Letter to the CEO of the NHS Litigation Authority (NHSLA)

To: Helen Vernon CEO NHS Litigation Authority, 18 June 2015

 

Dear Ms Vernon,

 

Re: NCAS and implementation of Sir Anthony Hooper’s recommendations on protecting NHS whistleblowers

 

Thank you for your letter dated 8 May 2015, which I received by email on 23 May, and which is copied below.

 

It is good to hear that NCAS provides national training for case managers and case investigators on vexatious concerns. I would be very grateful if NCAS could share the details of its training guidance on vexatious concerns, as this material is of obvious interest to whistleblowers who often find themselves the subject of vexatious referrals to NCAS.

 

Given that NCAS accepts that concerns may be raised vexatiously against doctors, I struggle with your advice that:

 

“NCAS does not investigate concerns and we rely on the integrity of the information provided by both the referring organisation and practitioner in our dealings with a case.”

 “As stated previously NCAS has no remit to assess or test the veracity of the information provided by either party.”

 

It seems to me that if NCAS accepts that vexatious complaints are made, it should not rest content with its current lack of procedural safeguards against the persecution of innocents. NCAS has great power. A referral to NCAS can be hugely stressful and also damaging to a doctor’s reputation. Yet whistleblowers who are maliciously referred to NCAS report that NCAS typically refuse to engage with them, even when provided with evidence of false allegations by employers. Instead, it is the experience of whistleblowers that NCAS will continue to approve harmful employer actions.

 

I have to question the value that NCAS adds if it makes no effort at all to challenge or dissociate itself from trumped up processes, even when provided with evidence. If you are correct in asserting that NCAS has no remit at all to investigate, then this seems a very serious structural flaw that should be addressed. This is especially so when NCAS continually reminds employers of the importance of accuracy, through the standard disclaimers in NCAS letters of advice. I would be grateful to know if NHSLA would be prepared to seek changes in NCAS’ remit, to enable a degree of investigation and fairer treatment of whistleblowers.

 

It is relevant to note here that Sir Robert Francis advised regulators to seek amendments to their regulations, if necessary, in order to protect whistleblowers more effectively. [1] I feel that a similar principle should apply to NCAS.

 

I should also point out that it is in fact senior doctors, acting as MHPS case managers [2], who are often key culprits in the victimisation of medical whistleblowers. Training such managers to recognise vexatious concerns misses the point. What is needed are mechanisms to hold them to account. That is what Sir Anthony sought in his proposal that registered doctors should sign referrals and attest to truth:

 

“68. Failure to answer the question truthfully would no doubt lead to the signing doctor’s fitness to practise being investigated and, if discovered during the course of the investigation, would be an important factor in assessing the credibility of the allegation”. [3]

 

I would be grateful to hear from NCAS, once it has considered GMC’s response to Sir Anthony Hooper’s recommendations, on whether it will introduce a comparable safeguard in its process.

 

Lastly, I must disagree with your assertion that PIDA currently protects staff who raise concerns. You say:

 

“Furthermore, the Public Interest Disclosure Act 1998 protects workers that disclose information about malpractice at their workplace, from suffering detriment as a result of having made a disclosure providing certain conditions are met”.

 

Numerous authorities, Sir Robert Francis amongst them, now acknowledge that PIDA is weak and does not protect whistleblowers from reprisal. It only provides compensation after the event.

 

“..the existing legislation is weak” 

“..it provides remedy rather than protection against detriment” [1]

 

I think that unless NHSLA recognises that PIDA does not protect NHS whistleblowers, there is a risk that it will not formulate proportionate action or undertake appropriate reform of NCAS. Continuing injustices to whistleblowers place patients at risk, and they are also very wasteful.

 

Yours sincerely,

Dr Minh Alexander

 

cc  Sir Jeremy Heywood, Cabinet Secretary

     Health Committee

     Public Accounts Committee

     Sir Anthony Hooper

          

[1] Report of Freedom to Speak Up Review on NHS whistleblowing by Sir Robert Francis, February 2015

[2] Maintaining High Professional Standards in the Modern NHS, a framework for the handling of concerns about doctors and dentists in the NHS, DH 2005

[3] The handling by the General Medical Council of cases involving whistleblowers. Report by the Right Honourable Sir Anthony Hooper to the General Medical Council, 19th March 2015

 

2 thoughts on “Letter to the CEO of the NHS Litigation Authority (NHSLA)

  1. There needs to protection for members of the public who whistleblow about fraud and professional misconduct by panel solicitors to thwart CQC investigations and judicial reviews.

    There is no corporate governance of panel solicitors by the NHSLA and the Protocol for Public and Parliamentary Accountability does not require the NHSLA to deal with fraudulent activity by them.

    Fraud by solicitors is not reported by the NHSLA to the SRA or police, and panel solicitors are allowed to “investigate” themselves – especially those that already have contracts to investigate fraud on behalf of the NHS and police forces investigating insurance claims (Netfoil)

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