Junior doctors get greater protection to act as whistleblowers

16 November 2017

The issue of whistleblowing is not without its controversy. But having an open culture, where staff have the confidence to speak up when they feel patient safety is at stake, is key to ensuring a safe and effective workplace. Indeed Sir Malcolm Grant, chair of NHS England, said: “It is simply inexcusable that talented, experienced staff should be lost to the NHS as the result of raising the legitimate concerns that help the health service improve.

Junior doctors who want to blow the whistle and raise concerns about poor practice will now receive legal protection following an agreement between the British Medical Association (BMA) and Health Education England (HEE). It comes in the  wake of the case brought by Dr Chris Day, who claimed his career had been destroyed after he raised the issue of staff shortages whilst working in an intensive care unit. He reported to managers that he was the only doctor covering in the 18-bed unit. Dr Day claimed that, once he disclosed concerns about the health and safety of patients, the HEE made false allegations about his professional conduct and also deleted his doctor training number which ultimately put a halt to his medical career. The case prompted widespread concern among junior doctors fearing that they risked “career suicide” if they raised concerns about patient safety.

Last month the BMA agreed legally binding protections with the HEE, retrospective from August 2016, to extend whistleblowing protection to junior doctors. The agreement also includes dentists in training. The protections are automatically applied to trainees' conditions without new contracts needing to be issued. Therefore, if a junior doctor or trainee dentist “blows the whistle” on wrongdoing which could affect patient safety and as a result is treated unfairly or loses their job, they will now receive legal protection.

Junior doctors will still not be able to make claims against HEE in the employment tribunal but will need to apply to the County Court or High Court. This has the  disadvantage that they will be required to pay an application fee (claims in the employment tribunal are free) and comply with a number of pre-action procedures. Having said that, the financial implication of a successful whistleblowing claim being brought against HEE is significant as, unlike other employment claims such as unfair dismissal, compensation in whistleblowing claims is uncapped.

We have seen previous NHS whistleblowers win damages in excess of a million pounds and, therefore, HEE will no doubt be keen to ensure that those who do raise concerns do not suffer poor treatment as a result.  

Tilly Harries

Tilly Harries | Barrister, Legal Team
Profile | Email | +44 (0)20 7212 4104
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