Dr Chaand Nagpaul
BMA Chair of Council
27 September 2017
Dear Dr Nagpaul,
Re: Transparency about BMA member services and whistleblowing
I write to ask if the BMA will publish data that it assured me in March 2015 that it would start collating on its decisions to support – or not – members’ whistleblowing claims to the Employment Tribunal.
I copy below the most recent correspondence from the BMA of 29 November 2016, in which a BMA senior policy advisor declined to release any BMA case decision data on the basis of small numbers and possible identifiability.
I would be grateful if you could review this given the time elapsed and the likelihood that more cases have accrued. This may have obviated any ‘small numbers’ objections.
I do think that as a matter of good governance and accountability to its members, the BMA should publish data on its support for all cases, and not just whistleblowing claims.
The context of the correspondence with the BMA about these matters is summarised in this article:
You will note that I published an addendum today which relates to a document that the BMA sent to a member of the public, who kindly passed it to me knowing my interest in whistleblowing matters.
I was concerned by the tone of this BMA document and its comments about the case of Dr Chris Day, NHS whistleblower.
Dr Day still has serious travails ahead of him, and a young family to support.
I imagine Dr Day will respond formally in due course to the BMA’s document.
I think the BMA has much to learn and ground to cover as regards whistleblowing governance.
Although the government agreed in July 2015 to honour Sir Robert Francis’ recommendations to provide sacked NHS whistleblowers with trial employment and other help to re-enter NHS employment 1, I have seen little sign of related BMA activity on this matter.
May I ask whether the BMA will take a position on this issue, support and work with whistleblowers.
Also, will the BMA set a good practice example and consider some resource neutral options such allowing unwaged medical whistleblowers free access to the BMA’s online library and online journals to help them stay up to date professionally.
I would also be grateful to know if the BMA will help lobby for replacement of the Public Interest Disclosure Act. This is in the light of the BMA’s acknowledgment three years ago in its submission to the Freedom to Speak Up Review that this legislation is inadequate for protecting whistleblowers, and therefore patients:
“Many BMA members – and indeed their legal representatives – believe, however, that the Public Interest Disclosure Act does not give them adequate protection. The main difficulty in practice lies in showing that the detriment or dismissal is linked to 2 the disclosure. Legally there will be grounds to take action only where it can be shown that the protected disclosure has ‘materially’ influenced the employer’s treatment of the whistleblower. In many cases this will not be clear. For example, if the concern is raised in the context of a dispute with a colleague, a forthcoming reorganisation or a threat of disciplinary action, this may create doubts as to whether the employer’s subsequent actions have been influenced by the disclosure. The Freedom to Speak Up Review might wish to devise ways of strengthening the legislation.”
Dr Minh Alexander
Dr Hamish Meldrum BMA Deputy Chair
Sir John Temple BMA President c/o London Medicine & Healthcare
Professor Pali Hungin Past BMA President
Professor Sir Albert Aynsley-Green BMA Past President
Baronness Ilora Finlay BMA Past President
Baronness Sheila Hollins BMA Past President
Professor Sir Michael Marmot BMA Past President
Professor Averil Mansfield BMA Past President
The Princess Royal BMA Past President
Professor Dame Parveen Kumar BMA Past President
Professor David Haslam BMA Past President
Sir Charles George c/o The Academy of Medical Science
Professor Sir Brian Jarman BMA Past President
Professor Allyson Pollock
Professor Mary Dixon Woods
Bcc Dr Chris Day
1 Sir Robert Francis’ Freedom To Speak Up Review recommendations February 2015 (accepted by the government in July 2015):
Beyond that, I believe that there is an urgent need for an employment support scheme for NHS staff and former staff who are having difficulty finding employment in the NHS who can demonstrate that this is related to having made protected disclosures and that there are no outstanding issues of justifiable and significant concern relating to their performance. This should be devised and run jointly by NHS England, the NHS Trust Development Authority and Monitor. As a minimum, it should provide:
- remedial training or work experience for registered healthcare professionals who have been away from the workplace for long periods of time
- advice and assistance in relation to applications for appropriate employment in the NHS
- the development of a ‘pool’ of NHS employers prepared to offer trial employment to persons being supported through the scheme
- guidance to employers to encourage them to consider a history of having raised concerns as a positive characteristic in a potential employee.
7.3.9 All NHS organisations should support such a scheme. Doing so would send a clear signal to their staff, and to staff across the NHS that they are willing to value people who are brave enough to raise concerns. Organisations that do should be given appropriate recognition”
Letter to the Health Service Journal Patient Safety Correspondent
The NHS in the Employment Tribunal
Ian Paterson and failure by oversight bodies
Engineered failure to investigate NHS whistleblowers’ concerns