Introduction

As a trade union the BMA wants to help members to raise concerns about patient safety without fear of reprisals. The Medico Legal Committee has been developing its thinking about legislative reforms and whistleblowing. As the aim of this paper is to look at raising concerns within a legislative framework, the term whistleblowing has been adopted instead of ‘raising concerns.’

In 2014, in the context of the Freedom to Speak Up review chaired by Sir Robert Francis, BMA Council agreed to the establishment of a task and finish group on raising concerns about patient care. This group focused on how we could improve our support for members at the point when they raise their concerns, i.e. before the matter has escalated and before they suffer any detriment. And in the light of the group’s discussions a proposal was drawn up for a new service that would provide this kind of support and would be piloted in a particular geographical area for six months.

The BMA can assist members who wish to make disclosures however they still need to be made by the doctor themselves, the disclosure is not made by the BMA itself. The BMA can advise on the process to report a concern, provide advice on drafting it and assist chasing up a reply if necessary. Members should contact First Point of Contact in the normal way for assistance.

The pilot was officially launched in the Northwest of England in August 2015. A dedicated local adviser was seconded to support members who wished to raise concerns about patient safety. The pilot was partly about supporting members who were not sure how to raise their concerns, but it was also about providing talks to interested groups of doctors. It was later expanded and now each of the four adviser teams in England has a lead adviser with specialist expertise in this issue.

The Francis review did not recommend wholesale review of the legislation, given that legislative change could not be implemented quickly and the relevant legislation covers employment across the public and private sectors. Sir Robert Francis focused instead on changing NHS culture.

Protected disclosure and detriment

Being in a position where members need to raise a concern, or have someone make a complaint about them, can be tough.

The BMA has guidance on best practice when whistleblowing and how to handle complaints. However, individual members are very unlikely to come to the BMA with a concern about whistleblowing unless they believe that they have already suffered some kind of detriment as a result of raising a concern.

The main difficulty with protected disclosure in practice, lies in showing that the detriment or dismissal is linked to the disclosure. Legally there will be grounds to act only where it can be shown that the protected disclosure has 'materially' influenced the employer's treatment of the whistleblower.

In many cases this will not be clear. If the concern is raised in the context of a dispute with a colleague, a forthcoming reorganisation, or a threat of disciplinary action, this may create doubts as to whether the employer's subsequent actions have been influenced by the disclosure.

Many cases will also show there is a pre-existing employment dispute about something other than whistleblowing. The doctor may be going through a disciplinary process, there may be a performance management issue, they may have fallen out with a manager or they may be unhappy with a reorganisation. In these cases the chances of establishing to the satisfaction of an employment tribunal that the detriment was caused by the disclosure are very low indeed.

In 2021, there were only 238 clean whistleblowing cases at the BMA where the member suffered a detriment as a result of making a protected disclosure.

Success

Our success in whistleblowing cases, or in any other type of employment dispute cases, cannot be measured in terms of the number of cases that we win at the end of a final hearing at Tribunal. The BMA handled 47,000 employment dispute cases in 2021 and overall there were 342 referrals to our independent legal service providers (LSPs) of which 46 cases had Public Interest Disclosure disputes as the head of claim. Of these 4 were assessed as having a greater than 50% chance of success by the LSPs.

The BMA’s job in whistleblowing cases, as in all employment dispute cases, is to work with our members to resolve them at the earliest opportunity. Many employment disputes are resolved through the employer’s internal process.

The BMA provides advice and support in that process, including representation for members at internal hearings. Cases can be resolved at First Point of Contact as they require relatively straightforward advice or signposting to information on the website.

On occasion of course, members decide that they do not wish to pursue the case, or there is insufficient evidence to support a referral for merits assessment. The vast majority of the employment dispute cases which do go to tribunal end up with a settlement.

Legislative reform

Public Interest Disclosure Act 1988 (PIDA)

PIDA was introduced on 2 July 1999, to protect workers from detrimental treatment and victimisation for having ‘blown the whistle’ on malpractice.

The Act extends to England, Scotland and Wales, but not Northern Ireland. In Northern Ireland, the Public Interest Disclosure Order 1998 provides protection for an individual who makes a qualifying disclosure (also referred to as whistle blowing) in good faith to their employer or other third party against dismissal or detriment for making the disclosure. This position paper will focus on PIDA.

