#LucyLetby’s conviction on the Friday, 18 August for the murder of seven babies and the attempted murder of six others marks, one hopes, the end of a truly horrifying chapter in NHS history.

Justice may have been served, but this is no doubt of little comfort to the many parents who have been affected. As is so often the case following such sickening events, the focus shifts to identifying who else might be accountable and to the lessons that can be learnt to prevent something like this from ever happening again.

There are probably now many “red flags” which, with the benefit of hindsight, could or should have elicited further enquiry and/or action way before the point at which they actually did. Which begs the immediate question – why didn’t they?

Many consultants and medical professionals apparently raised concerns about the mortality rate in the neo-natal unit. Many pointed to Lucy Letby as the one common denominator in all those deaths. It wasn’t necessarily an accusation, more an observation. The question though is why was this (allegedly) not taken more seriously at an earlier stage?

Was it a fundamental mistake on the part of the hospital, or a deficiency with the legislation designed to protect those who speak up? We can only speculate but, as is often the case, the truth is probably somewhere in between.

Whistleblowing – The law

Under The Public Interest Disclosure Act 1998 employees and workers have protection from detrimental treatment and/or dismissal in circumstances where they raise concerns with their employer.

Importantly, however, this protection only applies to “qualifying disclosures”. This means that it must meet all of the following requirements:

  • It must be a disclosure of information relating to at least one of six types of failure or wrongdoing i.e. a criminal offence; a breach of a legal obligation; a miscarriage of justice; danger to health and safety; damage to the environment; and/or the deliberate concealment of any information relating to the above.

  • The worker must have a reasonable belief that the information does show, or tends to show, the relevant failure/wrongdoing.

  • It must be made in the public interest.

  • It must be made to the appropriate person.

  • Not every disclosure, therefore (and regardless of how the employee might feel about it), will necessarily amount to a “protected disclosure”.

    For instance, a disclosure will not be a disclosure of “information” under the Protected Disclosure Act, unless it conveys facts which show, or tend to show, one of the six relevant failings or wrongdoings referred to above.

    Whilst it may seem self-evident that a hospital consultant or consultants, raising concerns to the CEO/Director of Nursing about the mortality rates of babies within the care of a particular nurse or Unit, could fall squarely within the remit of a “qualifying disclosure”, whether it actually does or not will depend on the facts.

    It is quite possible therefore that, initially at least, the information provided did not convey enough facts. We were, after all, dealing with a specialist neonatal unit. The babies cared for there were already the most sick and vulnerable in the hospital. As ridiculous as it may sound in retrospect, it may well be the case that the deaths were not sufficiently out of the ordinary to spark any immediate cause for concern or special investigation.

    It is also possible that even the circumstantial evidence presented by those consultants (i.e. of Lucy Letby being the one common denominator in all the deaths) did not convey enough hard “facts” either to warrant the suspension and investigation of a nurse with an otherwise clean employment record. After all, employers have a duty of care towards all their staff. They have to balance those responsibilities carefully, and it is often a fine line to tread.

    From an employment law perspective therefore, it is not difficult to envisage why action might have been delayed – either because the hospital authorities felt they had no reasonable or proper cause to act or because staff felt too exposed themselves to continue speaking up.

    Prevention and Reform

    Just because it is possible to comprehend why action was not taken sooner does not mean to say that those involved should be absolved from any accountability. Indeed, any public or statutory Inquiry will, at the very least, focus on what else could or should have been done to prevent these terrible crimes.

    However, in my view, there is also a wider piece of work that needs to be done around the whistleblowing legislative framework, to examine if and how it might have inadvertently played its part in supressing the types of issues/concerns it was designed to address.

    Indeed, it is perhaps good timing that the government has recently launched a review of the whistleblowing framework, seeking evidence on the extent to which it is meeting its current objectives. The proposals will consider issues such as: whether to introduce a single body to enforce workers’ rights, including whistleblower protection; the extent to which workers are, in fact, protected; and the benefit and impact of the whistleblowing framework.

    Various lobby groups are also calling for the reforms to go further by creating an Office of the Whistleblower, a complete repeal of the Public Interest Disclosure Act (unlikely) and/or the introduction of minimum legal standards for employers, such as internal speak-up arrangements and extended time limits for whistleblowers to bring employment tribunal proceedings.

    Conclusion

    Whatever the outcome of either the public inquiry into the murders or the whistleblowing review, it is clear that something went wrong. Very wrong.

    Many organisations have whistleblowing policies in place. Now might be an opportune moment revisit and review these to ensure they remain fit for purpose. Questions employers should be asking themselves are:

  • Does the organisation’s culture reflect the spirit of the whistleblowing policy?

  • Are workers genuinely heard?

  • Are managers trained to identify circumstances when action should be taken?

  • Is the appointed Whistleblowing Officer the appropriate person to approach with such concerns? Could there be a conflict of interest?

  • Should communication channels between stakeholders be reviewed or amended to improve trust?

  • For help and advice in relation to whistleblowing policies and procedures, or employment law issues generally, please contact Prettys Employment Team employmentexpert@prettys.co.uk