Category Archives: Gagging

Official gagging? “…a climate that threatens individuals with criminal sanctions and lets the system off. The hospital hasn’t been held to account.”

This case has been festering, and playing in the minds of many reflective doctors. The principal that we should be completely open in our reflection will not hold water for those doctors who have made mistakes – Is this a form of official gagging? Dr Vaughan’s comment at the end of this report reads: “You can’t learn from errors in  a climate that threatens individuals with criminal sanctions and lets the system off. The hospital hasn’t been held to account.” The Official BMA response (30th Jan 2018) is here.

Chris Smyth reports for the Times, 26th Jan 2018: GMC wins appeal to bar Hadiza Bawa-Garba after boy’s death

A doctor whose career was spared despite being convicted of the manslaughter of a six-year-old boy has been struck off after the General Medical Council won a High Court appeal.

Jeremy Hunt, the health secretary, joined doctors in arguing that the ruling could harm patient safety by making staff scared to admit mistakes.

Doctors accused the regulator of a vindictive campaign to use Hadiza Bawa-Garba as a scapegoat for systemic failings in the NHS. The GMC, however, insisted that patients would lose confidence in doctors if they could be convicted of criminally negligent treatment yet continue to work.

Bawa-Garba, who was 35 and a paediatric registrar, was on duty at the Leicester Royal Infirmary in 2011 when Jack Adcock arrived with diarrhoea and vomiting. She did not follow up on abnormal tests quickly, did not call in a consultant and missed what an expert described as a “barn-door obvious” case of sepsis.

She then told a crash team to stop resuscitation without looking at Jack’s notes because she had mistaken him for another patient after confusing their mothers. Although this did not contribute to Jack’s death, the trial judge said that the “extraordinary” error illustrated how bad her care was. She received a two-year suspended sentence in 2015.

Last year, an independent Medical Practitioners Tribunal Service panel decided not to end her career, citing “the context of wider failures”, such as short-staffing and IT glitches that delayed test results. It suspended her for at least a year, but told her the mistakes were not irredeemable and would not preclude a return to work. The GMC, which won the power to challenge such rulings last year, made an appeal.

Yesterday Mr Justice Ouseley overturned the panel’s verdict, citing a ruling by Lord Bingham that “the reputation of the profession is more important than the fortunes of any individual member”. He ruled that the tribunal had not respected the “true force of the jury’s verdict” that Bawa-Garba’s failings were “truly, exceptionally bad”. He said that a panel had no right to judge her culpability less severely after considering the same issues. “The holes in the patient’s safety net cannot reduce her personal culpability,” the judge wrote, arguing that systemic problems did not cause Bawa-Garba’s errors.

The health secretary said he was “deeply concerned about possibly unintended implications” of the ruling for the process of learning from mistakes. He said he was “totally perplexed” by the GMC decision to pursue the case.

Charlie Massey, chief executive of the GMC, said “doctors should have nothing to fear” from the case as he would not hold an admission of error against them. “People are confusing normal, everyday error with things that are ‘truly, exceptionally bad’.”

Jenny Vaughan, a consultant who has supported Bawa-Garba, said: “You can’t learn from errors in a climate that threatens individuals with criminal sanctions and lets the system off. The hospital hasn’t been held to account.”

Rob Hendry of the Medical Protection Society, which defended Bawa-Garba, said: “This decision may jeopardise an open, learning culture at a time when the profession is already marred by low morale and fear.”

Bawa-Garba may appeal to the Supreme Court.

Back to blame: the Bawa-Garba case and the patient safety agenda. Is there any Dr who will not stop putting any form of patient identifiers in their portfolio now? Medical errors may now be hidden for fear of litigation.

Update 1st Feb 2018: “Junior doctors fear reporting errors” by Kat Lay

Doctors have been warned that they risk disciplinary action if they carry out threats to stop recording mistakes in writing.

They fear that any admissions could be used against them, after a junior doctor was struck off last week for errors that led to the death of a six-year-old boy. Hadiza Bawa-Garba was convicted of manslaughter by gross negligence in 2015 over the death of Jack Adcock from sepsis in 2011.

Her case has provoked anger among thousands of doctors, who believe that she was a scapegoat for systemic failings and may have been the victim of racism. Jack was admitted to Leicester Royal Infirmary in 2011 with diarrhoea and vomiting. Bawa-Garba failed to follow up tests quickly, did not call in a consultant and told a crash team to stop resuscitation after mistaking him for a patient with a “do not resuscitate” order. She was covering the work of two doctors after return from maternity leave, with no induction into the role.

Last year the Medical Practitioners Tribunal Service decided not to strike her off but the General Medical Council appealed and won last week.

Kaanthan Jawahar, a junior doctor specialising in geriatric psychiatry in Nottingham, wrote on Twitter: “Your employer will scapegoat you for systemic failures . . . Your seniors will throw you under the bus.”

