Guest Blog: Dr David Nicholl "How to Whistleblow" - Part 1.

“..all NHS staff should feel free to raise…concerns without risk to their position. Yet the history of the NHS is strewn with the broken careers of those who have tried to raise concerns.”

“..all NHS staff should feel free to raise…concerns without risk to their position. Yet the history of the NHS is strewn with the broken careers of those who have tried to raise concerns.”

“How to whistleblow” - Part 1.

It is inevitable that there will be times in any clinician’s career where there are aspects of care, which he or she may be distinctly unhappy about in terms of patient care. In such a situation, especially where there is a risk to patient safety, all NHS staff should feel free to raise those concerns without a risk to their position. Yet the history of the NHS is strewn with the broken careers of those of who have tried to raise concerns. Although I have raised concerns at different stages in my career, I would be the very first to say that I have been extremely fortunate. What I hope to set out in this blog, is how to raise concerns as safely as you can. It does not mean if you do whistleblow that you will not face bullying, harassment or significant detriment.  I hope that I will give some useful tips to minimise your risks of being sued, sacked or bullied! The reality is being a whistleblower does carry significant risks as the legislation that is meant to protect- the Public Interest Disclosure Act- is not beyond criticism (not least as any remedies it offers only occur after any detriment has occurred, such as loss of employment). Thus a whistleblower will need to demonstrate:

  1. that he or she made a disclosure

  2. that they followed the correct disclosure procedure

  3. that they were dismissed or suffered a detriment as a result of making the disclosure.


Further, the potential whistleblower will need to demonstrate :

Qualifying disclosures are disclosures of information where the worker reasonably believes (and it is in the public interest) that one or more of the following matters is either happening, has taken place, or is likely to happen in the future.

  • A criminal offence

  • The breach of a legal obligation

  • A miscarriage of justice

  • A danger to the health and safety of any individual

  • Damage to the environment

  • Deliberate attempt to conceal any of the above.

Rule 1

Follow the rules - before breaking them

How strongly do you feel about the subject? Are you absolutely sure that you have followed all reasonable steps ‘within the system’ to raise concerns? Have you sought the guidance of others- peers, senior colleagues, Royal College, regulator (CQC or GMC), medical defence organisation, or your union. It may well be the case that the issue you are concerned about can be resolved locally- perhaps via the Freedom to Speak Up Guardian. However, many (myself included) have concerns regarding the ability of Guardians to deal with some very complex issues, not least as they, like you will be Trust employees, so may well be limited in their power to resolve the issue. Do other colleagues feel similarly, it may well be that writing a joint letter from a group of colleagues may well be a considerably safer option than ‘going on your own’.

Rule 2

Keep good records

What will be the response of the organisation you are whistleblowing about, do they have conflicts of interest that will get in the way of you raising concerns? Do you expect that you may well face detriment- anything from a written warning to being sacked?

 

Rule 3

What will happen to you if you whistleblow?

Have you taken legal advice (eg from your medical defence organisation or union), have you signed a non-disclosure agreement or confidentiality agreement, if so it is vital you get some professional legal advice. Check the list of prescribed people or bodies that you can speak to if you feel that you need to whistleblow.

Rule 4

Avoid defamation

Is there a risk of being sued for defamation? The experience of the ‘Godfather of NHS whistleblowers’ Dr Peter Wilmshurst is salutary- on one occasion being left with legal costs of >£300,000. For this reason, if you concerns are legally contentious (ie you might get sued), make sure you either get proper legal advice or speak to a mainstream journalist (who has got proper legal advice on your whistleblowing status). Drug company pockets, in particular, will always be larger than yours if it comes to a legal fight. Hence writing a blog, facebook post or similar may be especially unwise for a whistleblower- just because something is truthful doesn’t stop you from being sued (although it probably helps if it is true in your defence!).

Rule 5

Speaking to the media

Having exhausted all the steps above, you may feel that the only step forward is speaking to the media, then it is vital that you speak to a journalist that you trust, and frankly, is this a story that they will actually be interested in? You may feel very strongly about the staffing areas in your ward- but being blunt, you should be able to resolve this with some of the steps above. It is worth seeing which journalists have covered this topic before, ie have they got a record of covering health and/or whistleblowing issues. For example, you may well be cautious at speaking to a journalist about the NHS if they have a reputation for sitting on their data. However, personally I have been very grateful for the advice and support of several journalists- all of whom have given sound advice- Deb Cohen (formerly of the BMJ, and more recently of Newsnight), Phil Hammond (Private Eye), Shaun Lintern (Health Service Journal) to Victoria Macdonald (Channel 4 News).

I recently found myself in the position of being a whistleblower, and hopefully my recent experience, will be of use to those who find themselves in a similar position, by illustrating some of the points above. The lesson for me, is to follow the process ie where you have a legitimate patient safety concern... but I can legitimately say that I took all reasonable steps before going to the media. If I had got one piece of this puzzle wrong, my opponents would have had a field day.


Written by Dr David Nicholl, Consultant Neurologist / Human rights Activist / Leader in Just Culture

”How to Whistleblow” Part 2 a Case Study will be published tomorrow.