Exclusive A court has cleared NHS managers of failing to protect a whistleblowing GP – but said a similar case could be upheld in the future, giving greater protection for GPs who blow the whistle on their colleagues.
The long-awaited employment tribunal ruling cleared Abertawe Bro Morgannwg University (ABMU) health board in Wales of failing to properly support Dr Margaret Ferguson after she raised concerns about a GP partner at her practice, the Grove Medical Centre in Swansea.
However, the ruling noted that GPs now count as ‘workers’ under laws governing whistleblowing and, as such, new regulations mean that health boards and other primary care organisations can be ‘vicariously liable’ for any victimisation they suffer.
It concluded ABMU health board’s defence for not doing more to protect Dr Ferguson from reprisals would not necessarily stand up under the new legal provisions brought in since this case.
Lawyers have said the tribunal’s position has potentially huge implications for GPs, as health boards and CCGs will need to be more open and proactive in handling whistleblowing complaints from GPs.
As Pulse first revealed in June 2013, Dr Ferguson alleged ABMU health board had not acted in accordance with its own policy on whistleblowing because it failed to take steps to protect her from reprisals from colleagues, after she raised concerns about a partner’s prescribing, in particular the inappropriate prescribing of strong opiates.
She also alleged ABMU health board failed to properly investigate her concerns and to treat her identity as a whistleblower with due confidentiality – and that it ultimately forced her to leave the practice. She brought the case under the whistleblowing provisions of the Employment Rights Act (ERA) 1996.
According to the written judgment, seen by Pulse, although the health board had no duty in law to protect Dr Ferguson, it had the power to do so.
However, the tribunal accepted the health board’s explanation that it had not done more because it was 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’.
Nevertheless it also pointed out that ‘the situation has now changed’ on victimisation of employees under section 47B(1B) of the ERA brought in last year, and health boards ‘can be vicariously liable for such victimising conduct’ – such that the reasons given by ABMU health board for not taking further action would no longer be a defence.
It 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.’
Sarah Evans, a solicitor in employment law who specialises in whistleblowing cases, told Pulse the case had important practical implications for CCGs and health boards – particularly now the change in law means victimisation will be treated as being done by them directly.
She said: ’With the new law applying to disclosures made after 25 June 2013, they will have a greater obligation to actively take reasonable steps to prevent reprisals (victimisation) against a whistleblower.
‘The result is that health boards and CCGs, as any other “employer”, will have to actually implement whistleblowing policies that before now may simply have gathered dust on shelves and padded out employee handbooks. Now, they must more rigorously and actively take care to protect whistleblowers – and they will have to take all reasonable steps to do so to avoid vicarious liability for reprisals.’
Dr Richard Stacey, senior medicolegal adviser at the Medical Protection Society, said it was not appropriate to comment on the specifics of the case, but added: ‘Doctors should be mindful that their first duty is to protect the interests of patients.
‘That is not to say that doctors may have anxieties about raising concerns, in which case they should follow the GMC guidance and seek advice from their medical defence organisation.’
Dr Phil Banfield, chair of the BMA’s Welsh Council, said: ‘BMA Cymru Wales has been campaigning for a more open and transparent culture in NHS Wales for some time.
‘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: ‘ABM University 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 said she was considering an appeal.
Grove Medical Centre declined to comment on the verdict.