Doctors must keep an eportfolio as part of their annual appraisal process, in which they should reflect on how they could improve their practice.

Rob Hendry, medical director at the Medical Protection Society, which represents doctors in legal cases, said: “One particular area of concern has stemmed from reports that Dr Bawa-Garba’s eportfolio reflections were used against her at the criminal trial. In fact, her eportfolio did not form part of the evidence before the court and jury.

“We also advise doctors to bear in mind that not disclosing an incident or reflection during appraisal may lead to a greater risk of allegations of probity and referral to the GMC.”

Terence Stephenson, chairman of the GMC, said that although the court had ruled that the tribunal “had no powers to unpick the criminal conviction”, there was a “critical need” to examine how gross negligence manslaughter cases were initiated and carried out.


NHS staff leave because they are managed by intimidation and bullying rather than encouragement and support.

No exit interviews. This is a rare occurrence in the first world today, but it is usual practice in the Health Services. If there were exit interviews, not many staff would comply as there is no trust in the management, so they will have to be provided from 3rd party independent HR companies.

LOYALTY TO THE NHS – Letters Jan 24th 2018
Sir, Niall Dickson, the head of the NHS Confederation, argues that junior doctors should be forced to remain loyal to the National Health Service as if they were in the military. (“NHS doctors who move abroad ‘should pay back training costs’ ”, Jan 22). He argues that it costs £220,000 to train each doctor.

The same NHS bosses seem to have no moral difficulty in travelling to countries such as the Philippines and Nigeria to poach doctors and nurses. Presumably it costs these countries similar amounts to train their healthcare professionals and they are less able to bear the financial loss of staff migration to the UK, depriving their populations of much-needed medical care.

NHS staff leave because they are managed by intimidation and bullying rather than encouragement and support.

Niall Dickson’s proposal will ensure that even fewer school leavers enter medicine and nursing, and even more clinical staff are taken from poorer countries to support our failing healthcare system.
Paul Nolan

Consultant trauma and orthopaedic spinal surgeon

Letters 26th December 2016

If the NHS is so good, why hasn’t anyone copied it?

Sir, Mark Littlewood is to be congratulated for introducing a degree of reality into the debate about the NHS (“If the NHS is the envy of the world, why don’t any European countries copy it?”, Business, Dec 20). Is it really beyond our politicians to set aside party differences and establish a far-reaching and independent commission to examine the health and social care needs of the UK over the next 30 years? Such a commission should examine how care is successfully delivered and funded elsewhere, and ask searching questions as to whether we can reasonably expect the NHS and local government to match the best that is available, or if different delivery and funding solutions are needed.

Will Lifford

East Keswick, W Yorks

Sir, The elevation of our NHS to “holy cow” status is over-simplistic (letter, Dec 22). By the same token, Mark Littlewood’s article treats the NHS as a business, equating it to food supply and clothing. Surely the clue is in the title — it is a service not simply a business. That said, this is not the same as regarding it as a sacred cow. As a large, complex organisation there are doubtless areas that can be (and are being) improved without abandoning the principle of universal healthcare. Having this year been diagnosed for a second time with cancer I have been extremely grateful that during all this time, with five operations, six weeks as an in-patient, six weeks of radiotherapy and countless tests and clinics, I have never once had to worry once about my ability to pay for this excellent treatment.

By contrast, during my working career I lived abroad in a number of countries, notably the US, which did not have a comparable healthcare system, and where the ability to pay was a very real issue.

The time we should really worry is when the first question you are asked when visiting your GP is not “what is your date of birth?” but “what is the long number on your debit card?”.

John Young

Richmond, N Yorks

Sir, Mark Littlewood concludes that “To believe that the centralised, state-run National Health Service is the best possible mechanism for curing the sick and keeping people alive is simply at odds with the facts”, yet puts forward few facts to justify this assertion. The “factual evidence” he provides is a comparison of the extent of expected live expectancy in various countries after diagnosis and treatment for cancers. He notes that if the NHS could replicate the performance of the Netherlands, Germany and Belgium, death rates would fall and up to 14,000 fewer Britons would die each year. The UK, he says, “is about on a par with the Czech Republic and Slovenia, countries where average income is less than half ours”.

What he omits to say is that life expectancy as a whole is lower in Germany, Denmark and Belgium than in the UK; that these countries spend a higher proportion of their GDP on healthcare than the UK does; and that life expectancy in Slovenia and the Czech Republic is significantly lower than that achieved by Britons.

Alexander Johnston

Syston, Leics

Sir, Mark Littlewood asks questions that need answering, but J Wesley Harkcom (letter, Dec 22), along with many politicians, seems not to understand why the public are so loyal to the NHS. In 2014-15 the NHS gave superb care to my wife in her terminal illness, all the way through the ambulance service, Truro A&E, the neurological surgery unit at Derriford in Plymouth, the multiple services provided by Truro hospital, the neurological rehabilitation unit in Hayle, St Austell Hospital, Mevagissey surgery and the many Cornwall social services who, together with the NHS, enabled my wife to stay at home, enjoying life to a remarkable extent, until her death.

