Jonathan Gray, the employment judge hearing the case brought by whistleblower obstetrician Martyn Pitman against Hampshire Hospitals NHS Foundation Trust used last Friday to issue his judgement dismissing all the doctor’s detriment claims against the trust. The judgement, despite widespread and national interest, has still at the time of writing, not been published by the HM Tribunals and Court Service.
The judge, who previously worked for the law firm BDB Pitman in Southampton, managed both to accept virtually all his whistleblowing claims but throw out any claims that he had been persecuted by the trust for exposing them.
In short he believed every word given by Alex Whitfield, the former oil refinery executive turned trust chief executive; Lara Alloway, the former chief medical officer and Steve Erskine, the former businessman now chair of the trust and other leading figures who gave evidence for them. He didn’t believe a word of the case brought by Martyn Pitman of his bad treatment despite being ably defended by Jack Mitchell, funded by the BMA from Old Square Chambers.
What the judge did was turn Martyn Pitman against himself. His ruling at the end was :“Having considered each of the alleged detriments, there is in our view an overarching reason for what has happened to the Claimant that is not on the grounds of any of the alleged or proven protected qualifying disclosures. In short, it is the Claimant’s communication style and not the message he was trying to convey.”
To seal the deal the judge turned one of Martyn Pitman’s witnesses against him. He used the evidence of Dr Michael Heard, a fellow consultant, who backed up Dr Pitman’s whistleblowing claims to turn against Dr Pitman.
Dr Heard had made similar claims to Dr Pitman to the management at the trust and no action was taken against him. The judge used this to say it proved the trust management was keen to take whistleblowing seriously but not keen if it was presented in a forthright manner which affected the ” health and well being ” of the managers.
What was also strange in this hearing was that the person who made the most dramatic claims against Dr Pitman, Janice McKenzie, the divisional chief nurse and midwife, saying she had to leave the unminuted meeting dealing with patient safety with him, in tears to cry in the toilet, never gave evidence. But like ” Banqou’s Ghost” in Macbeth her claims hung over the hearing. I would have liked to see her testify given there is no written evidence of what happened there.
There was also a dispute – again unminuted – over the claim that towards the end of this long saga Dr Pitman was verbally told by Alex Whitfield, that he couldn’t continue working at the hospital because he was a risk to patient safety. She denied this and the judge believed her and not Dr Pitman.
Now there is a much wider issue in this judgement which goes well beyond this being a local hospital dispute. It arose because of a merger of two trusts which brought a clash of cultures between midwives who worked at the North Hampshire Hospital and those who worked at the Royal Hampshire Hospital in Winchester. Midwife managers from Basingstoke tried to impose their system on midwives in Winchester. This led to unrest and unhappiness in Winchester and Dr Pitman intervened because he was worried about patient safety and took it up with the midwifery managers who seemed unable to cope with criticism.
The management of this became a national issue when the Care Quality Commission inspected the maternity services at the trust and downgraded the trust (see here). Again I am surprised this was not mentioned in the tribunal.
But why I really think this ruling is bad is another event which coincidently emerged while this case was on. The Care Quality Commission published its annual report on maternity services and it makes grim reading. The number of inadequate trusts has doubled from 9 to 18, the number of trusts that require improvement has increased from 46 to 67 and only six are in the outstanding quality category. The CQC is obviously worried about this since they have only inspected 73 per cent of trusts and are planning to inspect the rest as a matter of urgency. The issues raised include poor management, lack of staffing, bad communication with patients, patient safety being inadequate and also racial inequalities.
Now judge Gray won’t know about this and probably say it was irrelevant to his hearing but his ruling will be a solace to managers worried about whistleblowers raising inconvenient claims of patient safety in maternity wards. By putting down such an eminent obstetrician ( even the judge and the health trust couldn’t find fault with his clinical judgement) he is potentially putting at risk the safety of millions of mothers giving birth in England. Who is going to raise their voice in the NHS about patient safety in the maternity ward if they see a doctor put down and not believed in a tribunal like that? Yes he may be forthright and strong minded but we need people to have high standards to improve the health service for everyone. Judge Gray has a lot to answer.
