The Loneliness of the NHS Whistleblower

Insight from Laurence Vick, Legal Director at Enable Law.

Where are we now with whistleblowing in our health services?

I attended the first Turn up the Volume conference in 2015 and the second on 26 May 2017 which underlined the sad fact that whistleblowers still find themselves in a lonely place.

What has changed for whistleblowers in the meantime and is it any easier for health professionals to bring safety concerns to management without exposing themselves to bullying, victimisation and risk of losing their careers? What initiatives have been introduced and how have any changes in the law affected the position? Surely colleagues of disgraced breast surgeon Ian Paterson in the NHS and at the two Spire hospitals where he worked knew what was going on? So what factors are at play that still prevent doctors from raising concerns?

The historic cases of Steve Bolsin and Raj Mattu are well known. The acid test, to me, is how a Bolsin or a Mattu would be dealt with today if they communicated their safety concerns up the chain of command within their Trusts? I will cover some recent examples of how whistleblowers have been treated by their employers. Unfortunately these cases throw light on the way that whistleblowers continue to be suppressed rather than encouraged, both in the NHS and private sector. The use of gagging clauses when whistleblowing doctors receive financial settlements on agreeing to leave their employment is still endemic in the NHS. Even if confidentiality terms are expressed so as not to prevent a doctor making a protected disclosure under whistleblowing laws the perception must be that if paid to leave, the mouth should remain firmly shut about whatever concerns he or she had raised. This is hardly consistent with the new spirit of openness and transparency in our health services.

With the Care Quality Commission declaring that two thirds of NHS hospitals are offering unsafe care, and that budget constraints and cost-cutting will only lead to more failings, it is increasingly difficult to see why whistleblowers are not listened to and protected, encouraged, or even feted as ‘champions of the public interest’ as one of the eminent speakers at the recent Turn up the Volume conference put it. Whistleblowing is not just about public exposure of scandals; early, internal disclosure of failings and risks gives managers an opportunity to take early preventative measures, to learn from mistakes and potentially avoid the spiral of harm and expense that characterises the scandals that continue to emerge. In extreme cases, dangerous surgeons can be weeded out and their practices addressed.

Ian Paterson

Would safer whistleblowing, with protection for those who raised concerns, have halted Ian Paterson’s activities in the NHS and private sector?

Concerns over Paterson’s surgery had circulated since at least 2003. His performance was scrutinized in 2004, and in 2007 an internal review resulted in Solihull NHS hospital ordering him to stop performing his notorious cleavage-sparing mastectomies. However, he continued to carry out these and other harmful and unnecessary procedures until around 2010. The GMC imposed restrictions on his practice in 2011. A review of Paterson’s NHS practice was carried out by Professor Sir Ian Kennedy in 2013. Paterson worked at two private hospitals operated by Spire who commissioned their own Verita independent review with results also published in 2013.

Recent press reports of his criminal trial have not included details of obvious whistleblowing activity but the Kennedy review into Paterson’s NHS activities included references to the fact that whistleblowers were in fact repeatedly ignored.

As Kennedy put it:

“Whistleblowers do not fare well in the NHS. This is one of the major indictments of management in the NHS: that it is inwards-looking, over-defensive, and prone to destroy, by a variety of means, those who suggest that the Emperor has no clothes. This is not unique to this Review. It is a blight on the NHS and is one of the principal areas where lessons must be learned.”

The Paterson case demonstrated a failure at all levels of oversight and governance in the NHS and private sector. Early exposure of his activities would have prevented injury, trauma and possibly deaths of patients – and avoided significant sums to meet several hundred compensation claims which are now virtually unanswerable.

It seems extraordinary that nobody had felt able to speak out. Did doctors turn a blind eye and keep their heads down? Surely there must have been conscientious colleagues at Paterson’s NHS hospital and at the Spire hospitals who knew of the harm he was inflicting on patients but may have been afraid to raise concerns in the belief that they would be stifled and victimised? Were there doctors who tried to take steps to protect patients from Paterson but were prevented from doing so? Equally, were there doctors or managers who for various reasons, none defensible, who did not want the truth to emerge?

