The Connolly Case – UK government argues against 50,000 doctors’ whistleblowing rights during COVID-19

Back in 2018, a landmark crowdjustice campaign saved the career of a young doctor who was scapegoated for systemic clinical and management failings in one of the UK’s largest NHS Trusts. The Bawa-Garba case exposed the serious internal rot which threatens the heart of NHS patient safety, but was diverted by the UK medical establishment into an “educational issue” about doctors’ reflective practice. 

Now the Connolly Case – involving another young doctor – again calls into question the Government’s commitment to transparency and patient safety during COVID-19. Bearing in mind recent C-19 mortality, we ask, “In a climate of fear, who should be held responsible for avoidable deaths in the NHS?” 'The Connolly Case calls into question the Government's commitment to transparency and patient safety during COVID-19.' Click To Tweet

Bawa-Garba implicated politicians and executives at the very top of the NHS

The Bawa-Garba case was described as a case that “rocked medicine” because it showed that NHS workers on the front line take the blame, including criminal charges, when politicians and NHS executives create dangerous conditions in NHS Trusts. 

Dr Hadiza Bawa-Garba was a paediatrics junior doctor convicted of medical manslaughter following her heartbreaking failure to save a young boy’s life in a hospital which was severely short-staffed and had multiple systemic failings.

This case caused an international outcry amongst the medical profession, for instance Australia’s national radio network presented an extensive radio discussion here and in the UK the story was covered by Panorama.

NHS doctors realised that Dr Bawa-Garba “could have been any one of us” – the case sparked an awakening that nurses and doctors would be in the firing line for avoidable deaths in an increasingly under-resourced and dangerous workplace

What most people don’t know is that a BBC journalist reported allegations arising from a public health investigation that senior management from NHS England had known that there was increased mortality in Hadiza’s hospital at around the time of Jack Adcock’s tragic death, and they had covered up that evidence. This is not an isolated case. The Francis Inquiry detailed how NHS managers in Mid-Staffordshire had not only covered up risks to patient safety, but caused serious detriment to nurses, doctors and other healthcare professionals who spoke up for patient safety. 

The Bristol Inquiry, the Gosport Inquiry, the Baby P Inquiry, the Morecambe Bay Inquiry, the Belfast Inquiry… the list goes on. This rot goes right to the top and has been responsible for thousands of avoidable NHS deaths – often of our most vulnerable patients, such as young children and the elderly. This is why transparency and accountability are essential during COVID-19.

'Given that corporate manslaughter legislation is so weak, the likely outcome of COVID-19 is that nurses and doctors on the ground will be held culpable for the failures of politicians and managers.' Click To Tweet

The desperate resource challenges of COVID-19 are likely to exacerbate this process of political and management failures leading to healthcare scandals involving vulnerable patients, for instance there are alarming reports about the management of patients with disabilities during the pandemic. Given that corporate manslaughter legislation is so weak in the UK, the likely outcome of COVID-19 is that nurses and doctors on the ground will be held culpable for the failures of politicians and NHS managers.

The Connolly Case – what happens when doctors speak up for patient safety? 

Tragically, Hadiza did not speak up and ask for help in a dangerous environment which threatened the health of vulnerable children. She tried to “soldier on” like many NHS staff do. The important question is: What would have happened if Hadiza had spoken up? The case of Dr Claire Connolly suggests that Hadiza’s career may well have been terminated if she had raised concerns.

 

Claire Connolly had completed nearly 8 years of specialist training as a paediatrics junior doctor and was just a few months away from being appointed a consultant when she raised concerns about safety in a busy London hospital.

Following Claire’s concerns, she says that educational supervisors at her workplace reported her to Health Education England, a government executive body which controls the career progression of junior doctors, and this resulted in the termination of Claire’s career in paediatrics.

This again is not an isolated case. There are multiple cases of nurses and doctors who have suffered detriment for fulfilling their duty to speak up for the rights of their patients, documented extensively in Sir Robert Francis QC’s “Freedom to Speak Up” review

Robert Francis’s review described “how staff who have sounded the alarm about dangerous practices have found themselves shunned, suspended and sacked by hospital bosses instead of having their concerns taken seriously”. 'What would have happened if Hadiza had spoken up? The Connolly Case suggests that Hadiza's career may well have been terminated if she had raised concerns.' Click To Tweet

The UK Government’s appalling response to Connolly 

The factual evidence for Claire’s whistleblowing detriment will be tested by due process at a tribunal. However, the response of Health Education England to the Connolly Case is astonishing – it’s trying to avoid the factual evidence even coming to court, by arguing that trainee doctors are not protected in law from detriment caused by reports sent to HEE by educational supervisors. What did Claire’s supervisor do, and why does HEE want to hide that evidence so badly, that it’s prepared to argue 50,000 doctors should be deprived of whistleblowing protection from their educational supervisors?

