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Thu, 29 October 2020

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Our whistleblowing legislation isn’t fit for purpose, even when it is life or death

Our whistleblowing legislation isn’t fit for purpose, even when it is life or death

Furness Hospital in Barrow, Cumbria, which was at the heart of the Morecambe Bay Investigation in 2015 | PA Images

4 min read

Whistleblowers are not properly protected in the law and too often their concerns are ignored. Our legislation needs a complete overhaul to prevent further scandals

Bristol Royal, Mid Staffordshire, Morecambe Bay, Liverpool and Gosport: a shocking litany of scandals in the health and social care sectors which have become household names.

While whistleblowing is an issue is many sectors, particularly financial services, it is often health and social care cases that gain the most attention due to the impact on patients and their families.

In every one of those scandals, there was at least one whistleblower, years before it became public, who tried to raise concerns and protect patients. They were usually ignored but often were intimidated, victimised or dismissed.

For anyone working in the healthcare sector, the whistleblowing landscape in front of them is littered with broken careers and indeed, broken people

The medical, nursing and other regulatory bodies are very clear that clinicians have a duty to speak up about concerns, particularly regarding patient safety or quality of care. However, for anyone working in the healthcare sector, the whistleblowing landscape in front of them is littered with broken careers and indeed, broken people, who tried to do the right thing.

All organisations have a tendency to put their head in the sand, cover things up. The more public services are expected to function in a competitive market, such as with the NHS in England, the greater the pressure to protect the reputation rather than admitting there is a problem and trying to fix it.

Most whistleblowers report similar experiences – they are either ignored completely or end up facing intimidation and detriment in the form of losing promotion or even their job.

What gets lost very quickly is the importance of the original concern, which may not even get properly investigated, let alone fixed.

Talking to whistleblowers highlighted that, as much as they wanted greater protection, their first priority was that all concerns would be investigated and dealt with.

There is a presumption that the Public Interest Disclosure Act (PIDA) provides them with protection but, unfortunately, that is not true. It merely allows the whistleblower to seek redress in an employment tribunal after they have suffered detriment in the form of missing out on promotion or even losing their jobs. As it sits within employment law, it very quickly turns into a conflict between the employee and employer, with all the burden of proof on the former to prove that any detriment is purely due to the fact that they raised a concern.

When it was passed 22 years ago, also as a Private Members Bill, PIDA was hailed as providing all the necessary protection needed but, with only 3% of whistleblowers successful at employment tribunal, it is clearly failing the vast majority.

Even facing a tribunal is a failure as it means the safety concern has not been dealt with and the whistleblower is caught in the additional harrowing experience of litigation.

After 22 years, whistleblowing legislation doesn’t just need a bit of reform but a complete makeover

It is important that sectors where whistleblowing is common have an oversight body and support structure. In England, this is the National Freedom to Speak Up Guardian but that is housed within the Care Quality Commission and does not have statutory powers or independence. Similarly, Freedom to Speak up Guardians are NHS Trust Employees and may, therefore, come under pressure themselves.

In Scotland, the Independent Whistleblowers Office is a statutory body which sits outside the NHS and can, therefore, take a more objective view. It has already developed standards against which Health Boards will be judged.

After 22 years, whistleblowing legislation doesn’t just need a bit of reform but a complete makeover. It should be replaced with a free-standing Public Interest Disclosure Protection Act rather than just being part of employment law.

It should establish an Independent Whistleblowing Commission which would develop standards against which key sectors or public services are assessed and ensure investigation of the original concern.

It should ensure whistleblowers are protected from the point at which they raise their concern and the ability to speak out should cover previously excluded roles such as religious ministers and police officers.

It must also prohibit detriment to all those who might be in a situation to raise a safety issue, including trainees and volunteers.

Finally, if such prospective protection fails, there should be the ability for civil action to be taken or, in extreme cases, criminal prosecution.

Many politicians pay tribute to whistleblowers but still they are left exposed and vulnerable to persecution. They should be listened to, valued and protected; in the NHS, it is literally a matter of life or death.

 

Dr Philippa Whitford is SNP MP for Central Ayrshire and health spokesperson

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