Portsmouth Hospitals University NHS Trust sacked Dr Jasna Macanovic consultant nephrologist for whistleblowing to the General Medical Council

By Dr Minh Alexander retired consultant psychiatrist 23 March 2022

Summary: Dr Jasna Macanovic, an “extremely gifted” renal physician who provided the NHS with twenty years “excellent” service was unfairly dismissed by Portsmouth University Hospitals NHS Trust, an organisation with a troubled leadership history. The audit trail was sufficiently clear for the Employment Tribunal to firmly conclude that her dismissal was a direct consequence of her whistleblowing, which included protected disclosures to the General Medical Council about colleagues. The ET determined that her dismissal was a forgone conclusion, involving both the former Chief Nurse and current Medical Director. These two directors encouraged her to resign with a good reference during the disciplinary process that the trust mounted against her. When Dr Macanovic did not resign, she was sacked by the Chief Nurse for purported “serious misconduct” which explicitly included making referrals on colleagues to the General Medical Council, even though the regulator had already effectively said the referrals were appropriate and part of Dr Macanovic’s duty as a doctor. The ET also concluded that the trust attempted to “resist” and “deflect” Dr Macanovic’s patient safety concerns. A “substantial” number of consultant colleagues shared her concerns. Her identity as a whistleblower to the GMC was exposed in an extraordinary manner by her line manager, one of the individuals about whom she raised concerns. He read out the details of her GMC referral about him at a meeting with their colleagues. There were other notable incidents. After one meeting with the Medical Director, Dr Macanovic reportedly suffered a panic attack and required an ECG. The trust tried to retrospectively argue to the ET that it objected not to her whistleblowing but the manner in which it was done. This line is often used by some employers to rid themselves of whistleblowers under an argument of breakdown of relationships after no disciplinary charge sticks. The ET saw through this, which makes a refreshing change from fudged, equivocal judgments which end up pinning an unjustified share of the blame on already traumatised whistleblowers. Although Dr Macanovic was vindicated by the ET, it is a failure of our current whistleblowing law and infrastructure that she had to suffer this protracted ordeal, and she was not better protected from the outset. This case is also yet another failure of the Freedom To Speak Up model. The trust Freedom To Speak Up Guardian attended a meeting with Dr Macanovic, the trust CEO and Chair, but this did not stop serious reprisal and dismissal. There is no mention in the ET judgment of any escalation to the National Guardian. That is an aspect which remains to be clarified.

Introduction

The Employment Tribunal has found strongly in favour of Dr Jasna Macanovic a consultant renal physician unfairly dismissed by Portsmouth Hospitals University NHS Trust for whistleblowing, including to the General Medical Council. The judgment states:

“The unanimous decision of the Tribunal is as follows:

1. The claimant was unfairly dismissed for making a protected disclosure.
2. The claimant was subject to detriments for making a protected disclosure.
3. Arrangements for a remedy hearing shall be notified to the parties shortly.”

This is the judgment:

Employment Tribunal judgment Case Number: 1400232/2018 Dr Jasna Macanovic v Portsmouth Hospitals University NHS Trust

Dr Macanovic raised concerns about two unreported “red” surgical adverse events and the fact that some consultants at her trust were practising a technique known as “buttonholing” in a way that she believed was unsafe. She believed they were failing to properly report all complications and safety incidents. Several of her consultant colleagues shared her concerns about the buttonholing issue.

Buttonholing is a procedure to give access to a patient’s veins for kidney dialysis. The ET explained buttonholing thus:   “There is also an alternative process known as buttonholing (“BH”). As the Claimant explains, buttonholing is where patients cannulate (insert needles) using blunt needles. The blunt needles are placed in exactly the same holes in the fistula every time that the patient has to have dialysis. A track or tunnel is created through the skin to the fistula. Over time this may be less painful than using sharp needles because a patient is not making new holes on regular occasions. The buttonholing technique can be less painful and more convenient for patients.   It is agreed that buttonholing is a valid technique for patients with an AV Fistula, where the connection between vein and artery is constructed of tissue and can heal. The dispute is over those with an AV Graft, since the PTFE material can tear or degrade. That can cause leaks and an increased risk of infection. Patients need to be made aware of these risks to give informed consent. The probuttonholing school of thought is that using one blunt needle is better than repeated sharp needle entries, since over time these can damage the tissue and make it more difficult to find an entry site. Also, some patients prefer it to having a fresh jab each time.”