Anecdotal evidence suggests that our very good experience is common. This explains the public’s loyalty to the NHS. Misunderstandings get in the way of the sensible debate suggested by Mark Littlewood, who understands this loyalty.

Gerald Hingley

St Austell, Cornwall

Back to blame: the Bawa-Garba case and the patient safety agenda. Is there any Dr who will not stop putting any form of patient identifiers in their portfolio now? Medical errors may now be hidden for fear of litigation.

The BMJ (BMJ 2017;359:j5534 ) published on 29th November 2017, the terribly worrying result of a Trainee’s Personal Educational Portfolio being demanded in court. Alex Matthews-King reported in Pulse 15th April 2016 had anticipated the BMJ with: Trainee’s portfolio ‘used as evidence against them’ in legal case. Is there any Dr who will not stop putting patient identifiers in their portfolio now? What does this say about the “duty of candour”?

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The BMJ article is by Deborah Cohen: Back to blame: the Bawa-Garba case and the patient safety agenda

How can the NHS ever learn lessons from medical errors if doctors’ personal reflections backfire in court, asks Deborah Cohen

The case of Hadiza Bawa-Garba has left the UK medical profession rattled. Though there has been an outpouring of sympathy for the trainee paediatrician being pursued by the General Medical Council (GMC),1 there is also an increasing sense that the case will leave the patient safety agenda in tatters by closing down any discussion of medical errors for fear of litigation.

Bawa-Garba’s fate will be decided in the High Court on 7 December when the GMC attempts to overturn a decision by the Medical Practitioners Tribunal Service to keep her on the medical register. She was convicted of gross negligence manslaughter in 2015 after the death of 6 year old Jack Adcock from sepsis at Leicester Royal Infirmary.2

Blame culture

Senior and trainee doctors have told The BMJ that the handling of the case by those directly involved, the judiciary, and the GMC risks reviving a culture of blame in healthcare. “The criminalisation of medical error when events are considered singularly rather than as a part of a highly complex system is going to seriously impede learning,” said Jonathan Cusack, the Leicester Royal Infirmary neonatologist who was Bawa-Garba’s educational supervisor after the incident. He gave evidence in support of her in her criminal trial and at the medical practitioners tribunal.

David Grant, a consultant in paediatric intensive care at University Hospitals Bristol NHS Foundation Trust with a special interest in simulation and human factors, told The BMJ that the case risked setting a precedent that “will undermine all attempts to create a culture of openness and learning aimed at improving patient safety through proactive healthcare systems improvement.”

He said, “Without such a system and culture in place, organisations and healthcare systems will continue to learn the same lessons over and over again, while patients continue to come to preventable harm.”

Grant emphasised the need for people to be accountable for their errors, which can then “serve as triggers for systems analysis and organisational learning focused on preventing future occurrences.”

Indeed, the report that resulted from the serious untoward incident review after Jack’s death, seen by The BMJ, included recommendations to improve support for trainees and to enhance patients’ safety. Though it criticised aspects of Bawa-Garba’s involvement, it also found fault with “many aspects of the care that child JA received, and many of these were system failings.”

Andrew Furlong, medical director at University Hospitals of Leicester NHS Trust, which runs Leicester Royal Infirmary, told The BMJ that the trust had “implemented a number of improvements to our systems and processes which have reduced the risk of such events occurring again.”

He added, “This was a tragic event, and in 2015 a jury reached its decision having had all the evidence presented to it.”

But the hospital’s report was not heard in court. “Expert witnesses were stopped by prosecution barristers from discussing the significant improvements that the trust made after the incident which highlighted the multifactorial nature of the case,” Cusack said.

Evidence from e-portfolio

What was fed into the trial, however, was a reflective document from Bawa-Garba’s e-portfolio, which she filled in seven days after the incident.

Cusack has serious concerns about how a document intended for reflective practice and learning for personal development was used to apportion blame in the criminal justice process. He said, “The reflections in her e-portfolio show that at no point has she failed to admit her mistakes, which is critical if we are going to learn from tragic incidents and build a safety net to prevent them happening again.”

The Royal College of Paediatrics and Child Health would not comment on the case but highlighted a statement from its consultation document sent to the Sentencing Council for England and Wales, which is reviewing its guidelines on manslaughter, including gross negligence manslaughter.3 The college said that trainees were required to use their portfolios for personal reflection and subsequent learning. “However, we would be concerned if the duty of candour and educational reflection was wrongly influenced by court cases and convictions of medical professionals for gross negligence manslaughter. This we believe would have a detrimental effect on the overall quality and safety of healthcare.”

Other aspects of the investigation into Jack’s death have also led to disquiet and anger among doctors in Leicester.

