Written evidence submitted by Dr David Drew (CRC0018)

 

Summary.

 

 

Personal information.

 

My purpose in submitting evidence.

 

NHS Whistleblowers: the central dilemma.

 

Culture and professional responsibility to patients in healthcare.

 

Historic whistleblower cases.

 

What is to be gained from an inquiry into historic whistleblower cases?

 

Existing calls for an inquiry.

What form should a whistleblower inquiry take?             

My own experience of lack of support as a whistleblower.

 

 

 

 

Personal information.

 

 

  1. I am 66 years old (dob. 29 October 1947). I qualified as a medical doctor in Bristol in 1972. I undertook postgraduate training in paediatrics in the UK. From 1977 to 1984 I did medical work in refugee camps in Indo-China and in a large hospital in Nigeria. In 1992, after some years of working as a paediatric consultant locum in the UK, I was appointed to a substantive post at Walsall Manor Hospital. I was head of the paediatric department there from 2001 to 2008. No complaint was made about my practice or conduct in that time, rather the opposite. I was recognised as an excellent clinician and an effective manager. 

 

 

 

  1. I was dismissed in December 2010 for gross misconduct and insubordination. This followed several years of raising serious concerns about patient care including child protection, failure to provide a safe environment for inpatients, understaffing, mismanagement and bullying. The main underlying cause for this was a disastrous change programme to cut costs for FT application and affordability of a new PFI hospital. I was given the choice of accepting a financial settlement with a good reference provided I signed a confidentiality agreement or face dismissal through a disciplinary procedure. The solicitor who represented the Trust at my disciplinary hearing and the hearing’s chair, who was the Trust’s Director of Nursing, made it crystal clear (digital recording and transcript) that I would never work in the NHS again.

 

 

 

  1. I was recognised by the Trust as a highly competent doctor and I was not referred to the GMC. I took Walsall Healthcare NHS Trust, my employer, to the employment tribunal. Despite a compelling case, I lost. I took my case to the employment appeal tribunal but lost. I was unable to pursue my case further without risking bankruptcy. I am now retired but work gratis supporting NHS staff that have had similar experiences. I write, mainly on whistleblowing.

 

 

My purpose in submitting evidence.

 

 

  1. I am concerned at the widely recognised suppression and mistreatment of NHS whistleblowers. There is currently no guaranteed protection for them in the Trusts where it is most needed. The Health Committee in its response to the Francis report has recognised this but has not prescribed a remedy. There currently is no remedy. I present evidence to support my recommendation that an investigation of historic whistleblower cases coupled with restorative justice should be commissioned. I outline the potential benefits of such an investigation.

 

 

 

NHS Whistleblowers: the central dilemma.

 

 

  1. There is now universal recognition of the importance of healthcare professionals raising concerns about patient care and safety.  “Heroic status” is being accorded to whistleblowers who at great personal risk speak out. This year two NHS whistleblowers were recognised in the New Years Honours list.

 

 

 

  1. At the same time NHS whistleblowers continue to run the risk of personal retaliation. Some such cases have attracted extensive media coverage including my own. At a recent Kings Fund meeting Tim Kelsey of NHS England told the story of his own mother, a GP who reported an incompetent radiology consultant, but then had to take early retirement. “Whistleblowers always lose,” he concluded. Sir Bruce Keogh, Medical Director at NHS England nodded his agreement. The audience concurred.

 

 

 

  1. So, whistleblowers are important, essential even, but they always lose. In the interests of patient care and fair play this must be resolved.

 

 

 

Culture and professional responsibility to patients in healthcare.

 

 

 

  1. 2013 saw a swathe of reports from the Francis Public Inquiry in February to the Kennedy Breast Care Review in December. The centrality of organisational culture and the rights and obligations of healthcare professionals in raising concerns about patient care are now recognised. Frontline staff have become disempowered and demoralised as a result of working in oppressive cultures. Consequently they become disengaged. I have seen this personally.

 

 

 

  1. The Health Committee has recognised that culture change is a slow process. It must therefore recognise that the mistreatment of whistleblowers is still happening.

 

 

 

Historic whistleblower cases.

 

 

 

  1. “The management of each provider of NHS care has an unequivocal obligation to establish a culture in the organisation within which issues of genuine concern can be raised freely. Disciplinary procedures, professional standards hearings and employment tribunals are not appropriate forums for constructive airings of honestly-held concerns about patient safety and care quality.” (Section 3 paragraph 69 in Raising concerns and disputes, Health Committee response to Francis.)

 

 

 

  1. The Health Select Committee clearly recognizes these processes for dealing whistleblowers as unsafe. Internal disciplinary proceedings cannot be truly independent when they are protecting the reputations of the organisation and its senior managers. My proceedings were not fair or independent. Claimants at employment tribunals are at a major disadvantage and rarely if ever win. Claimants depend on their unions and often receive inadequate legal support. Those who choose self-advocacy or private legal representation are on the road to disaster.

 

 

 

  1. And yet these are the proceedings that historic whistleblowers have, of necessity, had to fight their cases through. The logical inference from the Health Committee’s statement is that they were not given a fair opportunity for their cases to be judged. This needs to be addressed.

