NHS superhero street art in Brockley, South London NHS superhero street art in Brockley, South London. Source: Loco Steve - Flickr/ cropped from original / shared under license CC BY-SA 2.0

The government is encouraging Hospital Trusts to spend huge sums on legal cases against NHS whistleblowers on patient safety, reports Lucette Davies

It is a national disgrace that while our healthcare system falls apart, NHS Trusts are employing top barristers to silence whistleblowers. It is vital people understand the scale of the problem. 

Our politicians claim there is not enough money to fund fair pay for clinicians. Yet at the same time, they have given NHS trusts access to unlimited funds to fight clinicians at employment tribunals.  Staggering numbers of clinicians have had to go to tribunals to fight for their jobs after speaking up about patient safety. 

Patients and carers alike are tormented by the struggles of accessing care from a broken system. Clinicians are tormented by understaffing, overwork, real-terms pay cuts and bullying by management. Many describe being unable to deliver a standard of care, which they know their patients need, as a moral injury. The general population must now be given accurate information about what is happening. And they must act on this and join the fight to see our NHS restored.

Dr Mukherjee is a psychiatrist in the NHS currently going through an employment tribunal because he spoke out about patient safety. He is a member of a group of around 120 fellow whistleblowing clinicians who are all facing employment tribunals because they have raised concerns about patient safety. And in turn, have faced persecution and detriments.

Doctors have a legal obligation to draw attention to any shortcomings in services that would impact on patient safety and care standards (‘duty of candour’). However, actions taken against Dr Mukherjee have led him to suffer from stress-related illnesses.

The Trust concerned has threatened that if he loses his employment tribunal, they will seek to recover their legal costs from him. These currently stand at around £90,000. He has described how this has affected him professionally. He avoids interacting with anyone at work, maintains a low profile, and only takes temporary jobs.

How can we expect a doctor to be able to rise to the challenge of caring for our health, when they are being persecuted like this for fulfilling their legal obligations? The duty of candour is vital for patient safety, if failings in services are to be addressed. Tragically, after decades of successive governments steadily dismantling the NHS behind the scenes, service failings are now widespread.   And lives are being lost as a result.

Whistleblowing in the NHS resulted in the conviction of Harold Shipman, and helped uncover the Mid-Staffs scandal. More recently, whistleblowing doctors were speaking up about their concerns regarding Lucy Letby. The fact that in the Lucy Letby case, those doctors were initially ignored, demonstrates the appalling consequences of ignoring whistleblowers in healthcare.

Freedom to speak up

In 2015, Robert Francis QC published his Freedom to Speak Up Review following the inquiry into the Mid-Staffs scandal. This led to Freedom to Speak Up Guardians being appointed, whose role it is to champion the rights of whistleblowers in our NHS. Since the National Guardian’s Office started keeping records in 2017, Freedom to Speak up Guardians have handled 75,000 cases. And 20,000 of those were in 2022.

Dr Mukherjee believes that the number of clinicians now being affected is rising. He also believes that the system of ‘Freedom to speak Up Guardians’ is not working. He has said that: ‘They are often not independent and appear to be working closely with senior NHS management against whom concerns may be raised.’

He also believes that the people at the head of the Trusts are acting upon the wishes of our politicians. The now nearly complete dismantling of our NHS has involved a staggering level of public deception. Politicians have a vested interest in keeping us in the dark about how they have been privatising our healthcare service by stealth.

Politicians, aided by a complicit media, have fed the public with propaganda about their actions regarding our NHS for decades. Endless ‘reforms’, policy changes, and restructuring have been undermining our NHS. Yet still our political parties and electoral candidates use declarations of support for the NHS in their campaign materials. Our NHS is a vote winner, so they need to keep us in the dark to maintain their positions.

However, clinicians at the coal face can see exactly what is going on in our healthcare services. No amount of propaganda can kid them that things are going well. Some may be tempted to go with the flow of privatisation. However, many still hold a firm belief in the principles of universal healthcare free at the point of need. Their voices threaten to undermine the scandalous level of public deception about the politics of our healthcare service. They should be commended for their actions when they speak up, but instead it seems many end up in employment tribunals.

