Catholic Medical Quarterly Volume 65(3) August 2015
“Whistle Blowing in Healthcare - The Ethics”
Dr Anthony Cole, Chairman MEA
The Medical Ethics Alliance ( M E A ) held a conference on whistle - blowing on 3rd of June at the Royal Society of Medicine. Four papers were followed by a discussion The contributors included a barrister, a nurse a professor emeritus of neonatology, and a professor of philosophy who had written extensively on whistle - blowing. The conference coincided with the consultation “Freedom to Speak Up”, of the department of health based on the proposals in Sir Robert Francis` third report (1) following the Mid Staffs enquiry.
Are whistle - blowers discriminated against in the legal system”.
Mr Duddington, barrister and editor of the journal Law and Justice, the Christian Law Journal, entitled his paper “Are whistle - blowers discriminated against in the legal system”. He took as example a care worker who blows the whistle on neglect in a care home and is subsequently dismissed. She finds she has little legal protection despite speaking the truth and finds that her disclosure which she thought was protected, in practice is not. Indeed, she is labelled “trouble”, and if she challenges her dismissal in an employment tribunal finds she has incurred considerable costs and that the average damages for unfair dismissal are as little as £11,873. She is never reinstated and may have acquired a reputation which makes it difficult to find another similar job.
“Disclosure”, in law is a hard term with a limited meaning. In the year 2013 - 2014, 2684 claims for unfair dismissal were brought and only 92 were successful, 1698 were settled by negotiation and the rest failed. By settlement, a payment is made but the carer may feel she must accept because she is unemployable, and the settlement will be conditional on her not pressing her complaint further. Any success will depend on the facts being true and internal channels having been exhausted. If she goes outside to the media and is paid for her story, she will have no legal protection. The law, namely the Public Interest Disclosure Act (PIDA)1999 needs “beefing up”
Professional conscience and organisational culture
Professor Hunt’s paper was entitled “Professional conscience and organisational culture”, explained that if a public disclosure by a person working in an organisation concerning acts, or omissions perceived as morally wrong, may find that such a disclosure could be regarded as wrongful by organisation’s authorities.
He has written extensively on whistle-blowing in healthcare, social work and more recently the civil service, and that little has changed in 20 years. He reminded us of the Old Testament Prophets and sometimes it was many years before a whistle-blower who was initially seen as disloyal, was eventually recognised as a hero.
He suggested that a better way would be to place more emphasis on freedom of speech in accordance with the European Convention on Human Rights, and reforming the PIDA. He referred to the Freedom to Care Organisation which he had founded, and which could offer support and advice.
He pointed out that what was taking place was often the mistreatment of good people. In his extensive experience malice only creeps in if the whistle - blower is victimised or says something out of exasperation. This can then be taken as malice by the organisation and becomes the focus of attention, rather than the original concerns. There needs to be recognition that it is unlikely that the whistle-blower is acting untruthfully, as the cost to themselves is considerable. He thought that it is really an issue of human rights in the workplace and there is a public accountability problem, not of individuals, but organisations such as the behemoth NHS.
It needs to be accepted that people have a propensity to do the right thing. Values need to be trusted, and also openness amongst stakeholders. Employees have a right to inform. He suggested that under The Equality Act 2010, more protection should be given to employees beyond non discrimination on grounds of sex and race etc
“Ethics and philosophy of conscience”.
Professor Wyatt’s paper was entitled “Ethics and philosophy of conscience”. He began by drawing attention to an article by Julian Savulescu saying
“A doctor’s conscience has little place in the delivery of modern medical care… Doctors could not have private conscience determining their action..”. (2)
He countered this by drawing attention to some historical incidents including the abuse of psychiatry under Stalin, experiments on humans in the Second World War, participation in torture, organ transplantation from executed prisoners in China, to the neglect of coloured prisoners in US prisons to study the long-term effects of syphilis. Conscience is much wider than abortion and euthanasia and is integral to moral integrity and that to require a doctor to act against their conscience was a “rape of the heart”.
Doctors are trusted as acting in the patient’s best interests and conscience plays a bigger role in medicine than many other professions and is a safeguard against political power. What sort of physician would one prefer, a “state apparatchik“, or one with a “moral compass“?
In conclusion he said,
“The right of individual conscience is an important safeguard of personal moral integrity and is a reflection of the special characteristics of the medical profession within society. Appeals to conscience are clearly open to abuse and should only be accepted where the ethical values on which they are based are central to the agreed goals of the medical profession”.
Nurse as patient advocate or not?
Teresa Lynch, a nurse gave a paper entitled “Nurse as patient advocate or not?” Advocacy is “pleading the cause of another.” The Nursing and Midwifery Council expects holistic care which is empathetic, respectful, listening, informing choices, empowering and advocacy. With an increasing aging population more and complex needs arise and cure must not replace care as the focus. A recent U N proposal putting an emphasis on reducing mortality in the under 70s, relegates the elderly to second class status and this is unethical.
Overlong shifts and tired staff are susceptible to higher stress levels and sickness rates. Healthcare requires a better culture. Many nurses feel lack of courage to do the right thing when raising concerns about poor standards of care. Referring to the second Francis report on Mid Staffs, she said that the Trust were preoccupied with cost cutting and lost sight of responsibility to review safe care and nurses who raised concerns were ignored or bullied.
A survey by the Royal College on Nurses in 2008, found that 11% of staff left work feeling distressed because they couldn’t deliver the kind of dignified care they knew they should provide.(3) Confrontation with doctors and the perception of lack of respect from doctors can occur. Remaining silent is simply not an opinion in the face of an unjust or even criminal act, knowing the harm that can result.
Truth telling passes through three stages - ridicule - violently opposed - accepted. She used examples such as the nineteenth century obstetrician , Semmelweis who called upon birth attendants to wash their hands in chlorinated lime. His findings were finally accepted after 20 years. Professor Pullicino blew the whistle on the way the Liverpool Pathway was being used as an assisted death pathway, but it was eventually phased out after the Neuberger Review.
Rabbi Julia Neuberger drew attention to those with concerns that they wish to raise to consult the independent whistle-blowing charity Public Concern at Work (PacW) and said that “ PacW is a unique and important resource for people in my position.”
In the discussion which followed we heard of bullying resulting in dismissal and vexatious referrals to the GMC, depression and even suicide. Staff can be rendered unemployable, training disrupted and failure to be promoted.
The conference enabled participants to take an informed part in the Freedom to Speak Up consultation of the Department of Health following the third Francis report (5) . This called for a culture of safety, freedom from bullying, encouragement in raising concerns, reflection, training and informed reporting. It recommends establishing “Guardians of Freedom to Speak Up” who in turn will have an Independent National Officer and annual reviews by the Secretary of State for Health. Students and trainees should be offered more protection and there should be changes to the Employment Rights Act 1966 and that former employees should have help finding new employment.
The CQC should review and encourage good practice. Whether these proposals are accepted, and whether they will be adequate remains to be seen.
- “Freedom to Speak Up”, third report, Sir Robert Francis, Department of Health, 2014
- “Conscientious objection in medicine”, J Savulescu, BMJ 2006. 332, 294 - 297
- “RCN (2008) Defending Dignity, Challenges opportunities for
nursing” London, RCN
- “Freedom to Speak Up” consultation, Dept of Health, closed 4/6/15