NHS whistleblower, Dr Rita Pal talks to Expolink about vilification of whistleblowers in the health service by management, and the lack of protection afforded by the Public Interest Disclosure Act.
This is the second of three interviews (read interview one here) with Dr Pal. Our final interview covers incentivisation, public and media attitudes to whistleblowers and preventing whistleblower retaliation.
Public Interest Disclosure Act
Public Concern at Work has described the Public Interest Disclosure Act as “not fit for purpose”. What are your thoughts?
Firstly, I agree with them.
I believe PIDA was badly thought out and drafted. Prof Dave Lewis’ research broadly states that PIDA is currently ineffective. Despite this, I note the government has taken no action to improve matters. Moreover, I note that the government’s position continues to support PIDA.
This is reckless, and demonstrates a lack of insight into PIDA’s failings. On a practical level, PIDA is essentially a post whistleblowing potential remedy – it is by no means guaranteed.
Going into court is a bit like a lottery. Whether you win or not is entirely dependent on a range of factors, many of them unconnected with the merits of their case.
The whistleblower may or may not be represented by a trade union. If they are not represented, then their (probably limited) resources are up against large organisations with deep pockets.
If you think about it, PIDA does not actually give any whistleblower any in-house protection. What is it to a large organisation to take a case to court and fight it?
During a fight they may – and often do – character assassinate the whistleblower in order to win. This happened in the case of Perkin v St Georges.
On a practical level, the PIDA is fraught with difficulties. Funding litigation is one problem; character assassination in Employment Tribunals is another issue. The path to justice is paved with extreme difficulties.
Furthermore, vindication in the courts does not guarantee subsequent fair treatment by the employer. Litigation, much like whistleblowing, attracts stigma.
Many whistleblowers have criticised the adequacy and high costs of legal representation. Litigation and the race for justice have resulted in bankruptcy in some cases.
Mud sticks on a whistleblower, and this can prejudice the manner in which legal representatives and the court perceives them.
In 2005, the Court of Appeal judgment in Ian Perkin’s case concluded that employers will only have to argue that an employee was “difficult”, or conducted an aggressive defence in a disciplinary hearing, to be entitled to sack him or her. Lord Justice Wall stated:
“Mr Perkin was, of course, entitled to defend himself, but the manner of his defence and in particular his attacks on the honesty and financial probity and integrity of his colleagues opened the door in my judgment to the tribunal being able to find that any other disciplinary process would have ended with the same result”
Professor David Lewis examined the last ten years of the PIDA [Journal of Business Ethics DOI 10.107/s10551-008-9899-5]. He asks the question “are whistleblowers adequately protected?” He concludes that:
“PIDA 1998 has not adequately protected whistleblowers”
– and makes 12 recommendations for change. He adds:
“Despite the European Commission’s acknowledgement that whistleblowers can play a part in the fight against corruption, the author notes that the common standards for their protection is a long way off ”.
Management Attitudes to whistleblowing
What impacts have you seen on staff morale as a result of the vilification of whistleblowers by management?
Medical mobbing is endemic in the NHS. Whistleblowers often suffer character assassination. Sir Ian Kennedy wrote:
“There is a real fear among junior staff (particularly among junior doctors and nurses) that to comment on colleagues, particularly consultants, is to endanger their future work prospects. The junior needs a reference and a recommendation; nurses want to keep their jobs. This is a powerful motive for keeping quiet.”
I suspect this is done to “set an example” to the health sector that if they raise concerns, they will meet with the same fate.
From a medical point of view, vilification results in reduced morale. There is no enthusiasm to raise concerns to improve the service offered to the public. Staff therefore try to do the bare minimum – i.e. their job and nothing extra.
As NHS management and the grass roots health workers do not communicate with each other adequately, there is some resentment between the two groups. Management believe they know best and fail to discuss issues with clinicians.
It is this negative effect on motivation that results in a poor patient safety profile.
At the Mid Staffordshire Inquiry, it was noted that doctors and other front-line staff did not raise concerns about poor care. Yet the Inquiry did not ask why this should be, even though the answers are not hard to find: Elizabeth Clare, a nurse who blew the whistle at Mid Staffordshire, told the Nursing Times:
“As a whistleblower I felt completely unsupported and thought I might as well have kept my mouth shut. I put my neck on the line and as a result staff morale was still at an absolute low, and patient care hadn’t improved at all.”
The staff were reported to their respective regulatory bodies.
The dilemma now for many front-line staff is this: if you whistleblow you are vilified by management. If you don’t, you are sent to your regulatory body.
This specific dilemma was never examined, much less resolved by the Inquiry. This is a real, practical and long-term problem for staff faced with raising concerns about poor care.
In 2004, the website Doctors.net.uk carried out a survey on patient safety. 2,500 doctors responded. 81% said they did not report errors because they did not trust their NHS Trust.
Read Part 3: Whistleblower Retaliation, Incentivisation, Media Attitudes and the Future for Whistleblowing
Read Part 1: Experiences of an NHS whistleblower