A conference bringing together key voices in the whistleblowing debate takes place in Bristol on 16 October.
Whistleblowers, NHS managers, patient safety advocates and journalists will discuss the question that pervades so many health scandals: why, with the NHS in such a parlous financial and political position, is whistleblowing still such a dangerous activity?
With the Care Quality Commission having declared 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 and protected, encouraged, or even feted. Whistleblowing is not just about public exposure of scandals; early, internal disclosure of failings and risks gives managers an opportunity to take preventative measures, potentially avoiding the spiral of harm and expense that characterises these crises.
The Bristol Scandal
Missed opportunities to act on internal concerns have been a recurring theme of the large-scale inquiries into NHS failings of the last 15 years. In 2001, the Kennedy Inquiry into children's heart surgery at Bristol Royal Infirmary found serious, systemic failures at a unit that had clothed itself in a culture of wilful blindness to safety concerns. As early as the late 1980s, the 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 an inquiry by the General Medical Council. By this time, scores of children had died or suffered severe injuries.
We have calculated that heeding Bolsin's concerns may have saved the NHS in excess of £100,000,000, 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.
This story, of an individual stifled by an NHS trust unwilling to acknowledge its shortcomings, has been repeated at many other hospitals since Bristol. Professor Bolsin, as he now is, arguably gained the most notoriety as a whistleblower, and paid the ultimate price, having to emigrate with his family to Australia in the face of widespread prejudice in the medical profession. Even being proved correct in one's concerns is not enough to win back the support of many trust employers.
The cost of silencing whistleblowers
Ignoring a whistleblower, if his or her concerns are shown to have been justified, is hugely expensive for the NHS. Where a trust knows of a serious problem but fails to act, negligence cases begin to pile up and, inevitably, become difficult to defend. Defence solicitors, however, seem regrettably unaware of this, and, in the Bristol cases, fought on for years in the face of the GMC's serious professional misconduct findings and the entire unit being censured by the Kennedy Report for providing an inadequate service.
Concealing information about unsafe practices also leaves hospitals vulnerable to negligence claims relating to failures of consent. It is axiomatic that, in medical procedures, a patient or his or her family, must give properly informed consent to treatment, understanding the risks and ramifications of what they are about to undergo. At Bristol, parents of candidates for surgery were given surgical outcomes 'predictions', figures for survival rates and surgical risk, which may have reflected national averages but which the Trust clearly knew to be inaccurate at Bristol. Where patients or family consent to surgery at a unit or hospital that is known to have a substandard record or inadequate, perhaps even dangerous staffing levels, their consent could be tainted. The NHS may well be landed with a claim alleging a failure to warn, that it will find difficult, if not impossible, to defend.
The future of whistleblowing
Why are whistleblowers ignored and, in so many cases, bullied and victimised? These are issues to be explored at the Turn up the Volume conference.
Surely it cannot be insurmountably difficult to establish a mandatory requirement for hospital management to investigate a whistleblower's concerns, to find out if those concerns are justified, and to take steps to grasp a problem before it lurches out of control.
There must be a simple way of opening a path for whistleblowers from the ward to the management office, and implementing a duty on the employing Trust to hold prompt investigations into those concerns. In addition, any processes that are already in place clearly need to be given teeth. A breach of the recently implemented duty of candour carries criminal sanctions, and it is difficult to see why suppressing a whistleblower, and ignoring safety concerns, is not handled with equal seriousness.
We are currently awaiting the decision on the award to be paid to Raj Mattu, formerly a cardiologist at Walsgrave Hospital in Coventry, who exposed a crisis of overcrowding and patient safety at his unit in 2001. His colleagues had nominated him to put forward their concerns to management – his reward was a suspension and a decade-long struggle before he was eventually exonerated. This was despite a report emerging in September 2001, shortly after he raised these concerns, which identified an 'excess death rate' at the hospital of 60%.
The furore over Dr Mattu's treatment by his employers has become a case study in the opprobrium faced by those who break ranks and voice concerns; 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, have lost the services of a skilled and conscientious doctor. There are many other doctors serving suspensions and losing their careers in the process.
Mattu's case is also an object lesson in the cost of smothering whistleblowers. The Trust pursued him through employment tribunals, accruing a reported bill of up to £10 million, including the cost of all the legal proceedings and disciplinary processes. Figures of a similar amount have been bandied about in the media, representing the compensation for Mattu's blighted career.
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 treatment of whistleblowers by their NHS employers is a ritual that has been played out, at great expense and for many years, across the country, and continues to be a study in unfairness, short-sightedness and wasted opportunities. To date, I have yet to hear of a case in which a victimised whistleblower has not, eventually, been completely vindicated. What must come next is a re-evaluation of the existing safeguards for whistleblowers, recognising the value of individuals willing to speak out, and creating conditions that make these kinds of disclosures a cultural norm in the NHS.