By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 25 May 2018
In 2014 following the conclusion of Dr Raj Mattu’s Employment Tribunal the GMC was forced to review its procedures with respect to medical whistleblowers.
After whistleblowing, Dr Mattu suffered years of endless vexatious referrals to the GMC, including toxic allegations of a criminal nature. None of these were upheld.
In 2014 the GMC announced alongside the general review of NHS whistleblowing by Robert Francis, the so-called Freedom To Speak Up Review, that a review of its approach to whistleblowers would be undertaken by Sir Anthony Hooper, a former Court of Appeal judge.
The pithy Hooper report was published in 2015 and made strong, effective recommendations. At the heart of Hooper’s recommendations was the need to make Responsible Officers (senior medical managers) responsible for any referrals to the GMC, so that if referrals were found to be malicious, the senior doctors responsible could be held to account under the GMC’s fitness to practice framework. It was effectively a recognition that no such accountability was possible where non-clinical managers are responsible for whistleblower reprisal, because there is currently no managerial regulation.
Hooper also proposed that the GMC should proactively exclude improper motivations whenever medical whistleblowers are referred to the GMC.
|“4. If a doctor being referred to the GMC has raised concerns about patient safety or the integrity of the system with the organisation making the referral, then the necessary steps should be taken to obtain from the organisation material which is relevant to an understanding of the context in which the referral is made.
5. Investigators assessing the credibility of an allegation made by an organisation against a doctor who has raised a concern should take into account, in assessing the merits of the allegation, any failure on the part of an organisation to investigate the concern raised and/or have proper procedures in place to encourage and handle the raising of concerns.
6. In those cases where an allegation is made by an organisation against a doctor who has raised concerns, the Registrar should, where it is appropriate to do so, exercise his powers under rule 4(4) to conduct an examination into that allegation, including taking the steps outlined in my earlier recommendations and asking the doctor for his or her comments on the allegation and the circumstances in which the allegation came to be made.”
Indeed, these good practice principles should apply to all professional groups.
However, the Hooper report has been poorly implemented by the GMC and hampered by unaccountability in the form of undue secrecy. But more of that another time.
Despite the criticisms inherent in the findings of the Hooper report, there is persisting evidence that the GMC has continued to handle whistleblowing cases badly. An example of this is the GMC’s behaviour in case of Dr Kevin Beatt.
Dr Kevin Beatt and the GMC
Dr Beatt prevailed in his much publicised Employment Tribunal claim against his former employer Croydon Health Services NHS Trust in December 2014.
The ET determined that he had been unfairly sacked because he whistleblew. It is hard for whistleblowers to ‘win’ at Employment Tribunal, and a compelling level of proof is needed in order to succeed. Not only did Dr Beatt win, but the Employment Tribunal determined that he had not contributed in any way to the dispute. This too is unusual as employers more often than not manufacture conflict in whistleblowing cases, in order to argue contributory fault.
This is the 200 page Employment Tribunal Judgement of December 2014:
The reserved reasons given in pages 2 to 5 of the ET judgment contain stark detail of Dr Beatt’s ordeal. This included an extraordinary, witnessed episode in which trust managers laid hands on Dr Beatt:
“….physically restrained him whilst he was going about his contractual duties”
After the ET made its findings in his favour, Dr Beatt wrote to the GMC about his concerns that some colleagues, who were registered doctors, had not complied with their GMC obligations to be candid and truthful during the course of the proceedings.
As far he is aware, the GMC took no meaningful action to investigate and address these concerns.
In contrast, the GMC took three years to look into allegations that had been made against Dr Beatt. The regulator eventually told him in March 2015 that it would not pursue the matters any further. Dr Beatt’s concerns about the GMC’s behaviour were reported by the media:
|“The ongoing probe made Dr Beatt essentially unemployable because he would have been obliged to tell any prospective employers he was under investigation.
After learning the investigation had finally been dropped this week, he said: “It is welcome, but they don’t give any explanation or apology or justify taking nearly three years over the matter.
“After I sent them the tribunal findings they continued the investigation, I think rather arrogantly, saying that they conduct their own investigations even though they’re not a judicial body.”
In 2015 the Secretary of State refused to help Dr Beatt:
Dr Beatt was left under attack from repeated appeals by his former employer, which only concluded when the Supreme Court refused the trust leave to appeal a decision by the Court of Appeal in his favour.
After the Court of Appeal found in Dr Beatt’s favour last year, he tried once more to engage the GMC in the form of a complaint about the GMC’s failure to investigate his concerns.
Dr Beatt is of the view that the GMC caused detriment to him through its handling of his case.
In March of this year, the GMC informed Dr Beatt that it would review these matters, but he has heard nothing since.
The GMC demands that doctors must fulfil their professional Duty of Candour, but it still seems most reluctant to protect whistleblowers by clearly and consistently challenging reprisal.
Putting together the case of Dr Bawa-Garba and those of whistleblowers, it would seem that doctors are damned if they speak up and damned if they do not.
There is now greater potential jeopardy for the GMC following an important Supreme Court judgment of November 2017 in favour of Dr Eva Michalak, which held that she had the right to take legal action against the GMC in the Employment Tribunal for causing her employment detriment.
This judgment gave the medical workforce greater freedom to challenge unfairly harmful, overbearing behaviour by the GMC which seriously impacts on their employment.
Dr Beatt awaits the GMC’s response with interest. Their next steps will have great significance for other doctors who whistleblow and who need to report reprisal by medical colleagues to the GMC.
This is a letter of February 2018 from Dr Beatt to the GMC which covers the salient issues:
In the meantime, Dr Beatt has yet to receive any semblance of justice because Croydon Health Services NHS Trust’s repeated appeals have meant that a remedies hearing could not be held for the last three years. Ten days have now been set aside for the hearing, and a date is awaited.
Dr Beatt has managed his protracted litigation to date through private funding, and help from his lawyers who have sometimes worked for nothing or greatly lowered their fees. But after years of battling, he is now in a difficult financial position and seeks help with the final stages of litigation. If you are able, please help either by contributing or sharing the details of his crowdfunding appeal:
The issues with the GMC will be shared as events unfold.