Vindicated whistleblower says doctors should not be fearful of raising safety concerns

‘The idea that I would walk away and allow things to continue in a way that was going to lead to patient safety and staff issues, in return for effectively a bribe, was just utterly unacceptable to me – so I put everything on the line to continue to be honest.’

Susan Gilby (pictured above), the former chief executive of the Countess of Chester Hospital NHS Foundation Trust, was not going to compromise her professional standards. The consultant in anaesthesia and intensive care recalls the moment, in 2022, when she was offered a 16-month ‘non-job’ to walk away quietly from the concerns she had been raising.

This week, she was awarded £1.4m in damages after an employment tribunal ruled she was unfairly dismissed. It is one of the largest settlements of its kind in NHS history.

Dr Gilby says being offered a payout in return for her silence was ‘utterly shocking’.

She now feels vindicated for her decision and is encouraging doctors to feel confident to blow the whistle when they have patient-safety concerns and not be deterred if they face barriers.

Speaking to The Doctor, she says: ‘When it was clear that I wasn’t going to stop raising concerns, and I was trying to get [the trust] to take action to improve the situation, I was told it was time for me to go and that I needed to accept the deal. And if I didn’t accept the deal, they would start a process against me.

‘They produced a document that they expected me to sign and offered to put me in an as-yet unspecified role at NHS England. But within this was a clause that I had to drop any concerns I had. For me that was an absolute red line. What they were doing was asking me to behave without integrity.’

The tribunal in February found that Dr Gilby had been subjected to detriments ‘on the ground that she had made a protected disclosure’ and that a ‘sham case’ known as ‘Project Countess’ had been built up against her aimed at ‘engineering her dismissal’.

Dr Gilby had been chief executive of the Countess of Chester from 2018 to 2022.

Judge Dawn Shotter ruled that chair Ian Haythornthwaite, and three other senior hospital figures, made ‘an attempt to mask the behind-the-scenes machinations’ they had engineered to ‘build the appearance of performance and misconduct allegations’ against Dr Gilby ahead of her suspension in December 2022.

The tribunal ruled the trust ‘behaved in a way that was calculated’ and that Dr Gilby ‘could not return to work’ because of the ‘complete breakdown’ in the relationship.

She was excluded from her workplace ‘without due process having been followed’ or ‘any lawful basis’, the tribunal heard.

Evidence was destroyed or withheld. WhatsApp and text messages were not disclosed, material was missing from Dr Gilby’s HR file and ‘selective deletions of emails’ had been made with no explanation.

The tribunal’s ruling said it was ‘unreasonable’ that such documents – ‘which would have assisted the claimant to defend the misconduct allegations’ – had been ‘lost forever’.

The ruling said Dr Gilby’s suspension was ‘not a neutral act’ but ‘directly aimed at engineering her dismissal’, adding that Mr Haythornthwaite had rejected her request for mediation in July 2022 and ‘acted in a confrontational and aggressive manner’.

Mr Haythornthwaite resigned after February’s ruling, in which Dr Gilby accused him of harassment and bullying and the tribunal found he ‘did not give credible evidence’.

The tribunal said Dr Gilby’s evidence appeared to be ‘credible, precise, clear and cohesive’ whereas witnesses giving evidence on the behalf of the respondents appeared to be scripted. The contrast, it found, was ‘marked’.

The trust could end up paying out substantially more in costs on the grounds evidence was not made available.

Dr Gilby says the cost to the trust, and therefore the taxpayer, is a ‘tragedy’, and notes how she instructed her legal team to try and settle before court, which would have saved a substantial amount of money.

She is also disappointed that, despite the tribunal finding in her favour, and Mr Haythornthwaite’s resignation, the trust is still refusing to apologise.

‘They have stonewalled it all along,’ she says. ‘We invited them to issue a meaningful apology and suggested they might want to condemn the actions of Mr Haythornthwaite and the others, and apologise to the taxpayer, but they refused to do so.’

She has also received a ‘resounding silence’ from NHS England.

‘I think that says a lot about the current culture of the NHS,’ she tells The Doctor. ‘There are many areas where there is a really healthy culture, but the further up you get – particularly with the current restructure – there is a fear and people don’t put their head above the parapet.’

She says she made some early inquiries into other advertised board level roles, after the tribunal ruled in her favour, and was told her appointment would be ‘politically difficult’.

‘When I had been completely and utterly vindicated, that is terribly sad.’

She said the Countess of Chester Hospital NHS Foundation Trust – where convicted neonatal nurse Lucy Letby worked – should have been especially attuned to listening to staff concerns.

‘If ever there was a trust where you wanted to make sure that everybody who had a concern about safety or behaviours was listened to, that was the trust,’ she says.

