GPs who blow the whistle on colleagues could be given greater protection by NHS managers, following a recent legal case.
The ruling by the Wales Employment Tribunal stated that health boards and other primary care organisations can be ‘vicariously liable’ for any victimisation GPs suffer after they raise concerns about their GP colleagues.
The case was brought by Swansea GP Dr Margaret Ferguson against Abertawe Bro Morgannwg University (ABMU) health board, after she suffered reprisals from colleagues when she raised concerns over a partner’s prescribing of opiates. Dr Ferguson alleged the health board had failed to protect her from victimisation by her colleagues and began legal action last year.
She also alleged ABMU health board failed properly to investigate her concerns and to treat her identity as a whistleblower with due confidentiality under the whistleblowing provisions of the Employment Rights Act (ERA) 1996.
She said the events ultimately forced her to leave the practice.
Although Dr Ferguson lost the case, lawyers say the ruling reinforces a change in law that gives GPs greater protection if they blow the whistle.
‘Reasonable steps’
The judge accepted the health board’s explanation that it had been concerned not to take sides and to prevent patients coming to any harm as a result of the dispute – which counted as a ‘permissible reason’ not to intervene.
However, the court said that, following recent amendments to the ERA legislation – which took effect after Dr Ferguson submitted her claim – a similar case tried now could succeed.
The judgment stated: ‘Under this new provision… the respondent’s failure to take such steps could have prevented it from successfully invoking the “reasonable steps” defence, leaving it with vicarious liability for these reprisals.’
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Jahad Rahman, partner at the Rahman Lowe law firm and a specialist in employment law, says: ‘There are more protections for GPs who blow the whistle, and this judgment reinforces that.
‘I think it is a triumph for common sense and significant for those who work in industries that care for patients. Partners should no longer be afraid of raising legitimate concerns.’
Free to act on feedback
Dr Phil Banfield, chair of the BMA’s Welsh Council, says GPs must be protected from retribution. He adds: ‘It is clear that we need to welcome and act on feedback affecting patient care and support staff, patients and relatives in being able to raise possible concerns freely and without fear of retribution in pursuit of making the NHS better for all.’
A spokesperson for ABMU said: ‘The health board is pleased with the outcome. This has been a significant and complex case and we are content with the ruling.’
Dr Ferguson declined to comment on the ruling, but is considering an appeal. Her former practice also declined to comment on the verdict.
Legal view: ‘Health bodies will have greater obligations to prevent reprisals’
This ruling sets a template for how future GP whistleblowing cases will be dealt with, even though it cleared NHS managers of failing to protect Dr Ferguson.
Under new whistleblowing laws, managers now have tougher requirements to protect medics who blow the whistle from reprisals or victimisation after they raise concerns about GP colleagues.
The judgment is quite sympathetic to the complainant. Indeed, the ruling highlights that had Dr Ferguson’s treatment occurred under the new laws, which took effect from June 2013, the health board may have been unsuccessful in defending the claims it failed to protect her.
The result is that health boards and CCGs, as any other ‘employer’, must now actually implement whistleblowing policies. They will have to more rigorously and actively protect whistleblowing GPs – and they will have to take all reasonable steps to do so in order to avoid ‘vicarious liability’ for victimisation.
However, the judgment doesn’t change GPs’ duty to report concerns. Like other medics and clinicians concerned with frontline patient care, GPs already have a positive duty to report colleagues where patient safety is potentially being compromised.
GPs who want to raise their concerns are still best advised to seek advice and follow the procedures carefully.
Sarah Evans is a solicitor in employment law specialising in whistleblowing at Slater & Gordon UK
