When a National Health Service consultant, Dr Jane Hamilton, raised concerns with her employer about the safety and quality of a new perinatal psychiatry service, she encountered an extraordinary hostility that forced her out of her job and destroyed her career. Exclusively in SR, Dr Hamilton now reveals the personal cost of whistle-blowing and casts doubt on the Scottish government's assurances that people like her will be treated more sympathetically in future
Initiatives around whistle-blowing and governance in the NHS in Scotland have been in the news again over the past few months. Whether this will lead to any significant change seems to me very unlikely for a variety of reasons. Amongst other things the Scottish government has recently concluded another public 'consultation' exercise, the public petitions committee at Holyrood has been taking contributions on the subject, and the health and sport committee (chaired by Neil Findlay MSP) has announced an inquiry into governance and whistle-blowing in the NHS. A recent issue of BBC radio 'File on Four' revisited the same issues across the UK featuring various whistle-blowers, including myself. The outcomes of these sagas, several years on from the scandal at Mid-Staffordshire and the Francis report, personally and for the NHS, was uniformly depressing.
The government has also mandated health boards to appoint whistle-blowing 'champions' although it turns out the health boards have, for the most part, appointed existing executive members, some of whom have been involved in alleged instances of victimisation of whistle-blowers or of covering up of wrong-doing and incompetence. The identity of some of these 'champions' has apparently not even been revealed to employees. Curiously, they have nowhere appointed 'experts by experience' although this strategy has been adopted in many parts of the world. It has also been proposed to appoint a (single) independent national (whistle-blowing) officer (INO). Curiously too this appointment has still not yet been approved by the Scottish government.
Paul Gray (CEO of NHS Scotland) has recently published a welcome acknowledgement – long overdue – that whistle-blowing may be a problem for staff in the NHS. He concluded his piece by urging those whose concerns are not being heard to come forward and 'tell him'. As one of the whistle-blowers mentioned, I had done just that and formally approached Mr Gray two years before having fruitlessly exhausted internal procedures, and been victimised for doing so, within NHS Lothian.
His response was to refer my concerns back to the very health board where I had raised serious concerns about the safety and quality of the new perinatal psychiatry service and its management. This is akin to asking a local police force to investigate a complaint against itself. NHS Lothian then managed its own 'external' review of my saga and its outcomes.
The various concerns I raised were never properly investigated. They were deferred and then buried until I was forced out of my job. I was initially subject to a widely-publicised 'gagging clause' in a settlement agreement 'offered' to me. I was subject to a demonstrably false 'smear' campaign. I had my specialist career (and a large treatment trial for stressed and depressed pregnant women) destroyed. I have effectively been blacklisted in Scotland.
The concerns I raised have been vindicated piecemeal by the findings of a few limited inquiries, by a series of critical incidents including maternal deaths and, recently, by the damning verdict of the Mental Welfare Commission (MWC) on the treatment by NHS Lothian of a woman (Ms OP) with a post-natal psychosis who killed her baby. For the most part, the recommendations of such inquiries have not been implemented. The 'external' review commissioned by Lothian, at Mr Gray's instigation, was in fact critical of the setting-up and management of the perinatal service and of my treatment, but NHS Lothian refused to publish this, citing 'confidentiality'. I would be astonished if NHS Lothian furnished the MWC inquiry with any of these documents.
I met recently with Paul Gray following his public statement, although only at my insistence and following further media exposure, to present my ongoing concerns. He has since stated publicly on Radio 4 that he takes my concerns 'seriously' and wishes to obtain my 'assistance' in moving forward – although not, I suspect, in properly investigating my saga, nor wrong-doing and incompetence in NHS Lothian. To have an independent legal expert examine the formal responses of the health board to the concerns I submitted would be very simple and offer an opportunity to 'learn lessons'. I have no doubt, despite the rhetoric, that the underlying intention will be to draw me in somehow, 'seek my views', and close down this saga without further potentially embarrassing investigation or action.
But I have discovered that my tale is absolutely typical of whistle-blowers (see safety expert Margaret Heffernan, or whistle-blowing experts such as Dina Medland or Kim Holt), both generally but particularly within our current NHS.