The BMJ has learnt that, five days after Jack’s death, Bawa-Garba was asked to meet Stephen O’Riordan, the duty consultant at the time of the incident, in the hospital canteen. At the meeting she was asked to reflect on the circumstances and to sign a trainee encounter form setting out what she should have done differently. She was sent home immediately afterwards and told not to come back until she was asked to.

O’Riordan took the notes and typed them up. The BMJ has seen a copy of the form. It suggests that factors that let her down were her interpretation of biochemistry and venous blood gas results and her “lack of clear communication.”

The BMJ understands that these were fed into the hospital’s investigation.

O’Riordan left the trust a few months after the incident to take up a post at Cork University Hospital in Ireland.

Role of consultant

The court heard that O’Riordan was aware before Jack died that he had a serum pH of 7.084 and a blood lactate concentration of 11.4 mmol/L, which he wrote down in his notebook at evening handover. However, he did not perform a senior review of the boy because, he said, he was not specifically asked to by Bawa-Garba. He said he would have expected her to “stress” these results to him.

In his evidence to the practitioners tribunal Cusack said that although a trainee might not realise the full significance of this abnormal blood gas result, a consultant should. The role of a consultant is not just to review patients who are unwell but to recognise when a patient has been missed by junior members of the team. However, this role of the consultant was not discussed in the hospital investigation.

The BMJ asked O’Riordan to comment. A spokesperson for the Medical Defence Union responded on his behalf, saying that O’Riordan “cannot comment on the issues raised . . . because of his duty of patient confidentiality.”

Nor did the hospital comment, when asked by The BMJ, on the appropriateness of how Bawa-Garba was asked to reflect on the incident by O’Riordan.

Grant said that although he did not want to comment on the specific details of the case, the Royal College of Paediatrics and Child Health’s training standards required clinical supervision to ensure patients’ safety. “It is the duty of senior members of the healthcare team to critically evaluate information provided by less experienced colleagues, identify incongruences, and reassess patients to better understand the clinical state of the patient,” he said.

Jenny Vaughan, a neurologist who runs Manslaughter and Healthcare (, an online resource that follows prosecutions of healthcare staff in the criminal courts, has been watching Bawa-Garba’s case.

“The GMC’s actions here are purely punitive against a paediatrician who trusted the investigation process,” she said. “It’s terribly tragic that a child has died, but there are no winners in a system which blames tragic outcomes on a trainee. There was a catalogue of errors in this case, and patient safety will never be improved unless everyone promotes an open learning culture.”

Cusack, who was asked by trainees and the hospital trust to lead a debriefing for staff affected by Jack’s death, said that trainee doctors working in Leicester were concerned and angry about the conclusions of the trust’s investigation and the subsequent legal process. “Trainees felt that their colleague was being scapegoated and taking the blame for a series of system failings,” he said.

He added, “As an active educational supervisor I have seen a significant change in the way trainees reflect and document incidents.

“I’ve seen people behaving very defensively for understandable reasons, and trainers across the country are worried it’s having an impact because it’s such a high profile case.”

The GMC acting in such a punitive way and focusing on retribution was only going to serve to make this situation worse, he added.

Timeline: the Bawa-Garba case

  • February 2011—6 year Jack Adcock dies from sepsis at Leicester Royal Infirmary

  • December 2014—Bawa-Garda and two nurses are charged with gross negligence manslaughter4

  • November 2015—Bawa-Garba is convicted of gross negligence manslaughter and given a two year suspended sentence56

  • August 2016—The nurse also convicted in the case, Isabel Amaro, is struck off

  • December 2016—Bawa-Garba is denied permission to appeal against her manslaughter conviction7

  • June 2017—Medical practitioners tribunal suspends Bawa-Garba for 12 months, saying that “erasure would be disproportionate”

  • December 2017—High Court to hear GMC’s case to erase Bawa-Garba from the medical register

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A sinister development in the role of the GMC the position of a trainee, and the risk of a worsening, defensive culture of fear

Honesty and Candour are at risk. In a post truth world we need to control the damage being done to the medical profession. Without a no-fault compensation scheme this situation will get worse. Already precedent has been set by demanding access to Trainee doctors “educational portfolio”, and these two cases together are worrying. A sinister development in the role of the GMC the position of a trainee, and the risk of a worsening, defensive culture of fear. Gagging with such behaviour is really another form of bullying.

In Letters in the Times 5th December a team of 760 professionals at the top of their game question the GMC and it’s approach to candour. Medicine on trial:

Sir, We are concerned that the General Medical Council (GMC) is putting the culture of candour in medicine at risk and perpetuating an injustice by seeking the permanent erasure from the medical register of Dr Hadiza Bawa-Garba. Dr Bawa-Garba, a trainee paediatrician, was convicted in 2015 of negligent manslaughter after the tragic death of Jack Adcock in 2011.

