In the
29 October issue of the British Medical Journal there were features about the consequences of NHS staff publicly airing their concerns about their colleagues and trusts' working practices.
The Public Interest Disclosure Act 1998 states that any provision in an agreement that purports to preclude the worker from making a protected disclosure is void. The act protects not only disclosures to employers but also disclosures to another person, in good faith, where an employee remains concerned after making a disclosure to his or her employer.
One article described how Liverpool Women's NHS Foundation Trust incorporated a compromise agreement into a consultant's termination agreement to stop him from commenting publicly about his concerns in relation to patient safety at Liverpool Women's Hospital and Aintree University Hospital. Mr Peter Bousfield, a senior gynaecologist, had expressed his concerns in May 2006 and was subsequently offered early retirement and a termination payment. The Trust's solicitors even threatened Mr Bousfield with a court injunction if he discussed matters with local members of parliament.
In July, Mr Bousfield's son, a non-practising barrister working in the media managed to obtain details of all compromise agreements Liverpool Women's Hospital had entered into with doctors between 1998 and 2009. There were 11 other compromise agreements in this period which included termination payments ranging from £1216 to £63,077. All of these agreements contained gagging clauses and three of the largest payments were in agreements with clauses that banned the doctor concerned from speaking to the media. Five agreements incorporated penalty clauses which threatened recovery of the full payment if the employee breached the terms of the contract.
A review of patient safely published by the House of Commons Health Committee in July concluded that the NHS remains largely unsupportive of whistleblowing with many staff worried about the consequences of the disclosure of unsafe practices outside official channels.
Another feature describes a doctor's concerns about a newly appointed consultant colleague. A gagging clause in this colleague's contract with his previous trust prevented his shortcomings from being discussed. This colleague finally left the second Trust but another gagging clause was formed. The doctor who tried to remove the colleague wrote to the General Medical Council (GMC) and found himself subject to a trust disciplinary enquiry for breaching the gagging clause.
The BMA's (British Medical Association) view on whistleblowing is that raising concerns is a professional duty but that it needs to be carried out in a professional manner by respecting internal mechanisms. They do not agree that staff should raise their concerns with the media before employers have had the chance to look into the matter. A recent BMA survey has found that 15.5% of hospital doctors in England and Wales who reported their concerns said their trusts had indicated that speaking up could negatively affect their employment. Mark Porter, Chairman of BMA Consultants' Committee, concludes that processes should be in place to allow NHS staff to express their concerns and to make changes if necessary. He says employers who do not promote a culture of openness are failing in their duties to staff and patients and that the contract doctors have with their patients collapses if they are unable to take their concerns to someone who will listen.
When investigating medical negligence cases, we totally rely on the integrity and openness of hospital staff when taking statements, requesting disclosure of relevant documents and obtaining experts' reports.
Among the duties of a doctor registered with the GMC are: making the care of your patient your first concern, protecting and promoting the health of patients and the public and being open and acting with integrity including acting without delay if you have good reason to believe that you or a colleague may be putting patients at risk. It is therefore a shame if doctors are prevented from carrying out these duties because of fears that they may lose their jobs.
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