NHS whistleblowers need stronger legal protection to prevent hospitals using unfair disciplinary procedures to force out doctors who flag problems, the British Medical Association has said.
Doctors are being “actively vilified” for speaking out, which has resulted in threats to patient safety, including unnecessary deaths, according to the council chair of the doctors’ union, Phil Banfield.
Despite a series of scandals in recent years, it is becoming more common for hospitals to use legal tactics and “phoney investigations” to undermine or force out whistleblowers rather than address their concerns, he warned.
Banfield said: “Someone who raises concerns is automatically labelled a troublemaker. We have an NHS that operates in a culture of fear and blame. That has to stop because we should be welcoming concerns, we should be investigating when things are not right.
“Whistleblowers are pilloried because some NHS organisations believe the reputational hit is more dangerous than unsafe care,” he added. “Whereas the safety culture in aviation took off after some high-profile airplane crashes in the 70s, the difference is that the aviation industry embraced the need to put things right and understand the systems that led to the disaster – the NHS has not invested in solving the system, it’s been bogged down in blaming the individual instead of the mistake.”
Whistleblowers could be afforded greater protection through changes to the law as well as through cultural change in hospitals, including putting an end to many hospitals’ hierarchical “command and control” management style, which prevent more junior staff from airing concerns, he said.
Banfield cited examples, including Mid Staffordshire NHS hospital trust in 2013, where a report into patient deaths resulting from poor care identified the abuse of whistleblowers as a key failing, and more recently Royal Sussex County hospital, where police are investigating about 40 deaths following allegations of medical negligence made by two consultant surgeons who lost their jobs after raising concerns.
He also highlighted the case of Dr Martyn Pitman, who was sacked by Hampshire hospitals NHS foundation trust after raising concerns about unsafe staffing levels in the maternity unit in which he worked as a consultant obstetrician.
Speaking to the Guardian, Pitman estimated that his trust had spent “well into six figures if not higher” in taxpayer money to oust him, rather than address failings which were since confirmed in a warning by the Care Quality Commission that improvements were needed in 2022. The hospital was also put into a ‘recovery support programme’ – formerly known as special measures – last month.
Pitman said his experience was “incredibly disruptive psychologically and took me to some incredibly dark places I wish I’d never got to”. He worried that his treatment will deter colleagues from following his path, saying: “Why would you whistleblow? That has potentially direct negative consequences for provision of safe patient care.”
Pitman found himself cast as the offender, and during a drawn-out two-year process his confidence was shattered and he was invasively monitored, culminating in a decision that his relationship with his managers had reached an “irretrievably poor level”. This provided justification for the use of the legal mechanism “some other substantial reason” (SOSR),which enables organisations to fire employees not on the basis of conduct or capability.
“They weren’t prepared to change so they would take out the messenger,” he said.
Minh Alexander, a former NHS whistleblower who campaigns for stronger legislative and regulatory protections and regularly speaks to whistleblowers, agreed that this was a common approach.
Responses to freedom of information requests that Alexander made in 2019 revealed that between April 2010 and September 2018, the NHS sacked 10,604 members of staff under the SOSR mechanism. These were commonly justified by a breakdown in relationships, similar to Pitman’s case, she said.
She said the current law requires whistleblowers who claim they have lost their jobs due to their disclosures to meet a series of legal tests, which invite the employer to attack whistleblowers, for instance by casting aspersions on whether they genuinely acted in the public interest. “If any [test goes] wrong, your case fails entirely,” she said.
A spokesperson for Hampshire hospitals trust said: “Dismissal is always a last resort and since Hampshire hospitals was formed 11 years ago, no member of staff has ever been dismissed for whistleblowing or raising concerns over patient safety; and they never will be. Mr Pitman has not been actively working at the hospital for two years and questions surrounding his dismissal will be resolved at an employment tribunal later this year.
“Patient safety remains our top priority, and our maternity teams work exceptionally hard together to provide the best care to our patients.”
A Department of Health and Social Care spokesperson said: “Whistleblowers are protected by law and those acting in the public interest and seeking to maintain public safety should never be prevented from doing so.”