Dr Macanovic’s concern arose in part because she believed that Dr Sangala one of her colleagues had made unreliable claims that another unit had been using the novel technique, when it turned out from her own enquiries that this was not the case.

“…she had heard back from Reading and they were not doing it for AG grafts. Worse still, she said, patients had been told that the outcomes were excellent, whereas of the 14 patients using it, two had died, two had developed serious complications, and she had not had time to review the other ten.”

Her department became very polarised and the trust failed to deal appropriately with her concerns.

An example of chaotic polarisation was given by the ET as regards Dr Knighton the new Medical Director’s response to the situation in the summer of 2017:

“82….Four of the consultants met Dr Knighton urgently that day (26 June) to raise their concerns about buttonholing. Having heard them, Dr Knighton decided that the practice should cease immediately. The next day a consultants meeting was arranged at short notice, which he also attended. Some agreed with the decision to stop it, but Dr Borman and Dr Lewis put the counter case that several patients had chosen buttonholing. Mr Gibbs and Dr Sangala also emphasised that this was patient driven, and in the end Dr Knighton accepted the view that it could do more harm to reverse it immediately. So, he reversed the decision.”

On another occasion, a mediation meeting descended into chaos with all in tears. The ET determined that the “mediation” improperly focussed on pressuring Dr Macanovic to withdraw the GMC referral:

“We can only conclude that they all lost sight of the important principle that this was a protected disclosure and as such it was wrong to pressure her into withdrawing it”

Turning the focus onto the whistleblower

As often happens in whistleblowing cases, Dr Macanovic was turned into the focus of the matter. This was despite a long record as an “extremely gifted” physician, who was able to submit many statements from colleagues in all disciplines about her professionalism and patient-centredness. This in itself is remarkable, as in many whistleblowing cases, supporters are often intimidated into silence. Organisations also isolate whistleblowers, by a process of exclusion, attrition and smearing, to weaken any support they may have.

The story is a lengthy and complicated, and the whole ET judgment needs to be read for a complete picture.  However, a few notable incidents follow.

One doctor about whom Dr Macanovic raised concerns behaved towards her in a way which the ET concluded was “abuse”:

“…Two days later Dr Macanovic was on the receiving end of an outburst from him. She was in her office at about 08.00 am when he arrived at the door and started shouting at her. He said that he was going home because he was too stressed, and that she was to blame. This was accompanied by a good deal of swearing, repeatedly telling her to ‘f’ off. She was left shaking and at the point of tears, and was still shaking 30 minutes later when her colleague, Dr Synodinou, came in.”

And yet Dr Macanovic’s line manager and Head of Unit, Dr Robert Lewis, wrote to her about this incident as follows:

“Over the next two weeks Dr Lewis investigated the shouting incident. He concluded (p.461A) that:

Your accusation about Mr Graetz is troubling on two counts. Firstly, you were clearly a source of great stress to him at the time and yet you categorically and vehemently state that you were not.

You have not sought to find out why Mr Graetz felt as he did and have not considered the possibility that you might be at fault. Instead you state that the fault is entirely Mr Graetz’s because he does not cope well with stress (rather unfair since you took a much longer period of stress-related leave over the same issue than he did). Secondly, and more importantly, you are clearly unable to distinguish between abuse and someone challenging you with an opinion which you find uncomfortable.”

The ET took issue with Dr Lewis’ framing of this incident and noted:

“He [Mr Graezt] accepted to us that his behaviour had been inexcusable and he apologised to her a few days later.”

