I apologise for the delay in responding to your questions. I have been extremely busy with various issues. I have discussed this with my colleague/friend and fellow whistleblower Dr Mohammad Al Ruby and our responses are enclosed below. I am of the view that your questions should also be directed at a vast array of whistleblowers - Otto Chan Consultant, Raj Mattu Consultant Cardiologist, Ian Perkn NHS Whistleblower, Steve Bolsin, Dr Peter Wilmshurst and Dr Shreedar Vaidya, Dr Milton Pena, Robert Phipps and a number of others. I have therefore copied this email to all of them in the hope of opening a consultation via email [ since the Health Select Committee Review has been denied to us]. I understand you are due to attend the meeting at Parliament with Norman Lamb MP. Perhaps you will discuss some of the ideas put forward here.
My colleague Dr Ruby and I have come up with the following [ I have listed your questions in bold type]
1.
Do you think there should there be a structured system whereby doctors who are concerned with the care being provided in their hospital [and the Inquiry covered hospital care] have a safe place where they could report their concerns to their professional representative organisation, if they haven’t been able to resolve them locally, in the knowledge that their reports could, if they wish, be confidential (but no doubt ‘discoverable’ in law)?a. You refer to professionals as doctors. I would broaden these issues to include any health professional or manager [ NHS Employee].
b. Yes there should be a structured system whereby NHS Employees concerned with care being provided can report their concerns. On discussing the issue with a number of individuals, the organisation should not be associated with their professional representative organisation. It should be truly independent of the GMC, the BMA, the MPS, the DOH and the NHS Trusts [ ie trade unions and defence unions].
c. I believe that even raising issues locally is highly dangerous [ Milton Pena v Tameside, Raj Mattu v Coventry NHS Trust, Pal v North Staffordshire, Chan v Barts and London NHS, Holt v Great Ormond St, Perkin v St Georges]. It is even more dangerous for junior doctors. This was also outlined in the BMA Conference on Whistleblowing some years ago [ See Appendix 1 below]. The culture in the NHS has not altered and therefore local whistleblowing is not safe for any employee. Moreover, it has been established by the research conducted by
Professor David Lewis [ 10 Years of PIDA], that the employee has little recourse in the law. He concludes that PIDA does not work. The government has been slow to respond to this criticism.
Protection from organisational reprisals is currently painfully low. The issue of
Medical Mobbing [ Huntoon et al USA] is yet to be recognised by the organisations in the UK. Both the Shipman Inquiry and the Bristol Inquiry have detailed episodes of organisational reprisal and serious losses sustained by the whistleblower. Given the current status, it is essential to have a independent organisation associated funded by the government with support from organisations such as the National Bullying Helpline.
The USA has the National Whistleblowing Centre http://www.whistleblowers.org/ . We have no equivalent in the UK. It is an organisation that is essentially one of advocacy, staffed with lawyers etc. This kind of organisation is vital for NHS Employees in the UK because each person requires maximum support in raising concerns locally and nationally. This organisation should have a network of contacts with voluntary organisations and the NHS. Their prime concern should be to act as middleman and a wall between the NHS and the whistleblower.The immediate protection of an advocacy organisation will protect the identity of the whistleblower, provide them with their options and act as middleman to change the current status ie improve patient safety etc. Independent advocacy is the only way forward in improving the current system. It is impossible to change the culture of the NHS. Numerous studies have been done regarding the psychology of whistleblowing issues. It will take many years for people to change their attitude.
d. I believe the Mid Staffordshire NHS Trust Inquiry observed the whistleblowing issue simply without understanding or reviewing large amount of literature involved in whistleblowing. It is not acceptable for those in positions of responsibility to speculate over what will be helpful to a whistleblower. Over the years it is clear that the support for whistleblowers is painfully low. It is also clear that the current systems in place are ineffective. I believe that those who are responsible for policy and decisions within the NHS assume they understand what whistleblowers go through but don't really understand or care about the losses suffered by many. Each case is publicised by way of showing that whistleblowers are pariahs. The message given by the media is effectively " if you raise concerns, you will be destroyed". This kind of publicity is negative and encouraging of whistleblowers. It is likely to dissuade professionals when they come across poor care [ 2001 Report Creamer who stated that other staff felt unable to raise concerns]. As we are all aware, it is essential for doctors to be able to raise concerns safely without sustaining losses to their family, their career and their life. The factor in terms of human loss has never been acknowledge or recognised nationally. It is because of this failure to care about what happens to the whistleblower - the current system does not make allowances to protect that whistleblower. It often allows them to founder much like a Darwin's theory of survival of the fittest. Everyone watches in glee in the hope they will fail in some way. It is time that these losses were recognised, accepted and system put in place so those who raise concerns obtain emotional and social support for the traumatic experiences they may have been through. This would be the function of the Advocacy system for whistleblowers.
