Raising concerns

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Guide to raising concerns

Dealing with conflicting challenges is part of daily working life, and in some circumstances you may find that you have serious concerns about what is happening around you. For example, you may feel that you need to raise a concern about malpractice, which places or could place patient safety at risk.

This guidance provides you with information about raising concerns and whistleblowing in your workplace, and the legal framework which can apply, and seeks to give you the necessary reassurance and support to raise any concerns you may have.

  • What is whistleblowing?

    ‘Whistleblowing’ is the popular term applied to a situation where an employee, former employee or member of an organisation raises concerns to people who have the power and presumed willingness to take corrective action. Throughout this document, we will talk about ‘raising concerns’ rather than ‘whistleblowing’ because the latter has come to denote a sudden, drastic or last resort act which can hold negative connotations. A ‘protected disclosure’ is the official term for whistleblowing; the protection is afforded to the practitioner in the interest of the public.

    All employers should have a formal policy for raising concerns, which will usually be known as the ‘whistleblowing policy’, and you should familiarise yourself with this at an early stage when tackling a concern you have. The BMA believes that professional practice in the NHS should be based on a culture of openness and a culture of reporting as a normal, routine and everyday part of clinical governance. We understand that the failure of such governance mechanisms can necessitate the need to raise concerns and, in this event, it is important to highlight these at an early stage, particularly where patient safety may be at risk.

     

  • Patient safety - your duty as a doctor

    Doctors have a professional duty, under Good Medical Practice, to raise concerns. Concerns in the workplace can vary in nature but they will all have one common factor: ensuring patient safety. It is important to remember that raising a concern is different from raising a personal complaint or grievance.

    The latter relates to concerns an individual may have about the way in which an employer has acted in relation to him or her.

    See Step 1 on Practical steps for raising a concern for information on personal complaints or grievances.

    Good Medical Practice states:

    "You must take prompt action if you think that patient safety, dignity or comfort is or may be seriously compromised:
    • If a patient is not receiving basic care to meet their needs, you must immediately tell someone who is in a position to act straight away.
    • If patients are at risk because of inadequate premises, equipment or other resources, policies or systems, you should put the matter right if that is possible. You must raise your concern in line with our guidance and your workplace policy. You should also make a record of the steps you have taken.
    • If you have concerns that a colleague may not be fit to practise and may be putting patients at risk, you must ask for advice from a colleague, your defence body or us. If you are still concerned you must report this, in line with our guidance and your workplace policy, and make a record of the steps you have taken."

    Protecting patients can also mean raising concerns about your colleagues.  The GMC's guidance from  January 2012 expands on the specific obligations contained in Good Medical Practice:

    “You must also protect patients from risk of harm posed by another colleague’s conduct, performance or health by taking appropriate steps immediately so that the concerns are investigated and patients are protected where necessary.”

    Read the GMC guidance

     

  • Contractual entitlements

    If you are employed on a nationally agreed contract of employment or terms of conditions of service, the following clause should feature in your contract:

    “A practitioner shall be free, without prior consent of the employing authority, to publish books, articles etc., and to deliver any lecture or speak, whether on matters arising out of his or her NHS service or not.”

    Use the quick guide below to check to see if the above clause is contained within your contract. The BMA interprets this to mean that in addition to the protections afforded to you if you raise concerns under the PIDA, your contract also entitles you to speak freely. The PIDA gives statutory protection to employees who disclose information reasonably and responsibly in the public interest and who are victimised or even dismissed as a result. Please note that the terms of a compromise agreement override those of the applicable national contract.

