Laurence Vick
Posted on 21 Aug 2013

What Shelter for Whistleblowers in the Berwick Review?

Published on 6 August, Don Berwick's review of patient safety in the NHS is an unabashedly idealistic document, styling itself 'a promise to learn - a commitment to act.' The report is a positive step, challenging the culture of blame within the NHS and seeking to cultivate dialogue between staff and management. However, the proposals in the document are broad, introductory in nature, and how exactly they will become manifest remains to be seen.

Many of the recommendations widely expected to feature in the document, particularly the 'duty of candour' for all staff, were omitted, with the broader stipulation that 'transparency ought not to be optional' in its place. Going further, the report fails to offer definitive assurances to NHS staff that, if they do report systemic failings, they will be adequately protected. In keeping with the carefully sculpted, optimistic language of the report, there is no direct reference to whistleblowers, with only broader terms relating to managers welcoming 'warnings of problems'. How this will be realised in practice is not specified.

In terms of enforcement in extreme cases of malpractice, however, the report is unequivocal: 'the Government,' says Berwick, 'should create a new general offence of wilful or reckless neglect or mistreatment applicable both to organisations and individuals'. This new criminal sanction should, he advises, be used sparingly, partly so as to avoid proliferation of defensive practices among NHS staff, but also because Berwick does not consider under-regulation to be behind the health service's recently publicized failures. Given the recent news coverage of high-profile whistleblowers and their treatment, clear rules would seem to offer more reassurance than noble principles.

The existence of 'gagging clauses' attached to severance packages for NHS staff has attracted recent press coverage. Earlier this year it was alleged in Parliament that payments, with attendant conditions of silence, were being made to outgoing staff without being referred to the Treasury; the exact amounts and conditions of the payments are still under official investigation. Most such gagging clauses should be unenforceable under the Public Interest Disclosure Act 1998; this stipulates that employees making specified 'protected disclosures' should not only be safe from detrimental treatment at work, but that they should not be precluded from making such disclosures later on, by, for example, a gagging clause. The Health Secretary Jeremy Hunt has recently undertaken to ban these clauses from NHS contracts.

Laurence Vick, head of Michelmores' specialist Clinical Negligence team, believes that the lack of a defined stance on whistleblowing in the Berwick report may allow some of the failings of the current system to continue. 'There is a lot to be welcomed in the report,' he says, 'but there does need to be a distinction drawn between a no-blame culture and staff feeling confident in reporting problems.' He also expressed disappointment that the duty of candour was not proposed, as the lack of an express legal duty would have cleared some of the fear and stigma from whistleblowing. 'We would hope that criminal sanctions would rarely need to be used against senior staff, but whistleblowers are still essential for the NHS to admit, explain and learn from serious errors.'

Laurence was among the solicitors representing the families of those affected by the Bristol heart scandal in the 1990s, where the whistleblowing actions of the anaesthetist Dr Steve Bolsin were a key element in exposing the failings at the hospital. 'We acknowledge that there is a pervasive litigation culture attached to the NHS, and it is often the fear of litigation that prevents senior staff and management from reporting failures,' he says. Replacing this culture with a new, positive one would require security for whistleblowers, as senior staff may still be unprepared to accept what could amount to career-ending criticism. 'In terms of internal communication, not enough has changed since the Kennedy report after Bristol,' says Laurence. Firmer legislation is one way to achieve this.

'Ultimately, protecting patients from harm is paramount,' Laurence adds, 'but in purely pragmatic terms, whistleblowing saves the NHS huge expense in terms of compensation and legal costs, even if the internal culture is resistant to it. Encouraging and protecting, instead of discouraging and silencing whistleblowers, would enable the NHS to identify and grasp problems early on, before they escalate into something on the scale of Bristol or Mid Staffs.' As the structure of the NHS faces change in the form of outsourcing and reorganization of facilities, having an effective and trusted means of reporting failings could become an even larger issue.

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