Whistleblowing in the NHS

BMJ 2015; 350 doi: http://dx.doi.org/10.1136/bmj.h2300 (Published 01 May 2015) Cite

this as: BMJ 2015;350:h2300

Why Jeremy Hunt's promise to protect whistleblowers is nothing but hot air

By Minh Alexander and David Drew

"On high death rates, failing hospitals and whistleblowing, we are calling time on the cover-up
culture, and ushering in a new era of transparency[1]

So promised Jeremy Hunt in February this year.

However, his rhetoric is not matched by real protection for whistleblowers.

Instead, hes opted for local Freedom to Speak Up Guardians, and a National Guardian. [2] [3]
[4] This is very bad news for whistleblowers and for transparency. There is no evidence base for
the Guardian model [5]. In our opinion it is bound to fail.

The plan now adopted by Hunt was first presented in Februarys Freedom to Speak Up Review
into NHS whistleblowing by Sir Robert Francis QC the man previously hired to report into care
failings at Mid Staffordshire and to devise a plan to ensure they never happened again.

A key finding of Franciss landmark Mid Staffs report was that staff were too scared to report
poor care. Francis pressed for criminal sanctions against whistleblower suppression. [6]

But disappointingly in his new review, Francis rejected criminal sanctions.

Despite evidence submitted to Francis by hundreds of whistleblowers about determined
suppression and lives destroyed, he neutered the Guardians. In particular the National
Guardian, purported back stop for failure of local mechanisms, will not have its own statutory
powers, merely an advisory role. Nor will it investigate individual cases, nor review past cases to
learn from history.

Another crucial weakness of the National Guardian is that it will not intervene in employment
disputes.

should not actively intervene in ongoing provider processes or employment disputes [7]

A key strategy used against whistleblowers is to engineer employment disputes, so employers
will easily side step the National Guardian.

Employers typically create employment disputes by mistreating whistleblowers to provoke
grievances, inventing grounds for disciplinary action or smearing whistleblowers mental health
and performance. Employers can then dismiss whistleblowers for misconduct, incapability or

break down of relationships (under the some other substantial reason clause). Alternatively,
employers may rely on redundancy.[8] [9]

A National Guardian that can not intervene in this highly damaging strategy against
whistleblowers will provide no meaningful protection. The most that the National Guardian will
do is report failing employers to bodies that have been part of the problem: the Care Quality
Commission, Monitor, the Trust Development Authority and NHS England.

The National Guardian would not have protected Raj Mattu, a whistleblowing cardiologist. An
employment tribunal ruled last year that Mattu was blameless and unfairly sacked after voicing
concerns about patient safety.

An astonishing campaign was waged against Mattu:

Soon, the single complaint against Mattu had become 35, then 200, ranging from questions over
his qualifications to charges of serious criminal conduct outside of work. These were sent to the
GMC, CQC, the Strategic Health Authority and three different police forces; by 2009, all had been
investigated and found to be false. Mattu was also subject to three separate tax inquiries, despite
having undertaken no private work. In 2010, ill and suffering from depression, he was finally
sacked by managers who questioned the validity of his ailments and found him
unmanageable.[10]

This protracted, costly employment dispute would have put Mattu well beyond the protection of
the National Guardian.

Moreover whilst the National Guardian is nominally independent, the postholder will be hand
picked and overseen by CQC, who are firmly under the DHs thumb. As the National Guardian will
not be in post until April 2016 at the earliest, more whistleblower cases will be consigned to the
dustbin category of historic, and sealed away.

This is all a far cry from an equivalent USA office (Office of Special Counsel). This can
independently investigate, remedy employment detriment whilst a whistleblower is in post and
litigate.

The worst NHS organisations ignored good practice guidance for years. The National Guardian
office is an irrelevant addition and wastes public funds. However, it provides a smokescreen for
suppression by government. Central bodies chant the mantra protect whistleblowers whilst still
authorising settlements with super gags, which hide even the existence of settlements.