    Role Contract type Reference
    Junior Doctor

    i) NHS Medical and Dental Staff and Doctors in Public Health Medicine and Community Health Service (England and Wales) Terms and Conditions of service September 2002.

    ii) Scotland

    iii) Northern Ireland 

    paragraph 330

     

     

     

     

    paragraph 330

    paragraph 330  

     

     

    Staff and Associate Specialist

    i) NHS Medical and Dental Staff and Doctors in Public Health Medicine and Community Health Service (England and Wales) Terms and Conditions of Service September 2002.

    ii) 2008 contract (England and Wales)

    iii) 2008 contract (Northern Ireland)

    iv) 2008 contract (Scotland) 

     

    paragraph 330

     

     

     

     

    schedule 13 paragraph 7

     

    schedule 13 paragraph 7

     

    schedule 13 paragraph 7 

     

    Clinical Academic

    i) Consultant Clinical Academic Contract (2004) (England only)

    ii) (Scotland) refer to 2004 contract

    iii) (Northern Ireland) Pre 2003 - refer to contract

    iv) (Northern Ireland) Post 2003 refer to 2004 contract 

    paragraph 11.4 of Honorary contract 

     

    paragraph 12.1.1

     

    paragraph 330

     

    schedule 12 paragraph 7 

    Consultant

    i) Pre-2003 contract

    ii) 2003 contract (England)

    iii) 2004 contract (Scotland)

    iv) Pre 2003 contract (Northern Ireland)

    v) 2004 contract (Northern Ireland)

    vi) Pre 2003 contract (Wales)

    schedule 12 paragraph 7 

    paragraph 11.4

     

    paragraph 12.1.1

    paragraph 330

     

    schedule 12 paragraph 7

     

    paragraph 330 



  • General principles for raising a concern

    • Everyone should be aware of the importance of preventing and eliminating wrongdoing at work. You should be watchful for illegal or unethical conduct and report anything of that nature that you become aware of.
    • Any matter raised should be investigated thoroughly, promptly and confidentially, and the outcome of the investigation reported back to the worker who raised the issue.
    • No one should be victimised for raising a concern. This means that your continued employment and opportunities for future promotion or training should not be prejudiced because you have raised a legitimate concern.
    • If you are victimised after having made a disclosure under the Public Interest Disclosure Act (PIDA) you can bring a claim at an employment tribunal. Your employer should treat any acts of victimisation as a disciplinary offence.
    • An instruction to cover up wrongdoing is itself a disciplinary offence. If told not to raise or pursue any concern, even by a person in authority such as a manager, you should not agree to remain silent. You should report the matter following the steps outlined in the guidance.
    • If you are asked to sign a compromise agreement or another type of agreement which you have concerns about and the BMA is dealing with this on your behalf, seek advice from the BMA before signing. Alternatively, if you have been using your own solicitor, you will need to consult them accordingly.
    • If you deliberately make a false allegation it may be a disciplinary offence.

     

  • When to act

    It can sometimes be hard to know whether a situation should be raised as a concern. You should be guided by this question: if you let the situation carry on is it likely to result in harm to others? If in doubt, you should always err on the side of raising the concern with your manager/immediate superior, and you should do it as soon as you can.

    Issues you might have concerns about include:

    • Systemic failings that result in patient safety being endangered, e.g. poorly organised emergency response systems, or inadequate/broken equipment
    • Poor quality of care
    • Malpractice
    • Welfare of subjects in clinical trials
    • Acts of violence, discrimination or bullying towards patients
    • Acts of fraud
    • Health and safety violations – blocked fire exits, dangerous structures, etc.
    • Doctors or other staff being mistreated by patients
    • Inappropriate relationships between patients and doctors
    • Illness that may affect a doctor’s ability to practise in a safe manner
    • Substance and alcohol misuse affecting ability to work
    • Negligence
    • Fraud or corruption
    • Deliberate attempt to cover up any of the above

     

    Concerns about training

    Concerns about training may well be bound up with patient care issues, and complaining about training may sometimes lead to raising concerns about patient care. Issues with training may be a cause for concern for both trainees and trainers, and PMETB and postgraduate deaneries are empowered to address this type of concern. If you contact the postgraduate deanery the Training Programme Director would be the best first point of contact. You can and should approach them if local routes, such as speaking to the educational supervisor, are unsuitable or unsuccessful.