e. If the advocacy service could be created, they could safely raise concerns with the General Medical Council and numerous other authorities. This would result in less medical mobbing - as the knee jerk reaction of any Trust is to undermine and criticise the whistleblower. The GMC is often used as a instrument of harassment by those who exert their vendetta to silence the whistleblower [ Wilmshurst v GMC, Pal v GMC, Vaidya v GMC, Robert Phipps v GMC, Mattu v GMC and numerous others]. This phenomena is not recognised despite it being presented by Wilmshurst P in his document a
Personal View of the GMC.In summary, the idea of basic reporting is simplistic and needs to be thought out by consultation with those who have raised concerns. The idea mooted by various organisations does not take into account that whistleblowers require support. It concentrates on using the whistleblower to correct the system failing then not concerning themselves with what happens to them afterwards.
A robust system can only be done through a proper and effective discussion and a Health Select Committee of Whistleblowing. In my view, it is time that people stopped guessing on issues affecting whistleblowers and implementing systems without due research and discussion. One could say some methods suggested by barristers or lawyers who have never experienced whistleblowing is not evidence based. The people to ask are the whistleblowers themselves. Without their input there will never be any proper and effective service that encourages patient safety and protects whistleblowers. In conclusion, no surveys have been done using whistleblowers, no research has been done of this specific group in the United Kingdom and no consultation has been offered.
2.
The current organisations would not have the resources necessary to investigate properly the reporting doctors’ concerns, but they would be able to collate them and formally report them, to the CQC.a. The Department of Health have played a part in funding Public Concern at Work. Unfortunately, PCAW from reports by whistleblowers have been relatively ineffective [ see Perkin v PCAW]. An advocacy service funded by the government or as a social enterprise or through the National Lottery etc would be relatively cost effective. As the middle man, it would be quite appropriate to raise concerns locally and Nationally with good effect. Legal drafting of documents for whistleblowers will also save vast amounts of time and covey the messages faster. They could also conduct brief investigations by consulting the NHS Trust and other organisations by way of a FOIA and also ensure Data Protection Act requests are done effectively as a information gathering system. One of the problems for whistleblowers is their lack of legal support. Often people fail to raise their concerns effectively because of the lack of this kind of support.
b. I have found the CQC largely incapable of dealing with the concerns of whistleblowing. The CQC has neither been trained, nor does it address the concerns of lone whistleblowers at any point. Milton Pena may have had more success but his weight as consultant probably had a lot to do with this. Liaison by an advocacy organisation would probably be more fruitful here. They have the tools but I do not think they take doctors seriously at all. They would take lawyers or representatives more seriously - better paperwork etc.
c. By way of an example, the Health Commission initially told me that they could not investigate concerns raised by Whistleblowers. Four year later they subsequently changed their mind. By then it was too late. The CQC have to date failed to review Ward 87 or learn from the lessons of two reports in my favour. This is largely discarded by those in charge but it is vital to understand that if my concerns with two reports are dismissed then junior doctors who have basic concerns without supportive reports will never be looked at or investigated. This tells us more about the lack of understanding by the Health Commission now the CQC. There is no effort to improve their service for whistleblowers.
3.