Last year, some whistleblowers were too scared to participate in the Freedom to Speak Up
Review because they were subject to confidentiality clauses.

Hunt pays lip service to aviation-style safety. This requires properly independent investigations,
but Francis ignored many calls for a truly independent mechanism for whistleblower governance.
His review report is totally silent about the grave nature and scale of the disclosures reported to
him. We have learned that Francis ignored even Simons Stevens, who on behalf of NHS England
called for independent investigation, safe harbour and an Ombudsman. [11] Similarly, it is

evident that DH ignored the CQCs suggestion that the National Guardian could be located with
the proposed NHS independent patient safety investigation service (IPSIS).[7]

Independence and full transparency are plainly resisted by government. Francis complaisance is
very disappointing. Last October, we attended a Freedom to Speak Up seminar at which Francis
openly stated that he would only make recommendations that would be accepted. Francis
review is a comprehensive failure in terms of duty of care to staff and patients. However, it suits
the DH very well.

The stream of victimised and sacked whistleblowers has been undiminished. Cases continue to
be raised in parliament. However, when whistleblowers approach Jeremy Hunt and DH for safe
haven, they are still told that DH does not intervene in employment matters.

Accordingly, whistleblowers will continue to press for proper learning through a public inquiry,
and real measures to protect those who speak up in future. The NHS is under increasing pressure.
Staff have many concerns that they need to raise. It is unjust to expect them to sacrifice health
and livelihood simply for standing up for patients.

Authors

Minh Alexander is a whistleblower and was formerly an NHS consultant psychiatrist
@minh_alexander

David Drew is a whistleblower and was formerly a NHS consultant paediatrician. He is the author
of Little Stories of Life and Death. @nhswhistleblowr

[1] Hunt: Sweeping reforms to end NHS cover up culture. Laura Donnelly & Patrick Sawer,
Telegraph 7 February 2015
[2] Report of Freedom to Speak Up Review by Sir Robert Francis QC, 11 February 2015
[3] Learning Not Blaming, The government response to the Freedom to Speak Up consultation,
the Public Administration Select Committee report Investigating Clinical Incidents in the NHS',
and the Morecambe Bay Investigation. 16 July 2015
[4] National Freedom to Speak Up Guardian, CQC board paper 29 July
2015http://www.cqc.org.uk/sites/default/files/CM071506_Item_6_Freedom_to_Speak_up_Nati
onal_Guardian.pdf
[5] Critique of Francis model of trust appointed Guardians, Minh Alexander 4 June
2015 http://sharmilachowdhury.com/2015/06/21/critique-of-francis-model-of-trust-appointed-
guardians/
[6] Francis calls for new protection for whistleblowers. Shaun Lintern, Nursing Times, 11 February
2013
[7] CQCs submission to DH consultation on implementation of Freedom to Speak Up
Review http://twitdoc.com/view.asp?id=211107&sid=4IW3&ext=PDF&lcl=DH-Consult-CQC-
20150603-FTSU-DH-consultation-response.pdf&usr=Minh_Alexander&doc=272545800&key=key-
8O60eydHWtpxxMI8vznp
[8] 21 Ways to Skin a Whistleblower from Shoot the messenger, Private Eye Special, Andrew
Bousefield and Phil Hammond 2011

[9] Thematic Review of 70 cases, by Patrick Green QC et al, submitted on behalf of Patients First
to Freedom to Speak Up Review, September 2014
[10] There were hundreds of us crying out for help: the afterlife of the whistleblower. Andrew
Smith. Guardian 22 November 2014
[11] Letter from Simon Stevens CEO NHS England to Sir Robert Francis QC, 22 September
2014 http://twitdoc.com/view.asp?id=211953&sid=4JJL&ext=PDF&lcl=Simon-Stevens-
toRobertFrancis.pdf&usr=Minh_Alexander&doc=272974968&key=key-NEY87NHor4PDtvGrRsyk

Competing interests: No competing interests