A leading surgeon at the centre of a NHS whistleblowing scandal has warned that hundreds of doctors and nurses face persecution if they speak out about NHS cuts that jeopardise patient safety.
Ramon Niekrash, in his first interview since winning a landmark case to salvage his reputation, said health professionals needed to think "very hard" before standing up against poor patient care, because it is "potential professional suicide". "Your employer won't thank you; the law won't protect you. You're on your own," he says.
His story, which saw him suspended and his reputation in tatters after repeatedly raising concerns about the treatment and safety of patients following cuts at a London hospital, has raised disturbing questions about the legal protection of whistleblowers, 10 years after legislation was brought in by the Labour government.
As political parties canvas in the closest fought election in almost two decades, the NHS is the second most important issue for voters in the latest polls. This case is one of the most vivid and disturbing instances of what critics claim is a target-obsessed and secretive system.
Following soon after last year's scandal at Mid Staffordshire Hospital, where hundreds of patients died because of poor care in a results-driven management culture Mr Niekrash's case raises questions which to which politicians of all parties will need to find answers.
The Conservatives say they will, for the first time, give NHS staff the contractual right to report failings anonymously to the health regulator, which would protect them from bullying and disciplinary action and put the onus on the regulator to investigate.
The Lib Dem health spokesman yesterday pledged to revisit the existing legislation and "give it more teeth", as well as making more accountable managers who wasted public money bullying and harassing whistleblowers.
Until that happens, says Mr Niekrash, money and targets will come always first, and clinicians with a conscience should not feel protected. "Management can investigate you; they can suspend you; they can do pretty much anything they want to you. But as an individual, all you can do is write to people, to your seniors, to the managers, the regulators, telling them what your concerns are. And that's all I did. It cost me £180,000, my reputation, and two years of my life."
Mr Niekrash, 50, is a surgeon at Queen Elizabeth Hospital in Woolwich, south London. He is a urologist, an expert in diseases of the bladder, kidney and prostrate. His story is extraordinary but not unique. He joined the urology department at the newly built QEH in 2000, a year after he moved here from his native Australia. In 2005, the trust was in dire financial straits. It had a deficit of more than £20m and a cash shortfall of nearly £50m, mainly as a result of the high fixed costs from the private finance initiative scheme used to build the hospital.
Mr Niekrash started raising concerns about patient care that same year. The urology ward was closed to save £1m, so patients were spread across the whole hospital. With too few specialist nurses and doctors spending so much time going from ward to ward, post-operative complications were sometimes being missed. Outpatient clinics were bursting at the seams. New patients were prioritised which meant existing cancer patients sometimes had appointments cancelled several times, according to Dr Niekrash, something the trust has always denied.
Mr Niekrash gives an example: "A patient came to see me with blood in his urine. He'd had an ultrasound scan in our hospital six months earlier, which showed a tumour, but his follow-up appointment had been cancelled. I wrote to management to express my concern. They denied the appointment had been cancelled. By the time the patient was scheduled in for surgery eight weeks later, his cancer had advanced and his life expectancy reduced. So I wrote again about unacceptable delays. Nothing happened."
A fellow surgeon, Roy Isworth, recalls: "Patients would come in and ask me how I was feeling, or how my holiday had been, because that's what they'd been told when their appointment was postponed."
After seeing one patient who had his appointment cancelled seven times, and failing to get an adequate response from the hospital managers, Mr Niekrash sent letters which detailed cancelled appointments for about 20 cancer patients to the Strategic Health Authority. "I got no response, nothing." he said. "I could just come to work, keep my head down, but it's my job and it's my responsibility. If I don't report it and someone dies and there is an inquiry, then I'm nailed."
He eventually got a response but it wasn't what he had expected. He was suspended on 9 April 2008 for "excessive" letter writing and because two senior managers from the surgical department had complained, in writing, on the same day, about his conduct, attitude and, most worryingly, his clinical competence.
Dr David Robson, medical director and future chief executive, and Sally Storey, head of human resources, claimed they were forced to suspend him to protect the interest of patients and staff. They also claimed that the National Clinical Assessment Service – an NHS organisation set up to help to resolve performance concerns – approved the suspension during a phone call on 26 March 2008. The decision to exclude him was made, at the very latest, on that day.
So a senior doctor with an unblemished record was suspended on full pay for 10 weeks while an "independent investigator" was brought in.A locum surgeon was hired – all at the taxpayer's expense.
