Sarah Wollaston, on behalf of the Health Select Committee, has belatedly responded to my call for the government to reopen NHS whistleblower cases. It is the government’s position that this is not going to happen. Below is the paper I submitted to HSC arguing that an examination of these cases is a matter of natural justice and key to learning lessons that will help change the present victimising NHS culture.

David Drew

11 March 2016.

 

NHS whistleblower cases must be reopened. Practical redress and apologies are needed

In her letter of 26 March 2015 Dr Wollaston, wrote to me (Dr David Drew) on the recommendations in the Complaints and Raising Concerns report January 2015 concerning “historic” NHS whistleblower cases:

We hope that our successor Committee in the new Parliament will monitor the progress made by the Government and NHS England to implement the recommendations.

 

We are now some months into the new parliament so it is right for me to ask what if any progress has been made.

My concern in my original email to Dr Wollaston was with recommendation 21. May I summarise the present situation.

On 11 February 2015, following the launch of Sir Robert Francis’s Freedom to Speak Up Review report, the Secretary of State for Health made this statement to the House of Commons:

Sir Robert has confirmed the need for further change in his report today. He said he heard again and again of horrific stories of people’s lives being destroyed—people losing their jobs, being financially ruined, being brought to the brink of suicide and with family lives shattered—because they had tried to do the right thing for patients. Eminent and respected clinicians had their reputations maligned. There are stories of fear, bullying, ostracisation and marginalisation, as well as psychological and physical harm. There are reports of a culture of “delay, defend and deny”, with “prolonged rants” directed at people branded “snitches, troublemakers and backstabbers”, who were then blacklisted from future employment in the NHS as the system closed ranks.

(Hansard)

The emphases are mine.

I was one of the six senior NHS whistleblowers who met Jeremy Hunt and Simon Stevens in June 2014. This meeting led to the Health Secretary commissioning the Freedom to Speak Up Review. Both Mr. Hunt and Mr. Stevens praised us personally for our courage in speaking up for patients. We were of course grateful for their appreciation.

We knew full well from personal experience what an NHS whistleblowers lot is and we were pleased that Sir Robert, when his report finally appeared, described it so clearly. I think this was the first time the widespread, severe victimisation of good NHS staff by senior management has been officially acknowledged.  He also clearly attributed our victimisation to our “trying to do the right thing for patients”.

It was therefore a major disappointment to read at the end of Sir Robert’s report, almost as an afterthought:

Finally I recognise that some of those who have contributed so constructively to the Review will feel that their own personal issues have not been addressed. This was perhaps inevitable given my remit, but I have to observe that in some of their cases the contention has endured over such a long time, and the issues have become so complex, that the most rigorous inquiry devoted to each such case would not have been able to resolve matters for those involved.

This I imagine was exactly what the Department of Health would have wished to hear. Sir Robert was not asked to make any recommendation on how our cases should be dealt with. Nevertheless he did, in the most negative terms possible. He cites duration and complexity as arguments about re-examining our cases. Take whistleblower Dr Raj Mattu as an example. Last year he won his case at tribunal after many years of legal struggle. His case lasted many months and was so complex that he was cross examined for 3 weeks. His remedy hearing has lasted 2 weeks so far and when it resumes this month is expected to take another 2 weeks. If Dr Mattu had considered duration of struggle and complexity to be barriers he would never have vindicated himself. And this is primarily what whistleblowers want, vindication. And the redress that will follow that.

Sir Robert’s view needs to be contrasted with recommendations from your own committee (Complaints and raising concerns January 2015), the Clwyd-Hart Review (October 2103) and the NHS Confederation statement to the Freedom to Speak Up Review. I also refer to comments from David Behan and Simon Stevens. The reaction of the whistle-blowers themselves and the press reaction when the Freedom to Speak was published are salutary.

 

1. Health Select Committee.

Recommendation 21:

We expect the NHS to respond in a timely, honest and open manner to patients, and we must expect the same for staff. We recommend that there should be a programme to identify whistle-blowers who have suffered serious harm and whose actions are proven to have been vindicated, and provide them with an apology and practical redress.

(Complaints and raising concerns January 2015),

On 21 January, following the publication of the report, Dr. Wollaston went on National Television and said that the treatment of NHS whistleblowers is a stain on its reputation. Dr. Wollaston was widely quoted in the same vein in the national press. For example:

http://www.telegraph.co.uk/news/nhs/11358111/Treatment-of-NHS-whistleblowers-is-a-stain-on-its-reputation.html

Dr. Wollaston was speaking in her capacity as Health Select Committee chair. It is unusual (in my opinion) to see such genuine moral outrage in our politicians. The recommendation for an apology and redress is clearly based on a sense of the deeply unjust way in which whistleblowers have been treated. (It is generally true that even when NHS whistleblowers have won their claims at ET and the NHS managers have been described as “unreliable witnesses” etc., those managers still do not apologise.) I hope therefore that the Health Select Committee will vigorously pursue its suggested remedy and ensure that our cases are re-opened. 

