NHS disciplinary system does not protect whistleblowers

Promises have been made to tackle intimidation but now action must be taken, Arpita Dutt writes

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May 26, 2017
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The suicide of the NHS nurse Amin Abdullah – who set himself alight outside Kensington Palace last year because of depression suffered after his dismissal from Charing Cross Hospital and a delayed disciplinary process – forces a spotlight on the need for urgent reform of the NHS procedures.

Before the dissolution of parliament earlier this month, the Department of Health ordered a full investigation into Imperial College Healthcare Trust’s handling of Abdullah’s disciplinary hearing. That move had been a long time coming and followed a campaign of sustained pressure on the part of Abdullah’s partner, Terry Skitmore, and the NHS whistleblowing rights campaigner Dr Narinder Kapur.

Sadly, Abdullah’s story is not an isolated incident. Indeed, a 2015 review by Sir Robert Francis, QC, of the treatment of whistleblowers by the NHS found that 30 per cent of people who had raised a concern said they felt unsafe after they had done so. Others said they did not trust the system or were reluctant to speak out because they “feared being victimised”. 

Announcing the findings in the House of Commons, Jeremy Hunt, the health secretary, said he was “calling time on bullying, intimidation and victimisation” of NHS staff who spoke out. This was a year before Abdullah’s death.

So what more could be done? There is no easy fix, but there are some changes that could make a significant difference.  

Often medical staff who blow the whistle – no matter whether their bosses acknowledge that what they have said amounts to whistleblowing – find their actions immediately followed by a complaint against them from another member of staff. That results in the whistleblower being put through a disciplinary procedure. A key problem is maintaining confidentiality in disciplinary investigations and whistleblowing processes. Confidentiality needs to be improved to make whistleblowers feel less exposed when they come forward.   

Another problem is the inadequacy of training given to NHS investigating managers. Fundamental flaws underlie every process leading to disastrous consequences. Managers need to be given proper training in what whistleblowing is and in how to watch for links between the disciplinary investigation before them and the raising of a prior whistleblowing concern. It is possible that a whistleblower has still done wrong, but the point is that NHS investigating managers don’t generally have the tools necessary to discern.

In addition, legislation needs to be implemented so that where an NHS staff member’s regulatory standing could be tainted as a result of the findings of a disciplinary process, that person should have a right to legal representation. Fear of losing the right to practise and the reputational consequences of the disciplinary action, combined with a lack of control over the process, can be the most stressful, isolating and shaming elements of disciplinary action.

Adding in a layer of extra legal protection and support could do much to protect the mental health of whistleblowers and avoid a repeat of the case of Amin Abdullah. 

Arpita Dutt is one of the founding partners of London law firm Brahams Dutt Badrick French

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