Working in the NHS is highly pressured and challenging – in no small part as historic underfunding, has resulted in workforce shortages and an inadequate infrastructure of beds and facilities.

It’s an environment in which 95% of doctors in a major BMA survey stated that they fear making a mistake daily, and over 9 in 10 doctors said that a lack of both resources and healthcare staff is directly compromising patient care.

Improving patient safety crucially depends upon NHS staff speaking up and raising concerns when they come across systemic failings – so that NHS providers can take note and act. This was a key message articulated in the lessons learnt after the mid-Staffordshire scandals.

Unfortunately, the learnings identified in the Francis review are not reflected in doctors’ day-to-day reality – only 40% say they feel content to report concerns in their workplace and over half (55%) are worried about being unfairly blamed for errors resulting from systemic failings.

Throughout the Covid-19 pandemic, the BMA has carried out regular tracker surveys which once again underscored this culture of fear of speaking out. In April, during a period of dangerously low levels of PPE, medicine and staff shortages, 34% of doctors said they had identified an issue but hadn’t raised a concern. Over 30% said they simply did not believe their concern would be acted upon, while eight per cent said that they hadn’t spoken out as they feared this would impact negatively on their career or progression through training and eight per cent also cited insufficient protection and support for reporting.

We also know that these fears are felt more by BAME doctors – with more doctors from ethnic minority backgrounds stating prior to the pandemic they fear being blamed unfairly for errors and twice as many reporting that bullying and harassment is a problem in their workplace. This pattern was further repeated in our Covid-19 tracker surveys, which show that BAME doctors were two and a half times more likely not to have spoken out about an issue as they were worried about the impact on their career or out of fear of the consequences.

The system works against whistleblowers

In theory, the Public Interest Disclosure Act (PIDA) is designed to protect those who officially raise concerns (or make “protected disclosures”). In reality, however, the system is weighted against the whistleblower. This is in part as the law requires the whistleblower to demonstrate that they have suffered “detriment” as a direct consequence of their having made a disclosure.

Employment tribunals on whistleblowing cases are therefore focussed on proving that this is the case, which can be fiendishly difficult – especially when cases become caught up in a web of denial and counter allegations from the employer. The tragedy in all of this is that organisations can lose sight of the original patient safety concern – such as reporting a dangerously understaffed ward. The aim of raising the concern in the first place – to get it resolved – gets lost in the mix.

The difficulty of successfully securing the protection nominally provided by PIDA is borne out by the statistics. Of the 9,153 claims brought across all sectors between 2015/16 and 2019/20, just under 320 were successful at hearing*.

This makes the BMA’s position, as with all unions, all the harder. Most legal teams supporting unions employ a merits assessment wherein they typically support cases with a greater than 50% chance of success. Put simply, given low chances of success, the way the law works makes it difficult for whistleblowers to secure legal funding for their cases.

That is why the BMA believes that it’s time for decisive action to ensure that issues raised by whistleblowers are properly explored and acted upon. There also needs to be greater protection for the person raising concern (who at the point of speaking up would not even consider themselves a “whistleblower”), whilst NHS providers should actively encourage and pay gratitude to those that highlight dangers to patients and safety.

*source: HMCTS: Tribunals Quarterly and Annual reconciled returns.

Improved BMA support for doctors raising concerns

In 2018, we conducted an in-depth review of the BMA’s employment-related services. This included looking at the way the Association had handled past complex legal cases as well as interviewing some doctors with previous whistleblowing claims who had felt their support to have been lacking.

As a result, we have made the following changes to maximise our support to those raising concerns as well as to potential or actual whistleblowers within the constraints of current whistleblowing laws:

• adapting and updating the template form used by member service staff to highlight any potential whistleblowing case early on so that these can be fast-tracked and tailored support offered
• obtaining specialist independent barristers’ opinions who are experts in whistleblowing law at an early stage given the complexity and hurdles whistleblowers face
• if the assessment is not taken forward, ensuring members can now discuss their preliminary assessment of their case with their BMA appointed solicitor and BMA advisor to ensure all relevant evidence has been considered. This has already resulted in some cases being reconsidered
• ensuring that even where the BMA is unable to support a member’s case legally, the association offers alternative ways in which it might support the member.

We hope the above practical changes will begin to make a noticeable difference in the future as they bed in, and we will continue to review our support to doctors who raise workplace concerns as part of continuous learning and improvement.

The way forward - protecting staff and creating a safer NHS

Moving forward, there is an urgent need for the following changes to be made to create a safer health service.

• Providing the NHS with adequate resources. Many of the issues raised by those blowing the whistle are a consequence of an NHS without adequate staff or facilities – with the UK near the bottom of the league table in the EU. It’s vital that doctors are supported to work in a system where patients can be treated safely and effectively.
• A radical shift in NHS culture. It’s vital that the NHS moves on from its current blame-focussed culture to one where it genuinely welcomes and embraces those who raise concerns, seeing them as champions of safe medicine. This culture needs to start from the top at ministerial level, encouraging NHS leaders and managers at individual providers to be open about safety issues, including resource constraints that prevent them from providing quality care, and eliminating the current defensiveness which results from the political need to “perform”. Ideally, we should aim to get to a point where those that raise concerns need not even be seen as “whistleblowers”, but as a vital part of a culture of learning and quality improvement.
• Reform of whistleblowing regulation and practice. We need a full and thorough examination of current whistleblowing regulation and practice, which clearly has not been effective in supporting and protecting many who blow the whistle. These arrangements must be reformed to ensure that any concerns raised by NHS staff are openly acknowledged and investigated and that any appropriate and effective action is taken in response. Action must also be taken to tackle the manner in which the need for whistleblowers to prove a link between detriment and the concern being raised can divert focus from the investigation of vitally important patient safety issues.

In the coming months, the BMA will explore how we believe whistleblowing legislation and practice as it applies to the NHS should be reformed to ensure that concerns raised by doctors aren’t sidelined but are rather acted on in the interests of both patients and health service staff.

Ultimately, patients are suffering, and the NHS is not addressing shortcomings and issues of safety, because too many doctors and NHS staff are too scared to speak out. Meanwhile, others who are courageous enough to put their heads above the parapet too often find themselves targeted in a culture of blame and recrimination, with attention deflected away from addressing systemic failings. We desperately need an NHS with the resources to provide safe care and a health service culture that learns, improves, and encourages its workforce to highlight concerns in the interests of maximising patient safety. The BMA is committed to playing its part in leading the charge to bring change about.

You can find more information about the BMA’s support for legal cases, as well as guidance and information on raising concerns.