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Court of Appeal backs greater protection for whistleblowing junior doctors

Posted: 09/05/2017

Three judges sitting in the Court of Appeal have called for the law to be interpreted to maximise protection for junior doctors after hearing an appeal against two employment tribunal rulings. The case centres on Dr Chris Day, who worked as a specialist registrar in emergency medicine at a hospital in South London run by Lewisham and Greenwich NHS Trust. The level of staffing was so low at times that he raised concerns that he was being made to cover extra wards, including A&E, when there were insufficient doctors.

He had been working under a one-year contract at the trust, but when that contract came to an end, he found that he was unable to find permanent employment. He argued that Health Education England (HEE), which arranges junior doctors’ training contracts, failed to protect him as a whistleblower under employment law. In effect, this was destroying his career, preventing him finding work.

The case came before two separate employment tribunals, both of which rejected Dr Day’s claim that he was entitled to protection from HEE under whistleblowing legislation. Instead, they found that HEE was not Dr Day’s employer, so owing him no such duty, and that Parliament had deliberately excluded junior doctors’ relationship with HEE from whistleblowing protection.

Dr Day appealed those decisions and now the Court of Appeal has challenged the employment tribunal rulings, calling for employment law to be interpreted to maximise protection for junior doctors in the NHS. The case must now go back to another employment tribunal to be re-heard. That tribunal will have to decide whether the degree of control HEE has over Dr Day’s working terms and conditions is such that HEE must comply with an employer’s duties under the whistleblowing regulations.

Andrew Clayton of Penningtons Manches’ clinical negligence team comments: “This Court of Appeal decision has wide-ranging implications for patient safety and NHS culture. It comes as press reports highlight an average of 1,400 hospital mistakes every week by maternity staff alone. The effects of NHS errors on patients and their families can be devastating.

“There is widespread criticism of the costs to the NHS where negligent care causes life-changing damage to patients, yet still the same errors are repeated. If the cost of negligent care is to fall, so that resources can be better targeted on delivering safe care, the NHS needs a massive culture shift. It needs to embrace and learn from its mistakes to change clinical practices and improve patient safety. It should be lauding those like Dr Day who raise legitimate concerns about unsafe practices.”

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