Are employment judges complicit in putting patients at risk and doctors and nurses from daring to report health concerns?
Guest blog from Dr David Ward on the appalling treatment of whistleblowers in the NHS
Patient safety and the judiciary
What business has the judiciary with patient safety matters you may ask? I am referring primarily to the processes which may unwind when a doctor, having raised patient safety concerns is sacked by the Hospital Trust where they worked and seeks recourse via the corrupt Employment Tribunal system. (NB not sacked “for having raised the alarm” as that is expressly forbidden by the Public Interest Disclosure Act (PIDA 1998[1]). For example, if a piece of equipment is malfunctioning in such a way as to cause harm to a patient; if a process such as preparing a patient for a procedure is flawed in such a way as to put the patient at risk; an inadequate consent process; understaffing in, say, a post-operative ward; inadequately qualified personnel. Each of these deficiencies may put a patient at risk of harm and all have at some time been reported by doctors or nurses. There are many others. A responsible doctor witnessing any of these will be concerned and has a duty to raise an alarm. This is set out in Good Medical Practice, a guide produced by the GMC[2]. It is also part of the Duty of Candour regulations [3] [4] and for traditionalists, in “The Hippocratic Oath”[5] the central tenet of which is “primum non nocere” or “do no harm”.
A problem may arise when a doctor (or healthcare worker) reports a “patient safety event” and the Trust reacts adversely (the psychology of such reactions is discussed elsewhere) which is a very common. It may trigger a series of defensive responses by the Trust which almost always ends badly for the doctor. This is seen time and again with “whistleblowers” who have had the “temerity” to raise a concern. The “playbook” is almost set in stone. In several recent cases where a dismissed doctor (Claimant) has sought recourse at an Employment Tribunal, the Respondent (the Trust or Hospital) has reacted vengefully rather than responsibly and promptly to look into the concerns.
The following is a brief account of the saga of a colleague who was referred to the GMC (after she reported safety concerns) in what can only be described as an act of vengeance by the Trust and the CEO who, having taken offence at the temerity of the doctor to report some shortcomings to the Trust, decided to “punish” her culminating with dismissal. Furthermore, the Trust prioritised this vengeful reaction over and above an urgent investigation into the problems she raised. It’s the same “playbook” with many other NHS whistleblowers (see Westminster Confidential 6 7).
Patient safety concerns.
If a doctor “raises a concern”, the most common of which is about something which may jeopardise “patient safety”, the obvious and reasonable response is to investigate it and correct any problems as soon as possible. Astonishingly, this is rarely what happens. The Trust not uncommonly reacts vengefully to the report, for example, by restricting the activities of the doctor who reported it. They may be “hauled over the coals”, have their duties limited, suspended for a period, referred to the GMC or even the CQC. The GMC may commission an external assessment of the doctor in question by an independent party usually another doctor in the same specialty. The Trust is not obliged to take any notice of this report. For example (I could cite many), a colleague who was referred to the GMC by her employing Trust was completely exonerated but she was dismissed all the same.[6] The CEO of the hospital, St Helier Hospital, Daniel Elkeles, made a veiled threat in a letter if she did not cooperate with his dismissal proposals:
4) ESTH agree to cease the MHPS process which means we can find a way to
ensure you are re-validated (not my area of expertise but i am sure there will be a
way)
5) You need to drop all the actions you are taking against ESTH.
If we can agree this then I would hope that everyone can move forward positively.
(This letter is in the Tribunal bundle in the public domain)
Another whistleblowing case where there are ongoing grave concerns about the propriety of the Employment Tribunal decisions (and others) in support of the dismissing Hospital Trust is that of Dr Chris Day whose case features extensively in columns of Westminster Confidential.[7]
Unregulated “Maintaining High Professional Standards”[8]
This code of practice was introduced in 2003 to update and clarify how concerns about a doctor and the associated “disciplinary” procedures are managed.
This entire process is unregulated and no independent body is statutorily involved. In fact, there is not even a statutory register of these processes or the events they purport to investigate. There is no register of NHS whistleblowers or the safety concerns they have raised. Trusts do not keep records, the regulators (BMA, CQC) don’t keep records. The NHS does not keep records (I confirmed this by asking the now defunct NHSE). HM Government does not keep records despite HM Treasury giving £millions (directly or via various organisations) to Trusts to pay inscrutable legal firms to defend the Trust against claims made by doctors who have raised safety concerns. This means a Trust can hire anyone they choose to conduct the investigation. There may even be an “informal agreement” or they may just be a ”pal” of the CEO. The investigator is not required to have any special qualifications and there is no register of such people. The St Helier Hospital case referred to above is a particularly egregious example of how this chumminess may operate. The “investigator”, a retired nurse[9], in her report invoked a fictitious “regulation” not previously seen in this context. The doctor in question was eventually dismissed on the grounds that she was not “fit-for-purpose”[10]. This is entirely confabulated by the investigator (who describes herself as a “non-practising barrister” but is not on any English register of barristers[11]) as no such “reason” for dismissal (or anything relating to humans) exists in English Employment law and the term is not applicable to a “human being” but rather to goods or services. How this has not, so far, been challenged in the Courts eludes me. Could this case even be cited as a “precedent” (pro or anti) in future similar cases?