The ET was not satisfied that the incident was properly investigated, and counted this as a whistleblowing detriment.

Dr Lewis was eventually one of the doctors whom Dr Macanovic referred to the GMC regarding her concerns.

The ET noted that he took the unusual step of reading out loud her referral about him to the GMC at a consultants’ meeting:

“70. The GMC referral was eventually made known to Dr Lewis. In a surprising decision, he elected to read it out in its entirety to the consultants at a meeting on 7 June (Detriment 5). Dr Macanovic was there to hear it. The exercise must have taken some time since the referral letter covers eight pages. In his evidence to us Dr Lewis said that any summary would have risked further objection from Dr Macanovic, but we see no reason why he could not just have said that she had referred him, or others, to the GMC over the buttonholing issue. In choosing to give such publicity to her complaints, he was in our view, stoking anger against her and seeking to isolate her from her colleagues. She was left shaken by this episode.”

Dr Lewis later confirmed at an interview that he had not discussed his intention to read out the referral with Dr Macanovic before he did so:

“He accepted that he had not discussed this with Dr Macanovic beforehand and maintained that that was the right approach – the others needed to know about these attempts to destroy people’s careers.”

Dr Lewis must have been highly stressed by the GMC referral but his action at the meeting seems a most extraordinary departure from what might be expected of him as Dr Macanovic’s line manager.

The referral to the GMC was an act of whistleblowing and was determined to be a protected disclosure by the ET.

Dr Lewis’s action was especially surprising given the GMC’s guidance on leadership and management:

“Doctors with extra responsibilities

23 Leading by example, you should promote and encourage a culture that allows all staff to contribute and give constructive feedback on individual and team performance. You should make sure that systems are in place to achieve this.”

Publicly exposing and inciting hostility against a whistleblower is not consistent with this.

For context, the EU Whistleblowing Directive requires member states to implement “dissuasive penalties” against persons that “breach the duty of maintaining the confidentiality of the identity of reporting persons”.

As an example of this, there is a Bill currently passing through the Irish parliament which creates several criminal offences of whistleblower reprisal, including breaching the duty of confidentiality regarding the identity of a whistleblower.

Revealing a whistleblower’s identity is already an imprisonable criminal offence in some other jurisdictions, such as Australia.  

The ET noted that after Dr Lewis’ public exposure at the above meeting of Dr Macanovic’ whistleblowing to the GMC, he followed up with emails to colleagues:

“71. Dr Lewis followed this announcement with emails to colleagues who were not there. He received many messages of support, including the one quoted at the outset (paragraph 11) from Dr Armstrong, stating that she was “shocked, enraged and very saddened.” Asked about this at the hearing Dr Lewis said words to the effect that Dr Macanovic had taught him well, this was how she operated, he needed a record of things and that by then “the gloves were off”

The ET noted other similar correspondence:

“When the unit head, Dr Robert Lewis, told the other consultants that he would have to attend a Fitness to Practice hearing, one of them emailed to say:

I am completely shocked, enraged and deeply saddened to read this email. I cannot believe that one of our colleagues would sink so low but it only goes to prove what a dysfunctional and destructive individual [Dr Macanovic] is with no thought whatsoever to the impact that her actions are having, not only on individuals but also on the whole department. …

I am sure the GMC will see this for what it is – a vindictive and purposeful attack on an individual colleague for no reason other than her own self satisfaction.”

As far as I can see from the trust website, it seems that Dr Lewis remains at the trust but no longer in a managerial capacity.

Circular assurance assisted by the CQC’s superficial regulatory method

A bizarre but familiar scenario of circular NHS assurance arose.

According to the ET, someone from the trust raised concerns with the Care Quality Commission about the novel buttonholing practice, sometime around October 2016. The trust clearly suspected Dr Macanovic because it later asked her, at a disciplinary meeting in 2018 if she was responsible:

“Dr Macanovic was asked during the subsequent disciplinary investigation if it was her and she would neither confirm nor deny it.”