The ideal may be a medical organisation, independent of government and the Department of Health, with the capacity to carry out on-site inspections in response to concerns regarding quality of care reported by doctors.The NPSA has the capacity to do this with some expansion. Again, it is extremely difficult to have a organisation independent of the government and DOH who will have enough resources to conduct the type of investigations you are stipulating. In some cases, GMC v Chai Patel, private investigation reports are not considered valid and the entire case against Chai Patel was thrown out by the GMC on that issue. This leads us to question the manner, the way and the means of creating such a organisation. A better way may be to fine tune organisations like the NPSA and the GMC or the CQC. The main complaint really is the partisan relationship between staff at these organisations and vested interests [ A Personal View by Peter Wilmshurst Consultant Cardiologist]. One of the main problems is the lack of acknowledgment that some regulatory systems are currently failing whistleblowers. The GMC is one such organisation.
4.
We have seen that the system of monitoring the quality of hospital care in England was considered to be deficient by the three independent US organisations that reported to Ara Darzi in 2008 (e.g. the Joint Commission “Quality today does not drive or even influence commissioning decisions”), that they depend very largely on self-reporting rather than on-site inspections. Apparently “A Department of Health spokesman maintained that the three reports were never intended for “wider circulation” and said they were extensively discussed by experts advising Darzi on the production of his report.” (http://www.timesonline.co.uk/tol/news/uk/health/article7052606.ece) but the CQC has stated that it will continue to rely on self-reporting (see extracts below).a. The above is extremely interesting but not unexpected. I do not believe that it is right or correct for the hospitals themselves to input and analyse their own statistics. The CQC is currently not equipped to inspect every hospital. This does not mean it could not be funded to function in that way. Moreover, it is vital that statistics collected is done by staff who are independent of the Trusts in question eg managers who have vested interests in parading good figures. I am not certain whether the audit commission could be expanded to include an area where hospitals are assessed by statistical analysis.
The Health and Safety Executive for instance has various powers - more so than any inspection organisation in the NHS. It may be an idea to widen the function of the Health and Safety Executive to include monitoring of conditions on Wards in terms of safety. The person to discuss this issue with is Arthur Briggs who has the research on this aspect. At present, I do not believe the CQC and the Health and Safety Executive function to ensure public safety. Moreover the NPSA has a fairly narrow role and does not actually function well enough probably due to their narrow remit. Again, the organisations exist but they tend to work independently - whereas proper functioning in terms of maintaining patient safety requires expansion of the roles of these organisations. They should work together in the interests of public safety as opposed to acting to dismiss concerns raised by doctors or patients. Without further discussion on this aspect with those involved in patient safety issues and those who have raised concerns - the resources will not be used effectively. In summary, there are organisations in place that could function to ensure good assessment of hospitals but the roles of each organisation has not been reviewed in view of the current disasters in the NHS costing the lives of many patients.
At present a situation exists where the system largely relies on patient reporting or complaints. The odd whistleblower may be assassinated in the meantime but that is largely hit and miss. Dr Foster may collect various pieces of data but what is absent is and alarm effecting immediate correction of problems that may exist. This will not happen until there is some form of local monitoring or safe reporting. The system is too litigation friendly and works on a defensive system. Most patients want an open and transparent system that addresses their concerns. Research from the US shows that an apology to patients often reduces litigation. The issue of the complaints system is demonstrated in http://www.nhscomplaintsexposed.co.uk/ with my
colleagues excellent letter hereb. It should be noted that NHS Employees may well be whistleblowers. The same behaviour of silencing patients and their relatives also happens in the NHS but it is not recognise. Evidence from complainants suggests this to be the case. PALS already exists in the National Health Service in every hospital. PALS should be able to widen its scope to act as advocate in patient safety issues. They should be able to act on their behalf to report safety issues immediately eg shortages of staff etc etc. This should be reported to locally with a immediate response from management as to what investigations and what corrections will occur. If the matter has not improved, PALS should refer this issue immediately to the CQC who should implement a procedure to protect patients without delay.
c. Darzi has refused a Managers Regulatory body but most failures in patient safety have occurred due to failures in management - examples include Mid Staffordshire Inquiry, North Staffordshire NHS Trust - Ward 87 Reports, Tameside NHS Trust and many others. There remains no accountability for those responsible for disasters in the National Health Service. There is therefore no deterrent. Because there is no deterrent, we observe a replay of the same kind of behaviour over and over again - costing lives, increasing litigation etc etc.
