University Hospitals of Morecambe Bay NHS Foundation Trust’s handling of counter-allegations against whistleblowers

By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 29 January 2021

Summary: The most recent in a long line of whistleblowing scandals at UHMBT, regarding orthopaedic safety, involves potential whistleblower reprisal by counter-allegations. The trust was asked to explain its approach to managing counter-allegations and reprisal, but its response does not address the specific issues. The national whistleblowing template policy by NHS Improvement does not help much either. Without accountability and effective deterrence of reprisal, problems will continue. Weak UK whistleblowing law needs to be overhauled to ensure accountability and to deter reprisal. Concerns continue about orthopaedic surgery at UHMBT and there is pressure for a fuller, independent investigation.

Counter-allegations in whistleblowing cases

Whistleblowers are at high risk of malicious counter-allegations and retaliatory disciplinary action.

Reprisal is the logical thing to do if you wish to silence a whistleblower, or undermine their credibility to obliterate their embarrassing disclosures.

That is not to say that whistleblowers are all saints and above reproach.

But fair and skilled handling of counter-allegations is an essential part of good whistleblowing governance. As is ensuring jeopardy for abusers.

Well-known organisational tactics are to deliberately make whistleblowing cases complicated and harder to understand, and to use malicious counter-allegations to muddy the waters.

Sometimes, the aim is to sell a narrative of clash of personalities (which may allow a whistleblower’s dismissal under the Some Other Substantial Reason mechanism), or an “it’s a can of worms” type scenario. The whistleblower is then caught in this undertow and swept out to sea, their disclosures conveniently forgotten. If some blame can be smeared on to a whistleblower, this also reduces awards that may be made by Employment Tribunals.

Sir Anthony Hooper reviewed the General Medical Council’s handling of whistleblowing after a series of scandals in which whistleblowers were vexatiously referred to the regulator.

His recommendations emphasised the vital need for accountability and included a mandatory statement of truth by senior, registered doctors who refer other doctors to the GMC, and a recommendation that those found to have made vexatious referrals should be subject to a review of their fitness to practice.

The English NHS currently has a national policy that is supposed to be adopted by all NHS organisations, produced by NHS Improvement. This national template is weak on the management of whistleblower reprisal. It does little other than provide an empty promise of zero tolerance, with no practical detail on how this is achieved:

“Feel safe to raise your concern

If you raise a genuine concern under this policy, you will not be at risk of losing your job or suffering any form of reprisal as a result. We will not tolerate the harassment or victimisation of anyone raising a concern. Nor will we tolerate any attempt to bully you into not raising any such concern. Any such behaviour is a breach of our values as an organisation and, if upheld following investigation, could result in disciplinary action.

Provided you are acting honestly, it does not matter if you are mistaken or if there is an innocent explanation for your concerns.”

NHS Improvement’s policy does not state how evidence on possible reprisal should be evaluated and weighed. Neither does it explain how organisations should track possible reprisal and suspected abusers. Importantly, it does not say how whistleblowers will be supported if counter-allegations are made against them, or how counter-allegations should be handled to ensure that whistleblowers are not punished by allowing abuse of process.

Counter-allegations against a whistleblower at University Hospitals of Morecambe Bay NHS Foundation Trust

At the University Hospitals of Morecambe Bay NHS Foundation Trust, there is a long list of whistleblower scandals dating back many years. Some including allegations of deliberate patient harm and proven failings in breast cancer screening.

Moreover, not all the UHMBT whistleblowing cases are in the public domain.

Each time the trust claims to learn, but then another scandal rears its head.

Amongst the most recent troubles is conflict in orthopaedic services following concerns raised about a surgeon’s safety record.

The trust is accused of playing the concerns down, and only reacting after doctors exercised their professional duty to report these concerns to the GMC.

The affair was reported in the “can of worms-style” narrative last November:

Patients harmed amid ‘internecine squabbles’ and cover-up claims

Importantly though, the heart of the affair was noted:

“In their letter to the CEO, the doctors said further patients were harmed between the 20 clinical incidents being raised and the restrictions being imposed, including a patient whose hip socket fell out days after a hip replacement and a patient’s femur being fractured during an operation. The consultants alleged the response to their concerns had amounted to a “cover up”.

In a reply to the consultants, chief executive Aaron Cummins admitted “more robust action” should have been taken after analysing the list of 20 incidents.

Meanwhile, an external review completed by the deputy medical director of North Tees and Hartlepool FT in January 2020 confirmed “several patients did suffer in the period between presentation of the 20 critical incidents and action being taken by the GMC”.

The above January 2020 review conducted by Chris Tulloch the deputy medical director of North Tees has now been published in an FOI disclosure by UHMBT (see last 19 pages of the disclosed document).