This itself was another trust impropriety in terms of trying to hunt down a whistleblower.

The ET clarified in retrospect that it was indeed Dr Macanovic who had whistleblown to the CQC.

The trust response to the CQC was prepared by Mr Gibbs Clinical Director and Dr Lewis the Head of Unit.

Mr Gibbs was one of the surgeons about whom Dr Macanovic had raised concerns as regards unreported “red” adverse incidents.

According to the ET,

“Presented with this response the CQC did not carry out any further enquiry, and wrote back on 22 December 2016 (p.368) to say that they were satisfied that there were no safety concerns and that appropriate governance had been followed.”

Dr Lewis then communicated with consultant colleagues as follows:

“Dr Lewis reported this to the consultants by email on 16 January 2017 (p.375) – addressing it to “Dear Jasna and Colleagues”. But he did not attach the letter from the CQC, on the basis that this would then be “dissected or disputed”. In fact, any request to see it would, he said, be to question his probity and that of Mr Gibbs.”

An internal trust investigation report, the “Hunter report”, later relied on the CQC’s decision to take the matter no further, which of course rested on assurance given by parties under investigation.

“The Hunter report followed, after several months in the pipeline. On the buttonholing issue Mr Hunter found (p.239):

“33. Given my limited expertise within this area and given that the response provided by the Trust addressing the anonymous has been accepted by the CQC, there is a careful monitoring process in place and all significant events which were known when the investigation commenced have been investigated and this evidence provided to the CQC, I do not think any further interpretation by myself would help in this.

34. Hence, the Hunter report rested on the CQC conclusions, which rested in turn on Mr Gibbs’ letter.”

The ET judgment gives no information about who Mr Simon Hunter the report author was, but there was a consultant of Emergency Medicine of the same name at the trust, who was mentioned in 2016 trust board papers as “Chief of Service, Emergency Medicine”

The ET was critical of Dr Lewis’ decision to allow Mr Gibbs to respond to the CQC for the following reasons:

“148. One particular point raised on behalf of the Trust was that they took the buttonholing issue seriously, indicating that it was a separate matter. In fact, our view is that the consultant body in the renal unit were led by Mr Gibbs as Clinical Director, and he was a strong proponent. Dr Lewis gave Mr Gibbs his backing on this issue, and so Mr Gibbs was the one in a position to respond to the CQC. That is not so much treating her concerns seriously as attempting to resist or deflect them.”

NCAS greasing the wheels of exclusion and disciplinary action

Dr Macanovic was considered “unmanageable” by the trust as she would not be cowed and would not retract her concerns. This is often how incompetent organisations view whistleblowers.

Matters was escalated to the then Medical Director, Simon Holmes.

According to the trust website, Mr Simon Holmes the trust’s former Medical Mirector retired from clinical practice in 2018, but he remains on the board of a nearby NHS trust as a Non-executive Director:

The ET referred to the trust “arming” itself with ritual advice from the National Clinical Assessment Service, an expensive rubber stamping service which allows NHS employers to behave abusively whilst claiming that they have sought independent advice. The truth is that trust managers can obtain whatever advice they want by tailoring the information they feed to NCAS, and they can also control the subsequent flow of information back through their organisations.

The salient passages about NCAS’ advice are given as follows by the ET.

NCAS advice 4 May 2017:

“The Trust is mindful that Dr 19339 is a whistle blower, but concerns have been expressed by her colleagues about her behaviour and you have received 3 letters of complaint alleging that she exhibits aggressive, bullying and intimidating behaviour.

…. The issue is, as you are aware, complicated by Dr 19339 whistle blowing status and it will be important to document carefully the preliminary information which has been received so that this is available for future scrutiny if required. Potentially it may be necessary for the Trust to be able to demonstrate that Dr 19339 is not being victimised for having raised concerns. I advised that to avoid any allegations of bias, it may also be useful for the role of Case Manager, to be delegated so that the person making any decision about how to proceed is free of any real or perceived conflict of interest. Likewise the Case Investigator should be suitably senior, experienced and independent.”

