The Letby trial has shown again that when tragedy occurs, or a scandal engulfs an organisation, workers will be aware of the criminality or wrongdoing, and will either raise concerns only to be ignored or remain silent through fear. On 21 August 2023, Lucy Letby was sentenced to a whole life order after being convicted of the murder of seven babies, and the attempted murder of a further six babies, on the neonatal ward at the Countess of Chester Hospital between 2015 and 2016. The nurse used various methods to attack the babies with the intention to kill while deceiving colleagues into believing the deaths were natural. In evidence at the trial, it was revealed that medical colleagues had raised concerns about Letby being present at all the unexplained deaths, but had been ignored.

Dr Stephen Brearey, a lead clinician in the neonatal unit, was the first to alert hospital executives in June 2015 to the fact that Letby was present at the unusual deaths, as well as the collapse of babies. The paediatrician, with consultant colleagues, continued to raise concerns until Letby was finally removed from the neonatal unit in July 2016. The police were not contacted until May 2017. Brearey has accused hospital executives of ‘bullying and intimidating’ senior doctors who raised concerns and believes babies could have been saved if hospital executives had acted when he escalated concerns in February 2016.

The Letby case highlights the dangers of a defensive culture in an organisation that refuses to engage with the concerns of whistleblowers. The timeline of deaths at the neonatal unit indicates that at least two babies could have been saved if doctors’ concerns had been heeded and Letby removed from the neonatal unit earlier. Instead, Brearey and another colleague were threatened with disciplinary action unless they apologised to Letby for raising concerns. The actions of the executives, that will now be part of a statutory public inquiry, are not unique to this hospital. In the Letby case, the NHS Ombudsman identifies four specific failures that match patterns in other NHS investigations, including that fact that clinicians who repeatedly tried to raise concerns were prevented from having their issues addressed, were labelled troublemakers and threatened with disciplinary measures.

NHS inquiries, such as that into deaths at Mid-Staffordshire NHS Foundations Trust in 2013, and more recent inquiries, report the same poor treatment of whistleblowers. In 2023, Protect, a whistleblowing charity, reported that 40% of NHS whistleblowers contacting its legal helpline had been ignored when they raised concerns. The treatment of NHS whistleblowers is particularly concerning in light of the 2015 Francis independent review into ‘creating an open and honest culture in the NHS’, after the Mid-Staffordshire inquiry. Following the subsequent Freedom to Speak Up report, reform was undertaken, with whistleblowing given a special status in the NHS in the enactment of regulations exclusively prohibiting employers in the NHS from discriminating against job applicants on grounds that they made a protected disclosure.

As recommended by the Francis report, NHS Freedom to Speak Up Guardians were created and a National Guardian’s Office set up. Despite the special significance afforded to NHS whistleblowing after the Francis report, an open and honest culture was not established and the silencing of NHS workers continued, resulting in the tragedy of the Letby case. The doctors in this case were under a professional duty to report concerns to prevent harm to patients. Yet they were ignored, reflecting the wider silencing, unfair treatment, and in some cases dismissal, of NHS professionals for raising concerns. In highlighting this, the leader of the British Medical Association has called for ‘urgent reform’. A number of individuals and organisations, including the NHS Ombudsman, have called for the Letby inquiry to have a wider remit on how to effect cultural and legal change. Minh Alexander, a NHS whistleblower believes tragedies will continue unless there is real change, including better legal protection of whistleblowers.

The implications of the Letby trial are not restricted to the NHS, but demonstrates the need for whistleblowing legal protection that guarantees a worker’s human right of freedom of expression to voice concerns. According to Yoshida’s Iceberg of Ignorance, only 4% of an organisation’s problems are known by top management, if 100% are known to its employees. Workers in any organisation should be encouraged to voice concerns to prevent reputational damage, scandal and tragedy. In addition to the anguish of the families of the victims of Letby, the NHS could face a record compensation bill as a result of potential civil claims by parents of babies left disabled by Letby. As recognised by the Francis report, existing legislation is weak in only providing workers with a reactive remedy and not being proactive in protecting against detriment suffered by whistleblowers for expressing concerns. Furthermore no organisation is under a legal obligation to establish or maintain a whistleblowing procedure to allow for the voicing of concerns.

The Public Interest Disclosure Act 1998 (PIDA) inserted provisions into the Employment Rights Act 1996 (ERA) to provide a claim for unfair dismissal and detriment, but does not prevent the victimisation of whistleblowers. When PIDA was enacted, the UK led the rest of the EU on whistleblower protection but has since fallen behind. Following Brexit, the UK government has denied whistleblowers greater protection by not implementing the EU Whistleblowing Directive that extends protection to whistleblowers and provides for mandatory effective procedures, allowing a worker to raise concerns and have them addressed.

The need for reform has been recognised by whistleblowing charities. Protect is proposing amendments to the ERA through its draft Whistleblowing Bill. More radical reform is advanced by Whistleblowers UK involving the repeal of PIDA and the establishment of an Office of the Whistleblower by its Protection for Whistleblowing Bill. Protect also call for the creation of an independent Whistleblowing Commissioner. As currently established, the National Guardian Office is unable to provide any legal advice or support to NHS whistleblowers, and it is clear that an independent office or commissioner for whistleblowing is needed. If differing in their approach, both sets of proposals highlight the failure of the current legal framework to protect whistleblowers, not least in failing to legally require the establishment of effective whistleblowing procedures so workers are able to voice concerns and have these actioned.

In a statement on the Letby verdict, NHS England highlighted a strengthened Freedom to Speak Up policy that all NHS organisations are ‘expected’ to adopt by January 2024, but as recognised by NHS England, more is required. Whistleblowing is a valuable asset to an organisation and essential to safeguard patient safety in the NHS. In a response to the Letby trial, the National Guardian for the NHS, stated it was vital NHS leaders listen to concerns, recognising that if action is not taken, ‘workers may remain silent, and that silence can be dangerous.’ The Letby inquiry should be the moment to improve whistleblowing in the NHS to ensure it finally provides an open and transparent reporting culture. A discussion of how to best legally protect all those willing to blow the whistle can begin now.