By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 29 September 2016. Updated with addendum 27 September 2017
The British Medical Association (BMA) is the main union for doctors. It is not a good friend to whistleblowers.
The annual ritual of renewing my BMA membership came up. I dithered a bit. I have been a BMA member for thirty years. But after adventures in whistleblowing, I no longer have a medical career. I wondered if the £163 renewal fee – reduced for unwaged members from the standard fee of £443 – could be spent on more joyful things. Perhaps some nice wine, a good film, even new socks, are all of more use to me than BMA membership.
I’m talking about the BMA that has not covered itself in glory over the junior doctors’ contract, the BMA that reportedly introduced a gagging clause into the code of conduct for its Council members (which it refused to publish) [1] and the BMA that many BME doctors and whistleblowers feel let down by. I’m talking about the BMA that has taken legal action against a whistleblower [2], and which is led by Dr Porter, who was asked in parliament about Raj Mattu’s whistleblowing case and replied that he had no “specialist knowledge”. He subsequently provided parliament with a written clarification. [3] [4] I’m talking about the BMA that was the subject of an article by MD of Private Eye, entitled “With friends like the BMA….”. [5]
There is little data published to show how exactly BMA member services support members.
When I asked the BMA for a copy of its 2014 submission to Robert Francis’ Freedom to Speak Up Review on NHS whistleblowing, it was slow to disclose this, and ultimately I found the submission uninformative as regards the BMA’s activities on whistleblowing. [6]
When I asked the BMA for data about whistleblowing cases, it was slow to respond and shone little light:
“…we do not have records going back 10 years…..Our solicitors have informed us that since 2006 they have had five Public Interest Disclosure Act (PIDA) claims which have been settled via settlement agreements/COT3s.” [7]
When I heard that the BMA had set up a task and finish group to review how it supports its members to raise concerns, I asked for information about this. The BMA was slow to respond, and when it finally disclosed the report from this task and finish group, I was embarrassed on the BMA’s behalf. This is the uninformative report in all its seven paragraph glory: bma-task-finish-report-raising-concerns-c84
I cringed when I saw that the BMA implied that a key solution to addressing reprisal against whistleblower members was to help them to be more tactful:
“The service would include offering advice to members on the use of language and the tone in which their concerns might be expressed.”
Shhhhurely the BMA meant to say: “Robustly represent and defend whistleblower members to send a clear message to employers that doctors who raise concerns cannot be casually picked off, and that the profession will exercise its prerogative to focus on patients’ interests?”
I won’t even mention what some fellow campaigners said to me when they saw the BMA’s report.
I asked the BMA for more details and supporting documents seven months ago. Guess what, I’m still waiting. [8]
In particular, I’d like an answer on whether and how the BMA has commenced and or evaluated, an ‘early intervention’ pilot scheme, that it told me it would undertake on supporting members with whistleblowing.
I’d also like to see the new, improved whistleblowing stats that the BMA told me – in March 2015 – that it would start collating:
“We have decided that in view of the importance of this area we will in future regularly review cases where whistleblowing is the primary issue raised and will monitor on a quarterly basis cases where whistleblowing is a subsidiary issue”
I see the BMA now claims a victory on defending junior doctors’ rights to whistleblow against Health Education England (HEE). [9] [10] This ain’t so at all. The “I have a piece of paper” BMA spiel means absolutely nothing. Junior doctors have had a right all along to challenge HEE, as a public body subject to judicial review, in the High Court. But why should they? And would the BMA fully support costly hearings to conclusion, or pressure members to accept sub-standard settlements? The BMA has not managed to secure comparable rights for junior doctors to take their cases against HEE to the Employment Tribunal under PIDA. The well known case of Dr Chris Day continues on this matter. [11] Notably, on his campaign website, Dr Day wrote thus about the BMA:
“Suddenly, 5 working days before the claim had to be submitted and before the delayed Trust and Deanery formal investigations had reported, the BMA withdrew all legal help from the case and my BMA Senior Industrial Relations Officer went on “special leave”.” [12]
I’ve heard similar from several sources.
The BMA says that its new agreement gives junior doctors the same rights to sue HEE for whistleblower reprisal as would be afforded under PIDA. Has the BMA forgotten that it previously acknowledged that PIDA legislation is weak and very unsatisfactory? [1]
All PIDA gives you is the right to sue for compensation after you have suffered serious detriment, and your career – and probably health – are in tatters. It does not protect individuals and there is zero evidence that it deters reprisal in general. Austerity and harsh cuts have magnified an NHS culture of cover-ups and employer bullying. PIDA claims by health and social care whistleblowers rose sharply last year.
Source: Public Concern at Work, 5 year review published 1 August 2016
What has the BMA done to lobby for reform of the law that it has admitted is ineffective? I can’t see any evidence that the BMA has done much about PIDA, but perhaps the BMA can correct me if I wrong.
So, to return to BMA binary:
Is the BMA worth £163? No.
Are new socks more useful than BMA membership? Yes.
