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Protecting Whistleblowers

Protecting Patients

Doctors who raise concerns about patient care are silenced via an NHS disciplinary process called MHPS. Despite promises to stop this, successive governments have failed to act.

A Judicial Review is now needed to protect patients.

The Case

When doctors raise patient-safety concerns, NHS employers should not be allowed to initiate disciplinary processes until the patient safety concerns are fully and independently investigated.

Judicial Review

We are building a coalition of patients, campaigners, public law specialists, doctors, and others. We want to apply for a judicial review to suspend the use of MHPS against doctors who have raised patient safety concerns.

MHPS is the Maintaining High Professional Standards in the NHS framework. It is the policy used by employers to investigate doctors and dentists, prior to disciplinary sanction, such as dismissal. It is frequently used to silence whistleblowers.

Successive Secretaries of State have failed to introduce effective legislation to protect patients and whistleblowers. A judicial review is therefore now required to protect whistleblowers. This will prevent disciplinary processes aimed at silencing them and hiding the patient safety concerns.

Doctors where there are legitimate concerns about their conduct, capability, or health will still be managed appropriately. All this interim relief will do is separate the patient safety concerns from the disciplinary processes and allow the evidence about patient harm to be independently investigated, while protecting the doctor from punitive action by their employer.

Core Argument

Whistleblowing within healthcare environments puts the individual whistleblower at risk of retribution. Either retaliation from those harming patients or by their organisation seeking to cover-up the harm.

This is easy for employers in the NHS to do. Patient safety concerns are assessed by the same officials who assess concerns about the conduct, capability, and health of doctors. This single point of failure was implicated in every health scandal in the NHS where whistleblowing could have stopped the harm to patients. Because of this, there is an inappropriate conflation of the two processes (HR and patient safety). This disadvantages patients and is weaponised against doctors.

Concerns about poor care can be concealed behind superficial issues such as "professional relationships" and "team dynamics." Then, MHPS investigations and disciplinary sanctions, often including dismissal, follow. This has two deleterious effects. Firstly, the patient safety concerns are hidden and, secondly, other whistleblowers are discouraged.

This is accepted by the current Secretary of State for Health and Care, and by a series of his predecessors. For example, in 1997 Alan Milburn directed each NHS employer to give staff “maximum freedom of speech”. The Public Interest Disclosure Act (1998) followed. Despite this legislation, other statutes which followed, and initiatives directed by the Government such as the Freedom to Speak Up, whistleblowers still face disciplinary sanction when they raise concerns.

The Government acknowledge this. The current Secretary of State for Health and Care has said that NHS officials who try to silence whistleblowers "will never work in the NHS again". He has promised further legislation, but it has not been forthcoming.

Judicial intervention is required to suspend the use of MHPS in these cases, while the long promised legislation is prepared by parliament.

Legal Basis

This application will be constructed on four grounds:

Illegality. Where NHS Trusts conflate patient safety and disciplinary functions, they are in breach of their statutory duties under the Health and Social Care Act 2012 and the Health and Care Act 2022. The NHS is legally required to provide safe care. A process that structurally suppresses patient safety concerns to protect institutional reputation is a breach of that requirement.

Procedural Impropriety. NHS Trusts and all public bodies must act fairly. Where the same senior individuals who are institutionally exposed by the patient safety concerns are controlling the disciplinary process against the person who raised them, a procedural bias emerges. A decision-maker with a material interest in the outcome cannot deliver a fair process. This forms a structural conflict.

Irrationality. A process contaminated by structural conflict cannot produce rational outcomes for patients. It is irrational to allow the body that is the subject of the concern to determine what happens to the person who raised it.

Legitimate Expectation. Successive Secretaries of State have promised protection for whistleblowers. The government has committed to reform by 2027. The BMA, the Parliamentary Ombudsman, and two major inquiry chairs have all stated the current framework is inadequate. These repeated public commitments create a legitimate expectation of protection that has not been fulfilled, and no interim mechanism has been provided. Interim relief is required while legislation is developed.

Discussion Paper

We have prepared a draft discussion paper with more detail of our proposed approach.