NHS Whistleblowing - After Bristol
After Bristol A decade ago, 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." The Nursing and Midwifery Council's decision to strike off Margaret Haywood for breaching confidentiality while she raised concerns on poor patient care as Undercover Nurse for Panorama has brought the reality of whistleblowing to the forefront of the media's eye. The personal cost to the whistleblower is finally starting to be understood. Margaret Haywood has the support of the media. Average whistleblowers find themselves fighting a solitary David and Goliath battle. It appears clear that the whistleblower pays a high price for raising concerns. A similar phenomenon was witnessed by Dr Peter Wilmshurst. In 2006, he wrote "this experience arose because I was reported to the GMC and have reported other doctors to the GMC. My experience of the GMC being used to try to silence a whistle blower is not unique". From these experiences, it appears that the regulatory bodies governing the health profession has a poor comprehension of whistleblowing. The health professional's registration with the regulatory body is held as a Sword of Damocles. These experiences will naturally have a negative effect on the workforce. No health professional wishes to fight their way through allegations of misconduct. Dr Steve Bolsin, credited with the Bristol Inquiry states the following "Whistle blowing is not easy and it is not something that the medical profession trains its members to do. This is despite the plethora of regulations exhorting doctors to report any colleagues whose performance or practice may give them cause for concern (GMC 2006)" He went onto say "However work from John Goldie in Glasgow has shown two things very clearly(Goldie, Schwartz et al. 2003). 1.The medical training likely to reduce the likelihood of medical practitioners reporting poor care from their colleagues. [Less than 95% of medical trainees would report a senior colleague at the end of their medical training]. 2. The trainees selected were extremely unlikely to report a senior colleague before starting their medical training. [87% of medical students would not report a senior colleague at the start of their medical training]. "Somehow the medical profession has become so good at selecting those that will not report senior colleagues that the selection processes of medical schools has intuitively or deliberately selected 87% non-whistle blowers (Goldie, Schwartz et al. 2003). This observation is deeply worrying to those who believe that one of the mechanisms for quality improvement in health care is reporting poor care (Bolsin 2003; Bolsin, Faunce et al. 2005). However this mechanism alone may be a very good unifying explanation for the view of Sir Donald Irvine (past President of the GMC) that the medical profession has developed a culture that is "paternalistic, secretive and self protective" and that "in the last 20 years a gap has opened up between that culture and public expectation" (Irvine 2006). The fact that Sir Donald Irvine's article was written 10 years after the Bristol Cardiac Disaster was first publicised suggests that the medical profession in the UK has failed to learn from its most dismal hour and that the GMC has failed not only the profession but also, and, more importantly the British Public. This failure has been absolute and catastrophic" The result of this catastrophic failure can now be assessed quantitatively. On the 17th March 2008, the Health Commission announced an investigation into the abnormal mortality rates at Mid Staffordshire Hospitals. A year later, the Commission found that between 400 and 1200 patients may have died unnecessarily. The actual figures were unclear. Elizabeth Clare a young nurse at the hospital had raised concerns. Unfortunately, her concerns went unnoticed. She told the Nursing Times 'As a whistleblower I felt completely unsupported and thought I might as well have kept my mouth shut,' she said. '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 Royal College of Nursing [ May 2009] surveyed 5428 members, including 571 from Scotland, and found that nearly two-thirds of nursing staff (64%) did not know if their health board or employer had a whistleblowing policy. Around 80% of staff were concerned that they would be victimised or their career would suffer if they reported any concerns to their employers. Of those who had reported issues, only 24% said their employers had taken immediate action and 38% said no action was taken at all. In the modern age of healthcare, and after the Bristol Inquiry, there appears to be a catastrophic system failure in detecting high patient mortality quickly so the matter can be corrected without further casualties. Not only are whistleblowers unsupported but there appears to be a problem with monitoring clinical risk. James Butler of the Department of Health stated " I can confirm that there is no regulation or law requiring individual hospital wards to calculate patient death rates". It was left to Dr Foster's monitoring unit at Imperial College to report the unusual spike in death rate for Mid Staffordshire NHS Trust. Despite this, the management continued to be in denial. It is only following this spike on mortality rate that the Health Commission commenced a full investigation. The question remains, was there a more effective way of monitoring and correcting substandard care earlier? It also leads us to the issues concerning the early working days of Dr Harold Shipman? Had ward death rates been recorded, would Dr Shipman have been caught much earlier? The Department of Health considers its monitoring system to be effective despite these catastrophes and scandals. Ben Bradshaw said, "A compulsory and routine system for calculating mortality rates would face a number of difficulties. Firstly obtaining rates rather than numbers requires an appropriate denominator to reflect the population risk. Given the transitory nature of patients on a