This week a mundane employment tribunal hearing revealed an extraordinary tale of subterfuge, cover up and denial in the hidden bureaucracy of the National Health Service.

The hearing was yet another in the long run saga of the case of Dr Chris Day, a plucky young doctor who has taken on the NHS establishment over a very important issue of patient safety and is still in the middle of an eight year battle with the authorities. The legal bill to taxpayers from the NHS to pay for this long battle is now is likely to rise to close to a £1 million.

The story began in August 2013 when Chris Day, a junior doctor initially complained about inadequate staffing. It got worse in January 2014 when he was working overnight in the intensive care unit at Queen Elizabeth hospital in Woolwich when two locum doctors failed to show up. He had to cover other wards and A&E and reported his concerns to managers. He saw this as putting patients in such a sensitive area at serious risk.

What followed was not moves to put this right by the Lewisham and Greenwich NHS Trust and Health Education England, which has a responsibility for employing junior doctors, but a state of denial which ended up at the High Court and the Court of Appeal and a long delayed employment tribunal hearing. At one stage Mr Day,a married doctor with a young family, says he had to settle because the NHS threatened him with huge legal bills which could have bankrupted him. Both the HEE and the Trust have publicly denied doing this.

However at a new hearing it turned out that the NHS Trust had withheld crucial documents – which should have been declared in a previous hearing – and he won his case for a fresh hearing which is scheduled to take place next June.

Health Education England ” misled the public, press, MPs and officials”

The grounds for the new hearing is essentially as Dr Day says” that Lewisham and Greenwich NHS Trust and Health Education England have objectively misled the public, press, several MPs and public officials on my case and how it settled in 2018. I say this is in order to smear and discredit me and the patient safety issues that I raised.  The Trust have then failed to disclose 18 letters in their Tribunal standard disclosure that their CEO sent to local MPs and public officials with this misleading content in.”

This week’s hearing was centred round the role of Health Education England. This body is reviving a claim – which it conceded last time at the last minute – that it has nothing to do with his case. Its first attempt was to claim it didn’t employ junior doctors. The new attempt at avoiding involvement is to claim that one of the principal figures involved in the case Dr Andrew Frankel is no longer employed by them so HEE now has nothing to do with it.

Dr Day said: “HEE are arguing because this person is now no longer in post as Post Graduate Dean they are no longer responsible for him. They are doing this even though he was clearly in communication with the top of HEE and assisting them with various functions, since leaving his Post Graduate Dean post in 2018. We say he was an agent of HEE and they are still responsible.”

What emerged at the hearing centred round an approach to one of Dr Day’s supporters, Sir Norman Lamb. Sir Norman is a former health minister in the coalition and was an MP at the time. He has not held back on his criticism of both the trust and HEE on the way they have treated Dr Day.

Sir Norman has postgrad level of knowledge about the way NHS and Whitehall officials use subterfuge to get their own way. He has hero status in my mind for making sure that an independent panel inquiry into suspicious deaths at Gosport War Memorial Hospital happened after civil servants used the time he was on a French camping holiday with his family to try and annul his decision by getting another minister to put up a written statement in Parliament saying there would be no inquiry.

He found out and blocked it. As a result a thorough investigation by the panel found that no fewer than 456 elderly people had their lives shortened by overprescribing drugs like diamorphine. and it had been covered up by the health trust. As a former member of that panel I am restricted in what I can say about this but this is now the subject of a big police investigation,

In Dr Day’s case Sir Norman had given an interview to the Sunday Telegraph where he accused the trust and HEE of trying to crush Dr Day for his disclosures.

What this week’s tribunal revealed is that the HEE were profoundly disturbed by his comments because it would damage their reputation with junior doctors.

A cache of emails revealed that HEE was discussing ” behind the scenes ” methods -including contacting the General Medical Council – to redress the balance rather than openly criticising Dr Day.

Professor Wendy Reid, medical director of HEE, admitted this was the case but said no action was subsequently taken. But she did correspond with Dr Andrew Frankel suggesting if she was going to meet Sir Norman he ” could give her a tutorial”.

What happened instead was that Dr Andrew Frankel, now a former postgraduate dean at HEE, told the tribunal that he decided off his own bat to approach Sir Norman by asking to meet him and sent him an 11 page document to refute the criticism. Dr Frankel insisted that he had not told anybody that he was doing this, even though he obtained material for his document from the HEE. He admitted that he had acted stupidly in getting personal details about Dr Day from HEE for his report as he knew they would refuse him as an ex employee.

Instead he tried to make out that he was being helpful to Dr Day by discussing this with Sir Norman. When this was put to Dr Day in cross examination by Mr Dijen Basu, QC for HEE, Dr Day flatly denied it.

In extraordinary evidence Dr Frankel insisted he had no role to play that would bring him in contact with HEE though later it was disclosed that in his new job at Imperial College Hospital Health Trust some of his work would bring him into contact with them.

Professor Reid told the tribunal she had been ” flabbergasted and staggered” about what Dr Frankel had done, insisting she knew nothing about the meeting.

But when HEE did find out it remained silent about what happened knowing that the document was favourable to their case. As Andrew Allen, QC for Dr Day said in his summing up:. The document “is repeatedly expressed in a way that presents the report as an HEE position rather than an individual view from Dr Frankel.” Nor did HEE take any action to disavow Dr Frankel when Sir Norman informed them he had received a document from Dr Frankel three months later.

He also said Dr Frankel contradicted himself. He claimed “encyclopaedic knowledge on the case’ but on the other hand he repeatedly said in oral evidence that his knowledge was only about him and his team and the actions they took between June and December 2014.

Even the lawyer for HEE Mr Basu described Dr Frankel’s position as ” devious”.

The tribunal will decide next month. If HEE wins the organisation will no longer be part of Dr Day’s case. If it loses its role will be part of the June hearing.

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