By Sharmila Chowdhury 19 May 2014

Jeremy Hunt recently wrote a message to all NHS staff (click to view)

It sets out the policies and actions so far on whistle-blowing which include:

• Making all NHS employment contracts include the right to raise concerns about care
• Amended the NHS Constitution to strengthen the commitment to supporting staff who do so
• Funding a national helpline – independent from employers and the Department of Health and completely confidential – to provide advice to anyone in health or social care who wants to raise a concern
• A new duty of candour, so that organisations have a duty to admit mistakes and tell patients what has happened. A professional duty of candour enforced through professional regulators codes of conduct
• A new criminal offence on those who deliberately provide false or misleading information
• Reform of the CQC and inspection regime so that we assess whether hospitals have an open reporting culture and whether they treat staff who raise concerns properly

So what’s missing?   

Well, lots.

• Accountability

There is no discussion about accountability of individuals within Trusts when they ignore raised concerns.

1. How will this be investigated and individuals held to account?

2. Who will investigate and how will they know when concerns have been ignored?

3. There also needs to be accountability of Chief Executives, HR Directors and other staff members when they persecute whistle blowers. To date this has yet to happen. Trust managers are left to their own devises and so do as they please, no questions asked.

4. Huge sums of public money is wasted on litigation, staff cover etc. in getting rid of whistle blowers which should have been spent on patients.

These sums of money should be publicly disclosed . The Treasury should be questioning these spends. Money should be spent on patients and not on litigation.

In my case, where I had raised concerns about potential fraud, I had written to George Osborne – the letter was ignored. I had written to NHS Counter Fraud – also ignored.

• Employment Issue

Most staff, like myself, when they raise concerns feel that they are simply doing their job. They don’t consider their own personal safety in terms of employment. It’s only when false counter allegations are made against the whistleblower and the whistleblower is subsequently victimised, escorted out of a building, or placed on ‘garden leave’, that the whistleblower realises there is a problem, and they would have been wise to have considered their safety.

Having said that, most whistleblowers I have spoken to, and there are numerous, do not regret raising concerns and would do so again. Why? Because they believe in doing the right thing and they clearly care. Yet, these are the very people who are being victimised, suspended and dismissed.

There are however, some who would think twice and who could blame them.

Once suspended or dismissed, the whistleblowing case turns out to be an ‘employment’ issue. When this happens (or even before), no one intervenes or is willing to put a stop to the nonsense, despite it being in the public interest to do so.

Nearly all NHS whistleblowers I know, have written to Department of Health (DOH). Many have also written to Care Quality Commission, NHS London, No 10 and The Treasury. All of us are given the same response advising us about PIDA and that they, DOH etc, cannot get involved as there’s an ongoing employment case.

Fact of the matter is that there shouldn’t be an ‘ongoing employment case.’ This has happened as a direct result of whistleblowing and needs to be recognised as such.

It’s unacceptable that governing bodies hide by labelling whistleblowing, even when known,  as an ’employment’ issue and do nothing to help the whistleblower. Instead help the Trust behind the scene with legal funding and advice.

In my case I had contacted DOH after I had won Interim relief Hearing. Interim Relief Hearing before an employment tribunal is an option available to those who have been dismissed for whistleblowing to have their contract reinstated. So by winning the case, it  proved that I was dismissed as a direct result of whistleblowing.

Despite this, there was no help given and my case continued for another 18 months with escalating legal costs until settlement.

Cases are purposely dragged on by Trusts, in hope that you as an individual will give up due to the stress of high legal costs and pressure place on by your own legal team. Trusts are on the other hand have the advantage of being able to access legal help , without due care to the costs and so can afford for cases to drag on to the detriment of the whistleblower.

When a whistleblower has been dismissed as a result of whistleblowing, alternative work must be found of same standing.

Raj Mattu’s case dragged on for 13 years. Why? Where were DOH and The Treasury? Why did they not intervene? Did they not care? Are they not on top of things going on? Only they can answer these questions but what they cannot say is that they didn’t know.

• Destruction of careers

Nearly in all cases, where a whistle blower has been dismissed, they are unable to find work again in the NHS. They face career and pension losses. They have lost their means to any source of income.

Many face losing their homes and marriage break down due to stress. Many NHS whistleblowers are blacklisted, which includes whistleblowers such as Ed Jesudason, Jennie Fecitt and myself.

It means no matter how many NHS jobs are applied for, they are never successful, despite being the strongest candidate. Offers are withdrawn. Interviews are cancelled, and posts withdrawn. This is a familiar pattern to all of us who have been blacklisted.

