Well done the British Medical Association. Having taken some flak for negotiating compromise agreements with gag clauses for doctors leaving employment (see Shoot the Messenge, STM), it hosted a conference on October 2 called ‘Protecting Whistleblowers’ with the campaign group Patients First (MD is a patron). Dr Kim Holt spoke about whistleblowing at the clinic run by Great Ormond Street Hospital (GOSH) where Baby Peter was treated (see STM). She was proud to be a whistleblower, but lived in fear of the GMC. A common thread amongst many whistleblowers is that their NHS employers engage in vindictive counter-accusations and referrals to the GMC or NMC. Dr Raj Mattu, the former consultant and internationally respected cardiologist at University Hospitals Coventry and Warwickshire NHS Trust (UHCW) probably holds the record for this, with what he believes are over 200 allegations made against him by UHCW (who decline to clarify the number).
Mattu first blew the whistle in 1999 because he believed a patient had died as a result of UHCW’s policy of putting 5 patients in a 4 bedded bay to meet waiting time targets. This made it impossible to resuscitate effectively in an emergency (see STM). In 2001, a Commission for Health Improvement review found the comparative death rate for non emergency admissions including cardiology was 160 (compared to the English NHS average of 100). Mattu continued to raise concerns and was suspended on full pay for eight years from 2002, despite an independent inquiry recommending his reinstatement in 2005. He was sacked in 2010. He persistently refused to take a pay-off with a gagging clause and instead pursued an unsuccessful claim against UHCW in the High Court. Next month, Mattu and UHCW meet at employment tribunal. He has no money and will represent himself. This case is already one of the most expensive in NHS history, costing the taxpayer over £5 million, and Mattu has had his career, health and vital research slides destroyed. At the time, UHWC’s mortality rates were as bad as nearby Mid Staffs, and it may be that the brutal treatment of Mattu dissuaded other whistleblowers in the region.
Kim Holt did not take the gag money either and was suspended for over 4 years. As she put it: ‘Any employer can sack any employee in any sector. All you can get is compensation.’ She also warned of the dangers of signing a gag clause. ‘The clause will often oblige you to hand back all your documentation, so you subsequently have no evidence even if you wanted to take it to the regulators. But if the scandal ‘blows’, you will be charged with complicity in the cover up.’
NHS whistleblowers won’t be protected until those who may have suppressed or failed to act on their concerns are properly investigated, and their Trust boards held to account. On 30.9.2011, MD and Andrew Bousfield asked the GMC to investigate whether Dr David Elliman, a GOSH consultant with responsibility for child protection, had acted appropriately on the concerns raised by Dr Holt. A year later, the GMC is still taking legal advice. On 10.7.2012, we asked the GMC to investigate Dr Barbara Hakin, the NHS Director of Commissioning, in her former role as CEO of East Midlands SHA, to judge whether she had acted appropriately on the patient safety concerns raised by former United Lincolnshire Healthcare Trust Gary Walker, who was sacked and super-gagged by the NHS. On 6.8.12, the GMC instructed Field Fisher Waterhouse LLP to ‘assist in the investigation’.
Walker also made a protected disclosure to NHS chief executive Sir David Nicholson, who must now specifically and publicly remove the gag from Gary Walker and allow him to present his evidence that patient safety was compromised by government targets that he was ordered to meet. The lifting of this single gag would signal a profound change of culture at the top of the NHS towards protecting whistleblowers. If Nicholson and Hakin have nothing to hide, they have nothing to lose.
It says, as a key point, ‘You are protected in law from harassment and bullying when you raise a concern.’
In fact, all the law currently does is to compensate a few lucky whistleblowers after they have been victimised. It does very little to protect them
The BMC and Public Concern at Work are at least raising concerns about the potential amendments to Clause 14 of the Enterprise and Regulatory Reform Bill which would make whistleblowers more vulnerable than they already are. At present, it’s all too easy just to suspend or sack them, even if they are members of the BMA.