PIDA became law, by way of a private members’ bill. A ‘protected disclosure’ is a ‘qualifying disclosure’ that has been made to a particular category of person. Employers must not act against workers for making such a disclosure. The protection lies in the worker’s ability to take legal action for compensation.

PIDA offers protection to whistleblowers. It grants them the right not to suffer victimisation nor to be dismissed for whistleblowing and, where that does occur, to make a claim in the employment tribunal. However, there are a number of issues with the law.

Definition of “worker”

A “worker” is defined by section 230(3) Employment Rights Act (ERA )1996 as: "an individual who has entered into or works under (or, where the employment has ceased, worked under)

• a contract of employment; or
• any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual."

However, under section 43K ERA 1996, the usual definition of worker is extended in relation to the whistleblowing provisions to include a number of individuals who would not otherwise be covered. This extended definition includes agency workers and individuals supplied via an intermediary, provided that the terms of engagement are not substantially determined by the workers themselves but instead by the person for whom they work (section 43K(1)(a)(ii)).

When we deal with whistleblowing, we are operating within a constraint over which the BMA on its own has very little influence - the employment legislation of the UK, which affects the whole of the public and private sectors.

Concerns about PIDA

1. Medical students are not covered under PIDA and therefore need protection.
2. There are no obligations on organisations about how they set up and run whistleblowing arrangements. There is much focus on avoiding claims but not enough on training. Moreover, there are no common standards in the adoption and interpretation of PIDA by employers. Organisations need more of a road map to create consistency and harmonise the experience of whistleblowers.
3. There are time limits for bringing an employment tribunal claim thus leading to constraints and pressure to access justice for whistleblowers.

Scope

As a trade union the BMA wants to help members to raise concerns about patient safety without fear of reprisals.

The BMA is likely to be able to endorse any changes in legislation that promotes improvements in organisational processes for responding to concerns. It would find it difficult, however, to endorse proposals for legislative change that would add to the bureaucratic burden on the NHS, especially GP practices, duplicate the role of regulators and/or provide new opportunities for satellite litigation.

There would need to be awareness of the impact that such changes would have on actual whistleblowing cases, given the fact that protected disclosures can be used as bargaining tools in pre-existing employment disputes (as a detriment subsequent to the disclosure can be alleged to be a reprisal for the disclosure).

Current issues

The fundamental legal problem is the one about causation, about establishing a causal link between the detriment and the disclosure. Although an increase in the level of protection by shifting the burden of proof in whistleblowing cases away from the employee and on to the employer and thereby bring them more into line with discrimination cases, could be explored, a wholesale reversal of the burden of proof would actually be very problematic for us.

Many BMA members are employers too, as providers of primary care. They would be concerned of the risk of increased numbers of staff using concerns about patient safety as ‘leverage’ in employment disputes. And, if they have staff who are guilty of professional misconduct or criminal behaviour (which could include breach of confidentiality, failure to respect patients’ autonomy or refusal to provide care), they would not want to be prevented from ensuring that appropriate sanction be available towards these staff.

The use of whistleblowing concerns as leverage in employment disputes is a very widespread problem with whistleblowing and one can therefore easily imagine how an increase in the level of whistleblowing protection could actually add to the system pressures that are damaging patient care and could lead to more defensive practice.

The sub-sections below consider the workability of various proposals for reform.

Office of the whistleblower

In view of our general opposition to additional layers of regulation, we would question how it would carry out this function without duplicating the work of other regulatory bodies, especially in healthcare. We would also question how this body would obtain the necessary expertise to deal with public interest issues across all the different sectors covered by whistleblowing legislation.

An alternative proposal would be to create a sector specific body with which NHS whistleblowers could raise their concerns. This would not, however, remove the problem about duplicating the work of regulators.

Extending the coverage of PIDA

Protect, the UK’s leading whistleblowing charity provide consultancy and training services for employers to improve their whistleblowing arrangements. Protect has drafted a wide-ranging bill to reform UK whistleblowing law, PIDA. Protect’s bill is accompanied by a campaign, ‘Let’s Fix UK Whistleblowing Law’.

This campaign calls on the government to review the law and focuses on three urgent reforms in Protect’s bill.

These are:

• extend the scope of PIDA so that more groups of people in workplace settings are protected by law;
• impose minimum legal standards on employers requiring them to have internal whistleblowing procedures (together with enforcement mechanisms where employers breach those standards);
• improve access to justice for whistleblowers by extending the time limits for bringing an employment tribunal claim and giving powers to employment tribunal judges to make recommendations to reduce the effect of victimisation.
  