It has now been reported that up to ten doctors who worked with Paterson are under investigation by the GMC, presumably for failing to act on concerns.

Trust managers risk punishment for failing to protect patients from harm, so failing to act on a whistleblower’s concerns can be a risky strategy. Bristol Medical Director Dr John Roylance was struck off for professional misconduct by the GMC in 1997 after he chose to ignore warnings from children’s heart surgery whistleblower Steve Bolsin. The GMC ruled that Roylance had failed in his responsibility to intervene to ensure the safety of patients; the GMC having jurisdiction because he was a registered medical practitioner (a radiologist).

More recently former Royal Cornwall Hospital, Truro Medical Director Dr Robert Pitcher was struck off by the Medical Practitioners Tribunal Service at a misconduct hearing in October 2016 for failing to protect patients from the risk of harm at the hands of disgraced gynaecologist Rob Jones. Pitcher had failed to act between 2007 and 2008 on shortcomings reported by Jones’ colleagues and confirmed by four investigators, three of whom were independent consultants, who had identified “significant concerns that require resolution.” One of the reports had identified 46 serious failings in Jones’ practice but Pitcher chose to ignore its findings. Some of Jones’ colleagues – particularly junior consultants and senior trainees – who gave evidence at the MPTS hearing said they felt it had been enormously difficult to raise concerns about a senior colleague; they were fearful of the effects on their own careers and being seen as troublemakers. They also described their frustration that nothing effective was done in response. It was not until concerns were escalated directly to the Trust’s Chief Executive in 2012, bypassing the clinical and medical directors, that effective action was eventually taken. RCOG investigators then described the team as “divided and dysfunctional” and that cultural and personality issues had led to missed opportunities to investigate objectively. Pitcher was castigated for putting the interests of his colleagues above patient safety. A total of 204 compensation claims on behalf of Jones’ patients for their avoidable injuries were handled by my colleagues at Enable Law (Foot Anstey). About half of these claims related to injuries suffered following treatment by Jones after 2008, so may have been avoided altogether if Pitcher had taken appropriate action.

Kevin Beatt

Cardiologist Kevin Beatt’s case has also been in the news recently. Dr Beatt had voiced concerns for 3 years over staffing and equipment shortages and workplace bullying and harassment of junior employees at Croydon’s Mayday hospital and this came to a head following the death of a cardiac patient during a routine angioplasty procedure in 2011. Beatt was sacked in September 2012. The Trust maintained he had made ‘vexatious’ ‘unsubstantiated and unproven allegations of an unsafe service’ but a tribunal ruled two years later that he had been unfairly dismissed in a ‘calculated attempt to damage his reputation’ and subjected to unlawful detriment for “making protected disclosures.”

Dr Beatt has now finally triumphed at the Court of Appeal after a 5 year battle. The Court of Appeal accepted the original 2014 employment tribunal decision. Lord Justice Underhill made the following statements:

“It comes through very clearly from the papers that the Trust regarded Dr Beatt as a troublemaker who had unreasonably and unfairly taken against colleagues and managers who were doing their best to do their own jobs properly.”

“It is all too easy for an employer to allow its view of a whistleblower [being] a difficult colleague or an awkward personality, as whistleblowers sometimes are, to cloud its judgement.”

Parliament had “quite deliberately, and for understandable policy reasons, conferred a high level of protection on whistleblowers”.

“If there is a moral from this very sad story, which has turned out so badly for the Trust as well as for Dr Beatt, it is that employers should proceed to the dismissal of whistleblowers only where they are as confident as they reasonably can be that the disclosures in question are not protected.”

Dr Beatt’s compensation award will be assessed at a further tribunal hearing.

In whistleblowing cases the three key questions for an employment tribunal are (i) whether the employee has made a protected disclosure, (ii) whether he or she has been treated detrimentally and (iii) whether the reason why the employee has been treated detrimentally was because he or she had made the protected disclosure. The third point is key – why has the employee been treated detrimentally as he or she alleges?

Whistleblowers: patient consent and the duty of candour

Whistleblowing is likely to have implications for a patient’s consent before he or she undergoes treatment and the hospital’s duty of candour after treatment has taken place that are likely to become apparent as more cases come before the courts.

