GMC Referrals Used to Silence Whistleblowing Doctors

Since the lockdown in March 2020, we have advised several doctors (predominately consultants) whose careers have been severely damaged after they raised patient safety concerns.

There are concerns that some NHS Trusts are attempting to silence workers who make disclosures in the public interest about matters such as health and safety issues in hospitals by referring senior medical practitioners to the General Medical Council (“GMC”).

This is despite the legal protections in the Employment Rights Act 1996 protecting workers from being subjected to a detriment by any act or failure to act by their employer on the ground that the worker has made a “protected disclosure” which they reasonably believe is made in the public interest.  The list of “protected disclosures” includes information which a worker reasonably believes tends to show that the health and safety of any individual has been, is being or is likely to be endangered. This would include concerns about risks to hospital patients, customers as well as work colleagues and the worker making the complaint.  For more information on whistleblowing, please click here.

Any attempts to silence doctors, nurses or other medical professionals from making protected disclosures about matters as vital as, for example, patient safety issues are unacceptable and of real concern given the career damage it can cause, but more broadly for ensuring that appropriate action is taken to address any health and safety matters raised in the public interest.

This is unfortunately a long-standing issue. In 2014 there was “An Independent Review into creating an open and honest reporting culture in the NHS”. The review (chaired by Sir Robert Francis QC) published its report in early 2015. According to the report, the review was set up “in response to continuing disquiet about the way NHS organisations deal with concerns raised by NHS staff and the treatment of some of those who have spoken up”.  The report stated that “Whistleblowers have provided convincing evidence that they raised serious concerns which were not only rejected but were met with a response which focused on disciplinary action against them rather than any effective attempt to address the issue they raised.” The report recommended various Principles and Actions to make it safer for people to speak up, and to provide redress if injustice does occur.

Unfortunately, there remain real concerns that a common theme is arising whereby some whistleblowers who raise serious concerns are being victimised by being put through performance management processes without any basis, or being referred to regulators such as the GMC, or being subjected to other detriments. Regulators, including the GMC must ensure that their fitness to practise procedures are fair and appropriate. Further, they should seek independent corroboration of the allegations in the employer’s referral and question whether practitioners have previously raised public interest concerns.

We are acting for Dr Chris Day, who as part of his training contract as a junior doctor with Health Education England (“HEE”) was placed in various NHS Trusts. While working at the Lewisham & Greenwich NHS Trust, he raised concerns about staffing shortages to the hospital as well as the HEE. Among other detriments, Dr Day claims after he met with the HEE to discuss his concerns, they made false allegations against him and deleted his doctor training number, making it difficult for him to further his career. He stated that their conduct was as a result of the complaint that he had raised. Dr Day brought a claim in the employment tribunal. For more information about Dr Day’s case please click here.

If you are a doctor or medical professional and have been subjected to disciplinary action or referred to a regulator in response to whistleblowing at work, please contact our expert employment lawyers today for a confidential and no obligation discussion on 020 3950 5234 or email info@rllaw.co.uk. We have significant experience of advising those working in the NHS on whistleblowing claims. We have successfully pursued and defended whistleblowing claims in the Employment Tribunal, including on behalf of senior executives in the financial services sector and NHS workers. Our emphasis is on results and we work very closely with our clients to provide commercially realistic solutions to their legal problems.