You may be mistakenly under the impression that once a case is settled, a whistleblower is paid huge sums of money to live on. This is not the case.

Despite winning my case, Ealing Trust did not allow me to return to my post.  They were determined not to have me back. I subsequently also won the appeal hearing. Following this, Ealing Trust advised DOH that my post was‘redundant’ due to ‘new technology’. One would have expected a prudent DOH  staff to have questioned this bizarre statement. However, DOH did not.  Despite winning my cases both in court and in the appeal, I lost my job for ever.

DOH was well aware mine was an ongoing whistleblowing case and despite a subsequent apology from the Trust which recognised me as a whistleblower I  was without help.

Trust paid me 2 year’s salary out of which I had to pay legal costs of £77,500. So not much left to live on. I am about to be made homeless as I run out of funds.

On settlement, if alternative work of same standing is not found, then the whistleblower should be paid their normal salary and have their pension reinstated until retirement.  

It’s bad enough that whistleblowers have lost their career and their world has been turned inside out, they should however, not be left looking for handouts.

• Legal costs

NHS Trusts seem to have a bottomless pit when it comes to access to legal cover, paid by the public. Yet the public have no say in the matter. It’s their hard earned money ,and yet they have no voice. DOH and The Treasury however do, and on their behalf, should exercise this. However to date haven’t.

Whistleblowers on the other hand are left fighting for themselves incurring fast escalating  legal costs. Mine rose to £130,000 on a ‘no win, no fee’ basis.

Many end up having to re-mortgage or sell their homes as a result of having to defend themselves against a Trust, who are supported by DOH and The Treasury.

Most major unions are ill-equipped to help and support whistleblowers. There needs to be advise given by unions regarding their limitations. Unions are the first port of call for most whistleblowers.

Most whistleblowers end up seeking alternative legal advice. On winning a case, or on an out of court settlement, which really it should have never had got to in first place, Trusts should be liable for legal costs of the whistle blower.

Whistleblowers should not be liable for legal expenses which are solely due to Trusts’ wrongdoings. Currently this is the situation, even when a whistleblower wins.

Ideally, there should be a separate legal fund available for the whistleblowers. They should not be facing an unbalanced funding situation to access legal help. – Trusts have all available funding they want whereas whistleblowers have none.

Does no one care about NHS, publicly funded money being wasted? Clearly not. Raj Mattu’s case is a good example of this, where over £10million of public money has been wasted. Not to mention loss of an eminent cardiologist from the NHS and the destruction of a career. A huge tragedy all round.

Trusts should not be given an easy, ‘bottomless’ access to legal help funded by the taxpayer.

• Effective Independent Body

There needs to be an effective body where a whistleblower can turn to. There also needs to be an effective independent body to whom Trusts are answerable to.

Currently, this does not exist and Trusts are given a free reign. Unless Trusts are held accountable for their actions, and their treatment of whistleblowers nothing will change.

There is no deterrent and things will carry on as they are as there is no incentive to change.

• Gagging

Many whistleblowers with escalating legal costs have been ‘gagged’. This means that they are not allowed to speak up about any of their concerns or regarding their case. In return they are given sums of money by the Trusts. Unfortunately, due to pressures placed on whistle blowers many in the past have agreed to these terms and raised concerns remain ignored and patients’ safety is compromised. Many of us have refused to be ‘gagged’ and so are free to speak up. Thankfully, ‘gagging’ is now becoming a thing of the past. 

• Public Inquiry

In order to have transparency so lessons can be learned for the future, it’s essential that there is a public inquiry regarding treatment of whistleblowers which include historic cases.

Just because a case has been settled, it does not mean that the whistle blower is sorted. Far from it. Whistleblowers continue to suffer financially, physically – due to ill health and frequently emotionally, well after settlement. These issues need to be investigated and rectified.

Making examples of whistleblowers sends out messages loud and clear to other staff members, i.e. ‘keep your head down or this could be you.’ Is this really what we want? Clearly not.

We need staff to speak up and it’s no good having a ‘Duty of Candour’, if when they do exercise their duty, they are dismissed.

We don’t need more policies, we need action. There is no point drafting more meaningless paperwork like PIDA, which no one acts upon and affords little or no protection to a whistleblower.

We need urgent change. Changes in our approach to how we treat staff who care enough to speak up. Care for our patients who trusts us to do the right thing and put things right when they are wrong. Care for the public who have trustingly contributed to the NHS.

Unless this happens, everyone loses out, not just the whistleblower who has bravely spoken up but more importantly the patient who depend on us.