Effectively, HEE seems to be constructing a mechanism where the careers of over 50,000 junior doctors can freely be destroyed by their supervisors if they speak up when they see patients in danger. Shockingly, HEE only recently wasted enormous amounts of tax-payers’ money constructing (and eventually losing) a similar legal argument against Dr Chris Day after he raised concerns about a dangerously understaffed ICU unit.'Effectively, the Government seems to be constructing a mechanism where the careers of over 50,000 junior doctors can freely be destroyed by their supervisors if they speak up when they see patients in danger.' Click To Tweet

It’s important to remember that HEE is directly responsible to the Health Secretary under the Care Act 2014, so this legal case directly implicates the Government in an effort to stop junior doctors on the front line speaking up for patient safety.

The Health Secretary says that the treatment of NHS whistleblowers is “morally abhorrent” but his own department is removing legislative whistleblowing protection from over 50,000 doctors!

Unsurprisingly, the medical establishment appears uninterested in this assault on doctors’ rights and patient safety. 

The BMA has failed to take action to protect the employment rights of these 50,000 doctors, and the GMC has raised no concerns about the enormous threat to patient safety. Just as in the case of Dr Bawa Garba, it will fall on grassroots organisations to take action.

Conclusion

The cycle of independent inquiries followed by ineffective reports and empty platitudes has to stop. National tragedies resulting in hundreds of avoidable NHS deaths will keep on happening unless we empower clinical staff on the ground to speak up for patient safety. HEE’s legal arguments against Dr Claire Connolly threaten the employment rights of over 50,000 doctors and the safety of the millions of patients they treat every year.

NHS healthcare professionals are doing everything possible to keep vulnerable patients alive during COVID-19. Let’s support Claire’s legal battle for her right to keep her patients safe, and the rights of over 50,000 doctors to do the same.

9 thoughts on “The Connolly Case – UK government argues against 50,000 doctors’ whistleblowing rights during COVID-19”

  1. Dr Gerald Freshwater (retired)

    I have benefited personally from BMA assistance in the past, and it has been quite good on straightforward employment problems. It is a generally well respected organisation, but sadly suffers from too much influence by older members of the profession. At an Annual Representatives Meeting in the 1980s I was saddened to see the consultants and GPs dismiss the problems of junior doctors’ new contract (though debating at length the cost of car insurance offered by BMA Services). Looking at Scottish representation, more than half of the local divisions – theoretically the root of BMA organisation – are inactive, and if the branch of which I was once Chairman is typical, that is due to lack of involvement by ordinary doctors who have no political aspirations.
    We don’t really need other doctors unions, we need doctors en-masse to be involved, even in a minor way, with the current BMA. Grass roots pressure will force proper interest in cases such as Dr Connolly’s, to everyone’s benefit.
    If you doubt this, look at what happened in 1974; the junior doctors wanted a new contract which paid reasonably and led to some management of workload. Local divisions were taken over by younger members, merely by turning up at meetings and voting for change, and that change followed, driven by grass roots support.
    Take a little time, get out there, and make the BMA represent all its members; be part of it. Despite being a fairly low profile doctor in a very rural setting, I served on Scottish Council for a number of years, and later one of the national craft committees. Any of you could become influential, instead of just bemoaning the fact that the BMA mostly represents the interests of those who have become its ‘Establishment’. Turn up! Speak out! Vote!

    1. Thanks for the note of optimism, but I’m afraid I have to disagree! 1974 was a long time ago, it was a time when unions still stood up for the rights of their members. There was another junior doctors industrial action only recently, over 95% support amongst members. Then suddenly the chair of the BMA’s junior doctors’ committee changed his mind, said junior doctors should abandon industrial action and accept the new contract, this split the support for action – from that moment, junior doctors were never going to win. I don’t even know if he still works as a doctor, he set up a company a few months later which had a lot of very senior political and healthcare leaders on its faculty, which was weird because he’d just failed to lead industrial action successfully. He had David Haslam CBE, Heidi Alexander MP, Lord Kirkwood, Sir Graeme Catto, Lord Naren Patel… Meanwhile, real doctors on the ground have seen their real-terms pay decrease by 20% in the last 10 years, and have been risking their lives treating patients without adequate PPE.

      PS I took your advice, stood for a national seat on BMA Council, won a seat, attended most of their meetings, tried my best to help the BMA to reform. I found serious governance and legal issues, did my very best on numerous occasions to sort them, multiple discussions and formal letters to the Chair and Chief Executive, and unfortunately nothing changed. I resigned my position in April last year during the first wave of COVID-19 – it was COVID which helped me realise just how ineffective the BMA is.

