Britain's health service pays millions to gag whistleblowers

The NHS is accused of routinely gagging employees in order to cover up dangerous and dishonest practices. Photo / Getty Images

Some local NHS bodies are spending millions of taxpayers' money to pay off and silence whistleblowers with 'super gags' to stop them going public with patient safety incidents, reports The Independent.

Experts warn that patients' lives are being endangered by the use of intimidatory tactics to force out whistleblowers and deter other professionals from coming forward.

The Independent on Sunday has learnt of children in Stoke-on-Trent needlessly losing organs after safety issues highlighted by a senior surgeon who was suspended after coming forward to voice concerns the issue was being ignored.

In one of more than 20 serious incidents, a newborn baby girl needed an ovary removed after a standard procedure to remove a cyst was delayed because of staff shortages.

According to Public Concern at Work (PCaW), two-thirds of doctors, nurses and other care-workers are accepting non-disclosure clauses built into severance agreements, in order to avoid years of suspension, financial ruin, incrimination and distress before a case reaches court.

The details of these claims, including allegations of dangerous practice, dishonesty and misconduct, are never disclosed to the public.

However, judges are also failing the public by agreeing to NHS gagging orders when presiding over whistleblower cases in court.

Such orders leave future patients exposed to poor practice, while past ones remain unaware that they may have been a victim, says Dr Peter Wilmshurst, consultant cardiologist at Royal Shrewsbury Hospital.

This evidence of widespread gagging comes amid government insistence that whistleblowers are fully protected under the 1998 Public Interest Disclosure Act, which made it illegal for NHS trusts and other public bodies to include confidentiality clauses preventing the disclosure of information that is in the public interest.

Dr Richard Taylor, Independent MP for Wyre Forest and a member of the Health Select Committee, which condemned the lack of support for whistleblowers in its recent patient safety inquiry, will this week call for an adjournment debate on the issue.

Two 'terrified' local doctors have recently approached Dr Taylor after their concerns about patient safety in the out-of-hours GP service were not taken seriously.

Francesca West, a policy officer at PCaW, which provides legal advice to whistleblowers, said: "Bad employers are using super gags to hush up problems rather than sort them out, and many people feel scared and pushed into accepting these terms".

"That is why we are pushing for these settlement claims to be made public so we can identify problems and hold employers accountable.

"But why are judges allowing gagging orders through their courts anyway?"

The introduction of the 1998 Act was hailed as a huge step forward.

Yet whistleblowers still risk facing trumped up allegations of misconduct, improper behaviour or mental illness if they feel compelled to voice concern.

Margaret Haywood, a nurse who filmed undercover to expose shocking care of elderly patients in Sussex, was struck off for breaching patient confidentiality, even though no patient or relative complained.

She was reinstated by the High Court last month after widespread public outrage at her dismissal.

According to Peter Gooderham, lecturer in law and bioethics at the University of Manchester Law School, there are too many legal hurdles to jump over for a whistleblower to ensure their full protection.

Many believe the legal protection for whistleblowers does not work.

The NHS is littered with whistleblowers whose lives have been damaged or destroyed.

For protection, the whistleblower must have a reasonable belief in their accuracy, and the disclosure must be made in good faith.

A whistleblower may not understand what 'reasonable belief' and 'good faith' mean, and indeed may not wish to run the risk that a court or tribunal might find against them on these points.

Critics question whether these legal hurdles are necessary where patient care is threatened.

They also argue that a lot of tactics used are too subtle for the law, and that threats and bullying work for trusts, so they continue to be used.

The British Medical Association has opened 15 new whistle-blowing cases in the past three months, and more than 200 doctors have rung its helpline since July 2009.

Around a third of 1,700 Public Interest Disclosure Act claims each year involve workers in health and social care, many of which take years to resolve.

According to Dr Wilmshurst, one doctor was recently vindicated by a court, five years after raising the alarm about the misconduct of a more senior colleague.

The trust agreed to pay compensation and the five years of lost salary on condition the doctor agreed to a gagging clause.

The doctor, now broke and exhausted and with a career in tatters, had no option but to accept the terms, even though it meant the public would never find out what happened.

In another case, more than 20 senior doctors and nurses being warned against supporting the claims of a whistle-blowing colleague, as this would place them in breach of their employment contract, reports the Independent on Sunday.

- INDEPENDENT