 

 

 

What is to be gained from an inquiry into historic whistleblower cases?

 

 

 

  1. An inquiry will provide a fair hearing for whistleblowers. A fair hearing which they have previously been denied. It will create an opportunity for restorative justice for professionals who, as the Health Committee recognises, have suffered for nothing more than normal ethical behaviour. Whistleblowers have reported concerns about poor care, patient harm, the professional incompetence and misconduct of colleagues, cover-up, fraud and other wrongdoing. They have done this in line with their professional obligations and their consciences, often in the face of great hostility from management. They have suffered detriments up to and including dismissal, losing not just their jobs but their careers. They have suffered personal, financial and reputational loss and often serious health problems. They deserve a fair hearing as a matter of natural justice, and restoration if vindicated.

 

 

 

  1. As exemplars of a professionally responsible culture there is much to be learned from their cases. Whistleblowers are in a minority. Why are they willing to risk their own personal security and often the opprobrium of managers, peers and senior colleagues to speak up for patients when others remain silent? Professionals who are reluctant to report harm will be emboldened and empowered by the public examination of these stories and public support for the whistleblowers.

 

 

 

  1. The investigation of the reactions and behaviour of senior management when whistleblowers raise concerns will also be a learning process. The whistleblowing, disciplinary and bullying policies in force either do not work or are over-ridden by management. Learning and not blaming ought to be the objective of any inquiry as set out clearly in the Berwick report. Many whistleblowers, however, testify that they have suffered severe bullying by managers and colleagues.  Some claim that their dismissal has been engineered and that they have been the victims of deliberate untruthfulness. This, if substantiated in an inquiry, needs to be dealt with. If individuals or groups are held accountable for extreme wrongdoing this will serve as a warning to other managers contemplating such actions. Culture is unlikely to change without a few cautionary tales.

 

 

 

  1. Regulators and unions all proclaim their total support for whistleblowers. Could it be otherwise? The BMA, RCN, NMC, CQC NHSE require or expect health care professionals to report poor care. The support they actually provide to whistleblowers needs investigation and will provide information enabling them to improve their own practice. These organisations will need to provide data on the cases they have been involved with and the nature of the support given including legal support. Good and bad practice could be examined in individual cases.

 

 

 

  1. The public has a right to understand why it is that whistleblowers and potential whistleblowers who act as a safety-net for patients are prevented from raising concerns. Mr. Patterson’s patients at HEFT, the bereaved relatives at Mid Staffs, the grieving parents at Furness General Hospital and many others would welcome, and deserve to have, light shed on this dark side of NHS culture.

 

 

 

  1. A whistleblower inquiry will enable all of us, professionals, patients and the public to understand this culture better, get past our denial, and, with the help of other initiatives, see it transformed. This promises major benefits to patient care, improved staff morale and engagement and large financial savings. The Raj Mattu case alone has for example cost somewhere between six and ten million pounds so far. How can that be justified?

 

 

 

Existing calls for an inquiry.

 

 

  1. In an Independent newspaper article about whistleblower Sharmila Choudry’s dismissal by Ealing Hospital (“Hung out to dry: scandal of the abandoned NHS whistleblowers” Nina Lakhani 4 July 2011) Stephen Dorrell himself appears to have promised an inquiry:

 

  1. “Stephen Dorrell, who was Health Secretary under John Major and is now the chairman of the Commons Health Select Committee, last night promised to hold an inquiry into the treatment of NHS whistleblowers after outrage over the latest case to emerge. During the inquiry, MPs can expect to hear from an abundance of NHS whistleblowers, doctors, nurses and even chief executives, who have been punished over the past decade while trying to expose colleagues' wrongdoing or incompetence.”

 

  1. The Health Select Committee has heard an abundance of further written evidence of the mistreatment of whistleblowers since July 2011, so it is time to make this promise good with a full inquiry.

 

  1. Charlotte Leslie MP, as recently as October 2013, was reported in the media as calling for a whistleblower inquiry following the Orchard View scandal. Orchard view is a good example. The whistleblower who was not a clinician but an administrative worker found herself out of work for two years.

 

  1. In October 2013 Ann Clwyd published her Review of the NHS complaints system. None of the various inquiries of the last two years were given a specific remit to investigate whistleblowing. None commented on the treatment of historic whistleblowers or made specific recommendations to help them as far as I am aware. Ann Clwyd, however, understood the need for historic whistleblower cases to be investigated. And she clearly sees this as a justice issue. She was constrained, in Section 4 of her report, to comment as follows:

 

  1. “However, we have heard in the course of our work repeated concerns about a number of unresolved questions surrounding this issue. These concerns relate firstly to securing justice for past whistle-blowers whose careers have been seriously jeopardized and who have suffered financially as a result of drawing attention to malpractice. We urge the Department of Health to undertake the review of such cases with a view to both learning lessons for the future and undertaking restorative justice for those individuals affected.”

 

  1. Apart from this official recognition of the need for an inquiry there is a widespread view of the same at grassroots. The press and Social Media carry a stream of comment on the unjust treatment of whistleblowers.