The law on consent

We are now in an era of self-determination and the well informed patient. The Supreme Court decision in Montgomery in 2015 ruled that it is a doctor’s duty to take reasonable care to ensure that a patient is aware of material risks inherent in treatment, and of reasonable alternatives. In order fully to advise, the doctor must engage in a dialogue with the patient and must explain the risk of intervening events and complications that might occur. Placing the onus on a patient to ask questions when the patient may not know what questions he should be asking is no longer sufficient.

Quoting from the seminal passage of the Montgomery judgment:

“The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

The reported cases involve the extent of the duty owed by the doctor and the explanation of the risks and benefits of each alternative before the patient undergoes treatment. For the patient to make a truly informed choice, shouldn’t he be informed of the comparative benefits of undergoing an operation at a different hospital unit with greater experience and competence, better equipment or whose surgical and medical staff have a superior safety record in that procedure? If a surgeon lacks experience in the specific operation to be performed, patients should be informed of this.

The whistleblowers whose cases have been reported have raised concerns over shortcomings at their own hospitals. The difficulty for the hospital is that if patients are informed that a senior doctor in that unit has raised concerns over inadequate resourcing, lack of experienced staff, or high mortality rates – or perhaps an adverse record in a particular procedure – those patients will inevitably opt for surgery at another centre. If parents had been informed of the true position at the Bristol children’s heart unit in the 90s they would have chosen other hospitals which may ultimately have resulted in the loss of supra-regional status and associated additional NHS funding.

The availability of readily accessible, comprehensible, up-to-date, risk-adjusted data – enabling patients and families to compare units and understand the risks they and their children face undergoing surgery at a particular hospital – is surely a key element of consent but still seems to be a long way off despite this being a being an important recommendation of the 2001 Kennedy Report. Many patients may not want to delve into the world of statistics but some will wish to research the position and will want to be able to compare the record of other units in that particular procedure.

The duty of candour

What of a Trust’s obligation to inform a patient if their treatment has gone wrong?

The duty of candour introduced in 2014 for the NHS and in 2015 for all healthcare providers imposed a duty to provide notification of a patient safety incident – a ‘notifiable event’ – which has or which could (in the future) give rise to specific, defined types of harm This duty falls on the NHS or private sector provider rather than the individual doctor. Failure to comply is a criminal offence punishable by a fine of up to £2500 and may result in the CQC revoking the provider’s registration.

The duty of candour has not caught up with the law on consent and the impression from the guidance that has been issued within the NHS and private sector is that this is a box ticking exercise, with the use of template letters providing often formulaic responses. The ‘apologise but don’t admit liability or acknowledge fault’ mantra on which much of the guidance seems to be based may comply with the wording but hardly reflects the spirit of the duty. Patients and their families expect a full explanation of what has gone wrong and why. Is the duty of candour meaningful in this context?

There seems to be an ethical incongruence between candour before treatment and reticence after that treatment. There are implications of the relationship between a doctor and his employers and his conflicting duties to both patient and employer, usually an NHS Trust in this context, which represent further potential obstacles to the implementation of the duty of candour. This raises the difficult ethical issue for doctors involved in a patient’s treatment; their duty to do no harm. Has a doctor fulfilled his duty to the patient if he fails to warn him before treatment or to explain after treatment has taken place that concerns have been expressed by senior colleagues?

I do appreciate the dilemma and conflicts that can arise for doctors working in the NHS when it comes to complying with the duty of candour. These can be tricky issues for NHS employees which I feel were not fully thought through when the duty of candour legislation was introduced. Breaches of the duty of candour may be considered by the employer as gross misconduct on the part of the employee even if the underlying treatment failure, if attributable to the doctor’s individual shortcomings, would not have led to dismissal. In addition the employee could be exposed to the risk of fitness to practice proceedings by the GMC both for the underlying failure and the failure to comply with the duty of candour.

Although doctors may wish to comply with their ethical duty to the patient, given how whistleblowers have been treated by managers in the NHS in a long list of notorious cases, I’m not sure I would be comfortable with my employment situation as a doctor if I were to give a full explanation to a patient who has suffered an adverse outcome. What if I knew of wider systemic failings, lack of resources, dangerous practices, or incompetence of colleagues which may have played a part in the outcome?

