Mr J Allsop (Counsel) For the v Respondent — 2020

Dr Macanovic, a consultant nephrologist at Portsmouth Hospital NHS Trust, raised concerns in 2016 and 2017 about the use of buttonhole needling for AV grafts in the Wessex Kidney Centre. The tribunal heard detailed evidence about her concerns on informed consent, patient safety, and the relevant national and international guidance, as well as the respondent's view that the technique could be used and was being introduced through appropriate clinical discussion and review.

Applying the authorities on whistleblowing, the tribunal held that disclosures 1 to 5 and 10 contained sufficient factual content to amount to disclosures of information rather than mere allegations. It accepted that the claimant reasonably believed the disclosures tended to show a failure to obtain informed consent and that patient safety may have been endangered. In reaching that conclusion, it relied on her professional role, her review of guidance and expert responses, the absence of evidence rebutting her account of informed consent, and the fact that several colleagues and external commentators shared concerns about the practice.

The tribunal also held that disclosures 6 and 7 to the CQC and GMC were protected disclosures under s43F. It found that, for those external disclosures, the claimant reasonably believed the information and allegations were substantially true. By contrast, disclosure 9, which was a later email forwarding the earlier letter to HR after the consultant position statement had been agreed in October 2017, was not a protected disclosure.

The tribunal refused the claimant's late amendment application to add disclosure 11. It considered the application unclear, noted that the document had long been known when the earlier amendment application was made, and concluded that allowing it would cause more prejudice to the respondent than refusing it. There was no monetary remedy determined at this stage.