Law is effective in protecting whistleblowers, report says
BMJ 2001; 323 doi: https://doi.org/10.1136/bmj.323.7319.954 (Published 27 October 2001) Cite this as: BMJ 2001;323:954
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An interesting topic to debate. I wish to say a few things and one
hopes Richard Smith will allow me the time to present my opinions as I am
slightly experienced in the issue of whistleblowing.
The law provides no protection for whistleblowers for the following
reasons.
a) The Public Interest Disclosure Act is applied at many hospitals as
" the matter shall be reported to us not newspapers or authorites". This
is seen in many contracts. A minor clause of thou shalt not whistleblow
without telling us. The problem with this is that you automatically
become a scape goat.
b) In a court of law, the Trusts have money and power. There is an unequal
playing field within the Woolf Reforms. What is the salary of a junior
doctor with student loans to pay off? Not enough to hire the best lawyers
in the land! The trust can hire the best lawyers and crush any junior.
c) The weight of evidence when one escapes as whistleblower is limited.
This is due to the fact that one cant have access to all the data after
the event. It becomes "your word against theirs". This is then open to
accusations of innacuracy.
d) The various organisations are wholly unsupportive of whistleblowers.
Having been to all of them, I have found them to be uninformative and at
the best they will state " forget it and get on with your life".
e) A junior is left alone and more or less branded " psychologically
unstable or unept". With this defamation of character, they are expected
to represent themselves at the GMC or any professional bodies. No finances
behind them, no support from friends or relatives, and the system against
them from the outset. What chance does a junior have? I certainly have
never known a consultant to back up their juniors in a whistleblowing
scenario.
Various psychological studies show whistleblowers to have higher
standards in the truth and justice. There is a failure to accept
substandard practises. It is a need for perfectionism in health care
standards. Medical Students by nature are trained to "do good for their
patients" and this is the message they carry to work. A sense of misguided
naivity inducing courage perhaps? The innocence of a stage in ones life
when there is still faith that your colleagues will stand by you. This is
until ofcourse until the reality kicks in.
Dr Bolsin is an example whom everyone respects and thus stated that
his colleagues were against him. The same happens to the rest of us except
there are some of us who are alone in a sea of victimisation and
wickedness. While a junior tries to clutch onto the skirts of their
profession, it is the government and profession themselves that cut the
whistleblowers rope of survival. They are cast into the sea of the unknown
- a place where one must either sink or survive to be the best. Most sink
into depression and as the Whistleblowers conference at the BMA showed,
many lives are destroyed. Evidence therefore suggests that to survive in a
harsh environment is difficult but nevertheless possible. It has to be
possible to encourage whistleblowing to raise standards in our health
service and to serve our patients as we are trained to do. Without a path
of survival there will be no whistleblowers. As evidence shows, there are
limited whistleblowers in any case. Escaping to Australia isnt a solution
for the future whistleblowers of this country. It merely dissuades people
to report matters to the authorities. My colleagues used to state " Look
at Bolsin, he had to leave, you dont want to go the same way". Throughout
the staff rooms of the hospitals, you will find this everywhere.
While there are people who talk about " whistleblowing in the correct
way" and being accepted only when the authorities " place their stamp of
approval", I suspect they should try fighting a system set up to fail
junior whistleblowers - only then will they realise the strength of
character, courage and determination required to whistleblow in the first
place. That personal individual strength cannot hold up against an entire
system.
It is up to their seniors to support them. Our structure fails its
juniors at every point. Consultants need to be supportive, sympathetic and
even accepting of whistleblowing. This is currently not the case. The
Public Interest Act is a fantasy manipulated by Mr Milburn. A piece of
paper and a waste of public money.
A Junior doctor cannot fight a system on his or her own. That is a
simple fact. Without the support from the authorities and medical
profession, I see a future where the standards of our clinical practise
will be placed into jeopardy. This is the risk. The price is too high for
a profession who has a duty of care to its patients. A duty of care
therefore must be developed for whistleblowers before it is too late for a
system that is already failing it doctors and patients.
The only people that suffer by this attitude to whistleblowing are
our patients. That is the reality, that is the truth. The question is, do
we as a profession wish to pay that price?
Kind Regards
Dr Rita Pal
Editor
www.nhs-exposed.com
Whistleblower in Sunday Times 2nd April 2000.
Competing interests: No competing interests
Dear Sir
Re - The Report of the Public Inquiry into children's heart surgery
at the Bristol Royal Infirmary 1984-1995:
In her article "Law is Effective in protecting whistleblowers" (BMJ
2001;323:945 27th October), Clare Dyer repeated the statement that
"the envelope he [Dr Bolsin] handed to Dr Doyle was never opened". This
statement is incorrect but until recently I have not had an opportunity to
correct the public record. As I made clear in my testimony to both the
GMC and the Bristol Inquiry, I did look briefly at papers given to me by
Dr Bolsin in the taxi. I did not subsequently re-examine them for what I
believe were perfectly good reasons. I believe I should now have an
opportunity to respond to the criticisms of me in the Bristol Report and
explain why I acted as I did. The facts may also lead Claire Dyer to
reconsider her analysis.
