Vexatious Whistleblowing

Of late, the word whistleblower appears everywhere. Everyone wants to be a whistleblower as if it was a buzz word. To lawyers these days, whistle-blowing is big money. Litigation appears to be touted as the main way of achieving 'change' . Of course, this isn't the case. The law provides individual remedy but little in the way of actual change for the future.

The phenomena of vexatious whistleblowing was raised by a number of people when we wrote the paper - Whistleblowing and Patient Safety published in the JRSM. We concluded as follows

"Firstly there is no perfect solution. Secondly there must be systems to support and investigate suspicion rather than systems that go out looking with suspicion"

While the above is true, I wanted to clarify one issue - the data on vexatious whistleblowing is relatively scarce. The phenomena has never been studied.

There are a few cases I have come across where health professionals shout 'whistle-blowing' but there is no evidence that standards of care were poor. I am concerned about this area of complaints raised for an ulterior motive.

Of late, the media's investigatory ability and checking mechanism appears faulty. Their failure to understand science is probably a factor that affects their understanding of the complex issues at play.

The issue of the gagging clause has been touted by the media. The simple issue on gagging clauses is this - if you don't wish to enter into a legal agreement with the authority in question - then don't. It appears a bit pointless to sign a gagging clause then releasing a scream through the media about being gagged.

Every NHS Trust as an organisation has a reputation to protect. No one can blame them for attempting to protect it through the legal channels. This is what every business in the land will do. I am not quite sure why NHS Trusts are demonised for something universally done.

Consent orders and litigation isn't about patient safety - it is about an agreement between two people. If you don't like it, don't do it. Its a free country. If you value patient safety and you feel it is vital (above all else, including money), raise those concerns, free of any consent order.

Finally, if you don't want to be in a legal predicament of choosing money versus patient safety - then don't get into that position in the first place. Litigation is a casino. You cannot expect all the dice to end up in your favour all the time.

I must say, as a previous whistleblower, I had some sympathy for a trust I read about. They have been fighting against repeatedly vexatious claims for quite some years. Their brief well-worded press releases and comments go unnoticed. The media onslaught against them is quite fierce. The public is not told the real facts of the case and it takes forever to trawl around the internet to find their evidence.

This trust paid out a significant amount of money but requested that false claims are not circulated. Their position is such that they are unable to clear themselves or their reputation. They were prevented from disclosing the whole truth due to data protection issues. Their health professionals were prevented from disclosing the evidence due to patient confidentiality issues.

So, we can see that the constraints are fairly hefty for any NHS Trust who are wrongly accused. When they attempted to stop defamatory material from circulating, they were accused of gagging the employee. I have been considering the position that NHS Trusts find themselves in. Even if they are right, the media will make a meal out of the whistleblowing issue. This flag waving in the absence of evidence has to stop.

It is important to adopt a cautious attitude to all whistleblowing claims. Of course, as a whistleblower, I am aware of the difficulties faced by health professionals who don't have access to information that may vindicate them. That is one of the main problems affecting legitimate whistleblowers - vindication takes a long time in some cases. The fact remains, it is virtually impossible now to differentiate between the vexatious and the legitimate whistleblower. The risks are that a legitimate whistleblower may be mistaken for a vexatious one and vice versa. One of the problems being a failure of NHS policy - that has no steps to distinguish between the two given the frequency of sham peer reviews. It is simply not as simple as awaiting the outcome of an NHS investigation into raised concerns.

Some whistleblowers today are actually of the view that

a. The Media is the solution to their woes.

b. Suing their Trust is a solution to their woes

c. Running a diagnosis of "work related stress" and claiming compensation is another way forward.

Of course, the above are not long term solutions to a better future or a change in the system. Anyone can see how the above is open to abuse. It would be extremely easy for someone to cry wolf and achieve the same level of compensation.

In our paper, we asked the Health Select Committee to conduct an inquiry into whistleblowing. This wasn't to air the emotional woes of every whistleblower. It was to study the evidence and provide a solution for the future. This idea has remained on ice for now. Without an Inquiry, there can never be an examination of the serious problems and complex issues affecting whistleblowing and the need to have measures that deals with vexatious whistleblowing while equally ensuring legitimate concerns are addressed in the interests of patient safety.

In the end, vexatious whistleblowing undermines legitimate whistleblowers, it is a disadvantage to the economy and it affects the public purse. The government at the moment fails to adopt a scientific/logical approach to resolving the issues that affect whistleblowing. The Department of Health and the General Medical Council appear to be the same.

Their solution involves a group of civil servants analysing the media's interpretation of whistleblowing and releasing a PR exercise to persuade the public that something is being done. Nothing done to date by the Department of Health or the government will assist legitimate whistleblowers. It will though encourage vexatious whistleblowers with an ulterior and or malicious motive. The recent entry of lawyers touting for compensation claims is also a prime motivator for any health professional to make false claims.

There is no doubt that litigation remains the only remedy for legitimate whistleblowers but on the other hand a diagnosis of stress related illness is open to abuse. The General Medical Council and other regulatory bodies should be aware of individuals playing the whistleblowing card and running these diagnoses for compensation claims while being able to function perfectly adequately in the media/ and in their lives.

In conclusion, it is important to fund studies into whistleblowing and the primary requirement for the government is to hold a Health Select Committee Inquiry with a view to examining the issues at play. It is vital for NHS Trusts/Department of Health to collect data regarding this area of vexatious whistleblowing. It is largely misunderstood and playing the whistleblowing card is not advantageous to patient safety or the preservation of NHS resources. Moreover, NHS Trusts/health professionals who provide a high standard of care should not be undermined by false allegations that they cannot robustly defend due to data protection constraints. This damages public confidence in the institution needlessly and will compromise patient care.


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