Further NCAS advice June 2017:

“You told me that, prior to the referrals to the GMC, the department, including Dr 19339, had requested the help of an external mediator. Everyone was keen to do this and so the Trust organised an external mediation which took place yesterday. You said you attended the start and conclusion. You described how at the end of the day everyone attending seemed stressed, anxious and some were physically shaking. One member of staff had to leave the room because he was so distressed.

There appeared to be an absolute breakdown in trust between Dr 19339 and the rest of the department and the result of this led you to be concerned for the health of all in the department. You considered that the breakdown in relationships in a team who need to have confidence in each other to ensure patient safely constitutes a risk to that safety.

However, the Trust will wish to assure itself that any action it takes to mitigate potential safety risks within the department is not construed as being a detriment to Dr 19339 as a result of her declaration to the CQC that she is a whistle blower.

…

Any prolonged exclusion from clinical work can lead to de-skilling and I suggested that the Trust might wish to look for a placement in another Trust or department while the investigation is ongoing and the GMC comes to a decision as to whether it will take any action against the colleagues of Dr 19339.”

The ET noted that the trust used NCAS’ advice to progress Dr Macanovic’s exclusion, even though it failed to follow several aspects of NCAS’ advice.

The ET also noted that at a meeting dealing with Dr Macanovic’s exclusion, a new Medical Director Dr Knighton refused to accept her concerns that she was being bullied by Dr Lewis. After this meeting with Dr Knighton, she reportedly suffered a panic attack and required an ECG:

“Dr Macanovic said that she was the victim of bullying by Dr Lewis, but he did not accept that that was the case. Dr Gast proposed that she could simply be excluded from consultants meetings and after a pause to consider, Dr Knighton agreed that that would be a better option. After that meeting Dr Macanovic was unwell and could not resume work. She had a panic attack and spent the afternoon in the outpatients department where she had an ECG. However, she was not signed off sick.”

Freedom To Speak Up mechanism made no difference

Dr Macanovic had a meeting with  Mark Cubbon the Chief Executive and Mark Nellthorp the then trust Chair, attended by Jocelyn Booth the trust Freedom To Speak Up Guardian and elected trust Governor.

Mark Nellthorp the former chair of Portsmouth Hospitals University NHS Trust up until 2017 was also a senior civil servant at HMRC. He was sacked by HMRC in September 2018 after multiple sexual harassment allegations “The Guardian understands that concerns about Nellthorp’s behaviour were known to HMRC for some time.” Employment Tribunal claims arose from the allegations against Mr Nellthorp: Mrs E King v HM Revenue and Customs and Mr M Nellthorp: 3331671/2018   Ms J Short v HM Revenue and Customs and Mark Nellthorp: 2404602/2019

Dr Macanovic raised concerns at the meeting with the Chief Executive and then Chair that disciplinary action against her was in fact reprisal and bullying.

According to the ET, Mark Cubbon agreed there should be a separate investigation into Dr Macanovic’s concerns. However, he later reportedly changed his mind after talking to the trust director of workforce, Tim Powell. No one told Dr Macanovic, and Mark Cubbon reportedly did not respond to her subsequent correspondence. Such stonewalling is a common experience for whistleblowers.

According to his LinkedIn page, Tim Powell left the trust in August 2018 and now works for the London Fire Brigade

Several consultants also later wrote to Mark Cubbon the chief executive on Dr Macanovic’s behalf, as disciplinary action against her proceeded, appealing to him to prevent her dismissal:

“113. In that period, on 2 March, Dr Bostock, Dr Uniacke, Dr Synodinou, and Dr Gast emailed Mr Cubbon, to ask him to step in to prevent her dismissal (p.1716). Dr Gast was the author. She said that these complaints were from a minority of staff, and were an attempt to silence and discredit Dr Macanovic as a whistleblower. He declined to intervene.”

