By Dr Minh Alexander NHS whistleblower, former consultant psychiatrist 23 January 2018
Powerful and political, the British Medical Association is not short of a bob. Wealth oozes from its gracious grade II HQ in the heart of London, designed by Lutyens. There it wines and dines its important old boys and the great and the good.
The rank and file’s subs are used to support this largesse, in preference to supporting whistleblowing cases.
In the current system, whistleblowing cases are complicated and expensive. The BMA often claims to whistleblowers that their cases do not pass its legal merits assessments.
The BMA does little to challenge the policy failings that lead to whistleblowers being harassed and that result in protracted employment disputes, and therefore expensive litigation. The BMA seldom agitates for whistleblowing reforms that would make a real difference to NHS staff and patients.
No, the BMA is more likely to issue vapid advice that bears little relation to reality, and may lead unsuspecting members into hot water as a result of raising concerns without fully understanding the consequences. For instance:
“You should be guided by this question: if you let the situation carry on is it likely to result in harm to others? If in doubt, you should always err on the side of raising the concern with your manager/immediate superior, and you should do it as soon as you can.”
The BMA over-emphasises the need to raise concerns internally in the first instance, and is overly discouraging of external disclosure:
“Only once you have exhausted all local workplace policies and procedures should you consider raising your concerns externally.”
“Going directly to your local elected representative (such as your relevant MP, MSP, AM or MLA) or the media is only advisable if your employer has a record of ignoring, discouraging or suppressing concerns that have been raised and this is the experience you are having even after escalating it to the highest level.”
The relevant law does not actually require whistleblowers to have personally experienced suppression before making external disclosure, but to have a reasonable belief that they may experience detriment or that there may be a cover up if they raise concerns with their employer. Alternatively, they may disclose externally if substantively the same concern has been raised internally already, or with a prescribed regulator
“Public Interest Disclosure Act 1998
43G Disclosure in other cases
(2)The conditions referred to in subsection (1)(d) are—
(a)that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,
(b)that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or
(c)that the worker has previously made a disclosure of substantially the same information—
(i)to his employer, or
(ii)in accordance with section 43F.”
And whilst I do not recommend it, Employment Tribunals have even been known to find in favour of whistleblowers who did not meet these preconditions before making external disclosures:
Source: Public Concern at Work
Source: Public Concern at Work
But in delaying external disclosure, the whistleblower is subject to more prolonged slings and arrows from their employer. It also allows for a breakdown of ‘trust and confidence’ argument to be more easily cooked up by an employer. This in turn may permit lawful dismissal under Some Other Substantial Reason, even if the employer started the quarrel.
In addition to restraining external whistleblowing through its over-cautious advice, the BMA may also queer the pitch for whistleblowers by aggressively lodging Employment Tribunal claims, and even repeated claims in some cases. This can leave the whistleblowers high and dry when the BMA pulls out. Conflict will have been irretrievably escalated and the whistleblower’s career will by that point be destroyed if not severely damaged.
It must be asked why the BMA takes such aggressive action when it knows that it will not fund many cases to full hearing. Why does it not tell members at the outset of the stats and its likely withdrawal, and thereby give them a chance to make more informed decisions? Whatever the BMA’s motives, its actions have the effect of helping to flush whistleblowers out of the NHS.
Not to mention of course that BME staff were shown to fear and suffer the greatest detriment for whistleblowing, by the research carried out by the Middlesex University for the Freedom To Speak Up Review , and that the white BMA patriarchy does not have a good record on Race.
(Current BMA council count: 10 visible BME, 13 women out of 51 members).
Risibly, the the BMA claimed in its 2014 Freedom To Speak Up Review submission to Robert Francis’ Freedom To Speak Up Review:`
“A doctor making a protected disclosure is protected against detriment or dismissal; the employer must not act against them for making such a disclosure. The protection lies in the doctor’s ability to take legal action for compensation.”
This supposed deterrent effect against dismissal, conferred by a ‘doctor’s ability to take legal action for compensation,’ is invisible to everyone except the BMA. Indeed, it is the BMA’s imaginary little friend.
Such is the power of the club and the perceived advantages of belonging, to my knowledge, none of the BMA’s past presidents have broken ranks and spoken out publicly against the BMA’s ludicrous claims and treatment of whistleblowers. But then it is easy to overlook the club’s shortcomings when it is pouring lavishments and wine.
An important ongoing controversy is the whistleblowing case of Dr Chris Day and unsatisfactory whistleblowing protection for junior doctors
The BMA stands accused of not defending junior doctors’ rights, as does the National Freedom To Speak Up Guardian
Please see Dr Day’s website: http://www.54000doctors.org/
I asked the Dr Chaand Nagpaul the Chair of BMA Council about some off colour publicity material which BMA had reportedly emailed to some members of the public about Dr Day. The BMA has regrettably not specifically addressed this in its latest response.
Dr Day is a brave and resourceful campaigner, but the BMA should show some grace and remember that he is all things considered, a young doctor, with a young family.
