BMA FAILS JUNIOR DOCTORS OVER STRENGTHENING WHISTLEBLOWING PROTECTION AND PUTS DOCTORS AT RISK
13th November 2017
Whistleblowing experts Public Concern at Work has spoken out against the British Medical Association’s whistleblowing guidance for junior doctors, which they argue puts patient safety at risk by fracturing whistleblowing rights for doctors.
PCaW, which advises workers how to safely speak up and helps organisations implement whistleblowing arrangements, has criticised the BMA over its confusing guidance towards whistleblowing for junior doctors.
The BMA - the trade union and professional body for doctors in the UK - whose mission statement is ‘We look after doctors so they can look after you,’ backs a new contractual amendment to junior doctors’ training agreements, arguing it is more effective than the current whistleblowing law, the Public Interest Disclosure Act, PIDA.
The junior doctor whistleblowing debacle was highlighted in the case of junior Dr Chris Day who raised concerns about critically low staffing ratios during a night-shift on an Intensive Care Unit at the South London hospital he worked, back in 2013. Since whistleblowing, Dr Day has been fighting a legal battle, arguing junior doctors are not properly protected when it comes to the whistleblowing law (Public Interest Disclosure Act, PIDA).
In response to Dr Day’s continued legal fight, HEE Health Education England, the NHS body which oversees junior doctors’ training, amended their training agreement with junior doctors in 2016, giving junior doctors the right in the civil courts to sue HEE for victimisation related to whistleblowing.
PCaW Head of Legal Services, Roger Easy, said, “It is beyond disappointing that the BMA refuses to acknowledge the significance of Dr Day’s case and its relevance to all junior doctors who wish to raise concerns, many of which may be about patient safety. Instead of providing robust legal protection as claimed the contractual arrangement is a sticking plaster that fractures whistleblowing protection and requires separate claims in different courts, to be brought against both HEE and the Trust where the junior doctor worked. This causes confusion and legal uncertainty for junior doctors. The arrangement requires whistleblowing claims against HEE to be brought in the civil courts, which have extensive rules and procedures and carry the risk of a costs award if unsuccessful. When compared to the Employment Tribunal process, which is both accessible and familiar with dealing with whistleblowing claims, we question whether these arrangements will encourage junior doctors to raise patient safety issues in the knowledge that legal redress is accessible to them.”
PCaW argues the financial cost and stress would be too great and would deter junior doctors from raising concerns and that the priority should be to ensure the existing whistleblowing law, the Public Interest Disclosure Act, (PIDA) offers full statutory rights.
In a bid to reassure the UK’s junior doctors of their whistleblowing rights, the BMA has recently produced the FAQs: Whistleblowing & Junior Doctors paper. Question 11 in the FAQ, reads: What is the BMA doing now about the Chris Day case? A: Dr Day’s case has been remitted to the employment tribunal for consideration of the preliminary issue as to whether or not he is eligible to bring a claim. The employment tribunal is a first instance tribunal that does not set binding legal precedent. The decisions the employment tribunal makes will not be binding upon another tribunal in another case. As such the Dr Day case looks unlikely to set any legal precedent that would entitle junior doctors to bring claims against HEE. (Health Education England).
The BMA has secured robust legal protection for all junior doctors in respect of their relationship with the HEE and whatever the outcome of the Dr Day case we believe that our members are better placed to bring whistleblowing claims against HEE under the HEE Agreement and not via the statutory route.
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