Dr Minh Alexander retired consultant psychiatrist 22 April 2023
UK whistleblowing law is very weak.
It offers no protection.
No one is legally required to proactively protect a whistleblower.
Not employers, not regulators nor other public bodies.
The law only entitles whistleblowers to claim for post hoc compensation after serious harm. Even then the odds of success are very slim and the compensation usually inadequate.
A whistleblower can be blameless, determined to be so, and yet still dragged through several years’ ordeal of disciplinary procedures, dismissal, litigation and end up out of pocket after paying legal fees. I know of such a recent case.
Those representing themselves as litigants in person have even worse outcomes.
A great weakness of UK whistleblowing law is the threshold and number of legal tests that whistleblowers face, which were explicitly set high to appease industry and disadvantaged workers when the law was originally drafted.
For whistleblowers, the law is a fragile chain of flickering fairy lights. Knock out any one of those lights and the case is lost.
A UK whistleblower has to make the right sort of disclosure (qualifying disclosure) and they have to make the disclosure in the right way to the right person or body, in the right circumstances, to qualify for protection (“protected disclosure”).
Lawyers make hay out of endlessly arguing about the niceties, and establishing a professional hegemony from specialist knowledge of ever-evolving case law.
How on earth is a litigant in person supposed to cope in this minefield, from the first critical step of framing their claim? One error and the fairy lights go out.
Take the first hurdle for whistleblowers: what is a qualifying disclosure under the law?
The key law, the UK Public Interest Disclosure Act 1998 (PIDA) says:
“43B Disclosures qualifying for protection.
(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—
(a)that a criminal offence has been committed, is being committed or is likely to be committed,
(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d)that the health or safety of any individual has been, is being or is likely to be endangered,
(e)that the environment has been, is being or is likely to be damaged, or
(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.
(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.
(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.
(5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”
Case law has evolved such that there are several strands about which whistleblowers are usually grilled by Tribunals and employers’ barristers.
Disclosure of information
The disclosure should contain information of “sufficient factual content and specificity”.
Nature of the worker’s belief
The worker should have a reasonable belief that the information tends to show one of the “relevant failures” and “is made in the public interest”;
NB. There has been a ruling where several disclosures taken cumulatively met the above tests and were accepted as a qualify disclosure.
Employers’ barristers try to attack via any and all of these angles.
For example, questioning of claimants about whether they made their disclosures with the public interest in mind.
Barristers may posit that this is as narrow as making a disclosure with the employer’s whistleblowing policy in mind, when the law does not even require employers to have a whistleblowing policy.
Another legal tactic is to ask claimants if they ticked a box on the ET application form to consent to their claim being shared with a regulator, on the premise that this demonstrates a public spirit. This question is naturally asked of claimants who do not tick the box.
Employers’ barristers may also question whether claimants’ disclosures fit the defined categories (a) to (f) under Section 43B of PIDA.
Imagine the shock that a lay person, especially those of limited resources and/or who are unrepresented, may experience after raising what most reasonable people would think is a public interest disclosure, only to discover that lawyers have a very particular meaning.
In the NHS, this is compounded by permissively written policies and procedures which on the face of it invite maximum disclosure because the NHS is a safety critical sector.
The national template whistleblowing policy for the NHS:
NHS Improvement April 2016 Freedom to speak up: raising concerns (whistleblowing) policy for the NHS
set by NHS Improvement (now absorbed into NHS England) is applied by many NHS bodies. It states:
“You can raise a concern about risk, malpractice or wrongdoing you think is harming the service we deliver/commission [delete as appropriate]. Just a few examples of this might include (but are by no means restricted to):
· unsafe patient care
· unsafe working conditions
· inadequate induction or training for staff
· lack of, or poor, response to a reported patient safety incident
· suspicions of fraud (which can also be reported to our local counter-fraud team [insert contact details])
· a bullying culture (across a team or organisation rather than individual instances of bullying).”
Crucially, the NHS national whistleblowing policy urges staff to err on the side of caution and to raise concerns even if they are not sure if the concern is proven:
“Remember that if you are a healthcare professional you may have a professional duty to report a concern. If in doubt, please raise it. Don’t wait for proof. We would like you to raise the matter while it is still a concern. It doesn’t matter if you turn out to be mistaken as long as you are genuinely troubled.”