What all frontline NHS staff, whether whistle-blowers or not, have learned through bitter experience is that, despite government or health board rhetoric, it continues to be unsafe for staff to raise serious concerns about anything that might reflect badly on or cause 'reputational' damage to management, health boards or those politically responsible for them. Any such whistle-blowing is certainly not going to be investigated seriously, and staff who attempt to do so are almost certainly going to be victimised for their efforts. Incidentally, these pressures also apply to management colleagues who risk raising their voice or stepping 'out of line'.
We have all seen inquiries around grievances and administrative problems done rigorously by health boards, but never when they threaten reputational damage. There is no genuinely independent body with investigatory or disciplinary powers to address such concerns or to protect those who raise them. The so-called 'helpline' is a joke (callers are simply referred back to the very health boards they are concerned about), as are recently promoted anonymous 'chat sites'.
There is now a vast literature world-wide on the importance of whistle-blowing for safety and quality of services, and for their cost-effectiveness whether in the NHS or industry, but there is clearly still a breathtaking lack of understanding or appreciation ('wilful blindness'?) of the issues involved throughout the NHS and those responsible for it. These include its (often unconscious) systemic and group psychology, e.g. denial, projection, unconscious bias, scape-goating, cronyism, 'in' and 'out' groups, mobbing, smearing (whistle-blowers are 'difficult', 'disruptive' or 'vexatious'), vendettas, black-listing, or the psychologically traumatic effects on those involved.
All of these issues were clearly described and summarised in the Private Eye supplement – 'Shoot the Messenger' – published several years ago and, over the years, various aspects of them by writers such as Margaret Heffernan, Kim Holt, Penelope Campling, Onora O'Neill or Robert Francis. The supplement also included a list of well-recognised 'dirty tricks' for dealing with and silencing whistle-blowers. These include trumped-up complaints about their competence, blaming them for the very problems they highlight, suspension due to their 'difficulty', referral to regulatory bodies such as the GMC or NMC, commissioning and managing 'reassuring' limited 'inquiries' internally, endless administrative 'delays', gagging 'agreements', or effective black-listing.
The idea that any institution can be trusted to manage any investigation into its own possible shortcomings is, in the 21st century, dead in the water – or should be – following decades of scandals and experience in the UK and world-wide.
Effective 'whistle-blowing' is well-recognised to be of massive importance for the delivery of safe, high-quality and cost-effective services, for the wellbeing of patients and the morale of staff upon which good governance and care critically depends, and overall for proper accountability and transparency of a major public service.
Frontline staff are now additionally obliged by a 'duty of candour' to raise concerns where they become apparent, with legal consequences (such as being struck off or prosecuted) if they do not. Curiously and discrepantly, no such legal 'duty' applies to senior management nor are they ever held legally accountable for wrong-doing or incompetence, as would occur in the private sector for example. (Airline managers not being held accountable for plane crashes due to management incompetence?) Senior government advisers state this would be bad for their morale, but the same consideration does not seem to apply to frontline staff.
As NHS staff surveys consistently show, the majority of frontline colleagues no longer trust management, would not whistle-blow or recommend the NHS as a place of work, and something like an astonishing 15% of the workforce feel they are actively (as opposed to potentially) being bullied at work. The NHS also increasingly experiences major problems with recruitment, retention of staff and chronically high stress and sickness rates. All of this would be regarded as catastrophic and a major cause for concern in any independent sector organisation.
On top of this, in almost Orwellian fashion, successive governments, for their own obvious reasons, continually insist that 'less is more' and we have overall a happy, harmonious, progressive health service of world-class standard that is safe, person-centred and staff-friendly. I do not know of a single frontline colleague who would subscribe to such a view. It is also not the highly critical picture painted by reports from respected outside agencies such as the OECD, the Nuffield Trust, the Swedish 'Health Consumer Powerhouse' think-tank, or indeed in Scotland by, for example, Audit Scotland reports.
Meantime NHS Lothian continues, to my ongoing amazement, to repeat its mission statement at the foot of all communications: 'Our Values Into Action – Quality | Dignity and Respect | Care and Compassion | Openness, Honesty and Responsibility | Teamwork'. As one colleague quipped, 'they're only kidding', or as another put it in a more sinister tone, 'forget it Jane – it's Chinatown'.
