The long legal saga of junior doctor Dr Chris Day’s whistleblowing battle over patient safety at the intensive care unit at Woolwich Hospital took another twist and turn this week.
Health Education England successfully overturned a decision ordering it to appear at a tribunal in June alongside Lewisham and Greenwich NHS Trust. The body convinced a judge that an exercise to influence a former Liberal Democrat health minister to change his mind supporting Chris Day by Dr Andrew Frankel, a former postgraduate dean, had nothing to do with them.
My last blog on this is here. It tells the bizarre story of Dr Andrew Frankel, who is also a distinguished consultant nephrologist at Imperial College Healthcare NHS Trust and expert on the management of diabetes and kidney disease. He basically debased himself by going round the back of his old employer, Health Education England, to try to influence Sir Norman Lamb, then an MP, to see another side to Chris Day’s account. The attempt would have been extremely helpful to Health Education England which has repeatedly tried to distance itself from the scandal of inadequate staffing at this intensive care unit.
Dr Frankel tried to get hold of Dr Day’s training record
Dr Frankel’s methods included trying to get details of Dr Day’s training record after leaving Health Education England which he was not entitled to see at the time. He then arranged a private meeting with Sir Norman to present a paper outlining HEE’s case and emphasising it was only there to help junior doctors and not criticise them. Sir Norman has been a strong supporter of Dr Day and publicly highly critical of the way the HEE and the trust have treated him.
The judge was presented with two alternative interpretations of the facts. One presented by the health body was that it knew nothing about Dr Frankel’s activities. Professor Wendy Reid, medical director of HEE, told the tribunal she had been ” flabbergasted and staggered” when she learnt he had visited Sir Norman without her knowledge. He had previously presented the paper to her as a private document and an aide memoire if she or anyone else wanted to talk to Sir Norman But later on when the body found out about his personal visit they remained silent -not wanting to disown the actions of a former employee.
Dr Day’s lawyers argued that in effect Dr Frankel was acting as a de facto agent of HEE trying to present an alternative scenario to Dr Day’s case. They drew their evidence from some of the sloppy wording in e-mails -particularly Dr Frankel’s juxtaposition of the use of the word ” I” and then ” we” implying it was HEE’s view. He had insisted when he met Sir Norman that he emphasised he was doing it on his initiative. There are no notes of the meeting. The body also discussed ” behind the scenes” action to refute Dr Day’s case.
The Judge Katherine Andrews chose to believe HEE’s version rather than Dr Day’s.
Frankel ” fully acknowledged the foolhardiness if some actions “
She said: “My view is that the claimant genuinely believes that implication and accordingly his evidence is truthful in that it reflects his beliefs. I also find however that the evidence of Dr Frankel and Prof Reid was similarly truthful. They are both distinguished in their respective careers and appeared to give their evidence carefully and candidly. Indeed Dr Frankel readily acknowledged the foolhardiness of some of his actions, undoubtedly well-meaning though they were.”
…”I do recognise that Dr Frankel’s use of words in his emails and the briefing document is mixed. On some occasions he used the first person singular which was entirely in accordance with him acting privately.
On others he used the first person plural – sometimes clearly by reference to times when he had been seconded to the respondent but other times inappropriately using ‘we/our’ etc. I find that this was a combination of, on occasion, poor drafting by Dr Frankel and also a strong personal identification with the issues.”
…”The way he went about it however was wholly inappropriate and in doing so he slipped into using language that confused his previous and current roles.”
I am curious about this. Dr Frankel is the author of some pretty important research papers in his other role as a consultant. I would have thought he would be very careful about the use of his language – at least I would hope so for the sake of his research.
She also absolved the health body from any involvement in backing Dr Frankel.
“Ratification can only apply where the person whose act is in question (Dr Frankel) professed or purported at the time of acting to do so as agent and to have authority to bind the principal (the respondent), it is plain that the claimant cannot successfully argue ratification as in fact the opposite was professed by Dr Frankel. He expressly and repeatedly said that he was acting entirely privately and not on behalf of the respondent.”
The decision is significant and absolves HEE from having to explain their actions in this murky case.
As Chris Day says on his supporters site:
“In late 2019 we won an important victory that guaranteed that HEE would have to account for everything at a final hearing on both their denial of cost threats and the false document sent to Sir Norman Lamb.
An order dated 3 October 2019 by Judge Sage rejected all arguments from HEE on why they should not attend a final hearing on the facts and ordered them to respond at a final hearing on their denial of cost threats and the allegedly false and detrimental document sent to Sir Norman Lamb
“Following my barrister’s illness with Covid-19 in March 2021, the London South Regional Judge Freer (who was the trial judge that signed off my obviously unfair settlement) allowed Judge Sage’s decision to be changed outside of any appeal process by a Judge Kelly in a new order that essentially replaced Judge Sage’s order. This gave HEE a second bite at the cherry at exiting the case on technical arguments. HEE have now succeeded at this and have been rescued from accounting for their actions on the cost threats and the misleading document sent to Sir Norman Lamb.
“The Regional Judge has also failed to progress my wasted cost application or dismiss it despite it being lodged in 2019. This application focuses on how the nation’s junior doctors were argued out of whistleblowing protection for 4 years. This video summarises the issues that the Regional Judge appears to be hoping will just go away.
“I have made a request for the Judge’s (Regional Judge Freer) record of my 2018 hearing that settled. This has not been responded to by the Tribunal. This is my only hope of an honest record of that hearing so this is difficult to understand. “
Dr Day is to talk to the BMA who paid for his legal representation to see if he can appeal this judgement.
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😦 following for the comments
It would be my hope that Dr. Chris Day continues to be properly supported in his quest for truth and justice.
When this case started there was no Health Safety Investigation Branch which is now set up to allegedly provide a ‘safe space’ for whistleblowers. You and your followers might be interested in the following snippets:
16th November 2021 – source HSIB website: Keith Conradi, head of HSIB is to retire. Dr. Aiden Fowler, National Director of Patient Safety said, “Keith is respected across the healthcare sector for the expertise he brings to patient safety”
21st January 2022 – just over two months later – source Health Service Journal: A report by the Kings Fund, commissioned by NHS England found bullying, sexism, racism and other forms of unprofessional behaviour at HSIB”
22nd February 2022. In two days time, Westminster Health Forum (see their website) are hosting an on line patient safety conference (not for the first time by the way). Your readers might like to check out the guest list and agenda. The event is being co-chaired by Rosie Cooper MP and Baroness Cumberlege.
Speakers include the retiring Mr. Conradi and also Rob Behrens, Parliamentary and Health Service Ombudsman. Mr. Behrens term of office is due to be completed on 31st March 2022, yet the Cabinet Office have yet to explain, despite my having asked them four times, how their proposal to ‘extend’ Mr Behrens tenure by two years is lawful when Section 1 of the Parliamentary Commissioners Act 1967 states otherwise.
One of the items to be discussed at the forum is the health legislation currently going through parliament. As currently drafted, section 110 of the bill requires HSIB to co-operate with the Ombudsman regarding investigations. There is already a ‘protocol’ in place yet, buried in Schedule 15, the Ombudsman is responsible for investigation of complaints against HSIB.
The bill goes further to state that no evidence or information given to HSIB can be used in civil or criminal proceedings or at any employment tribunal. So my question is this: Would someone who found themselves in Chris Day’s position today knock on the door of HSIB with confidence and should a complainant raising a patient safety concern do likewise or even go to the Ombudsman? Better to consider the litigation route if cover ups of patient safety issues are to be avoided although, as a taxpayer, it disheartens me to say it.
The quangos and HMG are circling the wagons!
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