Whistleblowing – the difficult conundrum for doctors

Doctors in the UK are required to take prompt and appropriate action to raise and act on concerns about patient care, safety and dignity. This is a complex topic, and unfortunately many doctors feel unsure how to correctly balance the requirements of patient safety, public interest, responsibilities to colleagues and duties to employers.

Annual report on whistleblowing 2021

In the 12 months between April 2020 and March 2021, the GMC dealt with 43 concerns raised by whistleblowers.

Of those, 17 were made by doctors, 10 by other healthcare professionals and 16 were anonymous. The number of anonymous whistleblowers has doubled from eight in 2019/20. 

In October 2021 the GMC reported that, of the disclosures assessed by its fitness to practise team:

• 26 were closed after an initial assessment
• 2 are currently being assessed
• 14 resulted in either a preliminary or full investigation

A brief look at whistleblowing

Doctors in particular have a duty to act when they believe patients’ safety is at risk, or that patients’ care or dignity are being compromised.

As a whistleblower, doctors have protected legal status under:

1. the Public Interest Disclosure Act 1998 – you should not be treated unfairly or lose your job because you ‘blow the whistle’.
2. the Employment Rights Act 1996 – protects workers from being subjected to a detriment by any act or failure to act by their employer on the ground that the worker has made a “protected disclosure” which they reasonably believe is made in the public interest.

However, the law only protects you under certain circumstances – firstly, you have to be a worker (eg employee, trainee, agency worker, or a member of a Limited Liability Partnership).

Secondly, it only counts as whistleblowing if you report:

• a criminal offence
• a threat to someone’s health and safety
• risk or actual damage to the environment
• a miscarriage of justice
• the company is breaking the law
• you believe someone is covering up wrongdoing

The common element here is public interest – the act that you are reporting must have consequences for others – so whistleblowing explicitly does not cover personal grievances, eg bullying, harassment or discrimination.

Whistleblowing and the GMC

Whistleblowing is defined by the GMC as “where an employee, former employee or member of an organisation raises concerns to people who have the power and presumed willingness to take corrective action”.

If you are a doctor with a management role, you will also have the added responsibility of creating a culture in which staff can raise concerns appropriately – including the options of either trying to put the matter right, handling the concern locally, or referring serious or repeated incidents either to senior management or the relevant Prescribed Person or Body.

The GMC has created a decision making tool – to guide you if you have concerns about patient safety.

The difficult conundrum for doctors

Whilst in theory there are statutory protections in place for doctors, the practical reality however can be very different.  This is particularly the case for NHS doctors. 

It is not unheard of for doctors who raise serious concerns being victimised by being put through performance management processes without any basis, or being referred to the GMC.

 The “Independent Review into creating an open and honest reporting culture in the NHS” concluded that, amongst other things:

 “Whistleblowers have provided convincing evidence that they raised serious concerns which were not only rejected but were met with a response which focused on disciplinary action against them rather than any effective attempt to address the issue they raised.”

 There are many complex issues to consider.   Whistleblowing is not an easy decision for doctors to make and doctors are nervous and can be reluctant to “blow the whistle”, for example, out of fear that:

• nothing will be done
• raising your concern may cause problems for colleagues, or impact working relationships
• raising your concern may have a negative effect on your career, or result in a complaint
• raising your concern may cause problems with your employers and can result in disciplinary issues or a GMC referral.

There is clear evidence that, particularly NHS Trusts, often react adversely to whistleblowing and there are many reported cases of doctors losing their employment after “blowing the whistle”. 

An often difficult choice for doctors is whether to raise concerns directly with their employers or with the GMC out of fear that, for example, nothing will be done or victimisation.

Things to remember when considering whistleblowing

1. You should use formal reporting methods because this can be essential to protecting yourself legally
2. You should read your employer’s raising concerns policy
3. You should follow the policy or procedure
4. You should keep a written record of raising your concern
5. You should not refuse to work as this would be in breach of your contract of employment and in itself risk GMC action.

We are here when you need us

We know and understand the practical reality for doctors can sometimes feel like an impossible balance. 

Kings View has been advising and representing doctors for many years. If you are facing an employment or fitness to practise investigation or hearing relating to “blowing the whistle”, you can speak to us today for a free, no obligation assessment of your case.

Through our experience, we know that the circumstances that leads to things going wrong are never straightforward.

Kings View are public access barristers, meaning that you can instruct us directly without having the additional expense of hiring a solicitor first (so we are generally at least one third cheaper).

You can speak to us today for a free, no obligation assessment of your case.