Some background considerations
I have also learned that whistle-blowing cannot be considered separately from the broader managerial and socio-poltical culture in which the NHS is embedded. The latter includes a culture that is apparently well-recognised historically to be highly authoritarian and whose public life is characterised, perhaps inevitably in a small country and not all for the worse, by an extensive 'interconnectedness' (or cronyism). This clearly extends through public services, civil service agencies, legal, political and even media circles. Frequently the same people rotate around important posts in these different spheres. Partly for these reasons I remain pessimistic about any imminent serious change apart from more cosmetic-type initiatives, especially given the current political preoccupation with constitutional questions.
In England an increasing commercialisation of the NHS has generated its own particular problems. But a Beveridge-style, publicly-funded and publicly-run NHS (i.e. a virtual state monopoly) is no guarantee against the Soviet-style authoritarian managerialism and cronyism noted by authorities such as Brian Jarman or John Lees in mental health. Both systems are characterised and seriously undermined by the so-called 'new public management' style of managerialism.
As has been noted in an extensive critical literature, this can lead to a damaging 'commodification' of healthcare and privileging of supposed 'cost effectiveness' (usually it is not) and meeting 'targets' above quality and safety of care. Treating staff as functional commodities to be handled with suspicion and 'big sticks' also fatally undermines any 'public service ethos' – i.e. a culture of compassion, care and staff willing to work over and above the call of duty or 'go the extra mile'. All of these are located at the core of safe and effective healthcare. Rather, as staff surveys and college and union reports show, colleagues are defensive, feel frequently bullied, become cynical, stressed out, and get out if they can.
Overall there has been a massive swing of the pendulum from largely clinical leadership and management (which had its own historic problems) to one run by managers, often highly committed but under pressure themselves. These are often non-clinicians with little or no experience or expertise in the areas they are responsible for, nor, importantly, do many have any apparent interest in or respect for those who do. Indeed, some managerial staff appear to have adopted an almost vindictive, persecutory and vendetta-like approach to managing frontline and clinical colleagues.
I have learned also that the judicial system in Scotland appears notably reluctant to pursue any such concerns even when formally reported to them, and certainly not, it seems, if reassuring 'inquiries' have been undertaken by health boards. This is in marked contrast, for instance, to the automatic inquiries held promptly by coroners' courts in England.
My initial experience of moving to lead a specialist perinatal psychiatry service in NHS Lothian
My own personal saga in NHS Scotland began almost a decade ago when I was recruited from a major centre in England as an established specialist in my field of perinatal (mother and baby) psychiatry to lead the newly-established NHS Lothian and East of Scotland regional perinatal service. This was located at St John's Hospital in Livingston although no specialist mental heath services had ever been delivered there before.
I was a long-established consultant in London and Sheffield with 25 years of clinical experience and an impeccable record. I had been awarded numerous clinical excellence points, had a PhD and written various papers in clinical research, and had co-authored the internationally-recognised 'NICE' guidelines in perinatal psychiatry. I had also brought an ongoing major clinical trial concerning psychological treatment for pregnant women with mental health problems which I was encouraged to do. This is currently and belatedly being recognised as an area of major need and concern by the Scottish government. But this trial, along with my specialist career, was destroyed by subsequent events.
Prior to coming I had in fact been warned about cronyism, authoritarianism and resistance to incomers by various colleagues back in England. However, I naïvely assumed that as I was moving as an established specialist consultant to a new service this move would surely be supported and welcomed managerially. Nothing could be further from the truth, and nothing prepared me for what I encountered.
Virtually from the beginning I was extremely concerned at the lack of specialist training and supervision for staff. I was told, 'we will do things our own way and learn from our own mistakes'. There was a lack of appreciation for the needs of a regional service in a high-risk specialty for safe and prompt communications, for clear referral criteria, and the need for in-depth and accurate assessment procedures and triaging, given that obviously not all women with less serious perinatal illness could be admitted (with babies) to a very small specialist regional service.
Importantly, I also discovered that managerial and clinical decisions were much more liable to be influenced by who knew whom locally, and how long people had been around, rather than on the basis of expertise or appropriate clinical need. I discovered clinical decisions I attempted to make were being routinely undermined or countermanded by other colleagues or managers who knew the local clinical director from many years before. Furthermore, plans and decisions about the nature of services and how clinicians should operate were apparently also being mandated and dictated to by local management, some of whom had no clinical background whatsoever, and certainly none in such a demanding specialty, but who, as I discovered, one crossed at one's peril.