The ET said it understood this:

“Similarly we can understand why Mark Cubbon failed or declined to intervene in the disciplinary policy at the 11th hour, as requested”.

It is a pity the ET did not elaborate.

Particularly as it concluded that the disciplinary charges against Dr Macanovic were patently flawed and that the dismissal process was blatantly predetermined.

Mark Cubbon was formerly an NHS Improvement manager before taking up the chief executive role at Portsmouth.   He left Portsmouth last year and is now NHS England Chief Delivery Officer

Mark Cubbon is pictured below in 2019 with the previous National Freedom To Speak Guardian on the theme of the “authentic employee voice”. This was whilst Dr Macanovic’s Employment Tribunal claim was proceeding:

The General Medical Council

According to the excerpts quoted by the ET judgment, the GMC found in January 2018 that the buttonholing had not been introduced in a structured way at the trust. Oddly, the GMC concluded that because buttonholing had not been introduced under rigorous research conditions, there was no need to be concerned by the absence of the usual governance constraints, such as ethical review:

“With hindsight, it could be argued that it would have been a good idea to introduce the button holing/graft access method as a research project with a formal protocol and ethical review under the research governance framework. However, because of the gradual way in which it was introduced it was not introduced in this way. As it was not conceived as a research project, the fact that it did not follow the research governance framework does not raise any serious concerns.

The button holing/graft access method was an innovative technique, and should therefore have been introduced with appropriate controls, records and safety assurance, according to the relevant local policies.”

The excerpts indicated that the GMC identified no failing by Dr Lewis in regards to the governance of the buttonholing procedure:

“The method was introduced two years before Dr Lewis became chief of service and therefore he was not responsible its introduction. Indeed, all the governance measures that were eventually introduced were introduced as a direct or indirect result of his intervention, starting at the consultant meeting on 7 September 2016.”

Importantly, the GMC effectively concluded that Dr Macanovic fulfilled her professional obligations by referring her colleagues to the GMC:

“We are of course mindful of the findings of the independent whistleblowers review  the GMC commissioned from Sir Anthony Hooper. Having considered the correspondence disclosed to the GMC by the trust and by Dr Macanovic, it appears Dr Macanovic first raised her concerns locally and that it was only after she concluded, in her view, that her concerns were not being adequately addressed locally that she made her complaint to the GMC. In doing so Dr Macanovic was no doubt aware, amongst other things, of the guidance at paragraph 25 of Good medical practice that doctors must take prompt action if you think that patient safety, dignity or comfort is or may be seriously compromised.”

In the event Dr Macanovic genuinely considered there was a risk to patient safety, and it appears to us that she did consider such a risk existed, but she had not raised her concerns through whatever mechanism was available to her locally and/or if she deemed it necessary to the GMC, she would in our view have been rightly criticised by the public and by the GMC for failing to do so.”

The ET explicitly interpreted the GMC’s remarks thus:

“In our view she did genuinely consider that there was a risk to patient safety. That is implicit in the previous finding that this referral amounted to a protected disclosure. Although it was suggested to us that this fell short of an express statement from the GMC that she was right to make this referral, that seems to us its practical effect.”

Theresa Murphy Chief Nurse explicitly sacks a whistleblower for whistleblowing

Soon after the GMC decision, the trust machinery whirred into action to dismiss Dr Macanovic. The ET concluded that this was a “predetermined” process. This was partly because, extraordinarily, Dr Macanovic was given the option by both the medical director Knighton and Theresa Murphy to resign with a good reference during the dismissal process:

“Having heard this evidence, and towards the end of the hearing, Dr Knighton referred again to his suggestion of resigning with a good reference.”

“The hearing resumed on 5 March 2018 when Professor Murphy gave her decision. At the outset, she also reminded Dr Macanovic that she could instead choose to resign with a good reference.”