Several local GPs wrote letters to management to express their shock, but private correspondence shows Tory councillor and trust chairman Colin Campbell suggested these should be "ignored and filed". He was reinstated only after senior doctors threatened a vote of no confidence in the trust. On his return, Mr Niekrash sought an apology from management and recoup the money he'd lost from his private practice. The trust refused to budge.
In an attempt to rescue his reputation, he took his case to an employment tribunal. "There was a conspiracy to get rid of me. It was rotten as could be, right to the top. It was so wrong that I had to vindicate myself and take the huge costs on the chin. Obviously lots of people, people with kids, porters, nurses, couldn't do that."
He won. The accusatory letters, from Anneliese Weichart and Dr Sharon Power, were dismissed as defamatory by the judge. Mr Niekrash asked the General Medical Council to investigate Dr Powers and Dr Robson for failing to act within the medical code of conduct. No case to answer, said the GMC, but it has since been asked to reconsider.
A court will decide how much compensation the NHS must pay him next month. It may not cover his legal bill which his trade union, the British Medical Association, would not fund. The final bill for the hospital – now part of the much bigger South London NHS Trust – could reach £500,000 of taxpayers' money. None of the managers involved has faced financial or professional hardship as a result. The trust refused to comment on what action had been taken since the tribunal.
This story may become a familiar one as the NHS tries to find £20bn in "efficiency savings". Cuts do not necessarily lead to bad care. But fewer nurses, doctors, clinics and wards will mean some patients will not get the best treatment as quickly as they should. There is a fear, among some, that those known for raising concerns, the "troublemakers", will be the first to face redundancy. The Public Disclosure Act 2000 is meant to protect whistleblowers from bullying, suspension, dismissal and financial losses as long as concerns are raised in the proper manner. But there is widespread agreement that, however well intentioned, the legislation is failing people like Mr Niekrash. The Department of Health doesn't agree.
Mr Niekrash said, "If you think what happened in the Mid Staffordshire Trust is unique, you've got to be joking; it just got caught. There are lots of trusts out there with dirty laundry but people are too afraid to speak out."
Andrew Lansley, shadow Health spokesman, said yesterday, "I am determined to fight this closed culture in the NHS. It should never again be possible for managers to put a box marked 'target met' while patients are pushed off to a ward and left to die."
The experience has made Mr Niekrash more cynical, less confident, and practically, he fears, unemployable. "Who wants a whistleblower, a troublemaker? Do I have faith in the NHS? No. Do I believe this will happen to other individuals? Yes. Do I believe there is any accountability for managers? No. It's too late for me, but whoever is in government must change the law so whistleblowers are protected."
In a statement South London Healthcare NHS Trust says: "These incidents took place prior to the establishment in April 2009 of South London Healthcare NHS Trust, which now manages the Queen Elizabeth hospital. The new Trust absolutely believes in the importance of whistleblowing and encourages any staff members with concerns about patient safety to bring them to the attention of their managers straight away. We now have an environment and the correct processes in place so staff can feel confident that they can raise concerns without any fear. The Whistleblowing policy belonging to South London Healthcare NHS Trust is being revised to reflect these changes. On the specific issue of patient safety, the absolute priority of the new Trust is to ensure the quality of care and patient safety. In the nine months since South London Healthcare was created, there have been significant improvements to patient safety."
The fate of the whistleblower
Margaret Haywood was struck off the nursing register last year after being found guilty of misconduct for secretly filming the neglect of elderly patients where she worked in Royal Sussex Hospital for a television documentary. The decision was overturned by a High Court judge.
Professor Stephen Bolsin was the anaesthetist who helped to lift the lid on the appalling death rate at Bristol Royal Infirmary in the 1990s. Ostracised by many of his colleagues for speaking out, he persisted for eight years in order to bring the Bristol babies scandal to light. He left to work in Australia, unable to get work in the UK.
Paediatrician Dr Kim Holt repeatedly told managers that children's services were unsafe at St Ann's Hospital in Haringey, northeast London, more than year before the death of Baby Peter in 2007. Her employer, Great Ormond Street Hospital, offered her £120,000 to stay silent but she refused. She has been off work, on full pay, for more than two years and is still waiting to be reinstated.
2000 Joins Queen Elizabeth Hospital as consultant urologist
2005 Mr Niekrash starts raising concerns about ward closure and long delays for cancer outpatients
2007 Mr Niekrash instigates a complaint of harassment against two managers
2008 Suspended as "independent investigation" is carried out; reinstated after 10 weeks
2010 Employment tribunal rules the suspension was unjust