In short, I had never, over a period of 25 years in clinical practice in many settings, urban and rural, academic and community, in the UK and through acquaintanceship with various services overseas, come across what I considered such poor and unsafe practice, and had never come across such obstructiveness to reform or improvement from local managerial and clinical colleagues. This appeared to me without doubt, compounded by the fact that I had come in as an outsider, and as a woman, from England, and been appointed over the head of a local, but non-specialist, candidate.
Having said all this, I also came across a number of very committed, caring and morally decent colleagues, both frontline clinical and non-clinical staff, as well as managerial staff who were also frustrated in their attempts to improve things in the face of such a managerial culture, and who suffered personally and professionally because of it. Given this situation, I was faced early on with trying to make improvements or get out. I naïvely took the first course, partly as a result of having just uprooted my family and my spouse (from a top NHS post) from central England.
Attempts to enlist help and raise concerns (whistle-blow) and subsequent experience of senior management in NHS Lothian
But when I attempted to address these issues and get help from local management I was either ignored or undermined, and very firmly told, despite my expertise and specialist experience, I should conform to what local and other colleagues ('old pals' of management) wanted. I was told by local management, with no negotiation and in no uncertain terms, to do what I was told – or 'there would be consequences'.
Despite being appointed on a part-time contract ('cost effectiveness') with no proper job plan, I was mandated to cover various clinics locally and in Edinburgh, to provide input to obstetric liaison services, to a community team and to an inpatient unit. My 'job plan' was wholly inadequate and was never clarified or ratified, which was in clear breach of statutory requirements to do so and despite my efforts to negotiate one. Unsurprisingly, many colleagues became frustrated at the lack of input available after early management promises of a new, comprehensive service.
I quickly discovered that management in NHS Lothian would repeatedly, and without any concern for accountability or transparency, break statutory and government – e.g. Partnership Information Network (PIN) – guidelines with regard to contracts, job plans, clinical inquiries, disciplinary procedures, terms and conditions of settlement 'agreements', return to work procedures, or salary scale placement.
Within a year of being appointed, a number of untoward and critical incidents had begun to occur as I feared (one involving the poor care and follow-up of a mother and baby that almost led to the death of a baby that has, to this day, had no formal outcome or response within NHS Lothian). These incidents presaged several fatalities that subsequently occurred after I had left (including one criticised by the MWC recently). I then felt obliged to approach senior management (in writing), in despair and frustration, and in retrospect rather naïvely. But I considered this was my professional and moral 'duty of candour', and had consulted the BMA, my defence union, and GMC formally about the situation and its potential consequences for patient care.
I formally approached both the medical director at the time and CEO of NHS Lothian. To my astonishment, they simply referred matters back to local management, who obviously reassured them that things were fine, and that this was essentially an employment issue relating to my job plan, and that I was being 'difficult'.
Then began a Kafkaesque period extending over half a dozen years, during which I was subject to inquiries in relation to a series of false allegations about me, which were unsubstantiated and ultimately unproven. During the course of these I was subjected to a nightmarish process, including being blocked from my post and forced to go through a humiliating assessed period of 'return to work' under inappropriate procedures for failing doctors (and using headings from the initial complaint despite this not having been upheld), and with threats of referral to the GMC if I did not comply.
These various false allegations, made mostly by management colleagues well-known to the (internal) investigator, were initially taken as read, despite lack of evidence, and despite documentary counter-evidence supplied by me (including many testimonials from previous colleagues). This was simply ignored. Neither I nor my defence representatives (typical for these health board inquiries I have learned) were permitted to challenge or cross-examine 'evidence' against me.
Furthermore, government PIN guidelines regarding the conduct of such inquiries (such as the mandatory requirement for prompt, formal written feedback, or the right of appeal) were repeatedly ignored and breached. Later, the completely inappropriate 'return to work' framework for dealing with failing doctors was imposed on me implying inaccurately, but conveniently, that I, rather than management, was problematic.