The Medical Practitioners Tribunal Service (MPTS) then had to decide if she was fit to continue to practise. It heard that her clinical practice was generally regarded as excellent, with no other concerns flagged against her. It recommended she could apply to return to service as a doctor after 12 months’ suspension. The MPTS identified “multiple systemic failures” within the service. The evidence for these failures was not fully examined at the criminal trial; had they been, this would almost certainly have reduced her purported culpability.

The GMC is now appealing, via the High Court, seeking to have her struck off. We know of no evidence that terminating Dr Bawa-Garba’s medical career will make any patient safer. On the contrary it promotes a climate of defensiveness. In 2001, the joint declaration by the government and the GMC recognised that “honest failure should not be responded to primarily by blame and retribution, but by learning and by a drive to reduce risk”.

We urge the GMC to recognise that many within and outside medicine are already losing confidence in it and that this case could define its future.

Dr David Nicholl, consultant neurologist, Birmingham; Sir Peter Bottomley, MP; Nick Ross, journalist; Captain Niall Downey, doctor, pilot & patient safety trainer; David Field, professor of neonatal medicine, University of Leicester; Professor Sir Iain Chalmers, James Lind Initiative, Oxford. Plus a further 769 names at

Trainee’s portfolio ‘used as evidence against them’ in legal case

The real man smiles in trouble, gathers strength from distress, and grows brave by reflection. Thomas Paine Article from Pulse magazine once again the opportunity to learn from mistakes will be lost in order to satisfy the thirst for cash for claims bonanza that is going on in the UK. Good luck retaining doctors with […]


Whistleblowing law is expanded.. but hardly applies to GPs

The Times Law Report on 26th June: More than one employer can be liable to ‘whistleblower’

The trouble is that GPs are self employed and have no whistleblowing liable employer. However, GPs are more and more “portfolio” a career doctors with some time as partner or salaried partner, some time as educator, some time as referral centre letter reader, sometimes as Out Of Hours doctor or A&E assistant.

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Court of Appeal

Published: June 26, 2017

Day v Lewisham and Greenwich NHS Trust and Another

Before Lady Justice Gloster, Lord Justice Elias and Mr Justice Moylan

[2017] EWCA Civ 329

Judgment: May 7, 2017
For the purposes of the protection for “whistleblowers” in the workplace, a person in training might be employed by both the employer with whom he had been placed and the training body that had made the placement, if the training body had substantially determined the terms under which he worked.
The Court of Appeal so stated when allowing the appeal of the claimant, Dr C Day, against the dismissal by the Employment Appeal Tribunal (Mr Justice Langstaff) ([2016] ICR 878) of his appeal against a decision by an employment tribunal to strike out his claim against the second defendant, Health Education England, that it had subjected him to a detriment for making a protected disclosure or “whistleblowing”. The first defendant was Lewisham and Greenwich NHS Trust. Public Concern at Work intervened in the proceedings.

Part IVA of the Employment Rights Act 1996 (as inserted by section 1 of the Public Interest Disclosure Act 1998) provides, so far as relevant:
“43K(1) For the purposes of this Part ‘worker’ includes an individual who is not a worker as defined by section 230(3) but who (a) works or worked for a person in circumstances in which (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them . . . and any reference to a worker’s contract, to employment or to a worker being employed shall be construed accordingly.
“(2)(a) For the purposes of this Part ‘employer’ includes (a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged . . .”

Mr James Laddie, QC and Mr Christopher Milsom for the claimant; Mr David Reade, QC and Mr Nicholas Siddall for the second defendant; Mr Thomas Linden, QC, for the intervener.

Lord Justice Elias said that Part IVA of the 1996 act, read together with sections 47B and 103A (as inserted by sections 2 and 5 of the 1998 act), protected workers who disclosed information about certain alleged wrongdoing to their employers (colloquially known as “whistleblowers”) from being subjected to victimisation or dismissal as a consequence.

The appeal concerned the proper construction of section 43K and the application of that section to a certain category of doctors operating in the health service.

The claimant was a doctor who wanted to specialise and was accepted by the body then responsible for training doctors in London to take up a post from August 2011. He entered into a training contract that the parties agreed was not a contract of employment. He was allocated to the first defendant NHS Trust. Subsequently, the training body was taken over by a training board that was part of the second defendant, Health Education England.

Trainee doctors were allocated for relatively short fixed periods to NHS trusts. They entered into contracts of employment with each trust. The claimant worked, inter alia, at the Queen Elizabeth Hospital. While there, he raised a number of concerns with both the trust and with the South London Health Education Board about what he considered to be serious staffing problems affecting the safety of patients.

He alleged that those were protected disclosures within the meaning of the legislation on whistleblowers and he asserted that he was subject to various significant detriments by the second defendant as a consequence. He took proceedings before the employment tribunal against both the trust and the second defendant, as the body responsible for the actions of the South London Board.

The second defendant denied any wrongdoing, but took a preliminary point. To bring a whistleblowing claim the claimant had to fall within the statutory definition of worker and the defendant had to be his employer. The second defendant contended that that was not the position and, accordingly, that even if the facts alleged by the claimant were true, the second defendant could not be liable in law for any acts causing him detriment.

