Michael Roberts talks about the challenges of whistleblowing for medical staff

Medical negligence solicitor Michael Roberts discusses recent examples of whistleblowing in the health service

Winston Churchill said that criticism fulfils the same function as pain does in the human body, and, while they may not be agreeable, they are necessary. Like pain, we have an instinctive aversion to criticism. It can take great fortitude to face up to criticism, and even more to view it as a vehicle for improvement.

Sadly, across many parts of the NHS, such a quality has been lacking. In the wake of the Mid-Staffordshire scandal, the Francis Inquiry highlighted that transparency, openness and candour, whilst universally acknowledged as essential components of good healthcare, are frequently not observed. Although the Inquiry was primarily considering the health provider/patient relationship, this is equally applicable to the relationships of those within healthcare organisations.

Take the example of Radiology Services Manager, Sharmila Chowdhury, who, after 27 years in the NHS, found herself out of work after raising concerns that public money – as much as £250,000 – had been paid to consultants who were moonlighting at private practices. Ms Chowdhury has since found her status as a known whistleblower to be a bar to future employment in the NHS.

Or consider Gary Walker, former Chief Executive of United Lincoln Hospitals NHS Trust, who lost his job, supposedly, for swearing in a meeting. It later transpired that he had in fact been forced to leave after refusing to meet waiting list targets for non-emergency patients when the Trust’s hospitals were full of emergency cases. He was gagged by a compromise agreement over the reasons for his departure.

These are not isolated cases; there are many more that have fallen victim and more still that dare not come forward. Alarmingly, this problem appears to be on the rise: according to a national NHS staff survey in 2013, 22% of NHS staff reported being bullied, harassed or abused and would fear reprisals if they raised a concern at work – up from 14% in 2010. In this year’s annual GMC survey, only 0.8% of trainee doctors said they had raised concerns this year, compared with 5.2% last year, and one in seven said they had been a victim of, or had witnessed, bullying.

The Francis Inquiry recommended that a statutory duty of candour be introduced to compel healthcare providers to inform patients where treatment has caused death or serious injury, and regulations have recently come into force to give effect to this. The General Medical Council and other regulatory bodies are also in the process of setting out new professional duty of candour regulations which would apply directly to healthcare professionals.

While these regulations will, hopefully, increase transparency between healthcare providers and patients, they do not, ostensibly, do much to improve the situation within organisations.

Robert Francis is currently conducting a review specifically into whistleblowing and bullying in the NHS, and it will be interesting to see what is recommended this time. However, regulation can only take us so far. There is already legislation, in the Public Interest Disclosure Act, which purports to protect employees who disclose important information to their employer, but this sort of protection can be, and is often, worked around.

This may be partly due to the wording of that Act and better drafted regulation may bring about some improvement, but no regulation can provide protection against the enmity of one’s employers and colleagues.

In reality, a wholesale change of attitude is needed if these problems are to be firmly eradicated. How such a change is to be achieved is a difficult question, but it is likely to start at the top – the onus has to be on those with the power to effect change to lead by example. Studies show that Trusts whose boards genuinely appreciate the value of criticism, and, crucially, act appropriately in response, are likely to have a far better working environment than those who pay mere lip service to such matters.

It takes courage to embrace criticism and it takes hard work to use such criticism for good. As Winston Churchill might also have said, had he lived a little longer: “no pain, no gain.”