I was also subject to a doomed so-called 'mediation' process with local colleagues about many of whom I had implicitly raised concerns and some of whom had perpetrated false allegations and smears against me. Some staff involved with this I had never actually met before.
All of this inappropriately and incompetently drawn-out process occurred at the taxpayer's expense – more than one million pounds as was ascertained from a FOI request by the press – whilst services were covered by a series of locums. Money was then squandered on costly legal fees and ultimately a settlement 'agreement' pay off for myself. The details of this I have been happy to place in the public domain, although most went towards my own legal fees and tax.
I had in the meantime also submitted to NHS Lothian, in despair and frustration, detailed and lengthy complaints (with supporting evidence) about wrong-doing and incompetence around the service and its management as well as about false allegations that had been made about myself. Although an initial meeting was held with a senior manager mandated to investigate these, I was astonished to find that they were subsequently simply placed 'on hold' for a year and a half while, as it turned out, the health board frantically worked on some way of 'dealing with me' and getting rid of me.
Ultimately, I was summoned to a meeting with board-level senior management and told that I could not return to my post, even though I acted properly and professionally at all times, and despite their lack of investigation ('wilful blindness') into the very serious concerns I had raised about safety and quality of services. In the meantime, as I had predicted, a series of further critical incidents occurred, many of them not investigated properly or at all. These ultimately included maternal deaths and more recently the death of a baby killed by her seriously mentally ill mother.
But the official 'public' position that the health board has, for obvious reasons, attempted to maintain, and despite considerable evidence to the contrary, most recently the MWC report, was that all of my concerns were addressed and investigated and that various inquiries have found that the service and its management were of good quality. They have repeated this 'boiler plate' so often that it actually seems that senior management collectively believe this. However, I know from internal sources and leaks that the handling of my case provoked much discomfort and disagreement within and throughout the health board, although ultimately a 'party whip' was obviously imposed and a predictable, defensive standard script issued.
The overall management culture of NHS Lothian I encountered, and documented by David Bowles a few years ago, was characterised by 'bullying, harassment and covering up'. Unfortunately, it has by all accounts become, if anything, apparently more toxic, dysfunctional and unaccountable. Staff morale is appalling despite (predictable but non-evidence-based) claims of positive change by the health board. These claims are certainly not supported by recent NHS staff surveys.
Experiences of trying to raise concerns beyond the health board
During this period I had also, in following due process, directly contacted successive cabinet secretaries for health for help and to express my concern that these issues were not being properly investigated by NHS Lothian (on the contrary they were being covered up), and that I was also being victimised for whistle-blowing. However, despite reassuring rhetoric ('we take these matters very seriously indeed') the upshot was simply that, yet again, the whole saga was simply mandated back to the health board.
They, of course, 'reassured' them that all was being properly investigated and handled. Following media publicity the matter was raised in parliament, but the then first minister, Alex Salmond, simply proffered in typical 'assertive' style the 'reassurances' he had received from the health board about encouraging 'independent' inquiries, but without addressing the substantive issue of my complaints.
It was as though no major institutional scandal or victimisation of whistle-blowers had occurred anywhere in the world over the past generation. I know for a fact from several sources that the smear campaign against me from within NHS Lothian had been widely propagated. The former first minister is fond of saying that, 'a lie can get half way round the world before the truth can get its boots on', and is capable of demanding genuinely independent, in-depth inquiries when it suits, for example, into whistle-blowing by a Navy submariner, or about UK treasury 'leaks' during a referendum.
It seems previous governments (including the previous Lab-Lib coalition) have also all maintained similar approaches, adopting a convenient 'wilful blindness' with regards to the importance of whistle-blowing in the governance of the NHS and public services in Scotland.
I also contacted the so-called whistle-blowing helpline run by Public Concern at Work (PCaW) which, as it routinely does, simply referred me back to undergo due process through the very health board I was trying to raise concerns about. They have no investigatory powers themselves. This was a totally demoralising experience and in terms of its effectiveness was completely risible and a sham.
It remains the case that my formal complaints have never been properly investigated and in several instances never investigated at all. The only inquiries that have been conducted have all been commissioned and managed by NHS Lothian itself and have been undertaken either internally or by colleagues previously involved in reports on the service and involved with its development.