d. To finally show the dimissive attitude of those in power, Lord Darzi is yet to respond to my concerns on Ward 87 sent to him last year. While he conducts many studies with many findings, he fails to address the concerns of a junior whistleblower. This attitude is endemic of most officialdom who essentially view whistleblowers as trouble makers and people not to be taken seriously. I am therefore copying this email to him again in the hope he does take some of our concerns on board and takes the time to request a Health Select Committee Review on Whistleblowing [ which is urgently required]. The last request was blocked.
e. It is important for regulatory bodies and organisations to hire staff who do not have alternative agendas and are free from bias eg Common Purpose, Scientology, Freemasonry, dual memberships, financial interests, private healthcare interests etc. Again, Wilmshurst explained elements of the lack of independence in his Personal View of the GMC. Also, the GMC's Whistleblower Protocol advises that the Director of Public Health will be responsible for conducting an investigation into "concerns" raised. It is common knowledge that this may be the source of victimisation and organisational reprisals. Moreover, the Director of Public Health has dual interests in shutting down investigations to avoid criticism and maintain funding in certain areas. This conflict of interest is not understood by the National Health Service in general. Another example is Cynthia Bower - CQC - who used to work for the West Midlands NHS Executive and may be reluctant to criticise hospitals on her watch at the time. These vested interests and apparent biases are not recognised within the NHS at all.
In summary, an advocacy organisation independent of the NHS is required for all whistleblowers. This is really the only way forward for the NHS to maintain public safety. Organisations in place should be utilised more effectively and their roles reviewed in view of the current repeated disasters in the National Health Service. The Health and Safety Executive can be expanded and funded to perform independent checks on wards, hospitals etc. Organisations are currently not working together in the interest of patient safety. Moreover, there is little understanding or comprehension of the issues involved in whistleblowing. Moreover, there is no accountability for those who fail to uphold proper standards of patient safety hence no deterrent exists. This is part of the reason why the same management failures recurs throughout the National Health Service.
I hope the above is useful to you. I enclose a number of articles and research collected by me over the years. This is to provide evidence for our views listed above. The views are also based on my personal experiences of most organisations in the NHS. No organisation was concerned about maintaining patient safety at any point. The onus has always been left upon the complainant to keep investigating and unearthing more evidence to push investigations forward. This element and feature of the NHS can currently be seen by the case Gosport Campaigners v Dr Jane Barton. All whistleblowers have had similar experiences ie the one who raises the concerns is expected to force accountability.
We hope that Ara Darzi will agree to a Health Select Committee Review of Whistleblowing in the interests of Patient Safety in the NHS. I hope you will find it acceptable to have a open and transparent discussion about the important subjects raised by you. It is in the interests of public safety to combine the ideas of policy makers and health staff who have had first hand experiences of whistleblowing.
Please contact me if you have any further questions.
Regards
Rita Pal and Dr M Al Ruby
Appendix 1
Editorials
Protecting whistleblowers
BMJ 2000;320:70-71 ( 8 January )
http://www.bmj.com/cgi/content/full/320/7227/70
Employers should respond to the message, not shoot the messenger
Whistleblowers have been likened to bees [1]: a whistleblowing employee has only one sting to use, and using it may well lead to career suicide. In a survey of 87 American whistleblowers from both public service and private industry all but one experienced retaliation, with those employed longer experiencing more.[2] Whistleblowers face economic and emotional deprivation, victimisation, and personal abuse and they receive little help from statutory authorities.[3 ].Last month the BMJ held a conference to consider how medicine and its institutions should change to protect and empower whistleblowers.
Dr David Edwards, a general practitioner from Merseyside, gave a personal testimony of the dire consequences he suffered when he blew the whistle on his senior partner, Dr Geoffrey Fairhurst. Dr Fairhurst was funded by the pharmaceutical industry to conduct research on antihypertensive medication, but he was submitting forged consent forms and falsified electrocardiograms. When Dr Edwards challenged him about this misconduct, Dr Fairhurst launched a campaign to discredit Dr Edwards' concerns. In March 1996 the General Medical Council found Dr Fairhurst guilty of professional misconduct.[4]David Edwards was left with damaged morale, half a practice, and a huge bank loan to pay off singlehandedly.