     

    Concerns about research

    Welfare of subjects in clinical trials or other research may also be a cause for concern. Whilst ethical approval can be taken as a guide, if you see problems that perhaps the ethics committee did not see then it is still your duty to say or do something about it. If you have concerns about research probity within the NHS then you need to raise this. If you hold a substantive medical academic contract you should contact your higher education employer about their public disclosure policy.

     

     

  • Practical steps for raising a concern

    Who do I approach in order to raise a concern?

    Generally, it will be advantageous to follow the procedure set out in your employer’s raising concerns policy. If you don’t know where to find this, contact your human resources (HR) department.

    Following your employer’s procedure should help to protect you  if you are later subjected to detrimental treatment. It is also in accordance with your employment contract to respect and follow internal procedures. If you have any concerns about following your employer’s raising concerns policy then you should contact the contact the BMA or Public Concern at Work (PCAW) for guidance on how best to proceed.

    Your employer’s policy should have information such as that included in steps 1 to 3 below. When you are preparing to raise a concern, ensure that you keep dated records and notes of the issues that you are concerned about for reference throughout the process. At any stage, whether you are following your employer’s policy or the steps outlined below, you can contact the BMA or PCAW for support and advice.

     

    Step 1:

    In normal circumstances, you should initially raise concerns with your immediate clinical team by informing your line manager or head of department. If you feel uncomfortable doing this or for any reason you think it would be unhelpful, you may prefer to speak to someone else in your organisation. Your employers’ raising concerns policy should contain a formal procedure and give the name of a designated officer who you can speak to. If for any reason you are unable to raise your concern with the designated officer, we recommend that you contact us for guidance.

    Some issues (such as bullying or discrimination against staff by other staff) should normally be raised under a separate dedicated policy such as a grievance policy or dignity at work policy. It is important to use the right policy. If you are unsure which policy to use, it may be helpful to speak to your human resources department. Alternatively, you can contact the BMA for guidance.

    Your employer’s raising concerns policy may require you to make a written record or report of your concern. If it does not, it is advisable to do this, either by raising your concern in writing in the first instance, or, if you raised your concern orally, to make a dated note of what you said. It is also advisable to make use of formal reporting methods where appropriate. Doing this can be essential to protecting yourself legally while also making it more likely that your concerns will be taken seriously and addressed.

     

    Raising a concern in writing could include:

    • Emailing your line manager, supervisor, or a senior colleague to initially raise or follow up your concern (if this step is not already part of your employer's policy). For example, this could relate to knowledge of future staffing shortages, concerns about cross covering too many wards or unfamiliar specialties, or difficulties with handover to other specialties.
    • Exception Reporting, for Junior Doctors on the 2016 junior doctor contract. You can use exception reporting to raise workload issues, or missed breaks and educational opportunities, for example.
    • Using an Incident Reportingsystem such as Datix to formally record issues which have resulted in patient harm or a near miss that require an organisational response. For example, you might report a computer systems failure delaying access to blood results, lack of bed capacity, failure to stock and check emergency trolleys, or recurrent or predictable staffing issues.

    While it is essential for patient safety, and for your own accountability, to report concerns as they arise, it is important to remember that not all concerns will be 'protected disclosures'. The whistleblowing legal framework is specifically designed to protect workers who raise concerns about about one or more of the following issues:

    • A criminal offence being committed;
    • A person failing to comply with their legal obligations;
    • A miscarriage of justice occurring;
    • Health and safety being endangered;
    • Environmental damage; or
    • Information showing any of the above has been or is likely to be concealed.

    For the protection to arise (i.e. the right to claim compensation if you are victimised for raising the concern), the worker must have reasonably believed that their concerns were both true, and in the public interest. Legal protection will still apply even where the disclosure turns out to be untrue, provided the worker reasonably believed it was true at the time.

    The tribunals and courts have also emphasised the importance of making a 'disclosure of information' as opposed to simply expressing concern. Your disclosure is more likely to qualify as a 'protected disclosure' if it contains a factual statement about what is wrong.

