What you need to know before you blow the whistle
Authors: Richard O’Dair
Publication date: 22 Jun 2015
Barrister Richard O’Dair sets out how doctors who want to raise concerns over poor practice can protect themselves
The NHS has a poor record of protecting the rights of whistleblowers, as many of those who have sought to expose poor practice have found to their cost. The culture is slowly beginning to change, but doctors who think they have no option but to blow the whistle must ensure they have taken the right steps to protect themselves.
The legal term for whistleblowing is making a “protected” disclosure. Whistleblowers need to disclose information that leads them reasonably to believe that their institution is in breach of the duty of care it owes to patients (or some other legal duty).
Case law says that whistleblowers must disclose information, not just make allegations. So whistleblowers cannot simply say, “This ward is dangerous.” They must say, “There are 15 beds on this ward which is designed for 10, so it is dangerous.”
Written proof of disclosure is useful in any future tribunal. Put your concerns in writing or email a record of any meetings with colleagues after the event.
Under the Employment Rights Act 1996, doctors who are concerned about poor practice must first raise concerns internally. It is a good idea to follow your hospital’s whistleblowing policy, but it is not a legal requirement. This is important because doctors who raise their concerns through clinical reporting lines rather than following the hospital’s whistleblowing procedure are still protected.
Alternatively, doctors can raise their concerns with the General Medical Council (GMC), which may be able to offer anonymity. Going to the press is regarded as a last resort and is subject to stringent conditions.
The law protects doctors who have made a protected disclosure against being subject to detriment (such as bullying) and against being dismissed if the reason or the sole reason for the dismissal was that they had made a disclosure.
Whistleblowers can claim both financial loss and injury to feelings in relation to detriment claims. An unfair dismissal claim does not require any initial period of service and is not subject to the normal £76 500 limit for unfair dismissal claims.
If a successful whistleblower loses their career, they may be awarded hundreds of thousands of pounds in compensation. However, there is no protection against blacklisting by future employers, so a whistleblower’s financial losses may be even greater.
Doctors with a recognised illness such as clinical depression may be able to bring a personal injury claim against their employer in the civil courts. The question will be whether the employer breached their duty of care towards the employee. This claim is likely to be effective only if you have no recourse in the employment tribunal.
However, there are some difficulties. Whistleblowing claims are like discrimination. The claimant has to show why the employer acted in this way and the clinical director will give some other reason (such as poor relationships with colleagues or poor performance) which may have some air of plausibility. He or she will never admit that the whistleblower was suspended for blowing the whistle.
Savvy whistleblowers can try to head off any problems in advance. Doctors who foresee the need to blow the whistle should consider asking at appraisal if there are any matters of concern and record the negative answer. A group of putative whistleblowers could nominate the individual(s) with a recent outstanding performance review to make the disclosure. Whistleblowers aware of discontented members of their team who might be encouraged to make allegations of bullying against the whistleblower could put in writing their difficult relationship with them.
The personal cost of bringing a claim, in terms of stress, may be immense. The financial cost is also likely to be an issue. Under section 43J of the Employment Rights Act 1996, any provision in any agreement between yourself and your employer is void if its purpose is to preclude you from making a protected disclosure. GMC good practice also dictates that you must not enter into any agreement that stops you from raising concerns about patient safety. This means that so called “gagging” orders that could be offered to you in a settlement agreement are likely to be unenforceable.
Many employers know they cannot settle whistleblowing claims out of court because they cannot buy doctors’ silence. Whistleblowing claims are therefore more likely than others to come to a final tribunal hearing, which is the expensive bit of the legal process.
Employees’ associations, such as the BMA, may be able to cover legal costs. Legal expenses may also be covered under household contents or other insurance.
GMC and BMA guidance
The GMC and the BMA offer helpful guidance for whistleblowers, and it would be wise to consider this from the outset.
Obtain a copy of your employer’s whistleblowing policy and follow it.
Make the disclosure at an early stage, particularly if patient or staff safety is at risk.
Make the disclosure in writing. Make it clear that it is not an accusation but a reasonably held belief.
Do not do anything that could breach your contract of employment, such as unauthorised disclosure of confidential information or unauthorised use of computers.
Seek legal advice before going public with your disclosure.
Keep a contemporaneous note of all communications and conversations that concern your disclosure between yourself and anyone within your organisation, alongside copies of any letters or emails.
Competing interests: I have read and understood BMJ’s policy on declaration of interests and declare that we have no competing interests.
Richard O’Dair barrister in independent practice and head of employment law team, 36 Bedford Row, London