Whistleblowers take care

The law does afford protection for healthcare professionals raising concerns over patient safety but it’s best to know the pitfalls in advance

IN 2004, nurse Margaret Haywood brought a hidden camera into the hospital ward where she worked in order to secretly film the appalling conditions endured by the elderly patients cared for within.

The footage from the Royal Sussex Hospital in Brighton was broadcast in a BBC Panorama documentary exposing the unacceptable standards being tolerated there. Haywood claimed her motives were to serve her patients’ best interests and that she was forced to take the extraordinary measures in the face of inaction from management.

But this extreme approach to whistleblowing ended Haywood’s career of more than 20 years when she was struck off the nursing register by the Nursing and Midwifery Council in April. She was found guilty of misconduct at a hearing in London and heavily criticised by panel chair Linda Read for a “major breach of the code of conduct”. While the panel admitted conditions at the Royal Sussex were “dreadful”, they could not condone Haywood’s breach of trust and confidentiality. It was unacceptable, they decided, for Haywood to film vulnerable patients, “knowing that it was unlikely they would be able to give any meaningful consent to that process, in circumstances where their dignity was most compromised”.

Her case has angered many doctors who felt the severe punishment served on her could frighten other medics out of reporting concerns.

Where do you stand?

The case raises serious questions about exactly where medics stand when it comes to blowing the whistle. Are they obliged to report concerns and how should they do so? The law does afford certain protection for whistleblowers, but there are often concerns that speaking out could jeopardise a health professional's career.

The Public Interest Disclosure Act 1998 protects whistleblowers from victimisation or dismissal for exposing malpractice in the workplace. Each Trust is expected to have a whistleblowing policy in line with Department of Health guidance from 2003. Doctors should raise concerns by following the processes detailed in this policy and drastic measures, such as alerting the media, should only be taken as a last resort. Other whistleblowing guidance was issued to general practitioners by NHS Employers following the Shipman Inquiry and a code of practice was published last year by the British Standards Institute and Public Concern at Work.

New guidance on whistleblowing from the British Medical Association cites a clause in nationally agreed NHS contracts of employment which might provide further justification for some doctors to speak freely: “A practitioner shall be free, without prior consent of the employing authority, to publish books, articles, etc and to deliver any lecture or speak, whether on matters arising out of his or her NHS service or not.” But reliance on this clause is not free from doubt.

Duty to report

The General Medical Council defines it as a doctor’s duty to report concerns in Good Medical Practice (GMP). The guide states clearly: “You must protect patients from risk of harm posed by any doctors or other health care professionals’ conduct, performance or health”. The GMC is clear that patient safety always comes first. Doctors must put aside fears about the effect whistleblowing may have on their career and their relationships with colleagues. Doctors who ignore concerns risk being penalised, as GMP states one of the duties of a registered doctor is that they must “act without delay if you have good reason to believe that you or a colleague may be putting patients at risk”.

Dr Gail Gilmartin, a medico-legal advisor at MDDUS, said doctors must always respect patient confidentiality when raising concerns. She said: “Whenever a doctor is considering whistleblowing they need to remind themselves about objectivity, evidence, issues of consent and confidentiality and using proper process. Most doctors are aware of various risks involved but we would urge members to seek our advice if they find they are contemplating such action.”

It is key that any medical professional looking to raise concerns thinks carefully before acting. GMP dictates a need to have “good reason to think that patient safety is or may be seriously compromised”. It can be hard to know when to act, but the BMA’s new guidance* suggests medics ask themselves: “If you let the situation carry on, is it likely to result in harm to others?” If in doubt, they say you should “always err on the side of raising the concern with your manager/immediate superior as soon as you can”. The GMC’s guidance booklet Management for Doctors also states that any doctor with concerns should “declare the conflict, seek colleagues’ advice and raise your concerns formally with senior management and external professional bodies as appropriate”. The GMC has also launched a series of online tutorials on its website tackling ethical scenarios, including whistleblowing, to help guide doctors.

GMP and the BMA say would-be whistleblowers must keep a thorough record of their concerns and gather evidence of the alleged wrong-doing. Medics must give an “honest explanation” of their concerns, GMP advises, and if you are not sure what to do, it recommends discussing the concerns with a colleague, contacting your defence body, a professional organisation or the GMC for advice.

Lindsey McGregor, a solicitor with MDDUS, said doctors have a professional responsibility towards their colleagues as well as to their patients. She said: “Whistleblowing must be seen within the context of one's professional obligations. Speaking out on patient safety issues, systems or on a colleague’s conduct will be a matter of individual conscience but at all times the GMC guidance on this issue must be at the forefront of your mind. It is important to have read the guidance before embarking on this path and you should be prepared to be able to justify your concerns to others at all times.”

Frustration

A recent survey by the BMA, Speaking Up for Patients, found that hospital doctors in England and Wales are often frustrated in their attempts to raise concerns, with 74 per cent of the 565 who responded admitting to being concerned about issues like patient safety or bullying at some point in their career. Seven in ten doctors had raised a concern but nearly half of those felt nothing came of their complaint.

BMA chairman Jonathan Fielden called for a “culture change” in the NHS. He said: “No doctor, no nurse, no porter, anywhere in the NHS should be made to feel that speaking up for their patients is a bad career move”. The BMA have pledged to support any whistleblower and urge them to have courage in the face of possible victimisation.

So, while politicians urge clinicians to report concerns, there still appear to be major hurdles to overcome before medics feel completely comfortable in doing so. Many doctors are fearful of being stigmatised by colleagues, intimidated or of destroying their careers. There remains a culture in some places that whistleblowing is considered “snitching” on colleagues and doctors shouldn’t “let the side down”. Certainly, GMP has a clear cautionary message for anyone looking to raise malicious concerns about a colleague. It demands you treat colleagues “fairly and with respect” and you must not “make malicious and unfounded criticisms” about them. Clearly any medic making false accusations risks serious punishment.

Joanne Curran is associate editor of Summons