A junior doctor has just won a battle against the government over whistleblowing. But the case is only one stage in a war against dubious legislation and a grey area surrounding whistleblowing laws. And it’s a case that affects the safety of every NHS patient in the UK.
A victory for NHS whistleblowers
Dr Chris Day blew the whistle on dangerous staff shortages at Queen Elizabeth Hospital in Woolwich, south-east London, in 2014. But he subsequently lost the right to progress in his career as a doctor. And the case has highlighted a gap in the law, which means that no junior doctors are protected under whistleblowing laws. This puts every patient in England at potential risk.
But now, the Court of Appeal has ruled that Day should get a full hearing over the case, including evidence from the government body Health Education England (HEE) over its role in his punishment for exposing dangerous staff shortages.
A junior doctor doing his duty?
Day blew the whistle after two stand-in doctors failed to turn up for a night shift. He was the only doctor covering an intensive care unit (ICU) of 18 beds. The NHS standard is one doctor per eight. Lewisham and Greenwich NHS Trust, responsible for the Queen Elizabeth Hospital, have now increased the number of doctors on the ICU. Also, they accepted Day made a ‘protected disclosure’; that is, the way Day went about his whistleblowing was correct and protected by law.
But Health Education England (HEE), which was responsible for Day’s training as a junior doctor, saw things differently. At his annual appraisal, Day told HEE of his whistleblowing. He claims that, following this, his professional and personal conduct were called into question. As a direct result, he says, HEE deleted his doctor training number. This made it impossible for him to progress with his career.
Day in court
Day then went to court, arguing that whistleblowing law should protect him when he raised safety concerns. But the court ruled against him. It said that HEE was not subject to whistleblowing law because it was not his employer. So Day went to the Court of Appeal to ask it to decide whether he could challenge the decision. A crowdfunding campaign, to raise enough money to cover the costs, raised over £140,000.
On Friday 5 May, the Court of Appeal agreed with Day. It dismissed the HEE argument that whistleblowing law should not protect junior doctors’ careers. It also said that HEE should not stop Day having an employment tribunal over the case. And it ordered that:
the reality of HEE influence over junior doctors be properly scrutinised at a full hearing of evidence with full disclosure of documents relating to the influence HEE has over junior doctors…
A gaping hole in the law
The whole legal process has highlighted a loophole in the law. It means whistleblowing law does not protect junior doctors in terms of HEE. Also, because junior doctors are on short-term contracts due to progressive training, their careers are not protected either. And because HEE is exempt from employment law, junior doctors’ career progression is not protected here, either.
The Tories are aware of the gaps in whistleblowing law surrounding junior doctors; it was raised in parliament on 24 March and clarified by the judge in Day’s first court case. But as the barrister for HEE said in court:
Parliament has not chosen to increase the scope of legislation to protect those who are in training as doctors. This has been a conscious choice of parliament.
Putting doctors in an impossible position
Day said of his victory:
I hope this victory encourages junior doctors at a time when they have been let down by so many people in positions of power. This decision is good for patients, doctors and culture in the NHS. I am also pleased the case has assisted agency workers in other industries…
But there is still a long way to go, with a blatant gap in the law where junior doctors are concerned. Because denying them the same right to whistleblowing protections as all other medical professionals puts them in a deeply troubling situation.
Most junior doctors would surely choose patient safety over their careers. But it is a choice they shouldn’t have to be making in the first place. So Day is campaigning for the rights of all junior doctors with his landmark case. And the safety of every NHS patient, too.
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Featured image via Flickr