HCSA

Whistleblowing: managing vexatious complaints

I like David Drew’s idea of presenting a whistleblower with an award where concerns have been properly upheld. But I am not sure I agree with him that the numbers of vexatious or malicious allegations are rare.

In my experience, they are becoming far too prevalent but even if we don’t know the numbers the ruination of just one consultant career is one too many. Let me give one true example (trust me, I am not a doctor) where the HCSA is actively involved. This is not unique and neither is it an exaggerated description. It goes like this…

In late 2011 two consultants were reported by a ‘whistleblower’ to have engaged in private practice in NHS time. Both were immediately excluded (suspended) pending referral to the NHS Counter Fraud Squad. No cursory or initial investigation was undertaken by the trust; the allegation of fraud was considered far too serious for that – immediate exclusion was implemented. Contact with colleagues was forbidden for fear of interfering with ‘witnesses’.

Three months later, yes three months, the NHS Counter Fraud Squad found no reason to pursue criminal proceedings and the two consultants allowed to return to work.

The reputation of both has been seriously damaged, their health has suffered as a result of stress; the scars of such an ordeal will take a long time to heal. Tell them that exclusion was a ‘neutral’ act – and they will say that is not how it felt to them. They are angry and rightly so.

And the ‘whistleblower’? Anonymous, unaccountable and probably sleeping easy at night – unlike the innocent victims of such malicious behaviour. It will take more than a telephone hotline; the culture needs to change. Receptive to legitimate concerns, certainly. But equally it must be unforgiving of the vexatious complainant. That is not whistleblowing – but can the NHS recognise the difference? Not in my first-hand and very real experience.

Malicious whistleblowing is destroying consultant careers – and so is the lack of any realistic accountability of the perpetrators.

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12 Responses to “Whistleblowing: managing vexatious complaints”

  1. Malcolm Morrison says:

    Of course, initially, it can be impossible to determine whether the whistleblower’s ‘complaint’ is real or malicious; so it may be right that the ‘accused’ need to be suspended whilst the evidence is gathered – but this should NEVER take more than a week or two. After this, the ‘accused’ should be allowed to return to work (unless it is deemd that they would put patient’s lives at risk) – because, believe it or not (in spite of ‘trial by media’), in this country a person is supposed to be ‘innocent until proven guilty’.

    In other walks of life, a malicious accusation can be a criminal offence – even if it is only ‘wasting police time’. Surely, the same should apply in the NHS – especially if the ‘Counter Fraud Squad’ is involved?

  2. Dr David Drew says:

    This is the first time I have come across vexatious whistleblowing. I believe it is rare. The real problem is healthcare professionals failing to raise concerns and genuine whistleblowers being punished. In the case cited by Stephen Campion who made the complaint and what was the motive? Was the complaint justified in any way? If not some kind of redress is necessary. The problem is that in the closed cultures of some NHS Trusts this is hard to achieve. In my experience Information Access Laws may help.

    In April 2009 I was excluded for 6 weeks following a set of groundless complaints by a nurse manager. The investigation concluded with “no case to answer” but I was given an instruction which restricted my freedom of speech in the Trust. Since my exclusion related to a number of concerns I had raised about patient care this looked like an attempt to silence me in future. In a transcript obtained from NCAS using the Data Protection Act (DPA) I discovered that the Medical Director had claimed that formalisation of my exclusion was required as I was a “danger to staff and patients.” In a Trust document which I was never intended to see and which I also obtained by DPA the CEO and Head of HR stated that formalisation had been required because of administrative delays. This is not of course a valid reason for formalisation. It would be potentially libellous of me to accuse the Medical Director of dishonesty in making a claim he knew to be untrue but it is hard to avoid that conclusion.

    I also made a request under DPA for copies of the witness statements the department’s 3 managers made to the investigation. The Trust refused but the Information Commissioner ruled against and instructed the Trust to hand the documents over. These statements contained a number of serious untruths and allegations but nothing that the investigators could have based their instruction restrictng my freedom of speech at work on.

    This and much else will be the subject of my case against a trust at Employment Tribunal for unfair dismissal in a few months time.

    In the case of the 2 consultants referred to by Stephen Campion I suggest that if they were shown no convincing evidence of wrongdoing in the investigation into their exclusion and if they believe the complaint vexatious, malicious or mischievous they immediately submit a Subject Access Request under DPA for all documentation of the investigation including witness statements. Some NHS Trusts permit or actually promote a culture of secrecy and fear. We need to do all we can to break this open and protect patients and staff. Information Access Law may help with this.