The ‘insurance factor’ may also be an obstacle to an effective and genuine duty of candour. A concern of mine is whether private insurers, or in the case of the NHS their indemnifiers, the NHSLA/CNST scheme, will actually allow their insured or their employees to fulfil the obligations of the statutory duty of candour in accordance with what I believe to be the intended spirit of the legislation.

Whilst being open and honest will be second nature to the vast majority of doctors, there are pressures which may have the – unintended – consequence of making doctors reluctant to admit that errors have taken place. Taking the Bristol children’s heart surgery scandal of the 90s as an example, families were not given accurate explanations after their children died or suffered brain damage and other significant injury. In this situation, if a duty of candour is to have any meaning surely a patient must be informed of the part the known incompetence of a surgeon or lack of essential resources or inadequate numbers of suitably experienced staff has or may have played in the adverse outcome? On the other hand there may be a risk that the Trust loses its indemnity if it is found that there has been a failure to comply with the duty of candour.

In my area of interest, children’s heart surgery, in many ways little has changed since the 1990s when concerns were raised by whistleblower Steve Bolsin. Parents of a child with an extremely complex congenital cardiac defect such as Hypoplastic Left Heart Syndrome may be unaware – but should be told – that Birmingham is currently the leading national centre for corrective surgery on this lesion. Inevitably units with a greater degree of expertise in immensely difficult procedures such as surgery to correct HLHS or the Fontan are going to achieve better outcomes in terms of lower mortality rates and a lower incidence of and ability to deal with surgical complications.

So what can a parent expect from the duty of candour if their child has undergone surgery at a unit that lacked expertise in this procedure? They may be given a frank explanation of why their child died or suffered complications but in the same way that they should have been informed of the wider facts before surgery, I believe they should be informed that there may have been a quite different outcome if their child had been operated on at one of the leading centres?

These are questions of life or death. The failure to disclose this kind of information after a child has died or survived with brain damage is unlikely to satisfy a family’s interpretation of the level of candour they can expect?

What if Steve Bolsin and Raj Mattu had raised their concerns today?

Steve Bolsin

This story of an individual stifled by an NHS trust unwilling to acknowledge its shortcomings, has been repeated at many other hospitals since Bristol. Some of the systemic, cultural failures at Bristol in the 90s are being repeated now, a generation later; failures that I don’t believe the law protecting whistleblowers or duty of candour as currently framed are able to address. News reports of scandals in the NHS raise the inevitable question ‘Have the lessons of Bristol been learned?’

Missed opportunities to act on internal concerns have been a recurring theme of the large-scale inquiries into NHS failings of the last 20 years. In 2001, the Kennedy Inquiry into children’s heart surgery at Bristol found serious, systemic failures at a unit that had clothed itself in a ‘club culture’ of wilful blindness to safety concerns. As early as the late 1980s, the recently-arrived consultant anaesthetist Stephen Bolsin had made his concerns over alarming surgical mortality rates clear to his superiors at the Trust; fellow clinicians and managers, occupying all levels of authority right up to the top of the NHS and the Royal Colleges, refused to heed his warnings.

Operations at Bristol continued, in the hands of surgeons whose failings were later laid bare in the GMC disciplinary inquiry. By this time, scores of children had died or suffered severe injuries. The data was incomplete but we estimated by extrapolation from the limited data available that 171 children who could have survived if they had been operated on in other hospitals had died at Bristol over the period 1982 – 1994 covered by the Public Inquiry. There was no data for the incidence of non-fatal adverse outcomes so no morbidity comparisons could be made.

Although cardiac surgery has led the field in the publication of outcomes data, to this day the only data available to assess the performance of a surgeon or unit is 30 day mortality. This lack of data and the limited nature of the data that is available can make it difficult for a doctor to prove that his concerns over the performance of his or her colleagues are justified.

