more serious form of unprofessional behaviour than if a senior doctor fails to report wrongdoing to the GMC.
A code of silence also exists in the police. It was demonstrated by the miscarriage of justice that sent an innocent man, Stefan Kiszko, to prison for 16 years for the sexually motivated murder of schoolgirl Lesley Molseed. Kiszko was cleared on appeal after it became clear that forensic evidence, which was available to the police but which was suppressed at the time of his trial and never revealed to the defence team, clearly showed that Kiszko could not have been responsible for the murder. That forensic evidence later resulted in the conviction of another man, 30 years after the murder. Although one of the police officers and scientists on the case were served with summonses for suppressing evidence at Kiszko’s trial, it was stayed by a magistrate on the grounds that the head of the inquiry had since died, and too much time had passed for a fair trial. It is a striking example of the unwritten code that allows self-censorship and miscarriages of justice to take place.
In contrast, the actions of Dr Stephen Bolsin led to major changes in the UK to paediatric cardiac surgery and to audit of surgical procedures, and across the world to reforms in clinical governance. These reforms have probably saved thousands of lives. The events in Bristol and the treatment of Dr Bolsin also led to the Public Interest Disclosure Act, which it was hoped would protect whistleblowers. Unfortunately the Act is flawed and has created additional problems for whistleblowers. Minor deviations from an institution’s procedures, which are often complex, are commonly used to discipline or sack whistleblowers and hence deter others.
Dr Stephen Bolsin before giving evidence at the inquiry into the scandal over the high death rate of children undergoing cardiac surgery, 22 November 1999
Credit: Barry Batchelor/PA
Despite catalysing major improvements in medical care, Dr Bolsin found his position in Bristol untenable and he left. He was unable to get another post in the UK and he was forced to leave the country. Many other whistleblowers have also suffered. Dr Rita Pal, who raised concerns about the care of elderly patients in Stoke-on-Trent, is no longer working as a doctor. Dr Kim Holt raised concerns about St Ann’s child development clinic in Haringey run by Great Ormond Street Hospital. If her warnings had been heeded it might have prevented the death of Baby P. Instead she was suspended for four years before recently receiving an apology from the hospital. There are many other examples, but the message for anyone considering blowing the whistle is that you do so at your peril. Managers of institutions do not want to employ people who might expose bad practice and colleagues are afraid to work with them.
On one occasion when I reported dishonesty by a senior doctor, I was asked whether other doctors who knew of the misconduct were prepared to support my account of events. I asked five doctors who were witnesses and therefore able to corroborate my statement, but all refused to do so. None of them disputed my version of the events, but some said that exposure of such a senior doctor would harm the public’s respect for the medical profession; others said that it would be bad for their careers and one said that what he had done was the sort of thing any doctor might do. (I would add that I would not.) My complaint did not progress, but several years later the senior doctor appeared in court because his dishonesty was repeated. We don’t know whether in this case there were any other instances of dishonesty in the intervening period, but there is obviously a risk of harm to patients if wrongdoing by senior doctors is not supported and taken seriously by fellow doctors.
It is often difficult to determine how much self-censorship is out of loyalty to colleagues or institutions and how much is the fear of the retribution they might face if they blow the whistle. However, there is no doubt that the defamation laws, particularly in England and Wales, are a powerful incentive to self-censor.
I spent nearly four years fighting three defamation claims (for both libel and slander) brought in the English High Court by a US medical device corporation, NMT Medical. The cases started after I spoke at a cardiology conference in the USA about a clinical trial that was sponsored by NMT and in which I was the principal cardiologist. Some of my concerns about the research were published on a US website and they have subsequently been shown to have been justified. Others knew about the concerns, but they were not prepared to speak out either about that research or about the conduct of NMT. The legal cases ended recently when NMT went into liquidation. Only then did it become clear that some doctors had additional concerns about other devices made by NMT, but they had not reported them, even to official government regulators. Because it was clear that NMT was prepared to use the draconian English defamation laws to attack and silence critics of their devices, it had a chilling effect on the willingness of other doctors to report their concerns.
My experience of being sued for libel for raising legitimate concerns that affected public health echoed the experiences of Simon Singh, who was sued by the British Chiropractic Association; Dr Ben Goldacre, who was sued by Matthias Rath; and Dr Henrik Thomsen, who was sued by GE Healthcare. The publicity of these cases has had the unfortunate chilling effect of making others reluctant to speak out. We have no idea how many times people with justified concern about matters of public safety are deterred from reporting their concerns for fear of being sued for defamation.
If society wants people to speak out when there is a matter of public concern, we need to make it more culturally acceptable to speak out, to bring in laws that really do protect whistleblowers and to change the defamation laws so that they cannot be used by dishonest individuals and incompetent organisations to prevent exposure of matters of public concern.□