    I tweet as NHSWhistleblowr. If SC follows me I will send my contact details and help with SARs if he wishes.

  3. Malcolm Morrison says:

    Are there no sanctions that could be enforced against managers (including Medical and Nursing Diretors and CEOs) who fail to act on a whistleblower’s ‘disclosure’ of facts found to be true?

  4. Dr David Drew says:

    The Trusts rule Malcolm. They are pretty much a law unto themselves. In my case they created a discontinuity between the whistleblowng and the reason for exclusion and dismissal. The only way to fight it is through the Employment Tribunal. I was very badly let down by the BMA lawyers on this although my IRO was very helpful indeed. Funding your own legal costs at ET is almost prohibitively expensive and most settle out of court with some kind of gagging order. For this reason it rarely comes to public attention. Keep an eye on my case at Birmingham ET.

  5. Stephen says:

    David. I would be delighted to be in contact because this is an important issue. I can be reached at the HCSA telephone 01256 771777. Regards. Stephen Campion

  6. CTNHS North East says:

    Malicious whistle blowing, cant say that i have ever come across any cases. It takes courage to blow the whistle. It’s still a taboo in many NHS organisations, oh yes the paper work and policies are there that are designed to “protect” but the reality can be life changing. Loss of Job, loss of career, confidence, impact on health, family, lifestyle… A malicious whistle blower must surely be willing to give up a hell of a lot!! Not a good risk if only for malicious reasons.

  7. Martin Rathfelder says:

    We can’t assume that all whistleblowers are truthful and honest, though I have no doubt that most are. Internal politics in some trusts can be very vicious and unhealthy. I’ve come across people who claimed to be whistleblowers who seemed me to be honest but deluded. In a culture of secrecy and oppression its hard to sort out reality from fantasy or conspiracy.

  8. scooby_doc says:

    In my experience, it is the whistleblowers who are harranged and discredited. Myself and 2 of my GP partners raised significant concerns about another partner. He was having on average 20 written complaints per year, many more verbal and we were also concerned about his cutting corners on his clinical care.

    To our surreal amazement, the PCT accused us of phoning patients to encourage them to complain and threatened to refer the 3 partners to the GMC. ( May I point out that they had no evidence for this and that they at no point even looked at the written complaints or outcomes . They inform us “somebody told them we did this” but they were unable to elucidate further).

    2 years on , the 3 partners ( myself included) have just found out that we remain being discussed at the PCT performance group, despite an independent facebook page set up and joined by over 100 of our patients complaining specifically about the doctor that we raised concerns about. ( The PCT are aware of the page and managed to get it taken off).

    The PCT performance groups – in general – are not fit for purpose, but i have been told by my defence unon that I have to go by what they have decided and stay silent. We are silenced and do the best we can in house to mentor and to try to protect our patients.

  9. Dr Helen Bright says:

    Whistleblowing is named after police officers blowing whistle to attract attention. It presumes that police are doing their job properly and the term whistleblowing cannot be applied to backstabbing.

    See the case of Fecitt and Others v NHS Manchester. This is not a free country and ‘no’, we cannot protect our patients as individuals or even with the help of lawyers or a small group of decent colleagues.

  10. Dr Rita Pal says:

    Stephen

    I believe your concerns are justified. During the research of our paper Whistleblowing and Patient Safety Bolsin, Pal et al, we discovered that there was little by way of research into vexatious whistleblowing. This is a aspect of great concern. It is also neglected by the medical fraternity. I raised the matter here http://www.huffingtonpost.co.uk/rita-pal/vexatious-whistleblowing_b_1090845.html .

    Well done for raising it as it is a serious problem that is currently affecting the budget of the NHS.

    On a side issue, Dr David Drew’s case has been in the media. I would like him to tell us all about the reports that vindicate his initial concerns.

    Regards

    Dr Rita Pal

    Declared Conflict NHS Whistleblower
    Second author to Whistleblowing and Patient Safety JRSM.

  11. Peter English says:

    I am certainly aware of doctors who have been transferred from their normal duties and investigated for reasons that seem to be due primarily to personality clashes, with some invented complaints made to justify backstabbing.

  12. […] about financial incentives for whistleblowing in relation to the public sector – it is so easy to be malicious in an organisation that is already failing due to poor public […]

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