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Blowing the wrong whistle

Adrian Barr Smith Verita Consultancy Ltd
Chairman

Adrian Barr-Smith

Published 20 March 2020 More about Adrian

In July 2018 a woman aged 57 collapsed at her home in Bury St Edmunds. She was admitted to West Suffolk Hospital where she subsequently died. The cause of death was given as multi-organ failure after complications.

Her husband later related how he was informed at the hospital that, instead of saline, his wife had incorrectly been given glucose. The consultant had added that the impact of this error could have been “brain damage or death”. Although the hospital had thus fulfilled its duty of candour obligation, the husband said that many questions remained unanswered. In particular, he wanted to know whether his wife could have survived but for these errors and what changes could be made to protect other patients in the future.

At the start of the inquest late in 2019, the woman’s family did acknowledge that her death was the “progression of a naturally occurring disease”. However, they were keen to know if errors at the hospital might have contributed to her death. The coroner agreed the family’s request. He appointed an independent expert witness to review the woman’s medical records and, when reporting, to give their opinion whether errors at the hospital had contributed to her death.

In the intervening period between the woman’s death and the inquest, her family received an anonymous letter highlighting errors in her surgery which had caused her death.

Where the whistleblower in this case has erred is by raising concerns with the woman’s family and not with the employer Trust. However, when the hospital learned of this letter, their response was to request that staff provide fingerprints and samples of handwriting. This “chilling” response was described as “aggressive and intimidating” and as contradicting “any concept of good safety”. The hospital has now asked NHS England to review its handling of the case.

Whistleblowers have enjoyed significant protection since the Public Interest Disclosure Act 1998. Any disclosure that the “health or safety of any individual has been, is being or is likely to be endangered” is sacrosanct. However, within the NHS, the whistleblower’s journey has not been a smooth ride.

In 2015 Monitor felt impelled to warn that anyone bullying a whistleblower could be potentially liable to disciplinary action. Then last year the Freedom to Speak Up Review identified a number of improvements which should help whistleblowers and embed the culture of raising concerns. Staff should receive training and, if necessary, be supported to find alternative employment. Within each Trust there should be a “speak up guardian” – a dedicated person to whom concerns could be raised, even informally.

The Review highlights both the obstacles which a whistleblower must surmount and also the pivotal role played by the trust as employer. For its part the hospital trust has characterised the anonymous letter as a serious data breach “where confidential patient information was shared inappropriately”. It has since conceded that fingerprint requests were inappropriate but has alleged that it has identified a consultant as the writer of the letter to the woman’s family.

Whether describing his late wife’s care, in a letter to her husband, could be described as a “serious breach” is a matter of opinion. It is easier to be critical of staff fingerprinting and handwriting tests and difficult to characterise the hospital’s overall response in this case as proportionate. Above all it is important to bear in mind the title of the Act, which introduced protection for whistleblowers over 20 years ago. It referred to disclosures which were made in the public interest.

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