The NHSI 2016 national policy was replaced in 2022 with the NHS England version:
Freedom To Speak Up policy for the NHS V2 June 2022
This did not even specify what sort of concerns NHS workers could or should raise. Instead, this replacement policy states in bold letters:
“This policy is for all workers and we want to hear all our workers’ concerns”
All concerns? Remarkable.
But at the very end of the 2022 policy there is an appendix B which states:
“Making a ‘protected disclosure’
A protected disclosure is defined in the Public Interest Disclosure Act 1998. This legislation allows certain categories of worker to lodge a claim for compensation with an employment tribunal if they suffer as a result of speaking up. The legislation is complex and to qualify for protection under it, very specific criteria must be met in relation to who is speaking up, about what and to whom. To help you consider whether you might meet these criteria, please seek independent advice from Protect or a legal representative.”
Why is this caveat in the small print, especially after urging the workforce to spill all?
Another example of an expansive policy is NHS England’s external whistleblowing policy which says:
“Whistleblowing does not apply to personal grievances, including employment issues, which should be dealt with through internal organisational policies. It would generally be applied to:
• Concerns about unsafe patient care;
• Poor clinical practice or other malpractice which may harm patients;
• Failure to safeguard patients;
• Maladministration of medications;
• Untrained staff;
• Unsafe working conditions
• Lack of policies;
• A bullying culture;
• Staff who are unwell or stressed and not seeking help.
These types of concerns are sometimes referred to as ‘Protected Disclosures’ under the Public Interest Disclosure Act 1998.”
This would seem a reasonable list to most health service workers, who can appreciate that these are all matters which could affect the health and safety of patients.
But in the parallel world of litigation, it is far from straightforward, as I will discuss below.
NHS England’s contention that raising a concern about tampering with medical records is not whistleblowing
An ongoing employment tribunal against NHS England (or more specifically, the Healthcare Investigation Branch which is located within NHS England but overseen by NHS England and subject to its HR and governance systems), which I am currently observing, demonstrates how bewildering litigation can be for whistleblowers.
An experienced worker made a disclosure about unauthorised alterations of medical records.
To all healthcare professionals, this is an issue that sets off huge alarm bells on probity, patient safety, culture, safeguarding and a good many other matters.
But NHS England’s barrister questioned whether the matter amounted to a qualifying disclosure under whistleblowing law.
I struggle to see how a concern about tampering with medical records is not a health and safety issue.
Tampering with records may be done to cover up a care failure, which would fall under both the health and safety and concealment provisions of Section 43B PIDA.
Tampering with health records to cover up is so serious that it gets healthcare professionals struck off.
It prevents learning from serious incidents, may allow unsafe practitioners to continue harming patients and impacts on trust in healthcare workers, which is an important part of safe care at a public health level.
Coroners have periodically flagged falsification of medical records as matters of concern in their statutory Reports to Prevent Future Deaths, reinforcing the relationship between medical records integrity and patient safety.
Tampering with health records can also be a breach of legal obligations, and a crime in certain circumstances.
Knowingly misleading an investigation by the Healthcare Safety Investigation Branch is a crime, so supplying doctored medical records to HSIB would seem to raise an issue that falls within PIDA.
Tampering with health records impacts on patients’ rights to seek legal redress for care failures and it can potentially obstruct regulatory activities and statutory Health and Safety provisions.
In Scotland, the Independent National Whistleblowing Officer, who is part of the Scottish Public Services Ombudsman’s Office, gives advice that whistleblowing in the NHS can include falsification:
“Risks can relate to a wrongdoing, patient safety or malpractice which the organisation oversees or is responsible or accountable for. In a health setting, these concerns could include, for example:
- patient-safety issues
- patient-care issues
- poor practice
- unsafe working conditions
- fraud (theft, corruption, bribery or embezzlement)
- changing or falsifying information about performance
- breaking any legal obligation
- abusing authority
- deliberately trying to cover up any of the above.”
Care Quality Commission Regulation 17 requires care providers to ensure the integrity of care records:
“maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided;”
That is, maintaining the integrity of contemporaneous care records is a statutory, legal obligation.