It doesn’t take a leap of the imagination to conclude that if a Trust wishes to be rid of a doctor it will choose a compliant “investigator” with a reputation for such behaviour. This service costs money (provided, of course, by the taxpayer) and investigators can be very expensive. But hand-picked unregulated quasi-independent “investigators” are very compliant, aren’t they? Money talks… but conveniently no formal or open register is kept of money used to silence whistleblowers (pay the lawyers, investigators, payoffs, seal a Non-Disclosure Agreement etc). I wonder why?
A doctor threatened with dismissal (or who has been dismissed) may just move on, get another job (if possible having been “slandered” by the previous employer), leave the profession altogether, move abroad or any of these choices. Unfortunately, many will seek recourse via the arcane and grossly biased Employment Tribunal system. This may come about because the embattled doctor has received, shall we say, less than impartial advice, possibly from a law firm, recommending this route. Less than 3% of claimants at an Employment Tribunal emerge victorious (whatever that means)[12]. In other words over 95% of Claimants who brave this course will lose their case. Fair and open justice? I think not.
Who bears responsibility for all this?
Is it the doctor who “blew the whistle”? No, it is their duty to raise safety concerns.
Is it the Trust which dismissed the doctor? The Trust will deny dismissing the doctor (for raising concerns) and invoke PIDA 1998 47B in their support (1):
A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
The Trust will say “oh no, it wasn’t because he raised a concern…it was because his manner was inappropriate/rude and …” (see story of Martyn Pitman, below). However, it is quite a different matter when it comes to dismissing a doctor “who has raised concerns”. This is not “unlawful” because it is consistent with PIDA. This is why the law needs to be changed; to ban the dismissal of “doctors who have raised safety concerns”. It’s a “no brainer” isn’t it?
Is it the lawyers who advised (and assisted) the dismissed whistleblower to seek recourse via the biased ET system? Yes, they are complicit once dismissed the employees submit themselves to the process. Millions of taxpayers’ money is spent on lawyers defending Trusts against claims made by whistleblowers yet almost nothing (no data are collected so we can’t be sure about this but we can infer it) on investigating and correcting the problems that gave rise to the claims. Sheer madness or what?
Is it the Trust managers who confabulate the case against the whistleblower? They have one aim in mind; to get rid of the “nuisance” doctor and by so doing avoid the “inconvenience” of looking into the safety “issues” raised in detail which could be very embarrassing if gross incompetence or negligence by the Trust or its employees is exposed.
And patient safety? Oh, that’s where the proverbial “carpet and brush” come in, as wielded by Trust managers (with legal advice) who themselves are unregulated[13]. If you want evidence for these claims read the newspapers (or search a major news website).
Inadequate regulations and deficient laws.
The regulations drawn up by regulators (and equally the inadequate laws passed by legislators) have contributed to this unsatisfactory situation where doctors are terrified of speaking up about patient safety because they fear for their careers and the livelihoods. If the regulations were tighter, we wouldn’t be here, would we?
A simple and almost cost-free solution to all these inappropriate behaviours is available without too much hassle and only minor changes to regulations and it based on the supremacy of maintaining patient safety: ban Trusts from dismissing doctors who have raised patient safety concerns and compel the Trust (by statute) to investigate those concerns. Just think of the benefits: no lawyers, no Tribunals, no money filling the coffers of law firms but instead expended on, inter alia, investigating and rectifying the concerns raised, improving care and communication. More openness and less retribution will encourage doctors to ‘’raise a hand” without fear of reprisals. Furthermore, is it not preferable to retain the services of an expensively trained, competent and dedicated doctor who had the courage to speak-up and has committed no offence, rather than destroying their careers and depriving patients of their skills? (This is the “playbook” in the cases of so many NHS whistleblowers I could list here). At present the judiciary (and the regulations they invoke), whether they agree or not, are complicit in covering-up patient safety issues and the adverse consequences of so doing.
Isn’t it time for a change of attitude and changes in the law related to raising concerns about patient safety – also known as “whistleblowing”? Why are the ”powers that be” not listening to the many supporters of whistleblowers who are raising the same issues time and time again?
Just one more thing: there are seven reasons which can be invoked in British Employment law to dismiss an employee[14]. None of them is especially relevant in this context except one.
