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GP victory in landmark whistleblowing legal case

Exclusive A GP has been given the go-ahead to take her health board to an employment tribunal for failing to protect her from reprisals after she raised concerns about her partner’s prescribing.

Legal experts said the case had potentially ‘enormous implications’ for GP whistleblowers, with some predicting it might encourage GPs to raise concerns more readily.

Dr Margaret Ferguson, a GP partner in Pembrokeshire, Wales, alleges that the Abertawe Bro Morgannwg University (ABMU) Health Board released her name to fellow GP partners at a previous practice after she raised concerns that one of her colleagues had ‘acted wrongly’ in prescribing a strong opiate.

She claims the board failed in its duty to protect her legal rights as a whistleblower, thereby exposing her to reprisals from her colleagues.

Her tribunal case, which is part heard, will resume in Cardiff on 22 July. Before proceedings began, the health board challenged Dr Ferguson’s right to bring part of her case to tribunal, but the Employment Appeal Tribunal (EAT) threw out the health board’s challenge.

The EAT ruling, released this month, said Dr Ferguson made the allegation against a fellow GP in ‘good faith’ and ‘there were reasonable grounds for it’ – although the health board does not necessarily accept the truth of the allegation.

Dr Ferguson claims that the health board failed to properly investigate her concerns; failed to treat her identity as a whistleblower with due confidentiality; failed to act in accordance with its own whistleblowing policy; and forced her to take voluntary leave as an alternative to suspension.  She is seeking a remedy under the whistleblowing provisions of the Employment Rights Act 1996.

The health board’s lawyer told the EAT that Dr Ferguson was seeking to make the health board vicariously liable for her GP partners’ actions, who were not ‘employees nor agents of the board’. 

However, the EAT – before Mr Justice Langstaff - rejected this argument and said Dr Ferguson’s allegations were directly against the health board’s failure to fulfil its duty to protect her and she had a right to have them heard in full.

Legal experts said the ongoing tribunal will challenge the orthodoxy that ‘oversight’ primary care organisations have no duty to protect GP whistleblowers from reprisals from within their own practice when they make allegations against fellow partners.

Jahad Rahman, a partner at Rahman Lowe Solicitors and a specialist in employment law, said: ‘This case will have enormous implications for the GP profession as it is likely to encourage other GPs, including partners of GP practices to “blow the whistle”.

‘Furthermore, health boards and [CCGs] will need to ensure they deal more openly with whistleblowing complaints; that they properly investigate concerns and take steps to prevent GPs from being subjected to reprisals from their colleagues.’

Cathy James, chief executive of the whistleblowing charity Public Concern at Work, said the case could be ‘ground-breaking’. She added: ‘For too long the rights and responsibilities of health boards and health authorities have been opaque and difficult to understand.

‘Instead of pro-actively protecting genuine whistleblowers, the excuse we hear on our advice line is that any dispute should be resolved between GP partners. Where wrongdoing or malpractice has been exposed, there is the scope for oversight bodies to positively influence outcomes for those brave enough to speak up.’

Dr Stephanie Bown, director of policy and communications at the Medical Protection Society, said: ‘It is very interesting about whether the current law extends to self-employed doctors. But the important message is that all doctors have a duty to raise concerns to the GMC if patient safety is at risk.’

Following the recent Francis Inquiry into the Mid Staffordshire failings, the Government is looking to impose a statutory ‘duty of candour’ on GPs and other health professionals to report treatment or care that they believe has caused death or serious injury.

 

Readers' comments (15)

  • http://www.serendipity.li/cda/niemoll.html

    ...I think it means...someone should be prepared to do the right thing and speak up for the vulnerable...ie patients

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  • One major problem with sorting things out internally is that a dangerous doctor could be persuaded to resign. While this solves the practice's immediate problem and is financially and emotionally less traumatic, the doctor could continue working. Often this might be in a locum capacity, with less supervision and more danger to patients. Sadly these doctors need to be removed and it is our responsibility to do so, even when there is a cost to ourselves.

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  • how many practices could really deal with a situation of such difficulty without outside intervention..... what help would you expect ...and from whom?

    To complicate things, we all have completely different practice structures and dynamics. How would a 2 partner practice cope with it....or 5 or 10 ? what weight would you give to salaried, part timers, locum views count....or those of staff?

    How would your cope if one partner had very serious and genuine concerns about another? Patients were genuinely believed to be coming to significant harm. What would you do?
    who would make a judgement ?based on what?
    How would your next partner meeting go ? do you think you would all agree about what to do? would you accept the majority decision or would it have to be unanimous? would you leave if you did not agree?
    Wouldn't there be divisions and factions? and a divide between the partners who would ' do the right thing for patients ' and those who would support a colleague at any cost?
    would this be seen to be personal or professional disagreement?
    How would that affect the staff and their reactions?How would things carry on with necessary teamwork and cooperation?
    What would the next xmas party be like?
    How long would you keep sustaining this situation, with ongoing and genuine concerns?
    If you believed thay were true, but not the majority verdict, would you stay and suffer the backlash of not accepting the majority view to just ignore it? or would you leave ......allowing the problem to continue unresolved, believing patients were at risk and suffer the consequences of unemployment and loss of income?
    To suggest this can be dealt with simply as 'internal practice affairs' is naive and ignorant of the complex dilemmas.

    These are the real issues to be addressed. Shipman really did happen. He was clearly not the only rotten apple in the profession. This is no longer a fictitious or theoretical situation.
    Whatsmore we are going to be rightly castigated if we continue to ignore unnacceptable practise.
    We are not talking here about minor and common errors. we are all human and learnling from mistakes is an integral part of our work..that's where we should be offering support to each oher.
    No one thinks these dark affairs will ever happen in their practice though....what would YOU do if they did?

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  • This is fascinating. I stumbled across this article and these comments. I thought I was the only one feeling alone, a troublemaker , stressed, depressed and unable to work.
    Unable to work because I raised concerns regarding a senior partner - internally, locally , regionally. NOBODY wanted to hear what I had to say. They listened but then stepped back.
    I am now not working. I am unsure of what my future holds and I am at the 'goodwill' of the partners I have had to report (in terms of leaving the practice).
    It has been revealing to me that raising concerns about a doctor is very difficult. We are all well aware of GMC guidelines and absolutely work within them. However a 'whistle blower' becomes somebody that nobody wants to be around! Raising concerns is not something one does lightly.
    When I first joined the profession I used to hear rumours that 'all doctors stick together' when a problem happens. I like to think that this relates back to times when transparency and openness where words not used in the NHS. However my experience so far supports tis rumour - by not 'sticking together' I am the "bad partner".
    I hope Jeremy Hunt has access to these comments. A GP forum should be established for GP's in similar situations. The fact that we are self -employed should not mean that we are denied the support / representation afforded to others who are victims of intimidation and bullying due to raising concerns. At the end of the day we are all tasked with acting in the best interests of our patients. For me this is not a task it is a privilege.
    Trying to safeguard this should not make me feel like this.

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  • any news of her case yet?

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