Post hoc tampering with health records is likely to represent a failure of this legal obligation, and thus would bring a disclosure about such wrongdoing under the category of a legally “qualifying disclosure”.
| 2017 Care home placed in CQC special measures after failure to comply with care standards, including by not keeping contemporaneous records and falsifying records CQC inspection report on Woodlands Care Home, Mirfield |
For completeness, this is CQC’s guidance to the staff of provider bodies who wish to whistleblow to the CQC. It advises health and care workers that whistleblowing can encompass a wide range of issues: “The concerns don’t have to be restricted to people using the service. Whistleblowing can cover any risk, malpractice or wrongdoing that affects patients, the public, other staff or the provider itself.”
Regardless of whether NHS England prevails in its above legal argument at the ET, it will need to explain to the NHS workforce, patient groups, fellow regulators and parliament, why the most powerful NHS body does not accept that raising a concern about tampering with medical records is whistleblowing.
NB If there are any lawyers reading this blog who think I have got anything wrong or left anything out in this important matter, please do let me know. Best wishes.
Related miscellaneous
NHS England itself has not responded to me yet about its practice of its General Counsel routinely attending operational meetings about the management of internal whistleblowing at NHS England, and whether the affected NHS England whistleblowers will be allowed as a matter of policy to access meeting minutes as personal data. This was first raised in June 2022.
On a similar theme, NHS England through its representatives was supposed to give me electronic access to the case bundle from the above ET, as an observer. I understand that NHSE informed the Tribunal that it did so yesterday morning. However, I received no correspondence from NHSE with the necessary link to give me access, and will take the matter up again with the Tribunal next Monday when the hearing resumes.
It was noteworthy that NHS England’s barrister elected not to question several of the claimant’s senior witnesses, even with a caveat by the barrister that this did not mean that NHSE agreed with their evidence or accepted it.
The principal author of the Benson report on bullying and governance failings in the maternity investigation branch of HSIB gave oral evidence as a witness for the claimant and elaborated on some of the findings previously summarised in her report.
UPDATE 23 APRIL 2023
Please see additional evidence posted at:
This further post shares a 2012 investigation report commissioned by South England Strategic Health Authority (the nascent NHS England in other words, which became fully operational on 1 April 2013), on records falsification by a mental health trust, Avon and Wiltshire Partnership (AWP). This investigation concluded that AWP had likely been in breach of legal obligations as a result of falsifying medical records to avoid financial penalties for not meeting performance targets. It follows from this finding that the whistleblowers who made disclosures about the records falsification had by implication raised qualifying disclosures under the Public Interest Disclosures Act.
RELATED ITEMS
We have seen examples of NHS regulators not only failing whistleblowers who approach them as Prescribed Persons under PIDA, but their own regulatory staff who whistleblow.
There has been the case of Mr Shyam Kumar at the Care Quality Commission, where the CQC behaved in the most extraordinary manner. It defamed him, unfairly dismissed him, abused its power as a regulator to (unsuccessfully) seek adverse information about him that could be used in ET proceedings and then maintained a narrative throughout the ET hearing that he was a bully, which was rejected by the ET.
We have also seen a case of race harassment by senior NHS England managers as well as whistleblowing detriment in the case of Ms Cox.
The Tribunal judgment noted that NHS England’s submission in this case focussed on uncoupling detriment from protected acts:
“the respondent’s case focusses on causation and whether the treatment complained of arose from the protected acts or protected disclosures”
This illustrates that where employers think they have lost the battle on disproving protected disclosures, they move on to the next fairy light, which is to disprove a causal link between protected disclosures and detriment.
It is a shabby trick to play on the NHS workforce, to invite whistleblowing disclosures through fine words, and then waste public money on tripping staff up and blocking them with a massive, well-oiled legal machinery and expensive barristers.
What is more, current UK whistleblowing law enables this state of affairs.
HSIB whistleblowers and the Secret King’s Fund Fact Lite report
More secret HSIB reports and failures of HSIB maternity investigations
Replacing the Public Interest Disclosure Act (PIDA)
What could a new whistleblowing law look like? A discussion document
Alexander's Excavations 