  

Protect’s draft bill extends whistleblowing rights to wider groups including; job applicants, the self-employed, trustees, volunteers. If these groups are victimised for raising whistleblowing concerns, they currently have no legal remedy in the employment tribunal. A job applicant, for example, may be denied new employment because they blew the whistle in their previous job. They are, essentially, blacklisted yet they have no protection under PIDA. The current law makes only one narrow exception to this in the form of job applicants seeking employment in the NHS.

In regard to medical students, the BMA could support them by lobbying 1) to extend the scope for whistleblowing protection to them, 2) for the establishment of a network of ‘freedom to speak up champions’ for medical schools and students. This network would be beneficial, as it would allow them to discuss their concerns at an early stage.

Better access to legal advice and representation

Justice delayed is justice denied. The employment tribunal was already suffering backlogs before the pandemic and a recent report by the House of Lords Constitution Committee found that by late February 2021 there was a 45% increase in the number of outstanding cases, in part due to complications arising from the pandemic. This makes it difficult to justify the strict time limits (3 months) within which an employment tribunal claim must be lodged. Protect’s bill extends time limits to 6 months for all tribunal claims.

An extension would give the member, the BMA team, and the lawyers, as well as everyone else involved, more time to gather evidence and do the work. This would go for all employment tribunal topics, as short timeframes often disabled opportunity to resolve issues between the employer and the individual as well.

It is also important to recognise that doctors tend to approach their concerns from a perspective of senior leadership spending time trying to fix the problem from within whilst also focussing on direct clinical care - it takes a long time for it to become apparent that the organisation is not going to change. For trainee doctors, there may be concerns regarding the impact protected disclosures can have on their career so problems reach a natural decision point towards the end of a 6-12 month attachment.

Duty to investigate

A key issue for us would be how such a duty would be triggered. Another key issue is how the investigation should be framed. Investigations may not achieve anything and can be spurious. If procedures are put in place, they may be long and complex and give rise to satellite litigation. There could be a requirement, similar to the requirement for meaningful consultation on redundancies, that the employer should meaningfully consider the disclosure.

Benchmark

Protect has developed a 360-benchmark tool to assist organisations measure the effectiveness of their whistleblowing policies. The tool has been designed to help organisations at each stage of the implementation cycle to consider what they should be focusing on and to assess how effective their current arrangements are in practice.

The BMA would more successfully/usefully lobby for the introduction of a benchmarking tool in the healthcare sectors. This will help raise standards with regards to whistleblowing policies nationally and can help from designing a whistleblowing policy and accompanying procedures to evaluating more established arrangements.

The elements of the tool cover the following areas:

• Governance: accountability, written policy and procedures, review and reporting
• Engagement: communications and training
• Operations: support and protection, recording and investigations, and resolution and feedback.

The person responsible for managing the organisations’ whistleblowing policies should complete the tool to assess where their organisation measures against the standards. Following completion, organisations are provided with a report indicating how they have performed against similar organisations, in terms of size or sector.

Freedom to speak up guardian

The FSUG was created in response to recommendations made in Sir Robert Francis QC’s report “The Freedom to Speak Up” (2015).The National Guardian’s office leads, trains and supports a network of Freedom to Speak Up Guardians in England and conducts speaking up reviews to identify learning and support improvement of the speaking up culture of the healthcare industry.

There are over 800 guardians in NHS, independent and third sector organisations and national bodies who provide an additional way for workers to speak up about anything which impacts on their ability to do their job. The current framework however does not offer the same cover to medical students. To find out who your FTSU guardian is, please click here.

NHSE’s whistleblowers' support scheme

The Whistleblowers’ Support Scheme provides confidential, practical support and advice for NHS workers – current and former – who can demonstrate they are having difficulty finding suitable employment in the NHS as a result of raising a concern in the public interest.

Sir Robert Francis stated in his Freedom to Speak Up report, whistleblowers are owed “a debt of gratitude for speaking up about their concerns”. NHS England and NHS Improvement developed the scheme in response to the recommendations in the report; in particular, principle 12 (‘support to find alternative suitable employment within the NHS’).

Recommendations

NOTE: MLC is aware of a couple of technical queries with regards to Public Health Doctors and doctors bound by the Official Secrets Act. The paper will be updated soon with appendices on these two areas.