 

2. NHS Confederation.

 We note the Committee’s comments on the experience of some whistleblowers in the NHS and how this is at odds with improvements in culture and confidence elsewhere.  We support the calls for practical redress for those who have been harmed as a consequence of raising genuine concerns.

(NHS Confederation (“the authentic voice of NHS leadership) in response to Complaints and Raising Concerns report)

 

3. Clwyd-Hart Report October 2013.

However, we have heard in the course of our work repeated concerns about a number of unresolved questions surrounding this issue. These concerns relate firstly to securing justice for past whistle-blowers whose careers have been seriously jeopardised and who have suffered financially as a result of drawing attention to malpractice. We urge the Department of Health to undertake the review of such cases with a view to both learning lessons for the future and undertaking restorative justice for those individuals affected.

(Clwyd-Hart Report Chapter 6, page 37.)

Ann Clwyd clearly saw the victimisation of whistleblowers as a justice issue.

 

4. David Behan, chief executive of the Care Quality Commission:

It takes great courage for health professionals to raise concerns about care and so they must be reassured that when they do come forward that they will not suffer as a result. No one should be punished for acting in the public’s best interest.

(Quoted from Guardian Newspaper 11 February 2011)

The point is that we have suffered and we have been punished for acting in the best interests of patients and the public. The boss of the principal healthcare regulator can glibly say this knowing full well that neither he nor anyone else has lifted a finger to help such public spirited professionals.

 

5. Simon Stevens CEO at NHS England

As a nation we can rightly be proud of the fact that NHS care is now the safest it has ever been. But as I’ve sat down and listened hard to whistleblowers over the past year, it’s blindingly obvious that the NHS has been missing a huge opportunity to learn and improve the care we offer to patients and the way we treat our staff.

(NHS England comment on Freedom to Speak Up report 11 February 2015)

Simon Stevens makes a good point which seems to have been entirely lost on Sir Robert Francis. First, numerous clinical incidents were reported to Sir Robert. In our letter to the Telegraph of 13 February 2015 (“Crimes in the NHS”) Dr. Minh Alexander and I wrote:

He is in possession of claims of cover-ups of children’s deaths, deaths in custody, physical abuse and neglect, fraud. Many of these are unresolved.

No-one has shown the slightest interest in learning from these incidents. I feel sure that the burden of patient harm and wrongdoing reported to Sir Robert in the Freedom to Speak Up Review easily exceeded that reported to him at Mid Staffs.

Sir Robert has been unable to prescribe a remedy for those NHS staff who have suffered horrendous victimisation nor has he called to account the managers (CEOs and Trust board members) responsible for this. Forgetting the injustice of this for a second, nothing has been learned about these people. Are they monsters or just ordinary people following orders?

All this learning has been lost by what is essentially a political unwillingness to look closely at what has happened.

 

6. NHS Whistlebowers.

There must, I think, be universal agreement amongst the whistleblowers themselves that “historic” cases must be re-examined. I have formed this opinion through social media, emails and other correspondence and face to face meetings. I published my own personal view in an open letter to Sir Robert in the Independent on Sunday on 14 February:

You have sent out exactly the wrong message. Whistleblowers are pawns who will not receive help, even from you. You have left us to our fate. This will have a further deterrent effect on staff raising concerns. The managers who have victimised us will feel more secure than they already were. They remain unaccountable. Patients who depend on our freedom to speak up will be less safe.

You see culture as central and make a number of recommendations for NHS culture change. You call for a just culture in which we learn from honest mistakes and do not punish those who make them. But how can a just culture be built on the foundation of injustice which is laid down by your failure to address the victimisation so many have experienced?

We all make mistakes all the time. We are human. Honest mistakes are not to be punished but learned from. That is essential to a just culture. But intentional wrongdoing must be held accountable. That is also essential to a just culture. Sir Robert (he has been described as the unjust judge in one blog) has allowed the reporters of wrongdoing to go to jail (a life sentence as he admitted) and the wrongdoers (as identified by him) to walk Scot free. A just culture is incompatible with this.

 

7. National, International and Local Media.

There was massive coverage of the report’s launch. Many of us did a large number of interviews. I did eighteen. We did this despite the obviously engineered disadvantage we suffered by only having forty minutes with the 200+ page report before we met Sir Robert for questions and then the Press. The coverage overwhelmingly recognised the truth of Sir Roberts account. The best analyses of his report were highly skeptical of his proposed solutions. For example on 12 February Andrew Smith wrote in the Guardian:

In Freedom to Speak Up, the report on the plight of NHS whistleblowers published this week, Sir Robert Francis interviewed 612 victims, many of whom I know had high hopes. But his recommendations have turned out to be toothless and probably ineffectual.

The Mail and other newspapers on the same day expressed the same sentiment:

A report into the NHS’s shocking treatment of whistleblowers was yesterday branded a ‘whitewash’ that will do nothing to protect staff who raise concerns.