ward and bed usage and variations in age, sex and case complexity on the ward, it would be very difficult to undertake calculations in a way that was meaningful and consistent over time or across the country. Second, most wards [other than those dealing with patients that are already terminally ill or those providing intensive care] have relatively few deaths in any time period useful for monitoring. Results would be subject to considerable statistical variability which would make interpretation of routine figures meaningless. Third, where there are patient incidents or failures of care leading to death, these may well occur prior to the patient being transferred to the ward on which they died. Routine monitoring of wards in which deaths occurred would not pick these up, Methods that monitored the patient's treatment at several stages would be more appropriate. For these reasons, appropriate local clinical governance and audit processes are more likely to pick up and adequately interpret exceptional cases than routine monitoring systems" . In 2008, The Times Daily in the USA reported that "Great Britain's big-government National Health Service. Low-quality, taxpayer-funded health care killed more than 17,000 Britons in 2004, according to the TaxPayers" Alliance in London. It went onto say "The TPA examined the World Health Organization's latest data to contrast the NHS with Dutch, French, German and Spanish health systems, which are less government-dominated. Specifically, the pro-market group measured "mortality amenable to health care" - deaths that a medical organization realistically should prevent. While those four countries averaged a 106.6 amenable mortality rate, Britain was almost 29 percent deadlier, with its rate of 135.3. The TPA thus calculates that the NHS took the lives of 17,157 Britons who otherwise would have survived were they treated by doctors across the English Channel". The quantitative net effect of silencing whistleblowers may be having a far more devastating effect than we are led to believe. Nevertheless, the medical establishment has attempted to study the current situation for whistleblowers. The survey below conflicts with the established research on the matter. In June 2009, the BMA released a survey called "Speak Up for Patients". Of the 70 percent who had raised concerns with their Trust, 46 percent were not aware whether anything had happened as a result. 15 percent were not approached for further information and 9 percent said that information they provided was shared more widely than they were comfortable with. 16 percent stated that they had been warned that raising concerns could negatively affect their employment. In the minority of cases where doctors had not raised their concerns, this was most commonly because they were not confident that it would make a difference (81%). By contrast in 2004, the website Doctors.net.uk carried out a survey on patient safety. 2500 doctors responded. 81% said they did not report errors because they did not trust their NHS Trust. The 2004 result appears to agree with Professor Steve Bolsin's view of the current situation. The slight differences in the studies may be due to the seniority of doctors questioned. The BMA recently questioned very senior doctors whereas the Doctors.net.uk study considered a wider spectrum of doctors from junior to senior. The culture of medicine does not encourage whistleblowing for junior doctors. The unsafe environment for whistleblowing and a failure of adequate monitoring is currently having a detrimental effect on patient safety. The net effect is a failure to rapidly pinpoint and act on areas where patient safety is compromised. Mortality rates only appear to be detected when the matter reaches catastrophic levels. Detection appears to rely on arbitrary elements such as patient complaints or staff reporting errors. The Department of Health has only recently promised to monitor "hospital" mortality rate. There is still no scientific way of monitoring and rapidly detecting discrete neglect and compromises in patient safety. For instance, poor care on one ward cannot be detected unless the mortality rate is significantly higher. More worryingly, the Health Service Journal's survey in May 2009 found that "around half of hospital managers and other staff believe elements of poor standards found at Mid Staffordshire foundation trust exist at their own organisation" . If this is an accurate reflection of the current state of play, it follows that the overall hospital mortality statistics may not be an accurate reflection of the discrete pockets of poor care that may exist within hospitals. In Mid Staffordshire Hospitals, it is clear that the complaints were not enough to trigger a full investigation. This may be the case with other hospitals. On the 18th May 2009, Ben Bradshaw MP told the House of Commons "It is clear from the reports that complaints were not tackled satisfactorily at Mid Staffordshire NHS Foundation Trust. The high number of upheld complaints was one of the things that first worried the Healthcare Commission. As of 1 April this year, we have reformed and strengthened the NHS complaints system. Hospitals need to do better at resolving complaints locally" . Leigh Day Solicitors acting for the campaign group related to Mid Staffordshire Hospital stated "The complaints procedure at the hospital also remains an area of concern amongst patients, their relatives and local residents. They believe an independent advocate or similar such individual or body needs to be appointed to deal with the concerns that have been and continue to be raised about the quality of care provided at the Hospital. At the moment, the Trust itself is dealing with these complaints, which Cure the NHS and their members do not consider appropriate." Jonathan Peacock of Irwin Mitchell said "Mistakes are being made, people's lives are being devastated and lessons are not being learned. We have seen a number of clients who