I had been a Senior Medical Officer in the Department of Health for
some 10 years when in May 1994 I joined the team responsible for
developing Government policy on cardiac services. It was in that capacity
that I visited Bristol in July 1994 and became involved in the events
subsequently investigated by the Bristol Inquiry.
The Terms of reference of the Bristol Inquiry included "to identify
any failure to take appropriate action promptly". With respect to my
actions the Inquiry team concluded that:
"I was 'reluctant to get engaged in what he [I] saw as a dispute
between doctors'2
It "was a seriously inappropriate response"2 for me to put some data
handed to me by Dr Bolsin in a filing cabinet without further scrutiny
And that "by not looking at Dr Bolsin's data, [I] simply chose not to
make a decision"
The problem I faced was that of a doctor I had just met for the first
time, Dr Bolsin, making very serious allegations in the back of a taxi of
poor performance on the part of his paediatric cardiac surgical
colleagues. I had some 10-15 minutes in which to evaluate what I was
being told and decide what to do. By chance, Dr Bolsin had met someone,
myself, who had experience of the problems associated with allegations of
poor performance on the part of doctors. I was therefore in a position to
give Dr Bolsin clear advice about his problem.
I had been involved in a previous well-publicised problem, the
suspension in 1985 of Dr Wendy Savage by the then Tower Hamlets Health
Authority. In the aftermath, Mr Cumberlege, the Chairman of Tower Hamlets
HA, severely criticised the 25 year old NHS disciplinary machinery as set
out in a health circular, HM(61)112. In particular, he felt the Health
Authority's investigation into the allegations had been severely hampered
by lack of access to outside, independent authoritative clinical advice.
As a consequence, the Department set up a joint working group with the
Joint Consultants Committee (JCC) to update the disciplinary machinery for
NHS hospital and community medical staff. The new procedures set out in
Health Circular HC(90)9 were intended to be a fast, fair and effective
mechanism for impartial investigation of allegations malpractice, poor
performance or inter-professional disputes. The circular included
innovative arrangements for the JCC to nominate two consultants from
outside the region to investigate such problems. I helped prepare HC(90)9
which was issued in March 1990.
When Dr Bolsin approached me in 1994, I had no way of knowing whether
his judgement could be relied on. As a Departmental Officer I could not
take action on unsubstantiated allegations. However, I recognised that,
if correct, his allegations were extremely serious and that immediate
action to establish the validity of his claims was essential. He showed
me copies of two old letters and some tables which he said were from an
audit which demonstrated poor results for complex paediatric cardiac
surgical procedures performed in Bristol. I explained to him in the taxi
that our first duty was to try to get the Trust to fulfil its obligations
under HC(90)9. As I explained to Dr Bolsin at the time, I was no expert
in statistics and I had no way of validating his data. We needed outside
independent experts which HC(90)9 could supply. I advised him to discuss
how this might be done with Professor Angelini, the Professor of
Cardiothoracic Surgery, and went on to say that, if this course of action
failed, we would have to look at alternative means of ensuring his
allegations were properly investigated.
I was so concerned by what I had heard that I did not leave it to Dr
Bolsin to take action alone, particularly as he had told me that he had
been trying to get something done for four years. The next day I wrote a
very strongly worded letter to Professor Angelini which, I believed, would
force the Trust to take action. My letter appeared to be a complete
success. In his reply, Professor Angelini confirmed that a problem with a
surgical procedure had been identified, that steps were being taken to
remedy it and that he would keep me informed of progress. A month later I
received an unsolicited letter from Dr Roylance, the Chief Executive of
the United Bristol Healthcare NHS Trust, informing me that the Trust Board
was aware of the problem and that decisions had been taken to "resolve
the situation for the future". The Bristol Inquiry subsequently found
that Dr Roylance had misled me in his letter.
I had kept Dr Bolsin's data so that I had it to fall back on if my
chosen course of action failed. Furthermore, in my correspondence with
both Professor Angelini and Dr Roylance, I asked to be sent audit data
which demonstrated that the unit was achieving results comparable with
other units. I, or preferably independent experts, would then have been
able, if necessary, to compare such audit data with Dr Bolsin's data.
Professor Angelini agreed to write to me again in some six months. In
all, the correspondence I initiated, lasted some three months at the end
of which time a new paediatric cardiac surgeon had been appointed and
plans were in place to centralise the paediatric cardiac surgery service
at the Children's Hospital.