Dr Gilby believes a culture of ‘fear’ about retribution for speaking up puts doctors off seeking senior leadership roles in NHS trusts and means there are very few medically qualified chief executives.

She notes how, as an executive, doctors no longer have the protections of the MHPS (maintaining high professional standards) framework, which is designed to help address concerns.

Dr Gilby says this means doctors in such positions are ‘taking a significant risk’ when blowing the whistle but that as a BMA member she still had protection because the association still recognised her role as a doctor.

‘I strongly believe that providers of medical care ought to be clinically led, and ideally medically led,’ she adds, noting: ‘It’s very normal in the USA and other European countries.

‘But we are never going to achieve a medically led NHS if people see that they are taking a massive personal risk and putting their livelihood, families, mortgages, children potentially at risk.

‘What the BMA has done in supporting my case is showing people that, if you are a doctor, step into one of those roles, and speak up for patient safety against people whose priority is purely the money, then you are still offered protection that comes with being a member.’

Dr Gilby says she ‘doesn’t like’ the word 'whistleblower', because it ‘sensationalises’ the reality of what happens when safety concerns are raised.

She explains: ‘You are making a protected disclosure. You know that something that is happening is not only wrong but it’s causing harm to patients. As a doctor you are duty bound to do that.

‘What I did, and what most people who are labelled “whistleblowers” do, is raise concerns through the proper channels and nine times out of 10 you are listened to and changes are made to address the problem. Very rarely, you come across malevolent characters who want to cause you detriment when you raise those concerns and this is what happened to me.

‘If you believe that something is unsafe, at any point in your medical career, however senior or junior you are you should be speaking up about that in real time. Normally, it’s taken very seriously. You should do it straight away, and make sure you’ve got robust, objective evidence. And if you’ve observed a concern alongside others, it’s important that you discuss it with them as near to the time of the issue happening as you can.

‘Doctors should not be fearful. As a practising clinician I found myself on several occasions in a situation where there was an undercurrent within a multidisciplinary team that something unsafe was occurring repeatedly, but nobody was voicing it. When I did voice it, a lot of people said they had that experience too and it was addressed in a safe way.

‘If you raise a concern and it’s not listened to, and you’re worried that harm is going to come to people, then you have your freedom to speak up processes. That, or a more senior doctor, is the next place to go. Doors will be open to people who have patient safety concerns.

‘Doctors should be prepared to lead. The BMA will be there for people who stand up for patient safety and have the courage to take on leadership positions.’

Dr Gilby did not rule out returning to senior leadership roles in the health service but said the tribunal has had a ‘devastating psychological impact’ on her. She finds it ‘difficult to imagine sitting around a board table as a non-executive director knowing that the regulator thought my actions gave them cause for concern’.

She says: ‘It’s probably irrational but that psychological damage makes you hyper vigilant, very isolated. However, I still feel that I have something meaningful to offer and I would like to still make a difference. I’m just not sure at the moment what that would look like.’

In the meantime, she has continued her work as a trustee of a charity, The Joshua Tree, which supports families affected by childhood cancer. She has recently become chair, which ‘allows me to give something back'.

Reflecting on the tribunal, she says: ‘I couldn’t have done this without the BMA.

‘I hope this shows doctors that their union will back them in such circumstances – and that the BMA doesn’t just campaign about pay and conditions, but also for the best interests of the profession.

‘As a former medical director and CEO, I’m used to being on the other side of the table from the union. But the support has been unquestioning and I’m very grateful.’

BMA council chair Tom Dolphin says: ‘While this award is significant and a testament to the determination and bravery of Susan Gilby, it comes at the end of an arduous and distressing journey for a doctor who was unfairly penalised for refusing to stay quiet about the failings she saw.

‘The BMA has supported Dr Gilby throughout her case to bring the appalling behaviour of those responsible for her treatment at the Countess of Chester – this should serve as a warning to others that the shameful treatment of whistleblowers can lead to consequences in the law courts. 

‘It is disappointing that, despite the financial award, the trust is refusing to issue an apology for its damaging conduct. The horrific scale of this cover-up shows the length that some trusts are willing to go to in an attempt to silence doctors and the very real threat that unfortunately remains for many working in the NHS who want to raise concerns about patient safety.

‘If we want to transform the corrosive NHS culture where some trust directors and board members are more concerned with their organisation’s reputation than patient safety, the Government must prioritise the long overdue regulation of senior NHS managers. 

‘As distressing an experience this has been for Dr Gilby, her example should also provide doctors with some hope that, in some cases, those responsible will be held to account and justice can prevail in the end. However, it remains clear that the protections afforded to doctors raising concerns are woefully inadequate and legislation in this area is still not fit for purpose.

‘We need to see radical change in how whistleblowers are protected and treated in the NHS but until then the BMA will continue to support doctors like Susan Gilby who risked her own career in the name of patient safety.’