have been treated very poorly, often with long-term or even fatal consequences." The vast majority are determined to bring the hospital to book over the treatment of their loved ones, to try and make sure it can't and won't happen again. For all of those victims, this news will be an unwelcome reminder of the problems they have experienced and a huge disappointment that the hospital has still not learnt from its past errors." "The question seems to be why this damning state of affairs was not addressed by the hospital trust sooner. One preventable death is one too many and our law firm alone has had first hand involvement in a number of legal actions against the Trust, where people have died unnecessarily". Accidents Direct writes "The damning report [Mid Staffordshire Hospitals] notwithstanding, making a successful compensation claim could take many years as one's case could get stuck in the system. This is because patients and families hoping to make a claim will have to deal with the NHS Litigation Authority (NHSLA).The main concern here about the NHSLA is that some lawyers see it as being terribly slow. Thus, anyone considering making a claim may have to contend with this or forget it altogether. Other concerns raised by experts include limitation of access to Legal Aid, which could become a major setback for claimants who don't have the financial wherewithal to pursue a medical negligence claim" They suggest that No Win No Fee may be an option. In March 2006, the NHLA figure quoted for Mid Staffordshire NHS Trust was 652,418 [2005-2005]. By comparison, its neighbour North Staffordshire NHS Trust paid out £3,515,590 . The current system shows a poor patient safety profile naturally resulting in litigation. This is litigation that may have been prevented had more robust systems been in place. The attitude to clinical risk appears to be reactive as opposed to pro-active and preventative. Mr Wright, Labour MP for Cannock Chase, Staffs, told BBC's Panorama: "The whole point of introducing whistleblower provisions was that someone had got somewhere to go so they could raise these concerns quite properly without threatening their job, without damaging their career and indeed without having to go to the media". Despite Mr Wright's assertions, The Public Interest Disclosure Act is certainly not allaying the fears that clearly exist for whistleblowers. A psychotherapist who whistleblew said, "Having whistleblown on my manager's bullying and harassment only to be met with a legalistic wall of sabre-rattling, ineffectual public relations noise and managerial hypocrisy - the NHS workplace is a breeding ground for stress, frustration, illness" On a practical level, the Public Interest Disclosure Act 1998 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. Nothing is for certain in courts. Vindication in the courts does not guarantee subsequent fair treatment by the employer. Whistleblowing much like litigation 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 perceive 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 Public Interest Disclosure Act 1998. [ 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. 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". In conclusion, given the lack of protection from the Public Interest Disclosure Act 1998 and the silencing effect on whistleblowers of authorities, it's hardly surprising that the mortality rate of Mid Staffordshire NHS Trust was so high before detection or investigation. In the year 2000, Gavin Yamey wrote in the BMJ "Whistleblowers face economic and emotional deprivation, victimisation, and personal abuse and they receive little help from statutory authorities". In reality, the public face of whistleblowing is rather different from the stark and shocking reality. The whistleblower is often perceived as "disaffected, antisocial, incompetent pariah, who is "not a team player". Cultural attitudes do not appear to have changed. Realistically, litigation conscious Trusts with known system faults may well be reluctant to employ known "trouble makers" with the label "whistleblower". Without a complete overhaul of the system and a review of whistle blowing by the Health Select Committee in Parliament and a consultation on health policy, there appears to be little prospect any improvement in the future. Related Links 1. Bristol Inquiry http://www.bristol-inquiry.org.uk/ 2. Bolsin, S., Faunce, T., et al. (2005). "Practical virtue ethics: healthcare whistleblowing and portable digital technology." Journal of Medical Ethics 31: 612-618. 3. Bolsin, S. N. (2003). "Whistle blowing." Medical Education 37: 294-296. 4. GMC (2006). Good Medical Practice. London, General Medical Council. 5. Goldie, J., Schwartz, L., et al. (2003). "Students" attitudes and potential behaviour with regard to whistle blowing as they pass through a modern medical curriculum." Medical Education 37: 368-375. 6. Irvine, D. (2006). "A short history of the General Medical Council." Medical Education 40: 202-211. 7. Shipman Inquiry – Whistleblowing Related Articles http://www.the-shipman-inquiry.org.uk/gencat.asp?p=2&ID=276 8. Nursing and Midwifery Council decision for Margaret Haywood http://www.nmc-uk.org/aDisplayDocument.aspx?DocumentID=5753 9. Mid Staffordshire Hospitals Health Commission Investigation http://www.rcn.org.uk/__data/assets/pdf_file/0004/234976/Healthcare_Commission_report.pdf 10. BMA Speaking Up for Patients http://www.bma.org.uk/images/speakingupforpatientsmay2009_tcm41-186796.doc 11. Times Daily UK's system killed 17,000 http://www.timesdaily.com/article/20080227/NEWS/802270305/-1/searchxml 12. D Lewis. Ten Years of Public Interest Disclosure Legislation in the UK :Are whistleblowers adequately protected? of Business Ethics DOI .107/s10551-008-9899-5 13. D Lewis et al. Five Years of Public Interest Disclosure Act in the UK? Are Whistleblowers adequately protected? http://webjcli.ncl.ac.uk/2004/issue5/dlewis5.html
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