The case of Abertawe Bro Morgannwg University Health Board v Dr M Ferguson concerned a GP whistleblower who made claims that her Health Board failed to protect her from detriment following Dr Ferguson reporting her concerns over a fellow GP's prescribing. The Health Board sought to strike out some of Dr Ferguson's allegations that she had been subject to detriment. The employment Tribunal refused and the Health Board appealed against this decision to the Employment Appeal Tribunal. The Employment Appeal Tribunal again refused to strike out the allegations and noted that in cases which are likely to be very fact-sensitive such as those involving discrimination or public interest disclosures the circumstances in which it will be possible to strike out are likely to be rare. This now paves the way for Dr Ferguson to continue her substantive claim that the Health Board failed to protect her from reprisals after she raised concerns about her partner's prescribing. Dr Ferguson was a GP Partner in Wales. All GP practices are required to enter into a contract with the relevant health board. Dr Ferguson disclosed concerns that a partner in her practice had acted wrongly in prescribing Fentanyl. It was accepted that the disclosure was made in good faith and there were reasonable grounds for it but the Health Board did not necessarily accept the truth of the disclosures made. Dr Ferguson claimed that because she had made disclosures her GP Partners had acted to cause her detriment but also that the Health Board had acted both positively to subject her to a detriment and also negatively had failed to act. She claimed to be entitled to a remedy under the whistle blowing provisions of the Employment Rights Act 1996. Dr Ferguson claimed that:-
- The Health Board had failed properly to investigate her concern preventing her from fulfilling her GMC obligations;
- The Health Board failed to treat Dr Ferguson's identity as whistle-blower with due confidentiality releasing her name and her report to her GP Partners;
- The Board had failed to act in accordance with its own whistle-blowing policy so as to prevent Dr Ferguson from being subject to reprisals from her GP colleagues;
- The Health Board had forced Dr Ferguson to take voluntary leave as an alternative to suspension and had inappropriately maintained that enforced voluntary leave;
- The Health Board had forced Dr Ferguson to be subjected to an investigation by Paul Myers.
If Dr Ferguson wins her claim the ramifications could be huge. Counsel for the Health Board were concerned that the case was screened as an attempt to saddle the Health Board with the full financial consequences of Dr Ferguson's loss of income as a GP. The EAT made the point that if substantiated the consequence was not likely to be that Dr Ferguson would be entitled to compensation as if she would never work again. The EAT stated that it will be for the Tribunal to determine in due course and in accordance with evidence whether compensation would be payable. If successful in her claim it opens the door to GPs bringing claims against Health Boards (and presumably their now successors) that they failed to protect against the consequences of whistle blowing and Health Boards will need to ensure that they investigate whistle blowing complaints properly and prevent GPs from suffering from reprisals.
