Dr Usha Prasad, the whistleblower cardiologist sacked by the Epsom and St Helier University Hospital Trust, was back at an employment tribunal yesterday to fight for a hearing that she had been unfairly dismissed.

The public hearing was delayed for nearly two hours because 400 pages of legal papers from the trust could not be immediately accessed to be read by the judge. So both sides spent three hours presenting oral evidence instead.

The successor trust, St George’s, Epsom and St Helier Hospital Group, is seeking to strike out her case saying a decision at a previous tribunal by Judge Hyams-Parish, which came down in favour of the trust over her claims of discrimination, victimisation, harassment and whistleblowing meant it should be the end of the matter.

Miss Rehana Azib, QC, for the trust argued that her dismissal was the consequence of the failure of her claims and there was no need for a further hearing.

To add to the confusion in the day Dr Prasad said a decision that the case should go ahead had already been taken in September 2022 – more than 18 months ago. . She said Judge Balogun had already rejected an attempt by the trust to strike out this further hearing and ordered that the case will be listed for a case management hearing for 2 hours and a separate full hearing listed for 3 days. “

She was told by the present judge that this ruling had been reconsidered by the judge. However it is extraordinary that Miss Azib excluded the letter saying the trust’s first strike out was unsuccessful from the trust’s bundle for the hearing. Dr Prasad had received no notice that this had been changed but yesterday’s hearing still went ahead.

Miss Azib, KC from 2, Temple Gardens Chambers, based nearly all her entire case against Dr Prasad on Judge Tony Hyams-Parish’s judgement. She also tried to extricate Jacqueline Totterdell, group chief executive of the trust, from the case brought by Dr Prasad by arguing she was not chief executive at the time at the time of her dismissal. She has however continued to authorise lawyers to pursue Dr Prasad. There followed an argument that her post represented the main body of the trust. Ms Azib told the judge that to bring a case against her personally rather than the trust would cause her stress and be time consuming from her other duties.

I covered the Hyams- Parish judgement at the time. My blog on his judgement is here.

The most dramatic part of the hearing came when Dr Prasad, challenged by Miss Azib’s statement that none of actions by the trust were judged by Hyams-Parish to have been connected to her whistleblowing claims, produced a stream of examples.

This included an attempt by Dr. James Marsh, now group deputy group chief executive, to water down her whistleblowing report on the ” avoidable death ” of heart patient, Mr P, which the trust confirmed at the Hyams-Parish hearing had never been reported by Richard Bogle, head of cardiology to the coroner or the Care Quality Commission. Her refusal to do seemed to lead to her internal disciplinary hearing..

She pointed out that there was no independent expert at the hearing to examine the case against her, all the people were colleagues of Dr Marsh and his wife in both NHS and private practice. A list of what turned out to be vexatious cases of her failures sent to the General Medical Council by the trust was compiled by Dr Marsh’s close colleague. They were thrown out by the GMC who exonerated and revalidated her to work anywhere in the UK. Judge Hyams-Parish did not want to see their report.

The most telling example was an email from the then chief executive of the trust Daniel Elkeles, offering to abandon the internal disciplinary proceedings against her if she dropped the tribunal case against the trust which contained the whistleblowing claim. He would help to revalidate her so long as she left the trust.

She also pointed out that she was banned from any clinical duty and told to stay in the office for 28 months before the disciplinary hearing and her dismissal. Since she saw 2,000 cardiology patients a year, this meant that the NHS – which was also hit by the pandemic- was depriving thousands of patients seeing a consultant whom the GMC had judged was perfectly competent to do her job.

As you will see in my contemporary blog on the Hyams-Parish judgement I noticed the judged ignored the plight of Patient P and the evidence of the letter from the chief executive to her at the time

She also accused lawyers for the trust of witholding information and misleading previous court hearings – particularly not revealing that when she could not attend a hearing the text of a doctor’s letter explaining why. The respondent’s lawyer also told the judge that Dr Prasad hadn’t submitted ” any particulars of her claIm” over this case yet she had submitted them to the respondent last April. She also didn’t tell the judge Usha’s detriment case had been listed for an appeal.

The accusations led Miss Azib to remind the judge that serious allegations had been raised in ” an open hearing.”

I got the impression that the lawyer and the judge would have much preferred this hearing to have been held without the public and the press being present. It is a good example of why there ought to be more coverage of what happens at employment tribunals.. The judge is reserving judgement.

Facts surrounding the case

The trust has engaged and paid 33 lawyers to pursue Dr Prasad over the last six years at a cost of hundreds of thousands of pounds to the taxpayer.

Nearly 10,000 NHS cardiology patients in South London and Surrey have been deprived of being treated by Dr Prasad while she was restricted from doing any clinical work.