The Times Thunderer Column, Friday March 15th 2013
Time to celebrate whistleblowing
The announcement by health secretary Jeremy Hunt that gagging of whistleblowers is to be outlawed caused more wry smiles than celebrations in the NHS. Such gagging clauses were made illegal by the Public Interest Disclosure Act (PIDA) in 1998, and very specifically in a Department of Health directive a year later. Assorted health secretaries have reminded the NHS that silencing legitimate safety concerns is illegal, but local managers desperate to avoid scandal have kept using them, in agreements drawn up by aggressive, NHS-funded lawyers. Yet no-one has ever been prosecuted for gagging whistleblowers. So why should Hunt succeed?
I applaud him for trying, but time is not on his side. On April 1st, he will be completely powerless to act as control of the NHS is handed to Sir David Nicholson’s ‘independent’ Commissioning Board. Hunt’s plan needs a strengthening of legislation to succeed, but would still only apply to gags that are accompanied by payments signed off by the treasury. Locally agreed gags will remain hidden from view.
Of course, whistleblowers are under no obligation to accept a gag, or a silencing payment, but in over twenty years of supporting them, those who take that route have already lost their jobs and future employment prospects, and the toll on their health and personal life has been huge. Some need the money simply to live and avoid eviction. The NHS has developed countless ways of punishing whistleblowers. Cutting secretarial help, teaching and research budgets, blocking appointments and “briefing against” informally. Whistleblowers are said to have “attitude problems”, be obsessed with historic issues and not prepared to move on. Notes are trawled to find an error the whistleblower has made and this is used as the official reason for action against him or her. Allegations of mental illness are common and may be self-fulfilling as a whistleblower buckles under the stress.
The trust may refuse to disclose documents the whistleblower needs to support the case, and they breach the data protection and freedom of information acts with impunity. Reprisals are taken against supportive colleagues, and the whistleblower may be threatened. Dr Peter Brambleby, ex-director of public health for Norwich PCT, was told he might “end up in the woods like David Kelly”. Whistleblowers who are brave enough to keep going usually end up at an employment tribunal and, even if they win and refuse a gag payment, they don’t get their costs paid and may end up £200,000 or more out of pocket.
Going to the press is the best chance for whistleblowers to get their concerns taken seriously, but it is career suicide to do so openly, as employment law trumps the scant protection of PIDA. Whistleblowers may be threatened by trust lawyers with libel suits if concerns that could affect the corporate reputation of a trust are to go public. The Department of Health is hopeless, refusing to intervene in ‘a local employment matter.’ And the regulators do not respond rapidly enough, if at all. Indeed, the General Medical Council is more likely to investigate vexatious complaints against a whistleblower than the concerns he has raised.
Trusts may be forced to arrange their own ‘independent’ investigations by, say, a Royal College or a small company run by former NHS managers, but they usually control the terms of any inquiry and how much of its findings are made public, often in redacted form if at all. Jeremy Hunt’s announcement is a small step in the right direction, but there is a long way to go to make the NHS safe for whistleblowers at patients.
We should start be celebrating whistleblowers. Steve Bolsin, the heroic anaesthetist who exposed the Bristol heart scandal, should be flown back from Australia and given an award. Dr Kim Holt, the brave Baby Peter whistleblower who refused to take a gag, should be on the NHS Commissioning Board. And spare a though for Professor Ed Jesudason, a brilliant paediatric surgeon recently forced out of the NHS for raising concerns at Alder Hey hospital. Whistleblowers don’t want sympathy, they want a better NHS for patients and an end to bullying. And they want their jobs back.