A CQC specialist advisor at the trust   Dr John Knighton took up his post as medical director at Portsmouth Hospitals University NHS Trust in July 2017 and remains in this role.   Prior to that he had been associate medical director.   According to a local press report of 28 July 2017, at the time of his appointment as medical director, he had already been working as a CQC specialist advisor:   “He has been a CQC specialist advisor for acute hospital inspections.”     The trust’s literature refers positively to Dr Knighton’s leadership of the A & E department: “He was Clinical Director for the Department of Critical Care from 2010-2016, during which it was rated as “Outstanding” by the CQC” but does not mention that the trust received an “Inadequate” rating in June 2016 when very serious safety failings were found in the A&E department: Trust rated ‘inadequate’ after damning A&E inspection “During our inspection, CQC staff had to intervene to keep patients safe on several occasions, including asking staff to assess patients in the ambulance and the corridor, and to prevent a patient from leaving the department when there was not a member of staff present.” “Inspectors praised the “exceptional resilience” of staff but said they suffered from “change fatigue” because of repeated incomplete initiatives from management.” “Sir Mike said that “staff had now accepted a standard of care that was unacceptable” and “some of the executive team were identified as barriers to the leadership of effective change”.

The trust dismissed Dr Macanovic claiming that she was guilty of “serious misconduct”.

Despite the GMC’s effective conclusion that Dr Macanovic’s referrals were professionally appropriate – indeed, required, a dismissal letter from Theresa Murphy stated that one of the reasons for Dr Macanovic’s dismissal was the fact that she had made disclosures to the GMC:

“Despite internal and external confirmation that button holing is not contraindicated and carries no specific risks, and despite you not being an expert in vascular access, you not only continue to disagree with its use, but you also referred colleagues to the GMC for using/supporting its use and I do not feel you acted professionally in this regard”

This was a clear smoking gun linking the dismissal to protected disclosures.

Theresa Murphy’s dismissal letter also reportedly claimed:

“Relationships between you and a number of consultants in the Renal Unit have broken beyond repair as a result of your behaviour”

The ET also noted substantial issues of bias and procedural unfairness by the trust and various other whistleblowing related detriments.

Was the trust badly advised? We do not know, but the ET pointed out that the trust’s solicitors Mills and Reeve variously accused Dr Macanovic of

• not acting in good faith
• not articulating her concerns about the buttonholing
• referring colleagues to the GMC ‘with no good reason’

Mills and Reeve act for many NHS organisations and are therefore familiar to a number of whistleblowers who have been driven to litigation.

The ET observed that the trust tried to argue that it was not so much Dr Macanovic’s whistleblowing that was the problem, but the manner in which she went about it. The ET rejected this.

The ET noted that Dr Macanovic could have been more diplomatic. However, English is reportedly her third language and there may be cultural differences in social directness to consider.

Diplomacy notwithstanding, the ET determined:

“The main plank of the respondent’s case is that Dr Macanovic was not dismissed for making these disclosures but for the manner in which she did so. But that distinction was not apparent in the dismissal letter, nor to any great extent during the disciplinary proceedings, and does not seem to us to be justified in hindsight. The plain fact is that after over twenty years of excellent service in the NHS, Dr Macanovic was dismissed from her post shortly after raising a series of protected disclosures about this one issue. It is no answer to a claim of whistleblowing to say that feelings ran so high that working relationships broke down completely, and so the whistleblower had to be dismissed.”

Quite rightly, the ET focussed on the core public interest issues – something that many Tribunals fail to do:

“Dr Macanovic was concerned with one main issue, potentially a matter of life and death. She raised her concerns against a dominant management group and at two meetings there were heated exchanges. Tempers were raised on both sides. The findings of the disciplinary process were, in our view, very one- sided, reflecting a determination to remove Dr Macanovic as the source of the problem, but that is very different from one individual making a disproportionate fuss about things that concern them. Regard must be had to the scale of the issues at stake in deciding between the message and the method used.”

Moreover, the ET made it clear that no substantive contributory fault could be attributed to Dr Macanovic:

“Given our view that the Trust have not shown a potentially fair reason for dismissal, there is no basis for a reduction on the basis that a fairer process would have led to the same result (a Polkey deduction) or to contributory fault on her part.”

