Guest Blog: Dr David Nicholl "How to Whistleblow " Part 2, Brexit - A Case Study.

Brexit - A Case Study.

As a senior Consultant involved in a number of national organisations, I found myself, in March of this year, in the unusual situation of being asked to advise NHS England in March as part of their preparations for a ‘No Deal Brexit’ scenario for pharmaceuticals in neurology. I was aware, from the media, that a large number of non-disclosure agreements had been signed (even though NDAs were meant to have been banned in the NHS some years ago). Thus, I took the precaution of speaking to my medical defence organisation prior to agreeing to participate. As it happened, when asked to assist, I was not asked to sign an NDA, but asked not to share any of the password protected documents without permission. At the time I was happy to do this- ultimately someone has to get the country ready in the event of a ‘No Deal’, even though numerous bodies had warned about the risks of No Deal in healthcare- from the Royal College of Physicians, the Chief Medical Officer  and even my own hospital Trust had warned of the patient safety risks.  However although the ‘No Deal’ plans were extensive, I became increasingly uncomfortable as:

  1. It had not been possible to stockpile all medication in every instance

  2. I was aware of some of my own patients who were having difficulty accessing medication- including brands where I knew the drug companies concerned had not been able to stockpile

  3. Although problems of pharmaceutical supply are not unique to Brexit, it was clear that there was a risk to patient safety, especially for certain select groups of patients. 

  4. Large numbers of MPs were supporting the prospect of a NoDeal Brexit, even though based on the documents I had seen, there was a very real risk of some patient harm.

The GMC guidance on raising concerns is quite specific “You must take prompt action if you think patient safety, dignity or comfort is being compromised”. Given that we were literally about to leave the European Union within a matter of days, I needed to make some important decisions quickly. I had reason to believe I was justified in making a qualified disclosure of the data I held as there was a risk to the health and safety of number of patient groups. Clearly I did not want to lose my job, but who would I make a qualified disclosure to? The list of prescribed bodies did not include any such a body that would cover a ‘No Deal policy’, clearly NHS England would have no interest in me going public. 

I personally spoke to the clerk of the Commons Health Select committee. Although they are not a prescribed body, the clerk referred me back to the list of prescribed bodies. I could have of course spoken to my MP- but given that he is a government minister, he would be conflicted with no wish for me to raise my concerns over ‘No Deal’. I did contact the GMC, they took 2 weeks to reply- by which stage we would have left the European Union- for the record, their advice was:

“Dear Dr Nicholl

Thank you for contacting us with your concerns regarding NHS England’s contingency planning for the UK leaving the European Union.

As you’re likely aware, we’re a prescribed body and are subject to a legal duty to accept and handle public interest disclosures appropriately. However, your disclosure does not fall under our specific functions as a regulator which are:

ï         Registration and licensing

ï         Medical education

ï         Professional standards

ï         Fitness to practise or any related activity

The Secretary of State for Health and Social Care deals with matters relating to the provision of public health services and would be an appropriate body to raise this with. Their contact details, from the Department’swebsite, are 

The Secretary of State for Health and Social Care 
Ministerial Correspondence and Public Enquiries Unit
Department of Health and Social Care
39 Victoria Street

You’ve mentioned that you have already spoken to your defence body about this, however, if you need further advice during this time, Protect is an organisation that provides advice and support on whistleblowing.

More broadly, whilst it is for Government to determine public policy and present relevant legislation to parliament on issues such as these, we do recognise the need for doctors to know how they might be expected to act in the event of external events that lead to a shortage of medications to ensure the risk to patients is minimised.

I understand that NHS England has produced documents around this issue which may be helpful. The Medicines shortage guidance includes recommendations for doctors trying to source a prescribed medicine in the event of a shortage. Along with this, Professor Keith Ridge has written about the steps taken to protect the continuity of supply for medicines.

Please don’t hesitate to get in touch should you have any questions.

Yours sincerely

Thus, my educated guess that the GMC would be totally unable to help was correct. This made my next decision legitimate and defensible (even though I could not have known this at the time).

My patient, Gillian, who was still having significant problems accessing her medication – to the extent that she had been admitted to hospital in status epilepticus for the first time in 9 years- and she was willing to speak to the Press. So in the very day that I was speaking to a national conference on whistleblowing, I decided to be one myself, and speak to BBC Newsnight, 3 days before we were due to leave the EU on March 29th.  

I warned my Trust, who were happy for me to be interviewed in a personal capacity. The Newsnight broadcast (and indeed Brexit) were delayed due to legal concerns- the BBC needed to allow the drug company concerned more time for right of reply, even though they ultimately were not named in the broadcast. Newsnight in fact offered me anonymity, which I declined as given that only an exceedingly small number of clinicians had access to the confidential data- all of whom I would regard as both friends and colleagues- I really did not fancy any kind of post-broadcast witch-hunt to find the leaker. This is something that has certainly been a problem for some members of the Cabinet recently. Besides, as Oscar Wilde once said “True friends stab you in the front”. That said, it was an extremely stressful period personally, speaking up is never easy.

The Newsnight piece was broadcast on April 3rd, after broadcast I wrote to the civil servant who I had been dealing with to apologise for my breach of confidence - something I have never done to any professional in my entire career. Then I waited for the response, clearly I could no longer continue with the Brexit brief. In fact there was no direct response to me, any ire was aimed at others. A press officer tried to enquire as to why I been allowed to be interviewed, as well as sounding out if I had gone through the correct processes - I had, to the letter. The Department of Health took aim - not at me, but at the BBC for ‘scaremongering’ This I had not anticipated, but in announcing a delay to Brexit, the Prime Minister had opened up a leadership campaign, and the last thing one of the contenders, Matt Hancock, needed was anyone questioning were the No Deal Brexit plans. 

The Newsnight report was accurate and clearly in the public interest- in response I and my patient, Gillian, spoke out in defence of the BBC. Despite a delay, Newsnight eventually were able to publish on-line the ‘No Deal’ story (with significant input from others including the BMA, calling for greater transparency), on the very same day that the Prime Minister and the European Commission agreed a delay of Brexit until October 31st.  

On April 16th, the Department issued the following response to the Newsnight story “confident that if everyone does what they need to do, the supply of medicines should be uninterrupted in the event we leave the EU without a deal.”

The following week Gillian contacted me, she has been able to get her medication (probably nothing to do with the delay in Brexit) but she was extremely grateful for my efforts. 

The likelihood of No Deal has clearly fallen for now, someone else will have to deal with No Deal plans if this lunacy continues until Halloween. I wouldn’t wish this on anyone- do those who really want a No Deal Brexit fully understand what they are hoping for? As the BMA pointed out- "a culture of secrecy" could undermine the ability of medics to plan care and deliver treatment”.

As a neurologist, I certainly never saw the day I would be looking at making a judgement call over ferry versus flight for the transport of my patients’ medications. 

So in summary, I have raised concerns by following the steps I have listed above and am still in paid employment. Does that mean that I think is all hunky-dory for NHS whistleblowers? Far from it, the overwhelming evidence is that there are significant risks to whistleblowers- I have been very lucky, but I have also taken appropriate steps in mitigation to minimise the risks to my career.

Guest blog written by Dr David Nicholl Consultant Neurologist SWBH / Human Rights Activist / Leader in Just Culture

Dr Nicholl will be speaking, at Change UK’s health conference from 18:30 Tuesday 14th May,  on why he spoke to Newsnight. Other speakers include Sarah Woolaston MP. To find out more:

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