    In some cases, you will have serious concerns about the consequences of raising a concern. You may have reason to believe you will be met with resistance or face immediate reprisals. In those situations, you will need to carefully consider who you raise your concern with in the first instance. Alternatives to raising your concern with your clinical team or designated officer are discussed below.

     

    Step 2:

    Your employer's raising concerns policy should set out what the next steps are after you have raised a concern. Usually you will have the opportunity to hear from your employer what they are proposing to do to address your concerns. However, generally speaking, your employer does not have to provide you with all of the information they have relating to the concerns you raised or tell you everything they are doing to address your concerns. Having said this, if the problems you identified in your concerns are continuing you should raise them again, particularly where someone's health or safety may be at risk.

    If your concerns are not responded to by your line manager or the designated officer, you should notify the Medical Director of the concerns you raised, when you raised them and the fact that they have not been addressed.

     

    Step 3:

    If your concerns are still not being responded to satisfactorily then you may wish to escalate the issue again, up to the Chief Executive.  We recommend if you do this that you ensure that your Medical Director is aware that you have taken this step.

    If you have followed your employer's policy and your concerns have not been adequately responded to, you can consider raising your concern externally. See step four below.

     

    Step 4:

    In most circumstances, it is preferable, in terms of your legal rights, not to raise your concerns externally unless you have raised them internally first and not received a satisfactory response. This is because internal disclosures are more readily protected under the legal framework.

    However, there are situations when it may be appropriate to proceed directly to raising your concerns externally and in certain circumstances the law can provide protection.

    If you do need to raise your concern externally other organisations to approach may include the Care Quality Commission (successor to the Healthcare Commission), the National Patient Safety Agency, your local SHA, Local Health Board, NHS Board or Health and Social Care Trust (depending on where in the UK you work). In some circumstances, it may be advisable to raise your concern directly with your local elected representative (such as your relevant MP, MSP, AM or MLA) or the media.

    We strongly recommend taking advice from the BMA or a defence body on how best to protect your legal position and your employment before raising a concern externally.

  • What to expect when raising a concern

    We understand that raising a concern can be a daunting prospect for any member of staff. However, we encourage you to take advice and raise concerns following your employer's internal raising concerns procedure and taking advantage of the other reporting mechanism described in Step 1 above. Remember, the BMA can offer support and advice if you find yourself being victimised for raising concerns. 

    Published documents are intended to provide you with additional supportive mechanisms. For example, in addition to the GMC guidance referenced above, the Department of Health has amended the NHS Constitution and handbook to include a pledge on behalf of NHS organisations to support staff that wish to raise concerns following its consultation on the NHS Constitution and Whistleblowing.

    3a. Staff - your rights and NHS pledges to you

    The NHS commits:

    "to support all staff in raising concerns at the earliest reasonable opportunity about safety, malpractice or wrongdoing at work, responding to and, where necessary, investigating the concerns raised and acting consistently with the Public Interest Disclosure Act 1998 (pledge)."

    When you have identified whom to approach to raise a concern, you can do so either verbally or in writing. You will need to include some background with a history of your concerns and the reasons why you are concerned.

    Ensure that throughout the process you keep records of your concerns and any steps you have taken to resolve them which you may need to use as reference at a later date. The ideal situation is one where you feel you are able to raise your concern openly where those involved know what the issue is and who has raised it. Openness can make it easier for your employer to investigate your concerns. However, in practice you may feel uncomfortable about being open and have good reason to wish to raise your concern confidentially.

    Your employer's policy should enable you to raise your concern confidentially, which means your name would not be revealed without your consent, unless required by law. When you raise your concern, whether this be verbally or in writing, you need to make it clear whether you are doing so confidentially. You do not need evidence and facts, although these are always helpful, but you do need to have a reasonable belief that malpractice is either happening, has taken place in the past or is likely to happen in the future.

     

    What should I expect when I raise a concern?