The only question was whether the claimant was a worker within the extended definition in section 43K and the second defendant was his employer as defined in that section.

His Lordship would refer to the person for whom the individual worked as the end-user and the party introducing or supplying that worker as the introducer. It was envisaged in section 43K(1)(a)(ii) that the terms on which an individual worked might be substantially determined by both the end-user (the heath trust) and the introducer (the training body). That might be either because the introducer and the end-user determined the terms jointly, or because each determined different terms but each to a substantial extent.

The extended definition of “employer” in section 43K(2)(a) was not limited to the person who played the greater role in determining the terms of engagement. Since both introducer and end-user could in principle substantially determine the terms of engagement for the purposes of the definition of worker, there was no basis for concluding that they could not do so when it came to applying the extended definition of employer.

That would in some cases have the effect that both introducer and end- user were employers and each would then be subject to the whistleblowing provisions. Indeed, that would seem to be an inevitable conclusion if the terms were determined by the end-user and introducer acting jointly. If only one party could be the employer, it was difficult to see by what principle it would be possible to determine who that should be.

The Employment Appeal Tribunal had been wrong to find that the fact that the health trust was a section 230(3) employer precluded the training body from also having that status.

There had to be some limitation on the words of section 43K, which began by providing: “For the purposes of this Part ‘worker’ includes an individual who is not a worker as defined by section 230(3) . . .” The insertion of some such phrase as “as against a given defendant” after “includes an individual who” would allow the section to operate against one of those parties even if there was a section 230(3) relationship with the other.

Accordingly the training body could in principle fall within the scope of section 43K(2)(a), notwithstanding that the claimant had a contract with the hospital trust.

The employment tribunal had not engaged directly with the question whether the training body itself “substantially determined” the terms on which the claimant was engaged. A tribunal should not limit itself to focusing solely on the contractual terms, although no doubt the terms would be overwhelmingly contractual. The section required the tribunal to focus on what happened in practice.

When determining who substantially determined the terms of engagement, a tribunal should make the assessment on a relatively broad brush basis having regard to all the factors bearing upon the terms on which the worker was engaged to do the work.

The case would be remitted to a fresh tribunal for determination of the preliminary issue whether the training body substantially determined the terms of engagement of the claimant.

Lady Justice Gloster and Mr Justice Moylan agreed.

Solicitors: Tim Johnson Law; Hill Dickinson, Manchester; Solicitor, Public Concern at Work.

Whistleblowing in the NHS – how safe are you? (Sharmila Chowdhury 4 August 2014)

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[PDF] Wales’ GP Heroine Whistleblower…. The Spectator reveals “How the …

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The Spectator reveals “How the NHS silenced a whistleblowing doctor” – No cultural change yet… | NHS reality. An NHS soapbox. Speakers’ corner for the NHS.

The inconvenient truth: NHS faces £20bn funding hole whoever wins

Whilst the media discusses terrorism without any evidence of what might be successful, the health service is ignored, despite evidence that refinancing is urgently needed, and in the long term the ideology is unsustainable. A letter from the three leading health think tanks in the Times fails to mention the need to ration health care overtly, but rationing is the unspoken thought behind all three… (CALL TO STRENGTHEN NHS FINANCES). Could it be that Mssrs Dixon, Edwards and Ham are effectively gagged from using the “R” word by threats to their funding? And they seem to include all the different health jurisdictions, and ignore that, as far as patients in Wales are concerned, there is no NHS any longer.

The Times’ Chris Smyth reports 6th June 201,7: NHS faces £20bn funding hole whoever wins

The NHS faces a £20 billion hole whoever wins the election, according to three leading think tanks.
They warn that services will worsen and patients will wait longer and be denied new drugs because no political party is offering enough for the NHS to cope with an ageing Britain. The main parties’ plans will give the NHS less than half the money it needs to avoid getting worse over the next parliament.
The King’s Fund, Nuffield Trust and Health Foundation say that politicians must come up with a long-term answer to rising health spending or be forced into wasteful emergency bailouts.

The Conservatives, Labour and the Liberal Democrats have all promised to increase the NHS England budget, which is currently £124 billion. Analysis of manifesto pledges suggests that by 2022 spending will increase to £132 billion in real terms under Tory plans and £135 billion under Labour.
However, projections by the Office for Budget Responsibility (OBR) suggest that the ageing population, rising cost of new drugs and other pressures mean the NHS will need £155 billion a year by then to maintain services.

“A real-terms funding increase of about £30 billion a year is needed in five years’ time to enable the NHS to deal with these pressures,” Chris Ham, Nigel Edwards and Jennifer Dixon, heads of the King’s Fund, the Nuffield Trust and the Health Foundation respectively, write in a letter to The Times.

