Call on the BMA to come clean and to properly support whistleblower members

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 16 May 2018

Summary

The BMA has just lost face because Dr Chris Day has this week succeeded in legal action against Health Education England on an important whistleblowing matter, which the BMA declined to support.

This adds to longstanding concerns that the BMA has made unfair decisions not to fully support doctors with whistleblowing claims.

The BMA has been evading specific questions about the services that it has provided to members for several years, and it continues to obfuscate.

It also continues to be reluctant to actively lobby for replacement of utterly flawed UK whistleblowing legislation.

The BMA must be more accountable to those who fund it with their membership fees.

Data on medical speaking up is provided below, and shows that approximately 40% of the 140,000 plus doctors employed by the NHS do not think that their employer would address concerns about unsafe care.

I urge BMA members to write to the Chair of Council to request disclosure of the data on its members services that has so far been withheld, and to call on the BMA to support whistleblowing law reform.

A template letter is provided.

For four years I have been asking the BMA questions about services that it provides to members on whistleblowing cases and in general. . The BMA has been most reluctant to provide data. This is what has been revealed to date:

This is the BMA’s submission to the Freedom To Speak Up Review:

BMA submission to the Freedom To Speak Up Review 2014

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

BMA response 5 March 2015 about member services

In February 2016 the BMA advised that its task & finish group had concluded, and that it was setting up a pilot of trial support for doctors on raising concerns. However, the BMA decided against external review of its handling of whistleblowing matters

BMA correspondence about task and finish group on raising concerns

Report of BMA task and finish group on raising concerns

In a response of 29 November 2017, the BMA gave 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.)”

The BMA stalled and largely ignored a very specific request of 23 January 2018 for full detailed disclosure. On 30 April 2018 its Senior Policy Advisor gave this minimal reply, which look to me to be more smoke and mirrors:

“By way of an update on the support we have provided at Tribunal, or similar courts, for all types of claim, during the current year up to 31 March, there have been another 69 referrals and 48 cases have been won or settled. We have secured a total compensation of £337k. We will not be sharing detailed information but you might be interested to know that the BMA undertakes a monthly survey of a sample of all closed casework to ensure that the support provided meets the needs of its members. This survey by an independent company has been undertaken since 2005. In 2017 overall satisfaction levels with the service have been maintained at or above 90%.”

This response from the BMA does not give clear answers. There is a major difference between ‘won’ and ‘settled’ cases. Settled cases are rarely satisfactory for claimants and it is a sleight of hand to group them together. The BMA’s previous disclosure that it secured “average compensation of £13,162”, a low figure relative to doctors’ earnings, is hardly evidence that the BMA is getting good outcomes for members. I have pressed for more meaningful disclosure and more details of how the BMA measures members’ satisfaction.

These are the questions that remain mostly unanswered from 23 January 2018:

“The BMA advised me in March 2015 that it would review its handling of whistleblowing cases on a quarterly basis henceforth, and I am glad that the BMA is now able to give a figure of the number of cases handled since then, to July 2017 – a total of 221.

May I ask if the BMA is keeping any other central record – such as:

• Outcome of whistleblowing cases

• For example, number of PIDA claims made to the Employment

Tribunal and supported by the BMA to fully concluded hearings

• Or alternatively, in how many cases did the BMA unilaterally

withdraw legal support before cases were concluded?

• Diversity stats

• Member experience of the support received, eg. satisfaction surveys

If possible, it would be very useful to see any such data.

In particular, it would be very useful to know how many ET claims have passed the BMA lawyers’ merits assessments. The BMA previously advised that its lawyers identified only five litigated whistleblowing cases between 2006 and March 2015 that were all settled. If these represent all the cases which passed merits, out of hundreds of whistleblowing cases, that seems a very low number indeed.”

Letter to Chaand Nagpaul Chair of BMA Council 23 January 2018

The continuing BMA silence on the number of whistleblowing cases that it has fully supported to Employment Tribunal hearing suggests that the answer would be embarrassing. Indeed, it is claimed that a BMA Director of Legal Services admitted that “the BMA has not supported a single doctor’s case to full trial over his 3-4 year tenure”.