Professor Bolsin, as he became after leaving Bristol, gained the most notoriety as a whistleblower, and paid the ultimate price, emigrating with his family to Australia in the face of widespread prejudice in the medical profession. Bolsin became in his own words ‘the most hated anaesthetist in Europe.’ Fortunately he has since received a number of prestigious awards and accolades in recognition of his actions. The concept of clinical governance that took root in the UK and globally arose directly out of Bolsin’s actions. As with all other whistleblowers whose stories are now familiar to us, all he had done was to try and raise concerns over the safety of his unit. He had acted in accordance with his conscience and took a course of action that that he knew to be morally and ethically right. In his lecture to the latest Turn Up the Volume conference he reminded us of the simple fact that we must never lose sight of the patient.

As suggested earlier, concealing information about unsafe practices leaves hospitals vulnerable to negligence claims relating to failures of consent. It is axiomatic that, in medical procedures, a patient or his family, must give properly informed consent to treatment, understanding the risks and ramifications of what they are about to undergo. At Bristol, parents were given surgical outcome ‘predictions’, figures for survival rates and surgical risk, which may have reflected national averages but which the Trust clearly knew to be inaccurate for their own unit at Bristol. Where patients or families consent to surgery at a unit or hospital that is known to have a substandard record or inadequate safety record, perhaps even dangerous staffing levels, their consent could be tainted. The NHS may well face claims alleging a failure to warn, that it will find difficult to defend.

Raj Mattu

Raj Mattu, the former cardiologist at Walsgrave Hospital in Coventry, exposed a crisis of overcrowding and patient safety at his unit in 2001. The Trust had imposed a “5 in 4” system of squeezing an extra bed into cardiac wards designed for four patients, a policy that left essential services such as oxygen, mains electricity and suction less accessible to some patients. Mattu and his colleagues believed this presented a danger to patients and would cost lives; they pleaded for the practice to end but management refused to listen.

Mattu witnessed the death of a 35 year old patient who had suffered a cardiac arrest . He and his colleagues had been unable to afford the patient the required standard of cardiopulmonary resuscitation because they could not access the patient or deploy the equipment due to his location as a fifth patient in a four bedded bay. Mattu and two senior nurses filed a serious clinical incident report and wrote details of these problems in the patient’s case notes. His colleagues nominated him to put forward their concerns and in a letter to the Trust’s Chief Executive David Loughton Mattu complained that the issues he had expressed had not been acknowledged or responded to by the Trust management.

Mattu’s reward was a suspension and a decade-long struggle before he was eventually exonerated. This was despite the CQC publishing a report later in 2001 describing it as the ‘worst ever’ patient safety report they had produced for any Trust, confirming an ‘excess death rate’ of 60% (compared with the subsequent excess death rate of 29% at what became the notorious Mid Staffs).

The furore over Mattu’s treatment by his employers is one of many case studies in the opprobrium faced by those who break ranks and voice concerns and whose careers are blighted. Some 200 complaints about Mattu were made by the Trust to the GMC, health regulators, the former Strategic Health Authority and even the police, every single one of which was found to be without foundation. Meanwhile, the NHS, and we the public, lost the services of a skilled and conscientious doctor.

The cost of silencing and challenging whistleblowers through employment tribunals and courts

The question of how much it costs to deal with the fallout of a mismanaged whistleblowing process, let alone the human toll of patients who have suffered avoidable harm, is becoming glaringly apparent. This, surprisingly, is a factor that seems to have escaped the notice of Jeremy Hunt in his drive to reduce NHS expenditure. The failure to foster a culture in which hospital staff are encouraged to come forward with their patient safety concerns is a missed opportunity to conserve public funds.

Significant legal costs are incurred by the NHS fighting claims made by whistleblowers and challenging them through endless disciplinary proceedings, tribunals and the courts. The financial cost of ignoring whistleblowers’ warnings can be hugely expensive for the NHS. Where a Trust knows of a serious problem but fails to act or takes steps to cover this up, negligence cases accumulate.

As joint lead solicitor for the families at the Bristol Public Inquiry handling cases brought by families affected I have estimated that heeding Steve Bolsin’s concerns and gripping the problem may have saved the NHS in excess of £100 million when one factors in the costs of the GMC Inquiry, Public Inquiry and the expense to the NHS of fighting some 200 claims for fatal injuries and 50 cases for significant damages where children survived but suffered serious injury. This estimate does not include the huge misery and damage done to lives, which makes for even more painful arithmetic.

