A junior doctor is being punished by a branch of the NHS and the Conservative government, for speaking out about risks to patient safety.
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.
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, making it impossible for him to progress with his career.
Day then went to court, arguing that he should have been protected under whistleblowing laws when he raised safety concerns. But the court ruled against him, saying that HEE was not subject to whistleblowing law because it was not his employer. Day is currently waiting for the Court of Appeal to decide whether he can challenge the decision, and take his claim against HEE further. A crowdfunding campaign, to raise enough money to cover the costs, has so far raised nearly £50,000.
A gaping hole in the law
This legal process has highlighted a loophole in the law which means that junior doctors are not protected by whistleblowing regulation in terms of HEE. Also, because junior doctors are on short term contracts due to progressive training, their careers are not protected either. Furthermore, a junior doctor loses the right to have an employment tribunal order the NHS to give them career progression back (like in Day’s case) because HEE is exempt from employment law.
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.
Day says of the situation:
After initially denying that there was a problem, the government and the other authorities agree that the current law is inadequate but none of them are willing to put junior doctors on the same footing as other employees and give them full statutory protection. Unfortunately, what they now propose does not go far enough and continues to deprive junior doctors of the right to have their career protected by whistle-blowing law and their case heard in full in an employment tribunal. Their long-term career and employment continues not to be recognised by employment law.
Patients and doctors at risk
The lack of whistleblowing protection for junior doctors essentially means that they may be discouraged from reporting patient safety risks. The General Medical Council (GMC) has recognised this, stating that:
We believe that doctors in training across the UK must enjoy the same protections as others in the NHS who raise concerns. We recognise that a level of concern now exists among [junior doctors]… some may feel less secure about raising concerns for fear of suffering detriment to their career. We believe every doctor should feel able to raise concerns with impunity, without fear of unfair criticism, detriment or dismissal, and anything that prevents this from happening is not in the interests of patients or doctors.
There is a blatant gap in the law where junior doctors are concerned. If they are denied the right to the same whistleblowing protections as all other medical professionals, it puts them in a deeply troubling situation.
And while most would surely chose the safety of their patients over their careers, it is a choice they shouldn’t have to be making in the first place. But after the Tories’ sustained attacks on the junior doctors, and the NHS more broadly, it comes as little surprise that they are willing to trample over these doctors’ rights.
– Support Dr Chris Day’s crowdfunded legal action.
– Sign the petition to stop the junior doctors’ contract.
– Keep up to date with campaigns and protests to save the NHS.
Featured image via Twitter