Government proposals to provide greater protection for whistleblowers in the health service will not prevent their ‘systematic victimisation’, a firm prominent for its human rights work has warned.
London firm Bindmans said the Department of Health’s proposals, outlined in its Protecting whistleblowers seeking jobs in the NHS consultation, are nothing more than regulation ‘tweaks’.
The Department of Health says the draft regulations are designed to ‘make clear’ that discrimination against whistleblowers seeking jobs or posts within certain NHS employers is prohibited and that whistleblowers have a legal recourse should they feel they have suffered discrimination.
The consultation paper is published two years after a government-commissioned independent review chaired by Sir Robert Francis QC received evidence that NHS whistleblowers are being blacklisted.
Under the proposals, applicants will have the right to complain to an employment tribunal if they have been discriminated against because it appears they have previously called attention to malpractice.
The consultation paper also:
- Sets out a timeframe in which a complaint to the tribunal must be lodged;
- Sets out remedies that the tribunal may or must award if a complaint is upheld;
- Makes provision on the amount of compensation that can be awarded;
- Gives the applicant a right to bring a claim in the county court or High Court for breach of statutory duty to restrain or prevent discriminatory conduct; and
- Treats discrimination of an applicant by a worker or agent of the prospective employer as if it was discrimination by the NHS body itself.
Health secretary Jeremy Hunt said the regulations will ensure staff ‘feel they are protected with the law on their side’.
However, Bindmans associate Peter Daly said the proposals continue to treat whistleblowers as potential litigants, rather than medical professionals fulfilling their medical and professional duties by raising concerns to benefit the public.
Daly added: ‘Under the proposals, it appears that whistleblowers must first wait to suffer often irreparable damage to their career and livelihood, then commence litigation against the NHS, then prove to a judge that the treatment they received was unlawful, before receiving any formal recognition of the validity of the concerns they had initially raised.
‘This does not appear to address the continued existence of the asphyxiating environment deterring those with concerns to raise.’
Highlighting a Court of Appeal case to be heard today in relation to whistleblowing protections for junior doctors, Day v Lewisham and Greenwich NHS Trust and Anor, Daly said it would be unfortunate if government policy on NHS whistleblowers was being announced ‘merely to answer media queries on individual cases in litigation’.
‘The problem is that whistleblowers don’t have the protection they need to raise their concerns. Tweaking the regulations in litigation that are open to wronged whistleblowers - which is what the proposals amount to - does not recognise the problem.’
The consultation closes on 12 May.