The Whistle Blowing ‘Lacuna’

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Whistle blowing protection is afforded to junior doctors against their employer under the Public Interest Disclosure Act. The current case of Dr Chris Day highlights the unique relationship junior doctors have with Health Education England – proceedings thus far have uncovered an apparent loophole to this whistle blowing protection. This post aims to summarise the current position, how it relates to practicing junior doctors and suggests how relevant stakeholders can enact solutions.

This post reflects my personal views and not necessarily those of any of my affiliations.

Context

Any doctor registered with the General Medical Council (GMC) has a duty to raise concerns where patient care is or has the potential to be compromised, as outlined in Good Medical Practice. This may take the form of ‘whistle blowing’ – where a worker passes on information concerning wrongdoing in their workplace to their employer. Those who blow the whistle receive protection against detriment and unfair dismissal from their employer under the Public Interest Disclosure Act 1998 (PIDA). This extends to junior doctors between them and their employing trust/GP practice, even with the itinerant and rotational nature of their posts.

The Problem

The much-publicised case of Dr Chris Day has cast doubt over the protection that junior doctors have when raising concerns. In this instance, raising concerns against dangerous staffing levels led to a series of events that ultimately led to the deletion of Dr Chris Day’s National Training Number (NTN). Junior doctors that have entered specialty training (i.e. a post-qualification training programme that culminates in GP or consultant status) are assigned an NTN with an accompanying training programme and must meet certain competencies each year to progress to the next stage of training. As long as these competencies are met, the NTN is retained and relevant clinical placements ensue until GP/consultant level is reached. If a junior doctor were to fail in meeting these competencies, they can ultimately be made to leave the training programme – often subjectively viewed as dismissal from their employment.

Whilst a junior doctor’s clinical work and training happens typically within a trust or GP practice (the employer), another body is responsible for assessing progression through training programmes – Health Education England (HEE). HEE are an arms-length body to the Department of Health tasked with workforce planning for the NHS. In Dr Chris Day’s case, he argues that he suffered detriment at the hands of HEE, resulting in the deletion of his NTN. However, HEE are not legally considered as an employer, and therefore the supposed detriment Dr Chris Day faced was not subject to PIDA, the same view held by Mr Justice Longstaff at an Employment Appeal Tribunal ruling against Chris Day in February 2016.

Interestingly, the judge made an observation referring back to the Employment Rights Act 1996 (ERA) and specifically to Section 43(k), which discussed what constituted a ‘worker’ (and thus someone that would receive protection under PIDA). There is detail here that includes several different types of worker, including those affiliated to higher education institutes (e.g. student nurses) and those working for agencies. There is however nothing that accurately describes a junior doctor’s relationship with HEE. Dr Chris Day argued that HEE acted as an employing agency for junior doctors, but this line of argument proved unsuccessful. The judge concluded that this omission of junior doctors and their relationship with HEE must have been deliberate on the part of Parliament.

Deliberate Omission

Whatever the detail of Chris Day’s case, a gap (or ‘lacuna’) in the law has surfaced that subjectively affects a junior doctor’s ability to raise concerns:

  • It is still the case that a junior doctor has protection under PIDA from their employer should they blow the whistle.
  • PIDA does not apply to HEE as they are neither an employer nor an agency.
  • Junior doctors place great salience on their NTNs – if it is the case that whistle blowing proceedings have the potential to affect their ability to progress through a training programme, and in some cases have an NTN deleted resulting in removal from that training programme, then a situation arises where junior doctors will think twice about raising concerns.
  • This hesitation to carry out duties expected under the GMC’s Good Medical Practice will only serve to negatively affect patients and halt/regress service improvements.

 

The Solutions

The apparent loophole that has surfaced requires action from several relevant stakeholders. The suggestions below are based on the current available evidence.

  1. HEE – as HEE is not an employer, they are exempt from PIDA. However they must acknowledge that they hold considerable power over a junior doctor’s career. In the absence of changes to legislation, HEE must create a robust internal policy to support junior doctors subject to whistle blowing proceedings. Junior Doctor NTNs must be held unless there are compelling reasons not to do so. If progression is not being achieved at the appropriate rate, then pragmatic case-by-case decisions should be made at annual appraisals with due consideration to how whistle blowing proceedings may contribute to this. HEE must also issue guidance to junior doctors they oversee, removing ambiguity and uncertainty from the situation that has arisen. In short, HEE would do well to offer individualised ‘customer service’, and practice the essence of PIDA in the absence of the legal compulsion to do so.
  2. GMC – as the regulator of doctors, the GMC carries considerable lobbying power and are well placed to actively campaign for the closure of loopholes to raising concerns. They can exert influence over Government to amend legislation, place expectations on HEE (as detailed above), and make changes to undergraduate and postgraduate curricula to educate doctors on the legal context in which they work. This can extend to educating the public on a doctor’s duty to whistle blow via patient representative organisations and patient safety organisations. As with HEE, the GMC must also update/publish guidance for doctors given the occurrence of these events.
  3. The British Medical Association (BMA) – like the GMC, the BMA carries significant lobbying power. They have the ability to create policy to find and lobby for the closure of loopholes to whistle blowing protection. This can be successfully done separately to their legal representation service offered to members. The BMA are well placed to lobby HEE and the GMC to issue/update formal guidance to junior doctors given the occurrence of these events.
  4. Government – the fact that a judge concluded that junior doctors must have been omitted intentionally from S43(k) of the Employment Rights Act is concerning. The Government must seek to define the relationship junior doctors have with HEE and instil this into legislation to afford relevant legal protection under PIDA.
  5. Doctors – as a profession, doctors must be well-versed on the legal aspects of their clinical practice. Curricula are already packed and service-provision means training time is precious, but without making a commotion on what they need to know about, training will not be relevant to their needs to practice effectively.

Whilst Dr Chris Day mounts further appeals, there is much detail about his case that is not in the public domain. It can be argued that the detail of his case is irrelevant, but that this and other loopholes must be closed to enable junior doctors to raise concerns effectively to benefit patients.

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5 thoughts on “The Whistle Blowing ‘Lacuna’

  1. Excellent summary, many thanks – finally some clarity around this issue, also reflecting on why Mr Justice Longstaff’s comment is rather important.

    Like

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