Speaking freely

Jim Killgore reports on proposed new measures to protect whistleblowers

LINDA Reynolds had not been working long as a GP partner at the Brooke Surgery in Hyde before she noticed something odd about the number of cremation forms being countersigned for a nearby single-handed practice on Market Street.

Brooke Surgery had a list of about 9,500 patients – three times that of the neighbouring surgery – yet over a period of three months it had only 14 patient deaths compared to 16 deaths among patients treated by the GP at 21 Market Street. There was a pattern to these deaths – mainly elderly women dying at home, out of bed and fully dressed, later followed by cremations.

Nigel Reynolds – Linda’s husband – recalled his wife’s indecision over contacting her defence organisation for advice. “We had a conversation the night before she made the phone call. I said: ‘Do you really think he is killing his patients?’ and she said ‘no’ to begin with and then she said ‘I know he’s killing his patients’.”

“We discussed the fact that if it got out and she was wrong she probably would not practise again in that area. But at the end of the day when she did it she didn’t have any doubts about it because it was the only course of action.”

Linda Reynolds reported her suspicions to the coroner but after a flawed police investigation the matter was dropped. Six months and another three deaths later suspicions arose over a changed will for a deceased elderly lady – Kathleen Grundy. This patient had not been cremated and her body was exhumed. An autopsy found traces of diamorphine. The patient’s GP – Harold Shipman – was later convicted of Mrs Grundy’s murder and that of 14 other patients although he was implicated in many more deaths.

Had Linda Reynolds not overcome her concern over the possible consequences of speaking up, more patients would certainly have been killed. In her fifth report of the Shipman Inquiry – a far-reaching review prompted by the case – Dame Janet Smith identified failings in the way whistleblowers are supported within the NHS. She wrote:

“I believe that the willingness of one healthcare professional to take responsibility for raising concerns about the conduct, performance or health of another could make a greater potential contribution to patient safety than any other single factor”.

It is with this quote that Sir Robert Francis QC introduces his long-awaited review of whistleblowing within the NHS – Freedom to speak up. In the report, launched in February of this year, Francis acknowledges that since the Smith review and his own more recent report into the events at Mid Staffordshire NHS Trust, a range of initiatives have been put in place to foster a more open and honest culture in the NHS. “However, problems remain,” he writes. The new review recommends a package of measures to ensure that NHS staff feel free to speak up about patient safety concerns.

Extreme retaliation

Francis was asked to lead the inquiry by Secretary of Health Jeremy Hunt after he met with six NHS health professionals who had claimed to have suffered “extreme retaliation after raising serious concerns about patient care,” as one one of them, Dr David Drew, put it in a Guardian newspaper article.

The review heard from over 600 people and around 19,000 staff responded to an independent online survey. Responses were also submitted by 43 organisations and the review consulted with many other people through meetings, workshops and seminars.

In the inquiry Francis found that NHS staff want to speak up and there are numerous examples of organisations supporting them to do so. But he also heard how staff can be put off raising concerns for fear of victimisation. Others may fail to speak up out of doubt that their concerns will be listened to.

He writes: “Many respondents described a harrowing and isolating process with reprisals including counter allegations, disciplinary action and victimisation. Bullying and oppressive behaviour was mentioned frequently, both as a subject for a concern and as a consequence of speaking up. They also spoke of lack of support and lack of confidence in the process. Many of the contributions described cases that are recent or current. This indicates that there is still a real problem.”

Law can go only so far

Currently, legislation providing protection for whistleblowers is contained in the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998 (commonly known as PIDA). A worker making a protected disclosure has the right not to be subjected to any detriment by his employer for making that disclosure. Francis believes this legislation is limited in its effectiveness for a number of reasons.

“At best the legislation provides a series of remedies after detriment, including loss of employment, has been suffered,” he states. “Even these are hard to achieve, and too often by the time a remedy is obtained it is too late to be meaningful.”

Recent years have seen a range of measures to encourage or impose a responsibility on staff to speak up. These include the Fit and Proper Person Test and the new Care Quality Commission’s (CQC) inspection and ratings regime. The government also recently introduced a statutory duty of candour requiring NHS bodies to inform patients or their representatives when an unintended incident has resulted in death, or severe or moderate harm.

Kim Holt is a consultant paediatrician and co-founder of Patients First – an organisation set up to raise awareness for whistleblowers and which made a significant contribution to the Francis review. She commented: “An organisational duty of candour might make a difference in that there’s an expectation on the organisation to be honest. But we feel very strongly that unless professionals are properly supported and protected there will still be problems.”

This was borne out in a 2013 NHS staff survey which showed that only 72 per cent of respondents were confident that it is safe to raise a concern. Francis also believes any new legislation can only go so far. In the report he speaks of a ‘just culture’ as opposed to a ‘no blame’ culture and states that raising concerns should be part of the normal routine business of any well-led NHS organisation.

Holt – also a former whistleblower – agrees: “It’s around the raising of awareness and remembering we are there for patients. We must try and focus on the patients first. Any anxieties about how this might reflect on the organisation or on the team – we have to try and put those aside.

“All that patients want is for people to acknowledge when things have gone wrong and to learn. And if we start doing that now the health service will become safer step by step and the culture will gradually change. Basically it’s just being brave enough to take that first step.”

Independent “guardians”

In the report Sir Robert sets out 20 principles and actions designed to promote a culture in the NHS where staff feel safe and are encouraged to speak up – and one that prevents discrimination against people who have been “brave enough” to do so. Proposals include instituting a Freedom to Speak Up guardian in every NHS trust – a named person in hospitals to give independent support and advice to staff who want to speak up and to hold the board to account if it fails to focus on the patient safety issue.

To support these guardians Francis proposes a National Independent Officer with a mandate to “intervene when cases are going wrong and to identify any failing to address dangers to patient safety, the integrity of the NHS or injustice to staff”. The review also calls for a new support scheme to help “good” NHS staff who have found themselves out of a job as a result of raising concerns get back into work.

The government has accepted the Francis recommendations in principle and it is no doubt hoped that the review will serve as a legacy for Linda Reynolds and other professionals who have spoken out to prevent further suffering due to patient safety failures.

Sadly, Dr Reynolds did not live to see justice fully done – she died of cancer at age 49 just weeks before Shipman was convicted in January 2000.

Jim Killgore is publications editor at MDDUS