There are many reasons why doctors remain silent in similar situations, though two in particular have impeded openness in the past. Firstly, the culture of medicine has been one in which you shouldn't let the side down, and in which whistleblowing is seen as "sneaking" on your colleagues. Secondly, confidentiality clauses in NHS trust contracts effectively gagged employees.[5]But the culture and the law are changing.
The president of the General Medical Council, Sir Donald Irvine, told the conference that the council's recent policies signal "a very fundamental change in medicine." Continuing professional development will focus on attitudes, interpersonal relationships, and managerial skills. Doctors will be regularly asked to demonstrate their competence, so that they are fit to practise throughout their lives. "Clarity about our professional values and standards," said Sir Donald, "offers the public by far the best chance of safepractice."
Another key safety valve is the obligation to report dangerous colleagues. In a landmark determination in March 1994, Dr Sean Dunn was found guilty of misconduct because he wrote a reference for a colleague whose practice he knew was dangerous.[6] The council has made its position clear: whistleblowing is a core duty of doctors.
This cultural change has been strengthened legally by the Public Interest Disclosure Act 1998, which came into effect last July. The act has been described by United States legal campaigners as "the most far-reaching whistleblower law in the world."[7] It provides individuals in the workplace with full protection from victimisation when they raise genuine concerns about malpractice. Disclosures to the employer, to regulatory bodies such as theHealth and Safety Executive, and even to the media are protected.
The independent charity Public Concern at Work, which offers free legal advice to concerned employees, believes that the act offers all doctors the opportunity to blow the whistle without endangering their careers.8 Crucially, when a whistleblower is victimised or dismissed in breach of the act he or she canbring a claim to an employment tribunal for financial compensation. All awards will be uncapped and based on the losses suffered, including future loss of earnings. Though the act does not require organisations to set up whistleblowing procedures, its existence will encourage them to do so. NHS gagging clauses should become obsolete.
If whistleblowing is now encouraged and protected, should we as doctors have no hesitation in speaking out? The key to this is whether we are acting in good faith. Acts motivated by personal gain or vendetta are unlikely to succeed. Guy Dehn, director of Public Concern at Work, suggested that we should apply the "family test" before deciding whether to proceed. If we would not subject a family member to a particular colleague or service, then we have a duty to act. We should firstly raise the matter internally if possible. If this is unsuccessful in resolving concerns we should then discuss it with a senior colleague or an appropriate regulatory organisation. We do not need to invest enormous timeand energy in gathering a mass of data to support our concerns. The whistleblower's role is to raise the matter, not resolve it.
Will whistleblowing still be necessary in a modernised NHS with its focus on quality and accountability? All the stakeholders---public, professionals, and regulators---hope not. Stephen Bolsin, the anaesthetist who raised concerns about paediatric heart surgery at Bristol Royal Infirmary, said that all doctors should receive regular, anonymous feedback on their individual performance so that they can "blow the whistle on themselves" before serious errors occur.9 Professor Liam Donaldson, chief medical officer for England, gave his vision of a high quality NHS with built in mechanisms for the early recognition and open handling of problems. We should "applaud heroes, and hope they are among us, but to base our hope of remedy in ordinary systems on the existence of extraordinary courage is insufficient."[10 ]
Gavin Yamey, editorial registrar.
BMJ
1. Vinten G. Whistle while you work in the health-related professions? J Roy Soc Health 1994; 114: 256-262.
2. Soeken K, Soeken D. A survey of whistleblowers: their stressors and coping strategies. Laurel, Maryland: Association of Mental Health Specialities, 1987.