Finally, I asked Professor Angelini to contact me immediately if
there were any further problems. This he did the following January (i.e.
before I would have expected to hear from him on the basis of our previous
correspondence) when he became concerned about the proposal to operate on
Joshua Loveday. Thus from August 1994 to January 1995, I had no reason to
suppose that the problem brought to me by Dr Bolsin in July, had not been
dealt with both promptly and effectively by Professor Angelini and the
Trust, or for re-examining the material given to me by Dr Bolsin.
When it became clear in January that there was still a problem, it
was I who ordered the immediate suspension of the paediatric cardiac
surgical service and demanded that the Trust at once set up an external
independent enquiry into the paediatric cardiac surgical service.
Those are the facts I gave in my testimony to both the General
Medical Council and the Inquiry. My correspondence with Professor Angelini
and Dr Roylance is on the public record.
Yours faithfully
Peter Doyle
Senior Medical Officer
Competing interests: No competing interests
The Public Concern at Work organisation has shown its concern as to
whether Dr. Bolsin would have been protected under the Public Interest
Disclosure Act. According to the health minister, this seems to be the
case.(1) But it could be argued Dr. Bolsin was one of the very few
whistleblowers who not only acted with compelling evidence but conducted
his exposure responsibly. It seems the same cannot be said about the
actions of a number of past health-service whistleblowers.
The case of
nurse Graham Pink (2) is one such example of how an ill-advised and not
entirely justfiable public exposure serves only to bring the practice of
whistleblowing into disrepute. Indeed 'Doctors or nurses who do hold
compelling evidence of serious malpractice may have had their decision not
to whistleblow influenced by the fate suffered by somewhat naive or
perhaps over zealous whistleblowers'(3) Protection under the act is one
thing, but of equal importance is that 'those who contemplate
whistleblowing on less than certain grounds should refrain from using the
practice in an injudicious way'(4)
1. Dyer C. Law is effective in protecting whistleblowers. Brit.Med.J
(2001) 323,954.
2.Vinten G. Enough is enough: an employer's view-the Pink affair. In
Vinten G, ed. Whistleblowing - Subversion or Corporate Citizenship? at
p120. Paul Chapman, London,1994.
3. Frais A. Whistleblowing heroes - boon or burden? Bulletin of Medical
Ethics (Aug 2001) 170, 13-17.
4. Ibid.
I declare no competing interests.
Competing interests: No competing interests
External Whistlebowing Procedures
Dear Sir/Madam,
As the debate re whistleblowing evolves, I have been deeply interested in
the differing viewpoints held. I am not a health professional, do not work
in the health service or any other public service. So why the interest?
I represent SAFECALL Ltd, a company whose whole aim is to provide a
conduit between employees/contractors and their employers. The service is
based on a call centre type of operation which is paid for by employers
and provides a 24 hour reporting line for staff to use if they detect or
suspect any wrongdoing in the work place and are either afraid of
reporting an iassue or have insufficient confidence in their line managers
to progress the matter further.
The Act allows organisations like us to become an authorised by an
employer and still provides the disclosee with the full protection the
legislation affords.
Once a report is made to us, the matter is referred directly to named
individuals at sufficiently senior level to ensure action is taken.
In some of our commercial clients, these named individuals include the
Chief Executive Officer or if he/she is the subject, then the Chairman of
the board. In our public sector clients, invariably this leads to the
chairperson of the authority in the event it is chief officers who are
complained against. It has been described by a corporate client as "being
akin to throwing a hand grenade into the board room". Once reported,
action has to be taken and transparency is achieved at every stage.
The system of course, also caters for those wishing to remain anonymous,
although it is our experience that eventually, when assured that issues
are being properly addressed, disclosees tend to come forward.
Clearly, only those organisations that have the confidence in themselves
as good employers and who have a genuine desire to know of concerns in the
workplace tend to take the service up. This should not be confused with
the employer who believes they have a perfect organisation with no risks
therefore attached.
Again, whilst we all know that it is impossible to please all the
people all of the time, our experience has been that most issues have been
dealt with speedily, effectively and to the satisfaction of the person who
has felt strongly enough to raise a head above the parapet. For the
employer, relief exists in resolving concerns at the earliest stages
without recourse to tribunals or even practitioners in law.
Of course, we are a commercial organisation, which brings with it the
spectre of much needed resources being spent on non-essentials. In truth,
the cost is extremely small and if viewed in the same way as insurance,
highly cost beneficial.
I will therefore continue to watch the debate with interest and of
course would be happy to discuss any of the issues further with any other
interested parties. However, I would suggest the time is now right for
authorities to grasp the nettle and identify a means to prevent the
continual chipping away of the esteem organisations like your own once
took for granted.
Yours faithfully,
Stuart A Christison, Director, Safecall Limited. 0191 5166399.
Competing interests: No competing interests