Monday, 2 November 2009

NHS is paying millions to gag whistleblowers

Patients' lives put at risk by tactics used against those who highlight safety fears

By Nina Lakhani

Sunday, 1 November 2009

NHS whistleblowers are routinely gagged in order to cover up dangerous and even dishonest practices that could attract bad publicity and damage a hospital's reputation.

Some local NHS bodies are spending millions of taxpayers' money to pay off and silence whistleblowers with "super gags" to stop them going public with patient safety incidents. Experts warn that patients' lives are being endangered by the use of intimidatory tactics to force out whistleblowers and deter other professionals from coming forward.

The IoS has learnt of children in Stoke-on-Trent needlessly losing organs after safety issues highlighted by a senior surgeon – who was suspended after coming forward to voice concerns – were ignored. In one of more than 20 serious incidents, a newborn baby girl needed an ovary removed after a standard procedure to remove a cyst was delayed because of staff shortages.

According to Public Concern at Work (PCaW), two-thirds of doctors, nurses and other careworkers are accepting non-disclosure clauses built into severance agreements, in order to avoid years of suspension, financial ruin, incriminations and distress before a case reaches court. The details of these claims, including allegations of dangerous practice, dishonesty and misconduct, are never disclosed to the public.

However, judges are also failing the public by agreeing to NHS gagging orders when presiding over whistleblower cases in court. Such orders leave future patients exposed to poor practice, while past ones remain unaware that they may have been a victim, says Dr Peter Wilmshurst, consultant cardiologist at Royal Shrewsbury Hospital.

This evidence of widespread gagging comes amid government insistence that whistleblowers are fully protected under the 1998 Public Interest Disclosure Act, which made it illegal for NHS trusts and other public bodies to include confidentiality clauses preventing the disclosure of information that is in the public interest.

Dr Richard Taylor, Independent MP for Wyre Forest and a member of the Health Select Committee which condemned the lack of support for whistleblowers in its recent patient safety inquiry, will this week call for an adjournment debate on the issue. Two "terrified" local doctors have recently approached Dr Taylor after their concerns about patient safety in the out-of-hours GP service were not taken seriously.

Francesca West, a policy officer at PCaW, which provides legal advice to whistleblowers, said: "Bad employers are using super gags to hush up problems rather than sort them out, and many people feel scared and pushed into accepting these terms. That's why we are pushing for these settlement claims to be made public so we can identify problems and hold employers accountable. But why are judges allowing gagging orders through their courts anyway?"

The introduction of the 1998 Act was hailed as a huge step forward. Yet whistleblowers still risk facing "trumped up" allegations of misconduct, improper behaviour or mental illness if they feel compelled to voice concern. Margaret Haywood, for example, a nurse who filmed undercover to expose shocking care of elderly patients in Sussex, was struck off for breaching patient confidentiality, even though no patient or relative complained. She was reinstated by the High Court last month after widespread public outrage at her dismissal.

According to Peter Gooderham, lecturer in law and bioethics at the University of Manchester Law School, there are too many legal hurdles to jump over for a whistleblower to ensure their full protection. "The legal protection for whistleblowers does not work. The NHS is littered with whistleblowers whose lives have been damaged or destroyed. For protection, the whistleblower must have a reasonable belief in their accuracy, and the disclosure must be made in good faith. A whistleblower may not understand what 'reasonable belief' and 'good faith' mean, and indeed may not wish to run the risk that a court or tribunal might find against them on these points. I question whether these legal hurdles are necessary where patient care is threatened. A lot of tactics used are too subtle for the law; threats and bullying work for trusts, so they continue to be used."

The British Medical Association has opened 15 new whistleblowing cases in the past three months, and more than 200 doctors have rung its helpline since July 2009. Around a third of 1,700 Public Interest Disclosure Act claims each year involve workers in health and social care, many of which take years to resolve.

According to Dr Wilmshurst, one doctor was recently vindicated by a court, five years after raising the alarm about the misconduct of a more senior colleague. The trust agreed to pay compensation and the five years of lost salary on condition the doctor agreed to a gagging clause. The doctor, now broke, exhausted, career in tatters, had no option but to accept the terms, even though it means the public will never find out what happened.

In another case, the IoS has learnt of more than 20 senior doctors and nurses being warned against supporting the claims of a whistleblowing colleague, as this would place them in breach of their employment contract.

Mr Shiban Ahmed (see below), a paediatric surgeon employed by University Hospital of North Staffordshire NHS Trust, has been suspended on full pay since March after raising the alarm about botched operations on children and unnecessary delays in treatment. A senior colleague has told the IoS about a relentless "campaign" by the trust managers to discredit Mr Ahmed among his colleagues.

The trust said it would always encourage staff to raise issues internally first, but has not and would not prevent staff talking to the media or external parties about patient safety concerns or governance issues.

Peter Bousfield: Gagged and pushed out

In 2007 Dr Peter Bousfield, a consultant gynaecologist and former medical director at Aintree Hospitals Trust in Liverpool, felt forced to accept early retirement, with a gagging clause attached, after his concerns about insufficient staffing levels and patient safety at Liverpool Women's NHS Foundation Trust were ignored for years.

Dr Bousfield repeatedly reported delayed operations, overcrowded clinics and inadequate staffing levels to the medical director and chief executive from 2002. He was pushed towards early retirement in 2006, as an allegation of bullying was made against him – though it was not formally investigated.

He was subsequently threatened with a court injunction by lawyers acting for the trust if he ever took his concerns about patient safety to his MP or the media.

His story came to light when his son, Andrew Bousfield, a non-practising barrister, was referred to the Bar Standards Board by the trust after he tried to represent his father in correspondence.

The trust last night said it was satisfied the terms of the compromise agreement, which included the confidentiality agreement, have not stopped Dr Bousfield raising concerns with the appropriate regulatory bodies.

Nina Lakhani
Full article in The Independent