    When you raise a concern you should be given the opportunity to be listened to carefully and without fear of detrimental treatment, such as unwarranted criticism, disapproval or disciplinary action. Your concerns should be assessed as to how serious and urgent the risk is and whether the concern is best dealt with under the raising concerns policy or another local procedure. Consideration should also be given to whether assistance is required or if referral to senior managers, or a specialist function, is desirable or necessary. The issues you raise should be answered in writing summarising the concerns, noting whether you raised them openly or confidentially and stating the steps that will be taken in response to your concerns.

     

    Will there be personal consequences for me if I raise my concerns?

    The BMA recognises that raising concerns can sometimes require courage in the face of possible victimisation or other detriment, and the BMA will support those who face difficulties for having taken this step.

    If the content of your disclosure and the way you raised it means it is caught by the legal framework, then you will have legal protection; it will be unlawful if your employer subjects to detrimental treatment or dismisses you because of your disclosure. If you are subjected to detrimental treatment or dismissed because you made a disclosure (qualifying for protection under the legal framework) you would normally be entitled to bring a legal claim for compensation against your employer at an employment tribunal.

    Raising concerns and dealing with difficult or unlawful consequences can be very stressful. If you need confidential support from someone who will listen to you without judgment and try to understand your situation, you can use the BMA Counselling and Doctor Advisor service. This service gives doctors and medical students in distress or difficulty the choice of speaking in confidence to another doctor. The service is available 24 hours a day, 7 days a week on 0330 123 1245.

     

    Contact the BMA

    The BMA will support you and you should contact First Point of Contact on 0300 123 1233 early or contact Public Concern At Work (020 7474 6609) to ask for help with raising concerns and speaking out about patient safety. If things are becoming difficult from the point of view of victimisation, again contact the BMA at the earliest opportunity.

    Going directly to your local elected representative (such as your relevant MP, MSP, AM or MLA) or the media is only advisable if you have run out of options. The BMA can offer advice on whether any additional action ought to be taken before contracting your local elected representative or the media.

     

    Managers: how should I act on a concern?

    In the first instance, if you are in a position of management, creating an environment of openness is the overall objective. As the GMC guidance makes clear, fostering a culture in which all members of staff feel able to raise concerns is a key obligation for all doctors.13 New guidance published by the Social Partnership Forum and Public Concern at Work outlines how to achieve this type of culture and why it's important:

    "Encouraging staff to raise any serious concern they may have about malpractice or serious risk as early as possible, and responding appropriately, is integral to achieving this. Importantly, it will help NHS organisations to deal with a problem before any damage is ever done."14

    This guidance also includes practical tips for managers in handling concerns such as the following:

    • Thank the staff member for telling you, even if they may appear to be mistaken.
    • Respect and heed legitimate staff concerns about their own position or career.
    • Manage expectations and respect promises of confidentiality.
    • Discuss reasonable timeframes for feedback with the member of staff. Advice is also provided in the area of developing policy, communicating it the staff and auditing arrangements relating to raising concerns.

    Advice is also provided in the area of developing policy, communicating it the staff and auditing arrangements relating to raising concerns.

     

    Raising and acting on concerns early – what are the benefits?

    Raising concerns at an early stage should achieve an early resolution to the issue which will benefit you as a worker, the organisation, and most importantly, the patients within your care. Withholding a concern may result in the problem getting worse, which could mean it is more difficult to address and remedy.

  • Compromise agreements and 'gagging clauses'

    Much confusion has arisen in the health sector about the use of compromise agreements and particular clauses which feature in such agreements, commonly referred to as 'gagging clauses'. 

    The confusion and blurring surrounding these issues, prompted by an article in The Times, culminated in a Health Select Committee Inquiry in December 2011. The article had reported that doctors were being asked to sign clauses in compromise agreements that conflicted with the obligations of those same doctors to raise concerns with the GMC. The Committee sought to prioritise this issue due to its fundamental importance to individual professionals and the quality assurance system for patients with the system.

     

    Compromise agreements

    A 'compromise agreement' is a standard method of terminating employment in difficult cases, drawn up between the employer and employee as a final resolution to an ongoing dispute involving one party leaving the place of work. Such disputes tend to relate to entrenched employment difficulties in which both the employer and employee recognise that the employment relationship should end.