“Some other Substantial Reason”, a most convenient clause for all the reasons one might imagine: if it isn’t covered by the other 6 this one should satisfy the Trust’s requirement to get rid of the doctor. Furthermore, it may obviate detailed scrutiny of evidence (isn’t that the reason it’s called SOSR?). Other reasons which are commonly exploited include: ”it’s impossible to carry on employing you” and “not being able to do your job properly”. The vagueness, highly subjective and unquantifiable nature of these clauses suggests they have a less-than-straightforward purpose.
If a Trust wants to dismiss a doctor it will find a way to do so. In the case of Martyn Pitman, Consultant Obstetrician and Gynaecologist, the Royal Hampshire Hospital strenuously denied that he had been dismissed for raising concerns. No, of course he wasn’t. The astonishing inanity of it was reported in the Guardian thus[15]:
“The judgment found the “overarching reason” for what has happened to Pitman was down to his communication style and not the message he was trying to convey”. (I couldn’t find this sentence in the 75 pages of the “unsearchable” official judgment).[16] So here is a senior and respected gynaecologist – who has done no wrong – being dismissed for his unacceptable “communication style”. You could not make it up!
It is a truism to state that the health of the nation is the single most important asset it has. (This is why “privatisation” of the NHS which would put “shareholders” ahead of patients would be a disaster). If the workforce is not healthy everything else will decline (I don’t need to explain this assertion but judging by what is happening in Westminster, politicians don’t seem to have grasped this concept. (Neither has the judiciary for that matter but I wouldn’t expect this self-serving body to opine on such “trivial” issues).
To quote David Hencke in his recent piece[17]:
“If they [the judiciary and the JCIO] continue to do this, they are acting as a party to suppressing patient safety in the National Health Service and in the case of Sellafield, because it is such a contaminated and dangerous place, putting the general public at risk.
Is anyone listening to critics of the judiciary and its arcane processes in judging NHS doctors, nurses and other healthcare workers who raise patient safety concerns? Is anyone taking notice of the sufferings of the doctors who are doing their best (especially during the recent pandemic) for their patients? Is anyone calling out the absurdly illogical Employment Tribunal judgments which heap suffering on the Claimant (Doctor) and indirectly on patients? I know of one journalist who is – David Hencke. 17
[1] PIDA 1998 https://www.legislation.gov.uk/ukpga/1998/23/section/2
[2] Good Medical Practice: GMC document. https://www.gmc-uk.org/professional-standards/the-professional-standards/raising-and-acting-on-concerns
[3] Duty of Candour: https://www.gmc-uk.org/-/media/documents/openness-and-honesty-when-things-go-wrong–the-professional-duty-of-candour-61540594.pdf
[4] Regulation 20: https://www.cqc.org.uk/guidance-regulation/providers/regulations-service-providers-and-managers/health-social-care-act/regulation-20/regulation-20-in-full
[5] Hippocratic oath: https://en.wikipedia.org/wiki/Hippocratic_Oath
[6] St Helier Hospital: https://davidhencke.com/2024/01/22/how-the-st-georges-st-helier-and-epsom-hospital-group-fixed-the-dismissal-of-whistleblower-cardiologist-dr-usha-prasad/
[7] Dr Chris Day: https://davidhencke.com/2024/04/07/whistleblower-dr-chris-days-appeal-has-judge-andrew-burns-kc-ruling-made-it-impossible-for-him-to-get-open-justice/
[8] MHPS: https://www.elft.nhs.uk/sites/default/files/2022-01/mhps_policy.pdf
[9] Former nurse investigates: https://davidhencke.com/2021/04/21/hidden-justice-in-the-nhs-profile-of-claire-mclaughlan-a-doctors-career-terminator-and-rehabilitator/
[10] Fit-for-purpose: https://davidhencke.com/2024/01/22/how-the-st-georges-st-helier-and-epsom-hospital-group-fixed-the-dismissal-of-whistleblower-cardiologist-dr-usha-prasad/
[11] Claire McLaughlan: https://davidhencke.com/tag/claire-mclaughlan/
[12] Claimant success rate: https://www.3pb.co.uk/content/uploads/The-truth-about-whistleblowing-cases-success-rates-at-hearing-is-it-really-only-3-by-Joseph-England.pdf
[13] Regulation of NHS managers: https://doi.org/10.1136/bmj.r1019
[14] Seven reasons for dismissal: https://www.gov.uk/dismissal/reasons-you-can-be-dismissed
[15] Unacceptable Communication style: https://www.theguardian.com/money/2023/oct/29/whistleblowing-cost-hampshire-doctor-dearly-after-he-loses-tribunal
[16] Pitman v Hampshire Hospitals: https://www.gov.uk/employment-tribunal-decisions/mr-m-pitman-v-hampshire-hospitals-nhs-foundation-trust-and-l-alloway-1404274-slash-2021
[17] Judge Lancaster: https://davidhencke.com/2025/06/05/judge-lancasters-dismissal-of-top-cardiologists-safety-concerns-helped-health-trust-cover-up-heart-patient-deaths/
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