A notable theme was the complete failure of the report to hold anyone accountable for the way decent professionals had been victimised for doing their job. At an earlier Health Select Committee hearing Sir Robert said that CEOs supressing whistleblowers should be sacked. By the time of his report he appears to have done a complete U-turn. This has never been explained but I presume is due to political pressure.

 

The Government Response.

The Government response to the House of Commons Health Select Committee Fourth Report of session 2014–15 Complaints and Raising Concerns was published in March 2015 shortly before Dr Wollaston wrote to me.

 In response to the report’s Recommendation 21

We expect the NHS to respond in a timely, honest and open manner to patients, and we must expect the same for staff. We recommend that there should be a programme to identify whistle-blowers who have suffered serious harm and whose actions are proven to have been vindicated, and provide them with an apology and practical redress.

 

 The Department of Health commented:

 As the Freedom to Speak Up report indicates, the issues faced by historic whistle-blowers can often be complex. Many cases have already been considered by the courts and the Government’s view is that there can be no general basis for reopening cases that have been through a legal process.

 

This is exactly the get out of jail response that I would have expected from the Department of Health. In 2001 the Department of Health accepted Ian Kennedy’s recommendation (Bristol Heart Scandal report) that it develop a safe NHS reporting culture. It has failed to do that. A high percentage of NHS staff still fear being ignored or suffering retaliation if they report concerns about patient care and this creates a daily risk to patients. It is a fear that is well founded. The Freedom to Speak Up review is a stark reminder that the Department of Health failed to do as Kennedy recommended. That failure has resulted in an unknown number of patient deaths and much unnecessary suffering. If the Department of Health had secured a safe reporting culture the Mid Staffs tragedy would not have happened & the Public Inquiry would have been avoided. If they had secured a safe reporting culture the NHS professionals who suffered the horrific victimisation described by Francis in his February 2015 report would have been spared their suffering. The Department of Health pays lip service to their courage. In practice it never lifted a finger to help them. Small wonder the Department of Health does not want any historic cases re-opening. That would prove extremely embarrassing. Please consider the rationalisations they present for not re-opening our cases:

“The issues faced by historic whistle-blowers can often be complex”

They are complex precisely because the victimising managers that Sir Robert identified made them complex, taking what in most cases were genuine and serious complaints and turning them into employment disputes in which we as employees found ourselves on the wrong end of breakdown in trust and confidence claims. In any case since when was complexity an argument against addressing widely recognised injustice and the need to ensure a safer future. The Hillsborough Independent Panel (events of 1989) and the Goddard CSA Inquiry (now retrospective to 1940) are dealing with matters of greater complexity but in terms of harm to patients and professionals no greater seriousness.

Many cases have already been considered by the courts

 These cases have been considered in terms of employment law. Sir Robert knows this perfectly well. The disadvantage whistleblowers suffer in the tribunals is widely acknowledged, hence the reluctance most have to risk financial ruin. The Health Committee has already recognised all this and advised, in section 3 of its response to the Francis Public Inquiry report,

Disciplinary procedures, professional standards hearings and employment tribunals are not appropriate forums for constructive airings of honestly-held concerns about patient safety and care quality.

Whistleblowers should never have been put through internal disciplinary procedures which are completely biased and part of the victimisation they suffer. They should never be put through the stress, financial risk and huge disadvantage of the tribunals. This is also part of the victimisation they have suffered. The fact that some of us have had a hearing in the tribunals in the narrow confines of employment law is no argument for turning a blind eye to the injustices we have suffered.

There can be no general basis for reopening cases that have been through a legal process.

 There may be no general basis but there must be a basis for individual cases. Otherwise what can we make of the widespread support there is for reopening cases including that made by Health Select Committee. It is clearly the view of the Secretary of State and the Department of Health that even the gravest injustice cannot be addressed, even the most deserving case must not be re-opened. That would risk further publicity and an avalanche of other claims.

 

In summary, there is a widespread perception of unfairness in the way the NHS has treated its whistleblowers and the way the Department of Health has consistently failed to protect them. Up to the present Parliament has also failed. Good doctors, nurses and other staff are still suffering the consequences of their victimisation. New whistleblowers to this day are suffering the same fate as the “historic” cases. Whistleblowers are still signing super-gags with the Treasury’s knowledge. The managers responsible for our victimisation are still enjoying their own career progress and there is a widespread perception that they are untouchable.

In August 2014 Margaret Hodge Public Accounts Select Committee chair told the Guardian newspaper that “no senior manager had ever been held to account for victimising a whistleblower”. She stated in the same article that she had been “dismayed by the way ministers and senior managers have failed to protect the public interest”.

Small wonder that the worst NHS managers still feel free to ignore and mistreat staff who raise concerns. The real losers in all this are patients. Their safety depends on a safe reporting culture. Jeremy Hunt told Parliament in February that we are 10 years (or on another occasion a generation) away from that. That is why “historic” cases must be re-opened. Justice must be done and be seen to be done. A clear message (Sir Robert ducked this completely) must be sent to those who victimise whistleblowers. And patients and the public must be reassured that their safety which often depends on professional advocacy is truly being made the top priority.

David Drew

February 2015.