    The BMA recognises the need for these agreements. These types of agreement usually contain confidentiality clauses to ensure that the terms of severance remain confidential. For example, they may contain clauses that prohibit the parties from reporting details about the terms of the separation. Such clauses are widespread in compromise agreements within all types of workplaces and can be mutually beneficial to all parties.

     

    Gagging clauses

    A 'gagging clause' goes beyond this, seeking to prevent the raising of a protected disclosure. The BMA condemns such clauses entirely. Unfortunately, the term has been used to describe clauses which do not fit the definition above and which we would therefore support.

    The BMA does not support agreements or employment contracts which include clauses which prohibit an employee from raising a concern about patient safety issues. Clauses which seek to prevent an individual from raising such a concern under the Public Interest Disclosure Act (PIDA) 1998, are not enforceable in law. New guidance published by the GMC confirms the duties of a doctor in regard to contracts:

    You must not enter into contracts or agreements with your employing or contracting body that seek to prevent you from or restrict you in raising concerns about patient safety. Contracts or agreements are void if they intend to stop an employee from making a protected disclosure.

    And the duties of a manager in this context: If you have a management role or responsibility, you must make sure that:

    • You do not try to prevent employees or former employees raising concerns about patient safety - for example, you must not propose or condone contracts or agreements that seek to restrict or remove the contractor's freedom to disclose information relevant to their concerns.

    • If you find a clause which seeks to prevent you from making a disclosure in any proposed contractor agreement, the law requires your employer to pay for independent legal advice on your behalf. In relation to compromise agreements, the advice will emphasise that confidentiality should only be in respect of the terms of agreement and should not prevent the practitioner from raising a concern. We advise you to seek additional advice from the BMA.

    Gagging clauses, as we have defined them in this guidance, are unlawful and cannot be enforced. However, it can sometimes be hard to determine the meaning of particular clauses especially if you are involved in a termination of employment and feel burdened by the experience.

    Seeking advice is vitally important. If you think that a gagging clause is being proposed you should:

    1. Seek the legal advice mentioned above
    2. Contact the BMA

    In order to gain access to the records needed to make a protected disclosure, you should raise a concern before reaching a compromise agreement because access will be prohibited once it has been signed.

  • Help and advice

    All NHS organisations should have a policy on raising concerns about patient safety, which sets out how concerns should be escalated within the organisation.

    If you are unable to access your employer's policy, the BMA can locate this on your behalf.

    Approach your local BMA representative or the Local Negotiating Committee Chairman to arrange this. Your LNC Chairman and local BMA representatives can be identified by calling the BMA.

     

    Getting in touch

    In the first instance, you can call the BMA on 0300 123 1233 and you will be given initial guidance on the issue. If there is particular support we can provide locally, you will be transferred to a relevant adviser. If in the course of raising your concern at work you feel you have been victimised, we will also put you in touch with an adviser.

    You can also write to us at bma.org.uk/support.

    The BMA Counselling and Doctor Advisor service can offer support for the emotional aspect of any dispute you may be going through. Call them on 0330 123 1245.

     

    Medical students

    Download the BMA's specific guidance for medical students

     

    Armed forces

    Defence Medical Services (DMS) doctors need to follow their host employer's guidelines if concerns occur within an NHS hospital, and inform their Clinical Director and or Medical Director. In a military environment, whether working as a substantive military doctor or reservist, you should go to your Chain of Command to raise issues of concern. However, the overarching principle for all DMS doctors is that you should follow the GMC's guidance as laid down in publications such as Good Medical Practice.

     

    General support

    The Public Concern at Work website provides information on whistleblowing in the NHS and elsewhere.

    The following medical defence organisations provide their own guidance:

    The Medical and Dental Defence Union of Scotland (MDDUS)  

    Medical Protection - 24 hour advice line can be reached on 0800 561 9090

    The Medical Defence Union (MDU) - Their 24 hour advisory helpline service can be reached on 0800 716 646.