 

  1. What form should a whistleblower inquiry take?

 

  1. The purpose of my evidence and my argument is to make the case for an inquiry, not to prescribe how it should be conducted. It is reasonable to expect that it should be a judicial inquiry held in public if it is to be rigorous and its lessons made available to all. The incoming CEO of NHS England, Simon Stevens, recently told a conference, “We are going to draw back the veil between what those of us working inside health know about it and what the people on the receiving end of our ministrations get to see.” The proposed whistleblower inquiry would make a significant contribution to this end.

 

 

My own experience of lack of support as a whistleblower.

 

 

 

  1. I submit a few final comments on the support I had from various organisations before and after my dismissal. It is fair to say that in line with the usual whistleblower narrative I have received little help from anyone other than family and friends.

 

 

 

  1. Walsall Healthcare NHS Trust (my employer):  I repeatedly framed my concerns to the Trust as whistleblowing. This was ignored. A RCPCH panel was sent to investigate my concerns at my request. The report of this review panel was used by the Trust to engineer my dismissal under SOSR. I was offered the choice of a financial settlement and a confidentiality clause or dismissal by a disciplinary procedure. I was taken through a disciplinary procedure in which all my claims to whistleblowing were ignored. The Trust, unprecedentedly, brought an aggressive solicitor to my hearing to ensure the desired outcome. Although I was clear at all times that my disclosures related to serious matters of patient care I was ignored.

 

 

 

  1. The BMA: From April 2009 to December 2010 the BMA provided me with an industrial Relations Officer. I cannot speak highly enough of his support. He was capable, good natured and yet above all realistic about what the Trusts intentions were. After my dismissal the BMA provided me with a junior solicitor. She refused to meet me. She did not read the documents relevant to the whistleblowing claim and agreed to represent me for settlement only. When I refused to sign a non-disparagement clause she went off the record and I had to find private legal advice. I wrote to the Chair of the Consultants Committee, Dr Mark Porter to complain. After 9 weeks and several reminders he sent me an unhelpful response.

 

 

 

  1. The GMC: In a Times article about this non-disparagement clause a GMC spokesperson expressed concern and offered to investigate. Alexi Mostrous the journalist forwarded my documents to the GMC. I heard no more and eventually wrote to and then visited Nial Dickson. He passed me down through a series of minions who had less and less understanding of my case. I received no help from the GMC. The last time I met Nial Dickson he was telling an audience at the National Patient Safety Congress that the GMC required all doctors to report poor care when they saw it.

 

 

 

  1. The Royal College of Paediatrics and Child Health 1: In 2010 the College sent a panel to Walsall to investigate my concerns. I informed the panel in writing that I was a whistleblower and that my concerns should be investigated in that light. I provided examples of this in my statement of case, supporting documents and in oral evidence. The panel’s report concluded that I was not a whistleblower despite having evidence of disclosures specifically under PIDA. Subsequent independent legal analysis showed 3 of my four main disclosures to be water-tight. The panel and the Trust subsequently refused to discuss this with me or what their conclusions were based on. All records of witness testimonies were destroyed and thus unobtainable as evidence for the employment tribunal.

 

 

 

  1. The Royal College of Paediatrics and Child Health 2: Following my dismissal I approached the College to get information on the conduct of the review by the panel it recommended. The College Registrar refused to provide any help or information. I had to take my case to the tribunal certain that the review had not been conducted properly but with no evidence to prove this. In 2013 I went back to the College to make a formal complaint about the review. The College then provided me with the review policy that had been operative in 2010. I had requested this two years earlier but been refused. The College CEO claimed this had been due to a communication failure on the Registrar’s part. Sorry. It was clear that the policy had been breached in serious ways by the panel. I asked the CEO to investigate, which he promised to do. Later he wrote to say that as a result of confidentiality agreements signed by the panel and Walsall Healthcare the panel members were unable to co-operate with his investigation. This was specifically untrue. Detailed investigation by Walsall Healthcare has shown that the panel signed an indemnity certificate required by the College for its own protection. The CEO at Walsall Healthcare and its legal adviser have informed me that this does not in any way constitute a gag. To this day the College CEO has refused to comment on this matter and any investigation of the conduct of the Walsall paediatric review has stalled.

 

 

 

  1. CQC: I contacted CQC in December 2009 after giving the Trust an ultimatum to investigate the cover-up of a clinical incident by the Medical Director. CQC told me they did not investigate individual cases. At a later date I received advice from Simon Burns, Health Minister, via my MP Mr Andrew Mitchell. As a result I wrote to CQC about my case. Jill Finney, deputy CEO, wrote back saying that CQC does not investigate individual cases.

 

 

 

  1. Sir David Nicholson CEO, NHS England: I wrote to Sir David in May 2013 describing a string of wrongdoing at Walsall Healthcare from 2007 to 2010. This included the cover up of a child’s death, attempts to gag me and the suppression of the review’s report by the then CEO, a report even the board was not allowed to see. In September 2013 after Stephen Dorrell’s intervention I met Sir David. I regret to say that despite his claims to support whistleblowers I have received no help from him. I am astonished that he could hear such a litany of alleged wrongdoing and do nothing.

 

 

5 March 2014