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NHS whistleblowers ‘should not be prosecuted’ says MP Stephen Dorrell

Gary Walker was chief executive of United Lincolnshire Hospitals Trust (one of 14 trusts facing investigation following the inquiry into high death rates at Stafford Hospital).   In 2010 Walker was sacked for gross professional misconduct over alleged swearing at a meeting and agreed a settlement which reportedly included a £500,000 package agreed in settlement of an unfair dismissal claim.

He spoke to the BBC Radio 4’s Today radio programme yesterday (14 Feb) about his departure in 2010, claiming he was forced out for raising concerns about whether patient safety was compromised in the pursuit of meeting health service targets. In doing so he broke the terms of his non-disclosure deal.

According to Today, Walker has received a letter from the trust’s solicitors  asking him to withdraw statements made in the Radio interview. It warned that a breach of confidentiality would involve the repayment of his negotiated settlement plus potential legal action.

But MP and health committee chairman Stephen Dorrell has written to health secretary Jeremy Hunt, asking him to stop the trust from taking any action which would prevent Walker giving evidence to the committee, which was now planning to invite him to answer questions about his dismissal.

Apparently. Dorrell told the Today programme that the culture of gagging within the NHS was “fundamentally wrong.”  Yes Mr Durrell the law is fundamental wrong and the current government are about to make it even less effective  under the Enterprise and Regulatory Reform Bill (see my comment below).

It is true,  the former health chief could face legal action over breaching the gagging order but not for whistleblowing, but for breaching the contract he recently made for his own benefit!

Apparently. Dorrell told the Today programme that the culture of gagging within the NHS was “fundamentally wrong.”  Yes Mr Durrell the law is fundamental wrong. Now go and change it to protect the ordinary man on the street who have also fallen foul of the gagging orders or for making disclosures that fall outside of the protected lists, he could even go as far as making gagging orders non effective in whilstblowing type of actions.

Basic law

The Public Interest Disclosure Act 1998 provides statutory protection for the disclosure by a worker of information within a wide category of qualifying disclosures provided it is a protected disclosure made in accordance with statutory requirements.  The Government is in the process of extending some protections.

A qualifying disclosure is the disclosure of information, made in good faith, which the worker reasonably believes indicates that one of the following has occurred or might occur:-

  1. criminal offence;
  2. failure to comply with a legal obligation;
  3. miscarriage of justice;
  4. a danger to the health and safety of any individual;
  5. damage to the environment;
  6. deliberate concealment of information tending to show any of the above.

Any resulting dismissal will be automatically unfair and entitled to damages which may be unlimited. Detriment could include demotion, failure to promote, and, in the case of non-employees, any termination of contract.

The statutory requirements all explain how to make the disclosure and to whom (when not an employer).

Comment

On the face of it, those who are not employed cannot claim the protection.  However a recent case Onyango v Berkeley [2013] has determined that if the disclose was made at the time of employment, then protection is afforded to the former employee.

There is currently no restriction that a protected disclosure must be made in the public interest, although that is under review in the Government’s Enterprise and Regulatory Reform Bill (“ERR”), which aims to limit the current whistleblowing legislation by re-defining a disclosure as only being protected if it is made in the public interest.  So in effect, the government are watering down the legislation not making it more effective.

Whatever the rights or wrongs of the settlement Walker achieved or the actions that led to the settlement being made, it is a fresh contract entered into by the two parties made in the knowledge of the rights and wrongs of the events plus the current position and as such, each is liable to each other for breaching that new contract. I ask myself, can I trust Mr Walker?

Future changes

The Department of Business, Innovation and Skills (BIS) has announced a commitment to extend whistleblowing protection to situations where workers are bullied and harassed by co-workers. The amendment works by introducing personal liability for co-workers who victimise whistleblowers, for which employers can be vicariously liable.

It also includes a defence for employers who take reasonable steps to prevent victimisation. This will encourage employers to train their staff on acceptable behaviour and build open workplace cultures.

These amendments will be laid by the Government at Report Stage of the Enterprise and Regulatory Reform Bill on 26 February 2012.

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