Whistleblowing and the NHS: the lawyers’ perspective

The idea of whistleblowing, particularly in the context of the NHS, was once seen as a very technical area for lawyers. Nowadays, it’s making front page headlines. But what is it all about and what is the real relevance for someone aiming for a career in the law?

On 11 February, Sir Robert Francis QC published his report following the ‘Freedom to Speak Up’ review. Set within the context of the NHS, the Report identifies that “whistleblowers” should – as a matter of public policy – be encouraged and defended and that the NHS must change its culture to ensure this happens.

While the term “whistleblowing” is commonly misunderstood (the law in the UK actually refers to “protected disclosures”), the concept is that workers who see wrongdoing should be able to speak out about this in an appropriate way and without fear of recriminations. 

In an NHS context, it is easy to see why – for example, if an NHS employee witnesses an issue that may compromise patient safety, whistleblowing acts as a mechanism to ensure the matter is brought to the attention of the organisation responsible so that it can take steps to mitigate the risk to patients.

Patient care and safety is the number one priority for the NHS, which is why whistleblowing is such a key issue. However, the protection of whistleblowers is important for employers in all sectors of the economy.

Witness, for instance, recent events in the financial services space. Organisations need an appropriate means of encouraging staff to report concerns, be it a health and safety issue, a regulatory breach, fraud or some other kind of malpractice. This enables any wrongdoing to be uncovered and, in an ideal world, avoided as well as allowing the organisation to investigate and deal with concerns appropriately. Having a proper procedure in place for internal reporting also reduces the risk of information being spread more widely – for example, to the press – and therefore helps to prevent adverse publicity and the effect this can have both on an organisation’s reputation and on staff morale. 

Whistleblowers who do raise concerns in the proper manner and in the public interest are protected by law and cannot be dismissed or subjected to a detriment by their employer through threats, disciplinary action or other unfavourable treatment on the grounds that they have “blown the whistle”. 

Whistleblowers can also raise concerns with public and regulatory bodies, where appropriate, as well as through their legal advisers.  The key thing for someone at the receiving end of a disclosure of this kind is to recognise when a concern is being raised. Legal advisers need to be ready to advise their client on their legal position. Acting for individuals, this may mean advising clients of appropriate ways in which to raise concerns and the consequences of not doing so (which may include breach of contract by the employee and regulatory sanctions that could have a lasting effect on their career). Legal advisers acting for organisations will need to be alert to how to address concerns raised and aware of the legal and reputational risks of getting it wrong.

The really difficult thing about advising in this area is that the two sides may have very genuine, heartfelt and contradictory views about the other’s position. Who better to reconcile all of that with the wider public policy issues than a skilful lawyer?

Udara Ranasinghe is a partner at DAC Beachcroft

You might also be interested in…