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This is a sickening outcome but sadly one that has come to be expected- the courts jump somersaults to protect our institutions but it comes at great cost to the public and patient safety. This is a very similar outcome to other cases and has remarkable parallels with my own in which HHJ Nigel Godsmark was far more concerned with hiding the truth and protecting the public face of Derbyshire NHS Foundation Trust (DHCFT) than truth and justice.
Like Judge Grey, HHJ Godsmark demonstrated no engagement whatsoever with the evidence material to the allegations and presented a distorted and inaccurate version of events that, in many areas, is not supported by any contemporaneous evidence at all, or even contradicts it, and he closed his eyes to the numerous breaches of duty on the parts of DHCFT, Ms Isherwood, the solicitor, and her hired gun experts Prof Daniel Wilcox and Dr Mike Drayton. His judgement makes it clear that he was determined to consider and include nothing against the trust, and he accepted at face value anything put forward by the trust management. HHJ Godsmark’s findings are far more notable for what they omit than what they disclose and serve nothing other than to achieve his goal of protecting DHCFT.
This was a theatre of the absurd in which the leading actor, HHJ Godsmark, played somersaults to defend the indefensible and close his eyes to the truth, no mater how unambiguous the evidence was before him. In attacking the truth, HHJ Godsmark made 2 +2 = 5.
There is no accountability or honesty in this grubby corrupt country: https://patientcomplaintdhcftdotcom.wordpress.com/
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If Dr. Pitman was not dismissed for whistleblowing about patient safety it just seems to me that all the management had left was his ‘communication style’. Is that really something to warrant dismissal in the first instance? Was he ever given suitable advice in any annual appraisal about it? Were his staff the ones lodging the complaints? How come he had been employed for such a long time without previous complaint? We seem to be left in the dark on these points at this stage.
It is sad to see the NHS throwing expensively and highly trained individuals under a bus and now Dr. Pitman joins the ranks of Doctors Day, Prasad and the other courageous people who have spoken out in the past and whose careers have been so unfairly blighted.
Maybe he will appeal and, if he does, good luck to him
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This is a sickening outcome but sadly one that has come to be expected- the courts jump somersaults to protect our institutions but it comes at great cost to the public and patient safety. This is a very similar outcome to other cases and has remarkable parallels with my own in which HHJ Nigel Godsmark was far more concerned with hiding the truth and protecting the public face of Derbyshire NHS Foundation Trust (DHCFT) than truth and justice: https://patientcomplaintdhcftdotcom.wordpress.com/
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Funny how you can be a well regarded clinician with no issues about communication for 20 years, only for it to become an issue after you raise safety concerns?
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What we have here is two dominant factors that now figure large in our society and therefore have a great bearing on Pitman type disputes:
The first is what I call the hairyman syndrome, that is when men come up against against women in this type of case. More often than not the female side plays the aggresive male card attack whilst the hiding behind a sweetness and light disguise. In this type of dispute we see that attack being used more regularly. This mantra has gone too far and is now being abused when these type of cases come to court.
The second is the complete absence of expert judges in such disputes. Anybody with an experience of the law and its implementation will tell you that their are two areas of law that are minefields. One is defamation the other is employment. The trouble with ETs is that is a lottery which ET judge you get. To use a medical analogy – lucky if your ET judge is a ‘Consultant’ or unlucky if you get the ‘Medical student’.
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This article in main stream media describes ET as “Kangaroo court”. This description fits well as repeated judgements in favour of the employer even if clear evidence provided by the doctor (whistleblower) – similar to cases of Dr Day, Dr Prasad and now this. Full transcript of the hearing must be made available to public.
https://www.thetimes.co.uk/article/warnings-over-nhs-cover-up-culture-after-lucy-letby-case-wj7jvxhc2
“Senior consultants and whistleblowers warn that a case similar to the Lucy Letby scandal could happen again because of the way that the NHS treats those who speak out about safety concerns.
They claim that instead of being listened to so that patient care can be improved, whistleblowers are persecuted by NHS trusts. It is alleged that critics are routinely hauled before “kangaroo courts” and that trusts use taxpayers’ money to hire expensive lawyers to discredit them in employment tribunals. Judges in those hearings are accused of failing to restrain the oppressive tactics employed by lawyers for the trusts”
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