Some final thoughts and conclusions
In many ways I feel I was very lucky to escape from this situation with an early, although greatly-reduced, pension due to my seniority, and despite the fact that I (and my family) have been profoundly shaken and traumatised. Others, who may also have been gagged (or 'super-gagged'), have not been so lucky.
But I do feel at least, in spite of the massive cost to my career, reputation and health that I did the right thing and acted properly out of a 'professional conscience' and 'duty of candour'. (Amongst other things I suffered years of poor sleep with recurrent bad dreams, teeth-grinding and broken teeth, and developed severe phobias about anything, e.g. mail, to do with NHS Lothian.) However, I had intended to work much longer and now two consultants are covering the part-time post I left. Given the worsening NHS recruitment crisis this is clearly a serious waste of both manpower and money.
I am also still very upset to think that had my concerns been taken seriously, many patients would have received much better care and, possibly, some might still be alive who are not. In the wake of my own experiences, my advice at present to others thinking of whistle-blowing (whatever current government rhetoric) would be to keep your head down, and don't even think about it. Get out if you can. Or if you do, be prepared for savage and damaging consequences for yourself and possibly others. As one colleague of mine put it at the time, 'who would dream of raising concerns when you see what happened to Dr Hamilton?'
With regards to broader questions for the future, I would simply repeat suggestions that I and other whistle-blowers in Scotland have previously made. These include the urgent undertaking of an in-depth, genuinely external 'root and branch' review (conducted by an expert group with several members from outside Scotland, and also 'experts by experience') of the overall structure and managerial culture of the NHS extending all the way into government.
Such a review should also include, as a matter of urgency, in-depth surveys and focus groups about the real-life experiences and views of all workers in the health service with regards to NHS managerial culture and governance. These should especially include those incomers or returnees who have worked in and have comparative experience in other countries and cultures. The various political parties in Scotland always seem very ready to undertake surveys and focus groups when an election is looming.
These suggestions would also include the setting up of a genuinely independent regulatory body with investigatory powers to whom whistle-blowers and others (e.g. patients or families with complaints) may turn. This body would need to promote a culture of transparency and accountability in the management of the NHS, extending right to the top and to its political stewards, and foster a broader 'establishment' culture where there is a prompt and impartial application and 'rule of law'. This would clearly require increasing awareness and training initiatives around the issues involved (notably systemic and psychological ones) in speaking out or whistle-blowing in a public service like the NHS, akin to those now routinely mandated for all staff in relation to 'equality and diversity'.
At present, essentially government-controlled 'internal' agencies such as Healthcare Improvement Scotland (HIS) or the MWC simply do not meet these criteria. Whistle-blowers cannot approach the public services ombudsman, and current judicial processes such as Fatal Accident Inquiries (FAIs) are simply not fit for purpose in this context, certainly not when compared to coroner's court procedures in England.
It remains to be seen whether there really is any serious senior managerial or political will to undertake any of this. Without doubt, change will also need to come through public pressure and demand, and a refusal to put up with such a managerial and political culture for public service(s) in Scotland (health and social care are now merging), in an allegedly democratic, civilised country in the 21st century.
To address the problems of the NHS will require civic pressure and political will, but there does exist, it seems to me, a massive opportunity in doing so. The new NHS merging with social care urgently needs to develop a culture of transparency and accountability. Health boards can no longer be allowed to be judge, jury and jailer for any concern or complaint that is raised, nor should the shocking practice of protection and covering up for them by those in administrative or political power be accepted.
Despite the damage done to clinical effectiveness and staff morale in recent years by a culture of unaccountable 'managerialism', it is perhaps not too late to rescue and resuscitate some of the human commitment, care and compassion which motivated healthcare staff in the first place, but which has been increasingly squeezed out of them. This is the ethos that is critical to the delivery of high-quality, person-centred, compassionate care.
It is also recognised to be fundamental to and a sine qua non
of safety. Arguably the operation and character of this major public service should be seen as a barometer and indicator of the health and wellbeing of civic society in general in Scotland. Based on my traumatising personal experiences and the apparent direction of travel of NHS governance, I am not holding my breath.
Acknowledgement: I have been greatly assisted in preparing this article by my husband (Dr Ian B Kerr) who has been with me through every step of this long, nightmare experience