The experience of many whistleblowers is that the BMA leads them up the garden path, and then drops their cases at a late stage, and or applies huge pressure to settle or otherwise forfeit any further legal support.

There have been longstanding concerns that the BMA leadership operates an old boys club and may side with senior medical managers responsible for whistleblower reprisal.

It is also generally true that whistleblowing cases are expensive to run because of their complexity and because a gamut of legal tests are involved, requiring extensive arguments and examination of evidence.

But whistleblowing cases are a special group because they go to the heart of medical ethics and issues of professional freedom to act in patients’ best interests. The consultant contract has for many years enshrined – in principle – this professional freedom.

BMA Consultant Contract 2003

“11.4 Publications, lectures, etc

You shall be free, without our prior consent, to publish books, articles, etc., and to deliver any lecture or speak, whether on matters arising out of your NHS service or not.”

If it is the will of the membership that it is for the greater good that whistleblowing cases should be supported, the BMA could approach the merits assessments of such cases on a special basis, with a change to its articles if necessary. At the very least, the BMA should ensure fair merits assessments.

Equally, the BMA should lobby for reform of defective UK whistleblowing law. The union has already acknowledged that the current law is seriously flawed:

BMA submission to the Freedom To Speak Up Review 2014

“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 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.”

The BMA cannot credibly claim that cases are too hard to win under current law and fail to support law reform.

The BMA’s latest Chair needs to be brave and distance himself from the tired old BMA machinery that has in effect aided and abetted in the preservation of the status quo. He has not yet definitively committed to supporting whistleblowing law reform. In correspondence of 1 May 2018 he stressed:

“the BMA is a large organisation with a multiplicity of responsibilities, and made up of a myriad of branches of practice and committees with delegated authorities. There are inherent processes involved in developing BMA policy. Mark Hope is a policy staff member who leads on whistleblowing, and each branch of practice also takes its own responsibility, e.g. whistleblowing protection for doctors in training comes under the remit of the Junior Doctors committee.”

Email from BMA Chair 1 May 2018

This reported complexity notwithstanding, clear leadership is needed to stop the BMA from continuing to bring itself into disrepute.

Fence sitting by the BMA leadership on law reform is tantamount to a betrayal of the majority of its members, patients and the public interest.

The BMA has around 170,000 members:

Source: BMA

It receives about £50m in membership subscriptions annually, and has a total income of over £100m. It has considerable reserves:

Source: Companies House – BMA filing history

In the BMA’s submission to the Freedom To Speak Up Review, the union observed:

“In a recent BMA survey 8% of doctors who had raised concerns over patient care felt penalised for doing so.”

This figure came from a survey of 1020 doctors, 451 of whom responded.

An earlier, 2009 BMA survey of “3034 consultants, staff and associate specialists and junior doctors in England and Wales” with responses from only 565 (18.6%) members. It is of limited validity but showed that only 49% juniors and 40% of consultants and SAS doctors felt that their workplace fostered “an environment in which concerns (e.g. such as those that relate to patient safety, malpractice or bullying) can be expressed openly.”

BMA Speaking Up for Patients Survey May 2009

The latest 2017 NHS national staff survey shows that doctors in training are one of the groups least likely to feel secure in raising concerns:

Source: NHS Staff Survey 2017

The NHS employs approximately 140,000 doctors. Scaling up the NHS staff survey results gives roughly 55,000 doctors who are not confident that their employers would address patient safety concerns. This is surely something that the dominant medical union should take seriously.

If any BMA members agree that whistleblowers should be better protected, please add your voice by sending the following letter to the BMA Chair:

Template letter to BMA Chair

All such support is very valuable and my thanks in advance to all who may help with this task.

Please do let me know how your requests fare via the contact page of this website.

This is the main correspondence with the BMA to date.