years after Bolsin first raised concerns, the public inquiry chaired by Ian Kennedy concluded that between 30 and 35 children had died unnecessarily, and that one-third of children undergoing heart surgery at the BRI prior to 1995 had had less than adequate care. The Kennedy Inquiry found Dr Bolsin had been right to persist in raising his concerns. It recommended a new culture of openness within the National Health Service (NHS), with a non-punitive system for reporting serious incidents (Hammond and Bousfield 2011; Kennedy 2001).
Fourteen years after Kennedy reported, the public inquiry chaired by Robert Francis into the failures of care in Mid Staffordshire NHS Foundation Trust reached that very same conclusion: the need for a culture of openness in the NHS. (Francis 2013a, b, c). A few months after Robert Francis reported in 2013, Dr Bolsin was awarded the Royal College of Anaesthetists’ Medal in recognition of his work to promote safety in anaesthesia (PCaW 2013). Such is whistleblowing’s pattern of paradox: blame the messenger for the message and hammer them hard. Then, after significant life-ending failures of care, spend millions of public money on public inquiries which, after several years, conclude that both messenger and message had been pretty much right all along.
THE WHISTLEBLOWER’S PROTECTION
The Public Interest Disclosure Act 1998 (PIDA) went onto the UK statute book some years after Dr Bolsin had raised concerns about child mortality rates, been struck off the medical register and relocated to another continent. The UK was one of the first EU states to legislate to protect whistleblowers. PIDA is intended to provide protection to people who make protected disclosures. Yet, in another paradox, the experience of people who blow the whistle on poor, corrupt and unethical practice, is seldom anything other than negative. Witnessing what happens to whistleblowers does not inspire others to do likewise, the House of Commons Health Committee concluded in 2014 (HOC 2014).
The use of so-called ‘gagging orders’ in the NHS was another twist in the tail of whistleblower protection. Payment of these gags in the UK NHS was halted in 2013, meaning special payments made outside an employee’s contract have to make clear that nothing in such an agreement prevents the individual whistleblowing in the future.
That these gagging orders existed at all was denied in 2013 by the then Chief Executive of NHS England, David Nicholson (Ramesh 2013). Nicholson claimed some people ‘felt they’d been gagged’; and that the case of the whistleblower contacted by NHS lawyers, who threatened to demand repayment of their settlement agreement if they spoke out, ‘was a mistake’ (Aitkenhead 2013). Be that as it may, a request made by a Member of Parliament under UK Freedom of Information legislation revealed that the NHS had spent over £2m on over 50 ‘gagging orders’ between 2008 and 2013 (Hughes 2013).
Nicholson’s denial that gagging orders existed (it is important to notice the syntactical sleight where people are said to feel gags existed) was news to Gary Walker, who had been sacked as chief executive from United Lincolnshire Hospitals Trust in 2010 (Walker 2015). As chief executive, Walker had raised patient safety concerns about hospital capacity to meet government targets for non-emergency care. Walker was later dismissed for allegedly swearing in a meeting, an allegation he denied and said a witness statement disproved. Walker intended to present that statement, and other evidence, to the scheduled 15-day employment tribunal hearing in 2011. On the first day of this tribunal, his NHS employers offered Walker £320,000 to settle the claim. With legal fees, Walker estimated the NHS spent over £500,000 getting rid of him. This seems a remarkable sum of public cash to fork out if there were no patient safety concerns. It would be a truly incredible amount to pay to silence someone alleged to have sworn in a meeting. When, in 2013, Walker went public about his patient safety concerns, he was threatened with legal action by his erstwhile NHS employers. That would seem, prima facie, a threat to silence – or, in the vernacular, a gag.
LIVING WITH PARADOX
The paradox of whistleblowing stretches much wider yet than a semantic ‘gag’ or ‘no gag’. From outside health and social care services, say from the perspective of the patient or user of one of those services, speaking out about bad practice or mistreatment of adults or children vulnerable through sickness or circumstance, is a no-brainer. Why would a trained professional, or any concerned observer, not raise their concerns? But then, when they do, why are there so few whistleblowers who, unequivocally, say they are glad they broke ranks to speak out, and that their disclosures were an excellent career move that they commend to others?
These paradoxes show up in UK public attitudes towards whistleblowing, and use of the term itself. A British survey of 2000 people found eight in ten believed it was more important to support, and not punish, people who blew the whistle. But fewer than half (47 per cent) thought British society found whistleblowing generally acceptable, or that managers were serious about protecting whistleblowers (Vandekerckhove 2012). Inevitably, and reflecting these conflicted attitudes, the word ‘whistleblowing’ itself attracts a negative valence, with the anodyne ‘raising concerns’ suggested as a preferable substitute to use with employees (OPCW 2012). Changing a word is one way of ducking the paradoxes. Another is to look at those conflicted contradictions head-on, and wonder what it is we do to people, organizations and health and social care, when we can’t name what is going on before us.
Individual and public reaction to whistleblowing and to the whistleblower are, then, riddled with paradox. These paradoxes conflict us all, whether whistleblower, bystander, or victim of wrongdoing. Culturally, certainly in the UK and the western world, the rugged individualist is venerated; but then of course we love the team player. Social pressures to fit in, coexist with those pushing us to stand out. The workplace demands that employees do things right; the public wants people who’ll do the right thing. Whistleblowers may be the butt of retaliation; yet their retaliators escape scrutiny. News, film, culture, love the lone ranger, yet loathe the oddball who wonders out loud if the emperor really is wearing any clothes. The whistleblower is feted, yet crushed; hailed as a hero, punished as a scapegoat.
SPEAKING OUT AS NOT BEING HEARD
Public reaction to the caricature of ‘care’ provided in some parts of the Mid Staffordshire NHS Foundation Trust in England between 2005 and 2009 was shock, dismay, distress. Yet many people working in those very services had raised concerns, only to find themselves ignored, marginalized, ostracized or scapegoated. Most simply gave up trying to get anything changed (Francis 2013a). In the face of this, few could take issue with the House of Commons Health Committee which, in its report on complaints and raising concerns in the NHS, said a ‘means must be found for health and care service workers to be able to speak up safely about professional concerns’. Still less, that ‘there is an unambiguous professional duty on professional registrants to speak up, but that equally there is a similar duty on employers to establish an open culture which encourages concerns to be raised and acts to address and resolve them, rather than punish the person raising them’ (HOC 2015, p.35). This Committee concluded that the detriment so many whistleblowers suffer has undermined public trust in the system’s ability to treat whistleblowers with fairness and, crucially (as if that were not enough), that this lack of confidence had implications for patient and citizen safety.
The paradox of all this is that whistleblowing is an act of loyalty, a commitment to doing right, to doing no more harm. That is prosocial behaviour, not deviance. The whistleblower’s ‘crime’ is their acting against the code of silence – that organizational omertà – which is, in dysfunctional organizational cultures, inexplicably conflated with loyalty. They may be vilified, typecast as a rat, snitch or ‘difficult’; as mentally ill, malicious or vengeful. (The particular slant of denigration varies.) Or, conversely, once the wrongdoing has been exposed to public opprobrium, they may enjoy 15 minutes of fame and be celebrated as a hero, before they turn to face the toll that speaking out has exacted on their future career prospects, personal relationships, and any possibility of financial security in what remains of their lives.
The more systematic the wrongdoing, the greater the reprisal. Speak out about wrongdoing that is widespread – the ‘new normal’ of the
