Intended for healthcare professionals

Editorials

Changing the face of whistleblowing

BMJ 2009; 338 doi: https://doi.org/10.1136/bmj.b2090 (Published 27 May 2009) Cite this as: BMJ 2009;338:b2090
  1. Peter Gooderham, associate tutor
  1. 1Cardiff Law School, Cardiff CF10 3AT
  1. GooderhamEP{at}Cardiff.ac.uk

    Statutory protection, support from regulatory bodies and a culture change are required

    A decade after the scandal at Bristol Royal Infirmary1 whistleblowing is still hazardous to whistleblowers. A whistleblower is a person who informs on another or makes public disclosure of corruption or wrongdoing. Margaret Haywood was struck off by the Nursing and Midwifery Council (NMC) after exposing poor standards of care at Brighton and Sussex University Hospitals NHS Trust.2 At the same time, prominent individuals have complained that whistleblowing was inadequate at Mid-Staffordshire NHS Foundation Trust,3 which has been widely reported in terms of hundreds of unnecessary deaths.4 What is the problem?

    Most patients would surely expect doctors generally to protect them from potential harm; doing so has been a key part of medical ethics for centuries. The General Medical Council (GMC) stipulates a professional ethical duty to raise concerns.5 Doctors and other healthcare staff owe their patients a duty of care. Failure to protect patients from harm may breach this duty, and resulting injury may give rise to civil and criminal legal liability. An NHS doctor is likely to have a contractual duty to participate in clinical governance procedures, which should include systems for raising concerns, and guidance on how to proceed when appropriate action is not taken. How often such systems exist in practice is unknown. Appropriate documented warnings to employers about threats to patient safety should protect individuals from liability.6 The warnings should comply with local policy (where it exists), go through the proper channels (not through the media at an early stage), and be documented in writing.

    Where governance procedures work smoothly, the term whistleblowing may be misleading. It suggests an escalated disclosure because appropriate action has not yet been taken. Careful consideration is necessary before whistleblowing, which too often harms the whistleblowers themselves. The concerns of Dr Stephen Bolsin, the Bristol whistleblower, about unsafe children’s heart surgery, were “cavalierly dismissed,” his career stalled, and he now works on the other side of the world.7

    Whistleblowers may be made to feel that they are the problem. More seriously, they may find themselves the subject of retaliatory complaints and disciplinary action. Wilmshurst reports that in one case of research fraud, whistleblowers were “advised to keep quiet or their careers would suffer.”8 He found that when he made one complaint to the GMC, it gave priority to investigating him for disparagement. He also discovered that his defence body was instrumental in pressurising him to drop his concerns about another case of research fraud. The chairman of the BMA recently described “a culture of threats and bullying that stops whistle-blowing.”9 It is no surprise that whistleblowers can be reluctant.

    Limited protection for whistleblowers is afforded by the Public Interest Disclosure Act 1998 (PIDA 1998), which “renders void contractual duties of confidentiality between employer and employee to the extent that they preclude the worker from making a ‘protected disclosure’. A protected disclosure is a disclosure which is not itself a criminal offence but which raises legitimate concerns about the employer’s business and is made in good faith through appropriate channels.”

    Some believe that the protection the act affords is inadequate, and that it did not help the Bristol whistleblower.7 PIDA 1998 took effect via amendments to the law of unfair dismissal and there are, arguably, inadequacies in its operation. The act has influenced the development of policies on disclosures in the public interest by NHS trusts, although it is not clear how effective these are in affording protection to whistleblowers or the public interest. Would-be whistleblowers should seek advice from their defence bodies, and possibly the BMA or Public Concern at Work (www.pcaw.co.uk/individuals/helpline.htm).

    The document “Blowing the whistle” offers relevant and practical guidance.10 Of particular importance is the need for whistleblowers to protect their own position. This includes careful documentation and “playing by the rules”—that is, adhering to the employer’s stated policy as far as possible. The Brighton whistleblower was open to NMC disciplinary proceedings because she breached patient confidentiality and did not exhaust internal systems for raising concerns before releasing details to the media. The document also lists techniques used to discredit whistleblowers.

    Concerning Mid-Staffordshire NHS Trust, the chairman of the Healthcare Commission indicated that warnings existed about some of its problems for years before the problems became publicly known.11 Why should staff accept the risks of whistleblowing if warnings are ignored?

    The chairman of the Care Quality Commission has criticised staff at Mid-Staffordshire NHS Trust and elsewhere for operating in a “culture of silence.”9 But the commission’s plan to assess progress at Stafford does not mention whistleblowers. The secretary of state for health has stated: “I do not understand why clinicians whose primary role is the safety of their patients are somehow concerned about whistleblowing.”12

    Issuing glib criticisms may worsen the situation by exacerbating a culture not just of silence, but of fear. Professional people may feel damned if they do raise concerns, and damned if they don’t. Several measures should be considered, including greater statutory protection, more support from regulatory bodies, and, above all, a culture change to encourage whistleblowing. A start would be for those in official positions to recognise the risks of whistleblowing. Then they might begin to limit the damage wrought by the next Bristol, Brighton, and Stafford, scandals which are probably already happening.

    Notes

    Cite this as: BMJ 2009;338:b2090

    Footnotes

    • Competing interests: None declared.

    References