An NHS whistleblower writes that many healthcare scandals have come to light because individuals have refused to be silenced about poor patient safety.
‘Whistleblowing’ is defined and protected in law as disclosing criminal or harmful wrongdoing in the public interest, however there’s no legal definition or protection of a ‘whistleblower’. Conducting protected acts or disclosures is tested as whistleblowing only in the employment tribunal, should an individual bring a claim for detriments. This enables a situation where, despite promises by regulators, support to healthcare whistleblowers is lacking, and their concerns are not being addressed with the required rigour. This works as a deterrent and has resulted in belated exposés of healthcare and probity failures over the years.
There have been examples in which, following the escalation of serious concerns, management nevertheless maintained access to patients and decision-making authority, thereby retaining control over local processes, information, and engagement with key stakeholders. We saw this in the Ockenden Review into maternity services at The Shrewsbury and Telford Hospital NHS Trust, which found that “the maternity governance team inappropriately downgraded serious incidents to a local investigation methodology in order to avoid external scrutiny, so that the true scale of serious incidents at the Trust went unknown until this review was undertaken.”
Inadequate investigations
Investigations into concerns are inadequate, the Parliamentary and Health Service Ombudsman found “Trusts did not find failings in 73% of cases in which we found them” and “Trusts did not find out why things went wrong in 36% of cases where they found failings”. Opinions of managers (not necessarily clinically trained) – who are in control of governance when incidents occur – can inform the decision-making of regulators’ or advisory bodies’ investigations, without mandatory verification of accuracy, declaration of conflicts of interest, or transparency in communications. While the General Medical Council (GMC) outlines what information/evidence they may need for an investigation, there is no specific threshold required to close a concern. The GMC can obtain independent professional advice, but it’s not obligatory. The GMC’s employer liaison advisers/officers work closely with management on investigations, but it’s not a role requirement to have clinical expertise, meaning it may be difficult to judge if managers are providing plausible clinical reassurances.
Opinions can also be used to justify disciplinary and regulatory action against the whistleblower for raising concerns. The All-Party Parliamentary Group on Whistleblowing reported that NHS workers are living in a culture of fear about facing counter-allegations regarding their professional conduct. The inquiry into Ian Paterson found colleagues were reluctant to raise concerns, as those who had, had been put under investigation.
In the case of Jasna Macanovic – who won damages after being sacked for raising concerns over a colleague performing a contraindicated procedure – the judgment found that senior consultants assumed she was incorrect, “and their view was adopted by more senior management without any real exploration”.
These issues demonstrate a structural risk of reliance on selective or misleading information. Even without intent, such arrangements undermine confidence that concerns are being examined in full.
None of these procedures to investigate whistleblowing allegations appears to be safe or rational for a modern medical practice. Arguably, there’s too much emphasis on a concern being managed rather than addressed swiftly, proportionately, and appropriately.
Many will be unaware of these potential conflicts of interest and limited expertise to verify allegations and make accurate conclusions. Many whistleblowers are unable to mount legal challenges to analyse this complex interplay due to limited legal knowledge, resources and representation. Additionally, a persistent refusal by the whistleblower to accept unsafe or premature closure of concerns could be reframed as vexatious behaviour by the healthcare body, with legal repercussions.
It is not too late
Significant improvement could be achieved through clearer standards set by regulators and government, alongside greater candour related to patient safety. This would include mandatory mechanisms to ensure verification of documentation, information protection, and evidence in all concern-handling processes. Clinical concerns should be assessed with appropriate clinical input as a matter of course. Independence must be real, not merely procedural – particularly where invited reviews are used or where dual roles, such as responsible officer and medical director functions, are led by the same person.
Organisations should also disclose mandatory audits of how concerns and escalations are handled. Standardised processes would enable learning and identify patterns of concern management.
They are neither costly nor difficult to implement. They would help identify unsafe practices early on and resolve concerns locally, reducing the need for escalation and associated costs.
Wider system reform for genuinely independent mechanisms like an office of the whistleblower is required, as well as the legal definition and protection of whistleblowers. But change shouldn’t always be top down. Open reflection and audits of how whistleblowers are treated, information is gathered, and what expertise is used are necessary to identify red flags and create gold standards in concern management.
Parliamentary discussions following high-profile inquiries should have driven lasting reform. It’s not too late to act: this would improve trust and uphold the integrity of the medical profession, and would ensure responsible use of public funds. This is the minimum that patients should expect from the systems designed to care for them.
