Five things to know before you whistleblow
Lawyer Iain Patterson explains how GPs should raise concerns – and a few factors that could make you reconsider
Most GPs are covered by the Public Interest Disclosure Act 1998 (PIDA), which protects those who make disclosures in the public interest – more commonly known as whistleblowing. The legislation is there to protect workers who are afraid of the consequences of raising concerns about, for example, malpractice or serious negligence. However you need to think carefully, and perhaps seek advice, before making a disclosure.
Who is protected?
The legislation covers general medical or dental practitioners providing NHS services under a GMS contract with a PCT. Accordingly, detrimental treatment by a PCT of a GP because of a protected disclosure is unlawful under PIDA.
The position of GPs working under a PMS contract is less clear because PIDA does not make specific provision for them, but it is certainly arguable that they are ‘workers’, who are covered by PIDA.
Salaried GPs, or locums engaged by a GP practice or supplied by an agency, will be workers for the partnership and so protected against action taken against them by the partnership. The position of partners in the practice is, however, different. In a recent case involving a firm of solicitors, an equity partner (and member of the LLP) was held not to be a worker and this principle appears also to apply to partnership. This means that GP partners in a practice would not be able to complain about treatment by their fellow partners arising from a protected disclosure.
What to consider
There are five principles that all GPs should follow when considering making a protected disclosure, and a few brakes to apply that will make sure your concerns are given the attention they need.
1 Act now if patient safety is at stake
The GMC’s Conduct and Performance of Colleagues guidance states that practitioners must ‘protect patients from risk of harm posed by another colleague’s conduct, performance or health’. The guidance explains that the patient’s safety must come first at all times and if GPs have genuine concerns that a colleague may not be fit to practise, they should raise this without delay. PIDA protects individuals from being victimised for whistleblowing that shows that the health and safety of a patient is, or may be, endangered. You do not need to have proof of such behaviour to raise a concern; in most cases, you only need to have a ‘reasonable belief’ that wrongdoing is happening, has happened or is likely to happen in the future. Certain disclosures (such as to regulators or to the media) have additional requirements.
2 Think carefully before whistleblowing
If you are unsure whether and how to raise a concern, you should seek advice from one or more of the following: a senior member of staff or impartial colleague; one of the GMC’s liaison advisers; your medical defence body; the GMC; a professional association such as the BMA; Public Concern at Work; your legal advisor; or the LMC. Be careful about disclosing the information in question at this stage unless you are seeking advice from your employer or legal advisor.
You may have concerns about making a disclosure if your contract (a contract of employment for a salaried GP or partnership agreement for a partner) incorporates a ‘gagging clause’. However, where a worker is protected, any contractual terms which effectively seek to prevent practitioners from raising such concerns are void. All GPs have a professional duty to raise concerns where they believe that patient safety or care is being compromised by the practice of colleagues or systems. Your duty to put patients’ interests first will always override your personal or professional duties to colleagues. Even where GPs are not protected, there might be a public-interest defence which overrides the breach of confidentiality.
However, GPs should take advice before making such disclosures.
… your concern might lead you to acts of misconduct or breach of your professional duties or lawful contractual obligations. PIDA is there to enable workers to make protected disclosures, not to go further. For example, a worker who hacked into his employer’s IT system to demonstrate that it was not secure was not protected by PIDA when he was disciplined by his employer for the act of hacking.
… your disclosure is not made in good faith. Disclosures that are made for predominantly personal rather than public-interest motives will most likely not be considered as being made in good faith and will therefore not be protected. A disclosure motivated by personal animosity against a colleague or made for the purpose of strengthening a negotiating position will not be protected. Disclosures where there is a mixture of motivations, on the other hand, will still be protected if the predominant motivation was good faith.
3 Take your concerns to management
Wherever possible in the first instance you should raise your concerns with a manager or appropriate officer where you work, or your contracting body. If you are a GP partner with a GMS or PMS contract, for instance, you would raise concerns with the PCT. Your employer or partnership may have a policy for dealing with concerns. You must be clear, honest and objective about the reason for your concern. You should keep a record of your concern and any steps that you have taken to deal with it. If you do have concerns that you may be treated less favourably because of the disclosure, you need to ensure you are protected.
… your concern is about a partner of your practice. Fellow partners will not be protected, so if your view is in the minority it may be more appropriate to raise this concern outside the practice, for example with the medical director or clinical governance lead of the PCT with which you contract under GMS.
Once PCTs are disestablished, public-interest disclosures can be made to the NHS Commissioning Board. Even then, as a partner, you will only be protected against action against you by the board and not by partners.
4 Find out your local policy
GMC guidance states that you should raise your concerns by giving ‘an honest explanation of your concerns to an appropriate person from your employing or contracting body, and follow their procedures’. You should follow your employer’s policy (practice policy for salaried GPs or PCT policy for partners), provided that it is reasonable, in order to gain the protection given under PIDA.
The policy should have provision for raising your concerns confidentially, without having to reveal your name (unless required by law). It is crucial that you are familiar with the relevant policy as this will detail the steps you should take and who you should raise concerns with.
… you have not followed your local policy to begin with. Only where there are no appropriate local systems, or those systems have not resolved the problem and you are still concerned about the health and safety of a patient, should you inform the relevant regulatory body. You must reasonably believe that the allegations and information are substantially true.
5 Think carefully before going to the media
In certain circumstances wider disclosures, such as to the media or an MP, may also be protected, but additional criteria will need to be satisfied in order to gain such protection. It is wise to seek advice before making external disclosures, especially to the media.
… you do not think you will satisfy the following criteria:
- You have done all you can to deal with any concern by raising it within the organisation in which you work or which you have a contract with, or with the appropriate external body
- You have good reason to believe that patients are still at risk of harm
- You do not breach patient confidentiality. It is usually only advisable to take your concerns elsewhere if your employer has a record of ignoring, discouraging or suppressing concerns that have been raised and this is your experience after taking your concern to the highest level.
Key points to remember
- You have an overriding duty to protect patients from potentially harmful behaviour
- The law protects you from harassment and employees from unfair dismissal if you make a protected disclosure under PIDA
- Always follow any relevant policy in the first instance
- Seek advice from above-mentioned sources if in doubt
Iain Patterson is an employment partner at Browne Jacobson