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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.