This is a refreshing departure from the great multitude of ET judgments that get bogged down in spurious counter-allegations by institutions with deep pockets for legal shenanigans.

It is thus a warning to arrogant NHS trusts that may be tempted to hit the “breakdown of relationships” and “Some Other Substantial Reason” button in order to rid themselves of whistleblowers.

So, it seems that which is intended to drop whistleblowers through a hatch in the floor to shark infested waters may occasionally end up as an unwelcome eject button for trust directors.

Therese Murphy now describes herself as a former chief nurse on her LinkedIn entry. Like the disgraced Paula Vasco-Knight who called herself “Doctor”,  Murphy previously styled herself as “Professor” which according to a local press report was based on an honorary award from the City of London University:   “She was awarded the Florence Nightingale leadership scholarship in 2012 and is an honorary professor for the City of London University”

Why protect whistleblowers?

The ET’s unequivocal finding in favour of Dr Macanovic is unusual. But she should never have suffered the ordeal she went through. Much stronger UK whistleblowing law and infrastructure are needed to ensure protection at much earlier stage of the process, to prevent both harm to the whistleblower and the public.

If you wish to protect whistleblowers and to help stop their concerns being covered up, please click on this link and lend your signature to this petition for much better UK whistleblowing law:

Replace weak UK whistleblowing law and protect whistleblowers and the public

UPDATE

The body Practitioners Performance Advice (which replaced NCAS) agreed to improve its procedures following the whistleblowing cases of Dr Macanovic and Mr Reuser, to safeguard against employers feeding false and malicious information in referrals to engineer suspensions and out adverse outcomes for doctors.

After Reuser v UHB and Macanovic v Portsmouth: New rules to deter malicious referrals of whistleblowers to the Practitioner Performance Advice service

RELATED ITEMS

1. The local press has picked up the ET judgment in Dr Macanovic’s case against the trust:

Ex-Portsmouth doctor wins unfair dismissal case after being sacked for reporting colleagues at Queen Alexandra Hospital over new technique she claimed was dangerous

2. Portsmouth Hospitals University NHS Trust scored fairly averagely on whistleblowing questions in the last NHS staff survey, but this still meant that about a quarter of staff did not feel secure in raising concerns.

2. Where disciplinary charges fail, a common method of dismissing NHS whistleblowers is by arguing an irretrievable breakdown of relationships:

The Dismissal of over Ten Thousand NHS Staff via ‘Some Other Substantial Reason’

3. NHS staff lack adequate procedural protection from abusive employers who make malicious use of disciplinary processes and arbitrary exclusions. The NHS has failed for twenty years to act on recommendations from the National Audit Office to strengthen safeguards:

Waste Industry: The NHS disciplinary process & Dr John Bestley

No doubt abuse is too useful a political tool to give up when there are unapalatable truths to conceal.

4. The recycling of NHS managers who harm whistleblowers remains a major problem with little real political will to stop it.

CQC 5 Regulation Fit and Proper Persons is an ineffective provision which is poorly enforced. For example:

Sorry is the hardest word: CQC, Paula Vasco-Knight and Regulation 5 Fit and Proper Persons

Tom Kark QC’s 2018 review recommendations for tightening up the oversight of NHS management probity, short of full regulation, have not yet been implemented. NHS Improvement confirmed to me last week that a planned “Kark” register for tracking adverse information about managers’ fitness has not yet been established.

This laxity and impunity for whistleblower reprisal gives licence for further abuses.

5. “Mobbing” is a group dynamic by which whistleblowers are often attacked and smeared by overwhelming, concerted allegations and undermining. It is recognised in some European employment law as “moral harrassment”. Dr Macanovic’s case illustrates how the introduction of such a provision into UK whistleblowing law could more finely target and improve protection:

Replacing the Public Interest Disclosure Act (PIDA)