“Our analysis shows that none of the main political parties has pledged enough in their manifestos to cover even half of that, while the share of our national wealth spent on healthcare would fall under all of their plans.

“Failure to provide sufficient funding and improve efficiency will result in longer waiting times for patients, poorer access to cost effective treatments and a decline in NHS and social care.”

Siva Anandaciva, chief analyst of the King’s Fund, said the OBR figures assumed the NHS would make further savings of the sort they had managed in the past, with bigger ones unlikely.

“You can certainly have that aspiration. But what the OBR does is take historical productivity that the NHS has achieved and bake that in,” he said.

By 2022 the population is expected to rise by 3.7 per cent, over-65s by 9.2 per cent and over-85s by 14.5 per cent.


Sir, A strong NHS is vital for a thriving population, workforce and economy. Public spending on healthcare accounts for just over 7 per cent of our national wealth. That is not enough to cope with the ageing population and other cost pressures.

Projections by the independent Office for Budget Responsibility suggest that a real-terms funding increase of about £30 billion a year is needed in five years’ time to enable the NHS to deal with these pressures. None of the main political parties has pledged enough to cover even half of that, while the share of our national wealth spent on healthcare would fall under all of their plans.

The next government must act quickly to strengthen the health service’s finances in the short term, as well as developing a sustainable, long-term approach to funding the NHS, to put an end to the cycle of feast and famine. This should include establishing an independent body to assess and advise on health and social care funding needs.

The NHS must also focus on improving efficiency and use additional funding to reform care to meet changing population needs. Failure to provide sufficient funding and improve efficiency will result in longer waiting times for patients, poorer access to cost-effective drugs and treatments and a decline in NHS and social care.
Jennifer Dixon, CEO, the Health Foundation; Nigel Edwards, CEO, Nuffield Trust; Chris Ham, CEO, the King’s Fund


Scotland and Whistleblowing

NHSreality takes the view that since morale is so low, no internal assessment of a whistleblower is possible. Cultural change needs to come quickly, and the start of this is meaningful “exit interviews” by an independent HR company. This company should report in general publically, for a Region, but specifically, in private to Health Boards. Copies of reports should go to the Minister concerned, and should be released once they are not embarrassing to individuals concerned. Incognito exit interviews could then be possible, and done for all staff moving or leaving posts; in particular juniors. I have delayed this post for 3 months hoping there would be some good news follow up… Post will be updated if there is. Some “good news” – Hywel Dda Trust in West Wales have told the consultants that they will initiate exit interviews. At least they are recognising their importance – now they need to recognise the barriers to speaking honestly to their own HR, especially for those moving post within the Trust, but even for those at retirement. The Health Services are on fire… Interesting that the problem has been deferred to the Health and Sports committee… reminds me of “turfing”, or passing the buck in the House of God. (Sam Shemm 1978)

Update 15th March 2017 from 17th Feb 2017:

Hello, If you want to read the transcript of the Petitions Committee meeting where MSP’s quiz Edinburgh Council, Public Concern at Work (PCAW) and Unison on whistleblowing read it here and you can see the video here which last 45 minutes. The Council scheme comes over as having overcome the culture of fear around when I worked there and contrasts hugely with NHS arrangements. The Council reps pointed out that they’d had 53 reports in the 3 years since it was introduced compared to only 3 disclosures over 8 years prior. PCAW said NHS Scotland needed better arrangements but disappointingly said nothing  about the shortcomings of Scotland’s Board Champions, who can’t take or deal with reports (even though I’ve heard they think this is a problem). Unison didn’t really say anything. The next landmark will be on 2nd March when the NHS Scotland Chief Executive, Paul Gray, is called to account.

Important news – the Scotsman reported that “the Parliamentary Health Committee has commenced an enquiry to investigate how the NHS deals with whistleblowers amid concerns there is a culture of fear which discourages staff from raising patient safety issues. NHS staff are to be asked for their views as part of the inquiry launched by MSPs on Holyrood’s health and sport committee.”
More details can be found on the Parliament website “Call for written views on Inquiry into NHS Governance – Creating a culture of improvement” at The Committee is considering whether staff are managed in a fair and effective way.

 And on 5th March 2017:

Hello, The evidence submitted by the NHS Chief Executive, Paul Gray, to Petitions Committee on the 2nd March was underwhelming. The MSPs gave him an easy ride. You can view the 45 minute video here: The transcription is here:

I was surprised that the Chair brought up grievances at the beginning, ignoring the fact that staff only bring grievances after they feel they have been unfairly treated. Why did she not ask not ask directly for views on the petition? Indeed, it felt as if they’d rehearsed the whole discussion beforehand. There were no questions as to the efficacy of the whistleblowing champions – in having no staff-facing role, with no means to knowing how many (and when) concerns were raised.  At no point did the well-known victimised whistleblowers at Aberdeen, Forth Valley, Ayrshire & Arran and Lothian get a mention, and how they could have been better protected- and no mention of Robert Francis’s recommendations. The only point at which any MSP acknowledged they’d read any of the submissions was when Paul Gray was quizzed about the falling number of helpline calls – to which the Chief Exec answered that the “bottled-up” frustrations in 2013 had created a “spike” – and also, due to ongoing improvements, staff had less need – so there was little, on an ongoing basis, to worry about. There were no references by the MSPs to the staff survey showing fear at speaking up and no calls for it to be run again. Whilst it was acknowledged that an independent whistleblowing officer would be good, it sounded like another consultation was  likely in August – (although they already consulted on this a couple of years ago, so maybe this would be the precursor to a Parliamentary Bill).