Clinicians who raise concerns within the NHS are often defeated by the employment tribunal system. Dr Mukherjee said: ‘The system has many deficiencies such as the lack of any court records or transcripts of hearings.’ He said that he believes, ‘the whole justice system is rigged against us.’ The emotional pressure on doctors is now increasing exponentially as Trusts threaten that they will seek to recover their legal costs if clinicians lose their cases. Coupled with patients who vent their frustrations on doctors about waiting times, it is staggering that more have not left the service.

Dr Mukherjee describes the doctors’ union, the BMA, as ‘opportunistic’ and as only getting involved in a few very high-profile cases, when they want to demonstrate they are on the side of doctors. The media likewise has opted to only cover a few very prominent cases of whistleblowing doctors. He believes it is vital the public are told about the scale of the problem. And also made aware of the vast amount of public money getting spent by Trusts on persecuting clinicians like himself.

Persecution of whistleblowers

Despite many clinicians representing themselves at tribunals, NHS trusts are employing the most expensive barristers. Dr Mukherjee has said they are employed to; ‘Humiliate the clinicians and assassinate their characters in tribunal courts.’

The NHS has a long tradition of persecuting and ignoring whistleblowers. Dr Raj Mattu was a doctor who raised concerns about patient safety in 1998 and was then subjected to a twelve-year witch hunt. The hospital trust made more than 200 allegations against him. His whistleblowing legal case was upheld by an employment tribunal, but only after the NHS trust concerned had spent £10m on the case. Even NHS England admits its staff are too afraid to speak up. 

But now more than ever, we desperately need to hear the voices of concerned clinicians. And if our NHS is to stand a chance of retaining clinicians, this persecution must stop. 

Privatisation alone is a scandalous waste of public money, increasing inefficiency while throwing public money away for the profits of large corporations. The politicians who wish to see Britain with an insurance-based system want it to fail. They want voters to fall out of love with their precious NHS. They just don’t want us to understand why it is failing. This is because they can then present privatisation as the solution to its failures, as opposed to the cause. The more they underfund the service, the quicker it will fail.

We therefore need to be extremely concerned about the way in which NHS Trusts have unrestricted access to public money when they start hiring top barristers to fight clinicians in employment tribunals. Dr Chris Day spoke out about patient safety when working as a junior doctor in an ITU ward. So far over £700,000 has been spent on persecuting him in a case that is still ongoing.

Barristers employed to persecute NHS whistleblowers can charge up to £525 per hour. Barristers in addition have the support of a legal team of solicitors, legal directors and paralegals, each of which have their own hourly rate to invoice the NHS.

When funding is needed to improve our NHS, politicians will often find a reason why it has to be denied. However, when actions are needed to assist the destruction of our NHS, funding seems to be readily available.

The emotional and financial pressures placed on NHS whistleblowers has to stop. Doctors are calling on NHS England to send Trusts a directive to stop spending public money on persecuting clinicians in this way. Judicial mediation is a free service offered by Employment Tribunals which would also reduce the psychological stress on whistleblowers. Clinicians are demanding all NHS Trusts stop employment tribunals and use this free mediation service.

Please join with the doctors who are there for us when we need them. Add your name to the petition to transfer all cases to mediation. Please sign this petition and share it widely with your contacts. Help raise the alarm before we end up with a US style healthcare system. 

Doctors are also demanding that NHS England calls an inquiry into the wastage of public money so far on employment tribunals concerning whistleblowers. Please write to your MP and make this demand.

Access to quality healthcare for all is desperately needed if this country is to recover from the dire political and economic mess it is currently in. We must fight for our NHS; our lives and our children’s lives depend on it. We must demand our NHS is reinstated. Please, please raise the alarm.

Before you go

If you liked this article, please consider getting involved. Counterfire is a revolutionary socialist organisation working to build the movements of resistance and socialist ideas. Please join us and help make change happen.

Lucette Davies

Lucette is a People's Assembly activist, member of Counterfire and founder of East Sussex Save the NHS

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