ADDENDUM 27 SEPTEMBER 2017
One year on from my article above, there is little to celebrate about the BMA and whistleblowing.
The BMA continues to spin copiously about its good intentions towards whistleblowers.
Yesterday a kind member of the public sent me a copy of an email of 26 September 2017 from the BMA, which they received after questioning the BMA about its behaviour in the much reported case of NHS whistleblower Dr Chris Day.
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Dr Chris Day’s website provides updated information and supporting documents about his case: https://www.crowdjustice.com/case/junior-doctors-round-3/
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Attached to the BMA’s email was a remarkable apologia which defended the BMA’s position to the hilt, and cast aspersions on criticisms of the BMA made by the Day camp.
The BMA’s email of 26 September claimed that its apologia had been published. However, a search by the document’s title revealed a page on the BMA’s website that was last updated on 20 September. It featured no published document and only the message “This content is under review”.
It seems to me that despite a change in BMA Chair of Council over the course of the year, the BMA’s spots look much the same.
And the debate about whether junior doctors’ whistleblowing cases should be dealt with in the Employment Tribunal or the High Court is ultimately something of a distraction when set against the pragmatic reality of BMA merits assessments in whistleblowing cases. That is to say, it would be immaterial what technical legal rights a doctor has if his or her union chooses not to fund the necessary litigation. As the BMA has not yet opened its files to me on the statistics that it claimed in March 2015 that it would start keeping on case decisions, these waters remain unfathomed.
The BMA apologia:
BMA Whistleblowing FAQ’s (21.09.2017) Issued to a member of the public by BMA on 26 Sep 2017
The accompanying BMA email of 26 September 2017:
A search by the title of the BMA’s apologia ‘FAQ’s: Whistleblowing & Junior Doctors’, gave this result on the BMA website as of 08.30, 27 September 2017:
RELATED ITEMS
Sir Robert’s Flip Flops – this describes a central weakness of the Freedom To Speak Up review – how Francis u-turned on accountability, criminal sanctions and deterrence of whistleblower reprisal
https://minhalexander.com/2016/09/26/sir-roberts-flip-flops/
No one believes Jeremy Hunt on patient safety and whistleblowers, not even his own appointees – a summary of continuing tokenism by government and how the new National Guardian’s office, for NHS whistleblowing, is designed to be ineffective
Letter to Mark Porter Chair of BMA Council 29 September 2016
Dear Dr Porter,
Further to my last letter to the BMA of May 2016, in which I asked again for copies of supporting documents from the BMA Task and Finish group on raising concerns, and feedback on progress of the BMA’s proposed ‘early intervention’ pilot scheme for supporting members who whistleblow, I would be very grateful for a reply.
Please could the BMA also advise if it has started proactively reviewing whistleblower cases and collating the more detailed quarterly data on whistleblower cases, as per its correspondence to me of 15 March 2015? If so, please could the data be shared.
I attach a copy of that earlier correspondence.
With best wishes,
Dr Minh Alexander
cc Mark Hope BMA Senior Policy Executive
References
[1] BMA backs code of conduct with ‘gagging clause’ for council members, Marina Soteriou, GP Online 3 December 2012
http://www.gponline.com/bma-backs-code-conduct-gagging-clause-council-members/article/1162567
[2] BMA sues whistleblower surgeon, Shaun Lintern, Health Service Journal 30 June 2014
https://www.hsj.co.uk/home/bma-sues-whistleblower-surgeon/5072451.article
[3] Dr Mark Porter in Parliament: The whole truth and nothing but the BMA’s truth
[4] Oral evidence to House of Commons Health Committee, 7 December 2011
http://www.publications.parliament.uk/pa/cm201012/cmselect/cmhealth/uc1699-i/uc169901.htm
Supplementary written evidence by Mark Porter to Health Committee December 2011
http://www.publications.parliament.uk/pa/cm201012/cmselect/cmhealth/1699/1699w104.htm
[5] With friends like the BMA…., Phil Hammond, Private Eye February 2015, Issue 1385
http://www.drphilhammond.com/blog/2015/02/21/private-eye/private-eye-issue-1385/
[6]BMA submission 10 September 2014 to the Freedom to Speak Up Review
bma-freedomtospeakup-10-09-2014
[7] Letter from Mark Hope, BMA Senior Policy Executive, 5 March 2015
bma-mark-hope-5-03-2015-info-request-bma-member-services-for-whistleblowers
[8] Correspondence with BMA about its Task and Finish Group on supporting members to raise concerns
bma-correspondence-about-whistleblowing-task-finish-group
[9] Whistleblowing protection FAQs, BMA 21 September 2016
[10] Draft terms of legal agreement between the BMA and Health Education England 31 August 2016, posted by BMA 21 September 2016
[11] Junior doctor claims career was ‘wrecked by lack of protection for whistleblowers’, Ross Lydall, Evening Standard 22 February 2016
Further campaign appeal 22 September 2016
https://www.crowdjustice.co.uk/case/junior-doctors-round-2/
[12] Campaign website by Dr Chris Day
Alexander's Excavations 