Mattu’s case is also an object lesson in the cost to the NHS of pursuing whistleblowers. Including the cost of all the disciplinary processes and legal proceedings his Trust built up a reported bill of up to £10 million. Figures of a similar amount have been suggested in the media representing the compensation paid to Mattu for his ruined career, out of which he has had to pay his own substantial legal costs to achieve that outcome.

Press reports suggest that the Trust’s legal costs for their failed five year battle against the now completely vindicated Kevin Beatt already stands at £440,000.

Compensation claims against the NHS for Ian Paterson’s NHS operations are reported to have cost the taxpayer upwards at least £10m. Many of these claims could have been avoided if his Trust had put into practice procedures to encourage, listen to and act on the concerns of whistleblowers. The legal costs incurred by the NHS in fighting the Paterson cases are not yet known. Spire and their insurers are fighting claims brought by Paterson’s private patients; a stance that may well harm the reputation of private health providers and potentially reduce their chances of securing outsourced NHS contracts.

Junior doctor Chris Day was successful in the Court of Appeal in May 2017. Dr Day had raised concerns over staff shortages and notified managers at London’s Queen Elizabeth Hospital that he was the only doctor covering an 18 bed intensive care unit. He claims that his career has been destroyed after false allegations were then made against him, making it impossible for him to continue with his training. Day was prevented from pursuing an employment claim, however, because Health Education England maintained that junior doctors were excluded from the protection of whistleblower laws. After a 2 year appeal process, the Court of Appeal has ruled that the case must be sent back to the employment tribunal for them to decide whether the HEE had broken Day’s terms of employment.
Support for Day has been so great that he was able to raise £140,000 for his legal fees through crowdfunding. Meanwhile the costs to the taxpayer will inevitably be in six if not seven figures by the time the case has reached a conclusion.

This does raise a question mark for me over the apparently narrow view of whistleblower cases taken by the NHS and possibly their lawyers. I haven’t yet come across a case where there has been a successful challenge; invariably whistleblowers have been vindicated but at great personal cost to the whistleblower and the taxpayer. In the meantime patient safety has been jeopardised.

Conclusion

I don’t see that a great deal has changed for whistleblowers: a fear of whistleblowing still pervades the NHS. A number of whistleblowers told their stories at the recent Turn Up the Volume conference. Sadly the advice to would-be whistleblowers was simple and stark: only do what is right if you are very strong. Be prepared to be attacked, personally, professionally and legally. Only proceed if you have insurance to cover the legal costs and the time to spend with your lawyer going through the case in great detail. Expect little or no assistance from the regulators, your MP or anyone else. Be aware that your career may be permanently damaged; former colleagues will shun you and you will lose friends.

So how would a Steve Bolsin or a Raj Mattu be dealt with today? Sadly I can’t help thinking the answer would be ‘little differently’ and they would find many obstacles placed in their way.

Giving enhanced rights to pursue a claim in an employment tribunal after alleged discrimination has taken place is only a partial solution. Suspending whistleblowers and treating them as potential litigants rather than fellow medical professionals working towards a common goal cannot be the answer.

If managers continue to take steps to crush whistleblowers such as Kevin Beatt when they raise concerns over dangerous practices or conditions presenting a possible safety risk, are they really going to allow a doctor to be candid when explaining an adverse outcome to a patient? If hospitals conceal wider problems and systemic failures from patients this would suggest we haven’t come far.

If a breach of the duty of candour carries criminal sanctions it is difficult to see why suppressing a whistleblower, and ignoring safety concerns, is not handled with equal seriousness. It should be a mandatory requirement for hospital management to listen to what a whistleblower has to say, investigate and act on those concerns and only dismiss them after a full investigation has found them to be groundless.

To learn more about the topic covered in this article please contact the author Laurence Vick, Legal Director on T: +44 (0)3303 116758 or E: laurence.vick@enablelaw.com

Follow Laurence on Twitter – @LaurenceVick