The BMA has long resisted my requests for information about its member services, and in particular the handling of whistleblowing cases. After several years of tooth-pulling correspondence, and the latest BMA reply under the stewardship of the BMA’s new chair of Council, this is all I know:
- The BMA case file retention period is 6 years
- The BMA advised that their lawyers reported handling five whistleblowing claims by members between 2006 and March 2015 which were settled via COT3 (compromise settlements)
- The BMA said it had no Race and Gender stats
- In March 2015, the BMA promised to keep better records in future, it said it had set up a task and finish group on raising concerns and indicated that it would consider a suggestion to audit its handling of whistleblowing cases
- In February 2016 the BMA advised that its task & finish group had concluded, that it was setting up a pilot of trial support for doctors on raising concerns but had decided against external review of its handling of whistleblowing matters
- In its latest response of 29 November 2017, the BMA gives this additional information about it member services:
“The BMA is wholly committed to and continues to provide support to individual members who wish to raise concerns about patient safety. We have previously informed you of the pilot arrangements that existed in the North West, were then extended to the South West and are now being rolled out across England. Through this service we provide individual advice to members and educational talks to doctors. Additionally, we advise, support and represent members who believe that as a result of raising a concern they may have suffered a detriment. In total from March 2015 to July 2017 we have supported some 221 doctors in this regard.
As with all disputes our principle is to work with the member to resolve matters at the earliest opportunity. Many cases have been resolved through the employer’s internal process following advice/support/representation by our advisers. Others have been resolved at First Point of Contact as they required relatively straightforward advice / signposting to information on our website. Sometimes members have decided that they do not wish to pursue the case, or there is insufficient evidence available to support a referral for a merits assessment – the key to this being evidence that links the disclosure (which needs to be one considered as protected) with the detriment suffered.
In terms of support provided at Tribunal, or similar courts, for all types of claim we have pursued 1076 cases since 2006 and secured a total compensation of £14.884m with an average compensation of £13,162. (NB: A number of cases will be considered collective matters and therefore relate to a number of doctors.)”
All the above information combined suggests that a very low number of whistleblowing cases pass BMA lawyers’ merits assessments. There are evidently over a hundred cases a year, but BMA lawyers previously apparently identified only five cases litigated between 2006 and March 2015, assuming that data is broadly accurate.
There is also a self-fulfilling element. The less the BMA supports whistleblowing cases, the more difficult it will seem for whistleblowers to win, and whistleblowing cases are written off as a bad risk.
In retrospect, it is also surprising that the BMA previously refused on 29 November 2016 (under its former Council Chair) to release any information about whistleblowing cases on the basis of small numbers and potential identifiability:
“We are proactively reviewing whistleblower cases and collating the more detailed quarterly data on them but, given the small number of cases and the risk of providing information from which individuals could be identified, will not be sharing these data. We continue to give high priority to supporting members who raise concerns about patient care.”
With regards to fundamentally flawed UK whistleblowing law which is at the heart of countless injustices, and failures to protect the public interest that it is supposed to serve, what does the rich and powerful BMA have to say?
“We remain very aware of the concerns about the legal position of whistleblowers and the difficulties involved in demonstrating a link between a detriment and a disclosure and will continue to give these issues very serious consideration.”
That ought to do it chaps.
- The BMA now says this with regards to supporting whistleblowers with re-employment:
“With regard to sacked whistleblowers re-entering NHS employment, if approached by a member, we would seek to advise, support and represent their interests with prospective employers, the deanery etc, for example with regard to their application and recruitment process, and to challenge employers on their behalf. This might involve subject access requests related to the assessment/appointment process or discussions with the deanery (for juniors) about other opportunities. If the member was protected under PIDA, then clearly there would be opportunities to enforce this under the legal process. This might indeed include trial periods of employment with other employers for retraining purposes. The situation would be more difficult, however, if they were not deemed to be protected under PIDA. Also, as you might be interested in the position we have taken in response to the Department of Health consultation on protecting whistleblowers against discrimination in recruitment, I am attaching the consultation and our response.”
The BMA Director of Policy who penned this BMA response to the DH’s consultation missed the point that legislation to deter blacklisting of sacked whistleblowers is closing the stable doors after the proverbial, and was over optimistic that this piece of DH window dressing would change culture:
“We believe that these draft regulations should be treated as part of a wider cultural change that normalises the raising of concerns and the protection of the employees who raise them. It will be important to raise awareness among employers of the prohibition of discrimination against whistleblowers in recruitment and the compensation which may be awarded for such discrimination.”
And how many unemployed whistleblowers could actually afford to sue anyway, given the BMA’s track record on refusing and dropping whistleblowing cases?
- Lastly, in response to my request that the BMA supports whistleblowers with the near cost-neutral option of allowing them access to online library services and medical journals, the BMA flatly refuses this:
“With regard to access to our online resources without charge, I have raised this with the membership department. Their response is that the unwaged membership fee has been designed to be a substantial reduction and to be affordable for all doctors not in employment whatever their reason. It also offers full membership benefits, i.e. not just online access to educational material but also free places at BMA CPD courses and events as well as wider benefits.”
I should let you into a little secret dear reader. I already knew that the BMA had agreed to waive the membership fee for one sacked whistleblower. This is what the BMA said:
“Unemployment is an unfortunate reality for some members and we have taken into account the enormous impact this can have on a members’ finances. In order to support them through what is likely to be a financially difficult time, we offer a temporary waiver of their annual subscription. It is not uncommon for members in this situation to be on jobseekers allowance or other benefits and we ask for confirmation of this as part of their claim process.”
So it would appear that when a white whistleblower asks the BMA for free membership it says ‘Yes’.
But when a BME whistleblower asks the BMA to merely allow sacked whistleblowers access to online medical journals, it says ‘Bugger off’.
Pass the port.
At the Court of the BMA:
‘King George V and Queen Mary enter the Gates of Honour, during the opening ceremony [of BMA House], on 13th July 1925’
‘The royal procession through the Court of Honour during the opening ceremony of BMA House, 13 July 1925’
Sir Lancelot Spratt, a few words of wisdom, 23 January 2018