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NHS WHISTLEBLOWER WINS CASE AGAINST REGULATOR

An orthopedic surgeon, who was sacked for raising patient safety concerns has won a case against England's hospital regulator, the Care Quality Commission (CQC).

The orthopedic surgeon Shyam Kumar, who served as a special adviser on hospital inspections by the Care Quality Commission (CQC) - the independent regulator of health and social care in England - was unfairly dismissed after he had raised concerns about patient safety. In particular, he had reported concerns regarding inadequate hospital inspections, staff bullying, and serious patient harm, including concerns about a surgeon who had carried out operations that were "inappropriate" and of "unacceptable" quality.


The Manchester Employment Tribunal found that he was unfairly dismissed. The Tribunal ascertained that the doctor had been subject to detrimental treatment and concluded that his repeated raising of safety concerns influenced the decision to remove him from his post. During the trial, Shyam Kumar explained that he was perceived as a troublemaker within the CQC, or as a thorn in their side.


The Tribunal argued that his disengagement was detrimental because "... at least in the majority of cases where reputation is highly regarded ... disengagement is a detriment. Alongside this, this tribunal is mindful that this is a case where the claimant was being disengaged for having conducted himself in a manner not befitting of the respondent, without any proper and reasonable investigation. Where his professionalism was being questioned, and his action, which was later used as the reason for disengagement was in response to that. Where he had made the decision-makers aware of potential retaliatory action against him, and no safeguards were put in place. Against this backdrop, the decision to disengage him clearly reaches the level of detriment."


However, as a consequence of the ruling, the surgeon has been awarded only the modest sum of £23,000 in compensation "for injury to feelings", which is a clear insufficient sum to compensate for the potential damage he has suffered to his career.


The British Medical Association (BMA) affirmed that Mr Kumar’s case underlined the vital importance of ensuring medical professionals were supported and empowered in bringing to light concerns regarding patient care and safety and that "it is absolutely paramount that doctors are able to raise safety concerns without fear of recrimination or backlash from employers... rather than punishing those who bravely speak up, the system should be supporting them, so that steps can be taken to improve safety for both staff and patients."


This is simply the latest case that highlights the hostility that regulators often express towards whistleblowers, perceiving them as troublemakers who draw attention to regulatory failures, as opposed to a means to support their work. While there are no easy answers to how to address these problems, it is evident there is required a systematic realignment in the relationships between stakeholders and regulators in all sectors. A failure to do so not only poses significant risks to the public, but undermines the function and legitimacy of regulatory authorities, and continues to degrade the willingness of potential whistleblowers in coming forward for fear of retaliation from not only their own institution but also from those meant to protect them.


Access the article in The Guardian.


Please find also below the Judicial Decision of the Employment Tribunal in PDF format.

Dr S Kumar v The Care Quality Commission (2022)
.pdf
Download PDF • 1.20MB

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