3. Lennane KJ. "Whistleblowing": a health issue. BMJ 1993; 307: 667-670.
4. Dyer O. GP struckoff for fraud in drug trials. BMJ 1996; 312: 798[Free Full Text].
5. Craft N. Secrecy in the NHS. BMJ 1994; 309: 1640-1643[Free Full Text].
6. Dyer C. Consultant found guilty of failing to act on colleague. BMJ 1994; 308: 809[Free Full Text].
7. Dyer C. UK introduces far reaching law to protect whistleblowers. BMJ1999; 319: 7[Free Full Text].
8. Public Concern at Work. Public Interest Disclosure Act 1998. An introduction to the legislation with authoritative notes on its provisions, section by section. London: Sweet and Maxwell, 1998(www.pcaw.demon.co.uk)
9. Yamey G. Whistleblower in Bristol case describes his vision of professional monitoring. www.bmj.com/cgi/content/full/319/7225/1592/g
10. Berwick DM. You cannot expect people to be heroes. BMJ 1998; 316: 1738.
----- Original Message -----
From: Jarman, Brian
To: Rita Pal
Sent: Saturday, March 13, 2010 1:34 PM
Subject: Robert Francis' Mid Staffs Inquiry report regarding the role of the Royal Colleges and PMETB
Rita,
Have you heard any response to some of the comments in Robert Francis’ Mid Staffs Inquiry report regarding the role of the Royal Colleges and PMETB, e.g. in the section on External Organisations.:-
http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_113068.pdf
72. I received a set of comments about the lack of any system requiring regular monitoring or approval visits by the various clinical Royal Colleges or the general medical and nursing councils.
73. In a letter to the Inquiry the Royal College of Obstetricians and Gynaecologists said that it had had no involvement in the Trust since its visit in 2002. Responsibility for visiting and approving hospitals for training passed in 2006 to the Postgraduate Medical Education Training Board.
74. In another letter, the Royal College of Physicians referred to representations it had made to the Health Select Committee about the loss of regular visits to trusts in the early 2000s. These were linked to medical training but “were a valuable source of intelligence about clinical issues locally”. The letter also said that “[the] Royal Colleges’ professional networks are invaluable” in cases falling between those resolved locally and those that are reported to regulators.
75. Royal Colleges do continue to operate an invited review system. The Royal College of Surgeons conducted reviews at the Trust in 2007 and 2009.
These remind me of the comments in the Bristol Inquiry report.
Do you think there should there be a structured system whereby doctors who are concerned with the care being provided in their hospital [and the Inquiry covered hospital care] have a safe place where they could report their concerns to their professional representative organisation, if they haven’t been able to resolve them locally, in the knowledge that their reports could, if they wish, be confidential (but no doubt ‘discoverable’ in law)? The current organisations would not have the resources necessary to investigate properly the reporting doctors’ concerns, but they would be able to collate them and formally report them, to the CQC. The ideal may be a medical organisation, independent of government and the Department of Health, with the capacity to carry out on-site inspections in response to concerns regarding quality of care reported by doctors. We have seen that the system of monitoring the quality of hospital care in England was considered to be deficient by the three independent US organisations that reported to Ara Darzi in 2008 (e.g. the Joint Commission “Quality today does not drive or even influence commissioning decisions”), that they depend very largely on self-reporting rather than on-site inspections. Apparently “A Department of Health spokesman maintained that the three reports were never intended for “wider circulation” and said they were extensively discussed by experts advising Darzi on the production of his report.” (http://www.timesonline.co.uk/tol/news/uk/health/article7052606.ece) but the CQC has stated that it will continue to rely on self-reporting (see extracts below).
Extracts from CQC reports:-
The future regulation of health and adult social care in England: response to consultation
http://www.dh.gov.uk/en/Consultations/Liveconsultations/DH_063286
3.24 The Care Quality Commission will develop and consult on compliance criteria for assessment of compliance with registration requirements, which will be linked to the secondary legislation. It will take an intelligent, risk-based approach to this by wherever possible using existing data sources, self-assessment methods and feedback from service users so that on-site inspections are only used where visits are necessary to ensure compliance.
Care Quality Commission registration 2010-11 (Essential standards of quality and safety)
http://www.hmr.nhs.uk/userfiles/documents/Board%20Papers/2010/JAN/PAPER%20Q%20CQC%20registration%202010.11.pdf
2. The registration system
From 1st April 2010, PCT, Acute, Mental Health and Ambulance service providers are required to register with the CQC. The registration process will be based upon self assessment and will ensure that providers are compliant with the following regulations:
• Health & Social Care Act 2008 (Regulated activities) Regulations 2009
• Care Quality Commission (Registration) Regulations 2009.
Brian.
**********************************
Professor Brian Jarman
Imperial College Dr Foster Unit
