Can you be an NHS whistleblower without being sacked?

Serious, systemic failures at Mid Staffordshire hospital lead to between 400 and 1200 deaths from 2006 and 2009. It was only brought to light after persistent campaigning from patients’ families, especially those in the campaign group Cure the NHS.

But the depths of what have been called “appalling standards” could have been raised, and dealt with, much earlier if the concerns of various whistleblowers had been recognised, rather than castigated.

A genuine culture needs to be put in place so that employees believe if they make these claims, they will not be penalised. Andrew Tobey, employment solicitor

Accident and emergency nurse Helene Donnelly blew the whistle on her department in 2007, to no avail. “The fear factor kept me from speaking out [initially], plus the thought that no one wanted to know anyway,” she told the inquiry, which described her as “a most impressive and courageous witness”.

She added: “the culture in the department gradually declined to the point where all of the staff were scared of the sisters and afraid to speak out against the poor standard of care… Nurses were expected to break the rules as a matter of course in order to meet target.”

When she did speak out, she received threats, felt “completely on my own” and ended up leaving a few months later.

Read the public inquiry report in full

@channel4news …with guarantee of no bullying after blowing the whistle….this is desperately important

— Patricia Farrington (@xraypat) February 6, 2013

Legal protection

Among the 290 recommendations in the Mid Staffs report by Robert Francis QC, is that staff reporting of incidents of concern is not only encouraged “but insisted upon” and that whistleblowers get better protection. Gagging clauses should also be banned from contracts and policies of all 22 healthcare organisations and regulators.

However this will require a change in culture, rather than legislation, Andrew Tobey, head of employment at solicitors Michel Mores told Channel 4 News: “Until organisations change so that employees feel they really can speak out with impunity, people won’t.”

The culture in the department gradually declined to the point where all of the staff were scared of the Sisters and afraid to speak out against the poor standard of care Whistleblower nurse Helene Donnelly

In theory, the Employment Rights Act 1996 already protects any disclosure in relation to employment. If employees are treated badly by employers, they can claim loss of earnings and injury to feelings at tribunal. The importance of protecting whistleblowers has also been raised in the past by MPs such as Lynne Featherstone, in relation to the case of Baby P.

But bringing a claim “will almost certainly bring about an irretrievable breakdown in the relationship with their employer,” said Mr Mores, who has represented both sides in many an NHS tribunal case.

Read more from Health and Social Care Correspondent Victoria Macdonald

Whistleblowing gone wrong

Ms Donnelly’s experience is not unique. The doctor who spoke out about the Bristol heart babies scandal not only had to leave his job at Bristol Royal Infirmary, but was forced to emigrate because of threats. Anaesthetist Professor Stephen Bolsin’s concerns about surgeons at the hospital contributing to high incidents of infants deaths were later validated.

Undercover nurse Margaret Haywood, 58, who filmed failures in care at the Royal Sussex Hospital in Brighton for a Panorama programme in July 2005 was later struck off by the Nursing and Midwifery Council which said she failed to “follow her obligations as a nurse”.

All organisations are supposed to have a whistleblowing policy to enable staff to raise concerns. This is arguably crucial when employers are ultimately responsible for life and death.

But a 2010 Royal College of Nursing survey found that that 64 per cent of nurses did not know if their employer had a policy. Around 80 per cent of nurses were also concerned that they would be victimised, and of those who had reported issues, only 24 per cent had taken immediate action.

The prime minister’s robust statement (see below) in response to the Mid Staffordshire inquiry appears to demonstrate a willingness to ensure that a scandal such as Mid Staffordshire doesn’t happen again. Labour MP Ann Clwyd, who spoke out against the “almost callous lack of care” with which her husband was treated before he died, will also undertake a review of the way complaints are dealt with. She said on Wednesday she wanted to ensure “whistleblowers…will be listened to”

But it appears NHS employees will need a lot more reassurance from colleagues and from their overall employer before they feel confident in speaking out.

“In big organisations, there are many ways in which claims by junior staff can be hidden,” Mr Tobey told Channel 4 News. “A genuine culture needs to be put in place so that employees believe if they make these claims, they will not be penalised.”