Thinking about Letby and the role of whistleblowers in the health industry

This article was originally published in AMA Victoria's VICDOC, Summer 2023.

This article was co-authored by Cara Cross, Paralegal, Melbourne.

In August 2023, Lucy Letby was sentenced to life imprisonment for the murder of seven infants and the attempted murder of six others whilst working as a neonatal nurse at the Countess of Chester Hospital in Chester, England between June 2015 and June 2016. It emerged that it was not due a lack of suspicion raised by medical staff that Letby’s crimes went undetected for years, but the inadequate management by the hospital’s administration of concerns raised by staff.

A small group of consultant whistleblowers, who worked with Letby in the neonatal unit, played a central role. When they initially raised their concerns, they were not treated well by hospital administration. Their requests for urgent meetings were ignored, their concerns were dismissed, and two consultants were instructed to enter into a mediation process with Letby. They were warned that Letby’s father had threatened to refer them to the General Medical Council unless they withdrew their allegations, and they were asked to write a letter of apology to her, which one consultant did. Hospital administration did not request the police to investigate until two years after the last murder.

The Letby circumstances raise an issue as to whether public hospital administrators should be subject to external review by a statutory authority for their decisions, which indirectly affect clinical outcomes, in the same way that health practitioners are.

It is reasonable to ask why the consultants did not escalate their suspicions to the police when their concerns were frustrated by the hospital.

However, it would have been reasonable for an employee to be fearful that their employment would be at risk by reporting the matter externally, particularly in circumstances where the suspicions would require thorough investigation before a criminal accusation could be substantiated, and where your employer has disciplined you for raising your concerns internally, and a ‘gag’ clause in your contract obliges you to keep confidential all of the business affairs of the hospital.

If adverse matters appear to be happening in the workplace, hospital medical staff ought to be aware that there are several avenues that may be available to raise issues externally, depending on the nature of the concerns.

The common law

First, the courts have held that contractual confidentiality obligations may be subject to a common law “public interest exception” if there are actual or threatened breaches of the law, threats to public safety, civil wrongs, or misdeeds of a similar gravity. In such cases confidentiality cannot be relied on to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed. In circumstances similar to the Letby case, if hospital administration declined to ask the police to investigate, contractual confidentiality obligations are unlikely to prevent concerned medical staff from reporting directly to the police.

Mandatory reporting to a regulator

Secondly, medical practitioners in Australia are subject to statutory mandatory reporting obligations under the Health Practitioner Regulation National Law.

If a registered health practitioner, in the course of practicing their profession, “forms a reasonable belief” that another registered health practitioner has behaved in a way that constitutes notifiable conduct, including by placing the public at risk of harm by practising in a way that constitutes a significant departure from accepted professional standards, they must, as soon as practicable after forming the reasonable belief, notify Ahpra.

Under such circumstances the statutory mandatory reporting obligation overrides any contractual confidentiality obligations.

Other mandatory reporting obligations include reporting deaths in prescribed circumstances under the Coroners Act 2008 (Vic) and reporting a reasonable belief of child physical or sexual abuse under the Children’s Service Act 1996 (Vic).

Voluntary reporting to a regulator

A voluntary report may be made to Ahpra about a registered health practitioner if:

• The practitioner’s professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner’s professional peers.
• The knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of their profession is, or may be, below the standard reasonably expected.
• The practitioner is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession.

It is not apparent whether making a voluntary notification will override contractual confidentiality obligations, but where a practitioner has genuine public interest concerns about the conduct of another registered health practitioner, it is highly unlikely that a court would hold that they should be prevented from notifying the regulator by their contractual confidentiality obligations.

Reporting to the Victorian Ombudsman

A person may make a public interest disclosure to the Victorian Ombudsman or to the Independent Broad-based Anti-corruption Commission of information that the person reasonably believes shows or tends to show that a person, public officer, or public body has engaged, is engaging or proposes to engage in corrupt or improper conduct. Corrupt or improper conduct engaged in by a person employed in any capacity or holding any office in the Victorian public sector can include:

• Committing a criminal offence.
• Serious professional misconduct.
• Dishonest performance of public functions.
• An intentional or reckless breach of public trust.
• A substantial mismanagement of public resources.
• A substantial risk to the health or safety of one or more persons.

People who report improper conduct are protected from retaliation under the Public Interest Disclosures Act 2012 (Vic).

Victorian Health Incident Management System

The Victorian Health Incident Management System (VHIMS) is a dataset for the collection and classification of clinical, occupational health and safety incidents, near misses and hazards. Within the VHIMS function, subscribed health services have access to a web-based platform where all staff can report and manage complaints, compliments, suggestions, OHS incidents and hazards and action tasks. (It is not a requirement for all public health services to use VHIMS. Some healthcare organisations may opt to use a local incident management system).

Every incident uploaded into the system is reviewed. The review identifies the most appropriate level of investigation. Depending on the nature of the concern, VHIMS may be an appropriate means of formally documenting it.

Seeking advice

Public hospital doctors in Victoria who raise serious issues of concern but find hospital administration to be unresponsive have a range of options for taking matters further.

Because of the possible implications and consequences, the first step should always be to seek expert advice from AMA Victoria, a lawyer with expertise in the area, or your medical indemnity insurer.