    2. I agree with this
      As a new qualified preregistration JHO I was on the BMA junior doctors executive in 1966/7.
      We narrowly voted against a strike.
      However Kenneth Robinson the Labour Health Minister improved our conditions significantly.
      At that time our pay was £500 pa before deductions . After deductions my first months pay in august 1966 was £27. The contract we were asked to sign locally in Perth ( Bridge of Earn hospital surgery) was ‘to work such housers as the consultant required’ we were handed a rota of 120 hours per week which the three house doctor refused to sign and ‘negotiated’ down to 90 hours. We were, as for all new doctors, resident, management also tried to make us sleep in a ‘duty bedroom’ impart so they could charge us for a telephone in our own room. In my second job western Edinburgh med paediatrics I was ‘on duty’ alternate nights receiving for 14 days while my surgical opposite was on holiday.
      Life was hard. But at least we had a mess with a butler who made sure we were fed keeping meals hot if we were called.
      No wonder 40% of my year’s graduates from Edinburgh emigrated most never to return
      Emigration rates are once again high (pre Covid). Four friends medic children have all emigrated to Oz or NZ and say training conditions are infinitely better.
      Care for Juniors is still poor. As an MSP and shadow Pubic Health Minister I fought against unreasonable rotas in Scottish Health Boards after the death of one who fell asleep driving home. but I had only modest success, with a ban on 100 hour rotas. An FOI enquiry showed that not a single HR department in Scottish Boards checked proactively on how juniors were coping.
      No wonder mistakes occur.

  2. I think in the end the collective action of many doctors/nurses will protect the individual doctor/nurse. In the Clare Connolly case as with Bawa-Gaba, all doctors/nurses in the world can unite collectively to support them and take on the organisations and politicians, who at some level need to be open to the difficult conversations that can lead to justice, improved patient care and safeguarding the health and livelihood of doctors and nurses.

  3. Dr Ellen Kriesels

    Junior doctors are not protected by law from suffering detriment when they disclose a WBIng issue (patient safety is such an issue). However, the protection by law that consultants supposedly benefit from is only there on paper. In practice they are not protected either. When they are shunned, bullied or sacked, it is up to the consultant to prove in court that this detriment occurred as a consequence of their whistleblowing. This is virtually impossible. The Trust will just say that it was for something completely unrelated, they will
    trump something up. The judge will conclude that the consultant fulfilled the criteria for being a WBer (like some badge of honour) but that there was no evidence that it was the WBing that was at the root of the dismissal. It is like proving lack of consent in rape cases; virtually impossible. Depressingly the success rate for WBers is similar to that for rape victims.
    Fighting for this protection in law for trainee doctors is fighting the wrong battle. We must fight for an incentive for senior management to act, not for our freedom to speak up; many senior and junior doctors do, without even realising that they are in fact WBing. It is the subsequent inaction of senior management that sooner or later changes into action against the WBer that is the problem. Why does senior management behave that way? Because there is no incentive not to. They will never suffer detriment as a consequence of ignoring or sacking the WBer. So why bother? Why address a tricky issue? (Addressing a shortage of staff in ITU is a tricky issue.) The worst that can happen is a bit of bad publicity and having to issue a lame fauxpology. But most likely it won’t even come to that. They know that the law that is supposedly protecting the WBer is futile. It is us naive doctors, junior and senior, who don’t know this.
    What happened to the executive board when they intimidated consultants to give a handwriting sample so a detective could establish who had written a letter to the widow of a malpractice victim? Nothing. They are all still there. It made the national press but ultimately they are still all there. The entire board should have been sacked over this. And these cases are the tip of the iceberg. For every such case there are hundreds of WBers being ignored, bullied and sacked…(usually the WBer leaves of their ‘own’ accord.)
    The Francis report into the Mid Staffordshire Trust was a joke with regards to the WBing recommendations; freedom to speak up guardians (FTSUG) are not independent (but line managed by an executive board director). They provide a listening ear but no protection from detriment. And why would a FTSUG be critical of the Trust if their faith is in their hands? It is a joke.
    The National Guardian has no power to offer any protection for the WBer nor to put any pressure on the Trust. When they ‘investigate’ a case they will say that it is a learning exercise for the Trust. Their ‘power’ is to publish a report with recommendations; ‘if you intimidate a WBer they will feel stressed and their productivity will go down’. Laughable. The CQC will know about this report but as it is likely to be very weak it will not affect the rating (except in some rare cases, with loads of patients dying).
    WBing doctors, senior and junior will continue to suffer detriment with or without the ‘protection’ of the law as long as there is no incentive for senior management to listen and act.

    1. Thanks for your thoughts, Ellen. I think we need a regulatory body (similar to the GMC) for NHS managers and executives. Given that power in the NHS has shifted from clinicians to NHS managers, and that management decisions have led to large numbers of avoidable deaths, it’s essential to have a mechanism of accountability for those managers.

      The chief executive of Dr Raj Mattu’s trust (who suffered appalling sustained persecution after he whistleblew, including a false rape allegation!) was later implicated in action against another whistleblower (Sandra Haynes-Kirkbright, head of clinical coding) which resulted in the Health Secretary ordering an independent inquiry. I believe the same chief exec’s NHS Trust recently organised accusations against another whistleblower (Professor David Ferry), Professor Ferry has subsequently left the UK to continue his pioneering cancer research in the USA. These were three very senior NHS staff who all suffered significant detriment to their careers, and the chief executive actually got promoted to a position as regional NHS chair. If this can happen to consultants and professors, then you can imagine how much more fragile is the position of junior doctors!

    2. Thanks , this IS eye opening indeed! You have turned the problem around and given a clear direction that can be of great help. thank you.

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