Increasingly we are seeing stories or receiving enquiries from those (especially in the health and social care sector) who have raised concerns about PPE or other safety concerns and are worried about the ramifications. The current crisis is placing frontline and key workers at risk because of how the virus is transmitted.
Those not following government guidelines such as social distancing and hygiene policies have been exposed thanks to whistleblowers.
The NHS whistleblowing policy makes direct reference to protecting employees who speak up about unsafe patient care and working conditions. Despite this apparent support within their policies, according to the Doctors’ Association UK the NHS have actively discouraged their employees from raising concerns about lack of equipment during the COVID-19 outbreak; this directly contradicts the idea of protection from whistleblowing.
What does the GMC say?
The General Medical Council (“GMC”) states in Domain 4, Maintaining Trust – para 58
‘You must not deny treatment to patients because their medical condition may put you at risk. If a patient poses a risk to your health or safety, you should take all available steps to minimise the risk before providing treatment or making other suitable alternative arrangements for providing treatment.’
The fundamental duty of a doctor is to make the care of your patient your first concern. Inadequate PPE may place individuals at a higher risk including other patients, doctors and their families. In a high risk environment, PPE is fundamental for both personal and patient safety and employers have a duty to provide a safe work environment. Under employment law you are protected to take steps to avoid serious and imminent danger in your workplace without fear of detriment or dismissal.
When deciding to treat in the absence of appropriate PPE, consider:
- if treatment can be delayed or alternative,
- risk of transmission minimized,
- if you are more susceptible to risk,
- what course of action will give rise to the least harm in the circumstances.
If having tried and exhausted alternative means of treating a patient you believe that this is not possible without unreasonable risk to you and to other healthcare professionals, you should:
- escalate your concerns to your manager or practice partner as employers are under obligation to provide,
- ask your organisation to take action – ask them to urgently contact the National Supply Disruption Line, and remain in the loop,
- risk assess and identify the level of PPE you would deem appropriate,
- decide whether to proceed with the PPE offered or refuse to treat.
You have a professional duty, under Good Medical Practice (paragraph 25), to raise concerns about anything that impacts patient safety or could impact patient safety.
If you raise these concerns appropriately and they are not resolved, you may consider whistleblowing.
What is Whistleblowing?
As detailed in our guidance here, whistleblowing is where an individual speaks out highlighting danger, malpractice, or wrongdoing that is in the public interest. As a whistleblower you are protected from dismissal and may claim unfair dismissal if you are dismissed or suffer any detriment because of whistleblowing.
The person making the disclosures must be an employee; the law does not protect against future job applicants (except those in the NHS) and current volunteers in the NHS may not be classified as workers, therefore would not be protected.
For the disclosure to qualify as whistleblowing, you must reasonably believe that one or more of the following matters is either currently happening, has taken place, or is likely to take place in the future:
- A criminal offence
- The breach of a legal obligation,
- A miscarriage of justice,
- A danger to the health and safety of any individual,
- Damage to the environment,
- Deliberate attempt to hide any of the above.
Are disclosures on social media protected?
A disclosure of the wrongdoing should always be made to your employer first. If this is not possible, then you should contact a prescribed person or body. This is because the disclosure on social media may breach other contractual policies, including social media policies, and could also be seen as potentially damaging your employer’s reputation, so could give rise to disciplinary action – you should always go through the appropriate internal channels first. However, workers may be drawn to disclose information on social media, or even to the press, as they may feel something urgently requires attention or that their employer is deliberately not acknowledging or resolving their concerns. In that case, then to be protected as a whistleblower, the employee would have to show that the social media post was a reasonable thing to do, in addition to showing they had a reasonable belief in the concerns, and a reasonable belief the concerns were “substantially true”.
An exception does exist where, if the disclosure is “exceptionally serious” then an employee can still be protected even if their disclosures have only been made to external channels (e.g. on social media). Lack of PPE, oxygen or ventilators are arguably ”exceptionally serious” disclosures but it would be dependent on individual circumstance. An example of an exceptionally serious disclosure is in the case of National Trust vs Collins, in which it was found that Collins was justified in leaking a report detailing a chemical spill on a beach, because the National Trust and the local council were too busy with a dispute over who was responsible for the clear up. During this time the public still had access to the beach, which posed a danger.
What happens once the disclosures are made?
The employee is then protected from detriments. But what’s a “detriment”? Well, that means the employer should not suspend, demote, discipline, bully them, nor should they deduct their pay or dismiss them because of raising legitimate concerns. The employee should be invited to a meeting to discuss their concerns and the employer should investigate this fully and rectify the breaches where possible. Where an employee feels they have suffered a detriment they must take legal advice immediately to assess their options as there is a strict 3-month time limit in which to pursue a claim in the employment tribunal.
Ultimately healthcare professionals should follow guidance set out by the GMC which provides a framework for ethical decision making in a wide range of situations.
Where you have concerns, generally you should raise them to your employer first and speaking to the media should be a last resort. Raising such concerns may amount to whistleblowing which we can also help you with.
Our Experience
Here at Thrive, we have previously helped a nurse who was subject to detriments after having raised concerns in 2018. It was found that the Trust’s process had been unfair and that the decision to dismiss was also unfair. It was found that the suspension was so proximate and directly linked to Ms Fairhall’s thirteenth disclosures (in which she had stated that she wished to start the “whistleblowing procedure”), that there was a clear link between those disclosures and the lengthy suspension, and ultimately the dismissal, which followed.
Due to remote working conditions currently in place, it may be difficult to know who to report to and what help is available. If you have any such concerns or think you may have been subject to a detriment as a whistleblower, please do get in touch. Our helpline: coronavirus@thrivelaw.co.uk remains open.
By the Thrive Tribe
Anything within this article should not be taken as legal advice. Any information provided will be general advice and for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. If you wish to obtain specific advice to your situation and your decisions, please contact us and we will thereafter be able to advise.