Interestingly, the Scotsman managed to make the evidence look newsworthy- see “Health staff fear consequences of whistle-blowing, NHS Scotland chief tells MSPs” here.

Anyway, the Petitions Committee concluded that they would now refer the petition onto the Health & Sports Committee for consideration. We can only hope that they seriously consider what the petition proposes. At no stage did the Petitions Committee express a view on the petition. Sigh.

Thus my petition has followed its course. If it is to go anywhere now, that will depend if the Health Committee. Let’s hope they’ll really discuss the subject properly.

They are currently conducting an inquiry into NHS Governance – Creating a culture of improvement. Whistleblowing fits well. The call for evidence has another 9 days to go – please send something in if you can; I know a few of you have– you can do it confidentially, if you wish.

So I won’t be sending you any more “Update” emails, unless you want updates on the Health Committee’s conclusions. If you would like that, please let me know.

You can submit your evidence openly, anonymously or confidentially. But you only have until the 15th March, just four weeks, to do so. I’ll be writing in – hope any of you at the NHS (either past or present) with views will do too. This represents a real opportunity to call for change.


Peter Gregson wrote 4th December 2016:

The Petitions Committee considered the petition again on 24th Nov. The official (verbatim) report is here:

You can view their 6-minute deliberation on the webcast at – it starts 52mins 34 seconds in and runs onto 58.05. In a nutshell, the Committee now wants to hear from the Chief Exec of NHS Scotland and “representatives of whistleblower organisations”. They suggested the unions, especially Unison. The minute  of the meeting states “The Committee agreed to invite the Chief Executive of NHS Scotland and other relevant stakeholders including the City of Edinburgh Council, Public Concern at Work and trade unions, to provide oral evidence at a future meeting.”

I immediately wrote to the Chair of the Committee and the other four MSPs, suggesting that I could assist with whistleblowing organisations, individual whistleblowers (Rab Wilson, ex-nurse, of Ayrshire & Arran has offered) and asking they try again to contact the English Health trusts (there are 3 in all). No response yet.

I subsequently did some searching and found Whistleblowers UK who assist whistleblowers and give support at tribunals. They have been around a bit more than a year and their website is at They have a helpline for whistleblowers (and no – it isn’t like PCAW at all!). I spoke with their chief exec and she may be able to come up from London to the Scottish Parliament, or send in a submission.

A Scottish whistleblower has been in touch with me saying that if evidence could be taken with the webcam switched off, then they would like to attend to speak to Committee. If any of you feel the same way, please let me know and I will relay this to Johann Lamont.

If you have time, you might like to read the 10 submissions that have come in from Scottish NHS chief execs on the Parliament website here. Only one institution has been positive- the City of Edinburgh Council – and there is a negative one from Unison. A reversal of fortunes from three years ago, when each of these body’s positions were the opposite of what they are now, when I last petitioned for a hotline for local authority staff.

I urge you to read the Edinburgh Council submission that shows how their hotline actually works and the difference it makes- the link is here (I had also petitioned them too, back in 2013). I was also pleased Dr Peter Gordon wrote in – the support of clinicians is key to securing change. Finally, my comment on all the submissions was published as well (Petitioner letter of 9th Nov).

I think the Petitions Committee will revisit the petition with the NHS Chief Exec, probably in late January. I think that will be a very telling meeting – I’ll keep you posted.

 Other news- my FOI to Grampian Health Board on the costs of Professor Krukowski’s treatment has been refused again (see their response here ) so I have now submitted an appeal to the Information Commissioner.

Other news is that on 22nd Oct at their conference, the Scottish Green party adopted this motion, thanks to one of our campaigners:

The Trade Union Group conference identified that existing policy is not clear about the role of trade union representatives on boards. Experience has shown that partnership working between trade unions and management, for example on Health Boards, can be used to incorporate unions into the agenda of management. This motion is supported by SGP TUG.

 …For publicly funded bodies (such as the NHS, local authorities, education institutions, etc.), which have a distinct and particular responsibility to protect employees and those using the services they provide, such measures should include the establishment of a whistleblowing hotline, independently managed by an organisation invested with powers of investigation and disciplinary powers will provide an additional mechanism to ensure good practice is adhered to and wrongdoing is addressed.” 

Best wishes

Pete Gregson