For the record, North Tees and Hartlepool also has severe whistleblowing governance problems, as evidenced by senior nurse Linda Fairhall’s case of serious, proven whistleblower detriment:

Safe staffing and North Tees’ unfair sacking of ‘unblemished’ whistleblower nurse Linda Fairhall. HR Director was also the Freedom To Speak Up Guardian

There is a particularly worrying aspect of the UHMBT orthopaedics whistleblowing case that is revealed by the Tulloch review.

The review report contains this passage on possible reprisal by counter-allegations, against one of the doctors who had raised concerns:

“Q12: Why was Consultant A practice suddenly subjected to scrutiny and performing a particular operation stopped temporarily after he raised the concerns while the AS continued unrestricted practice?

A12: This practice was raised through whistleblowing and is being reviewed by the HR director. This is the subject of a separate external review.” 

From this passage, there seems no visible attempt to consider the possibility of reprisal, or to address why harsher action appears to have been taken against a whistleblower than the person about whom they raised concerns.

I therefore asked UHMBT for comment on the soundness of its whistleblowing governance, and in particular its approach to handling possible reprisal against whistleblowers in the form of counter-allegations.

The questions put to the trust were as follows:

“Would you like to comment on whether the Trust has appropriately managed possible whistleblower reprisal by a manager against a doctor who raised concerns about a colleague, and  who was then subject to restriction of their practice, when there was reportedly no restriction of the practice of the doctor about whom they had raised concerns?   I refer to the Tulloch external review report, which states:   “Q12: Why was Consultant A practice suddenly subjected to scrutiny and performing a particular operation stopped temporarily after he raised the concerns while the AS continued unrestricted practice?   A12: This practice was raised through whistleblowing and is being reviewed by the HR director. This is the subject of a separate external review.”    Can the trust believe it has adequate policies to manage malicious counter allegations against whistleblowers?   Does the trust believe it has taken appropriate disciplinary action for any whistleblower reprisal?   If the trust’s policies do not currently deal with possibly vexatious counter allegations against whistleblowers, does the trust have any plans to correct this gap?   Does the trust wish to comment on why it continues to have problems with whistleblowing matters?   Does the trust believe that its HR systems and its senior HR managers are responding appropriately to whistleblowing issues and that they are proactively and effectively supporting good practice?”

After reporting that it had run its response past NHS England, the trust replied as follows yesterday:

From: REDACTED Subject: Re: Comment on whistleblowing issues Date: 28 January 2021 at 18:09:40 GMT To: Minh Alexander <REDACTED>   Hi Dr Alexander – with apologies because its so late, please find below a statement in response to your queries about the service.   It doesn’t answer each point individually but hopefully the overall statement explains our position.   kind regards   REDACTED “Aaron Cummins, Chief Executive, UHMBT, said: “We encourage all colleagues from across the Trust to raise their concerns, either with staff side colleagues, the Freedom to Speak Up Guardian, our Governors, including staff governors, or one of our non-executive directors.   “We also have an app to raise concerns anonymously and its great that more incidents are being raised, which shows staff feel more comfortable about raising issues. “During a six month period in 2018 we received reports related to 20 incidents regarding clinical care which occurred between 2011 and 2018 within our orthopaedic service. These were all investigated and reviewed appropriately by our Patient Safety Summit and reported through our internal governance processes, with appropriate action taken to ensure the safety of our patients. “Subsequently in October 2019, further concerns regarding the orthopaedic service was sent to the Chief Executive, which posed a number of further questions. Senior leaders, including the Chief Executive, met with the orthopaedic team to ensure the concerns were fully understood and addressed. We operate a safe orthopaedic service. “As a result of this, the Trust appointed an independent external orthopaedic expert to carry out a review of the concerns raised and to answer the questions posed. That review reported in January 2020 and made some recommendations for the service.  “The issues raised and recommendations from the independent report are being worked through and implemented, ensuring the service continues to be safe for our patients. The orthopaedic service continues to be supported with additional training, capacity, executive support and expertise.”

Perhaps I am missing something, but the trust board does not seem to be engaging at all on the issue of whether its management of whistleblower reprisal is adequate.

We may well see yet more Morecambe Bay whistleblower scandals if there is a reluctance to learn, and to ensure that any inappropriate bullying against whistleblowers is properly deterred.

The trust appears keen to draw a line under the orthopaedics issues, but we may not have heard the last of this affair. Representations continue to be made and there is pressure for a more in depth, and fully independent review of orthopaedic safety, in line with the review of the urology service, that has been precipitated by another whistleblowing matter.

Who is most likely to be proven right? Whistleblowers or the trust that has had serial problems with whistleblowing governance?

Meanwhile, the last two UHMBT CEOs enthuse about speaking up and positive culture.

Please sweep away all the faux whistleblowing governance and government propaganda by supporting law reform, and signing and sharing this petition:

Petition Replace weak UK whistleblowing law, and protect whistleblowers and the public  

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