NHS Trust chief admits press statement that defamed whistleblower Dr Chris Day was ” clumsily worded”

Ben Travis: Chief Executive Officer Lewisham and Greenwich NHS Trust: Pic Credit News Shopper

Ben Travis, the CEO of Lewisham and Greenwich NHS Trust, admitted today that public statements deemed by former health minister, Sir Norman Lamb to be” inaccurate, severely defamatory and deeply distressing to Dr Chris Day” had been clumsily worded by the trust. The statements were sent to 18 prominent people including MPs, the leader of Lewisham Council and the director of social services.

The admission by Ben Travis was one of a series made during a two day cross examination by Andrew Allen QC, Chris Day’s lawyer, at the end of the second week of an employment tribunal hearing brought by Mr Day against the trust.

Dr Day suffered detriments after bringing protective disclosures about patient safety and inadequate staffing at the intensive care centre at the Queen Elizabeth Hospital, Woolwich where he worked. Two people died there- one after a tube was wrongly inserted into a person’s liver. The disclosures were denied by the trust and Health Education England for six years.

Mr Travis also admitted that the trust’s portrayal of the complaints as a staff shortage that happened just on one night – backed up by an investigation by external clinical management consultants M J Roddis Associates – was incorrect.

But the main disclosures came during cross questioning of Mr Travis on how the trust handled complaints made by Sir Norman Lamb, the former health minister and Liberal Democrat MP, who took up Dr Day’s case.

Chief executive never read the Roddis report in full

It emerged that when Mr Travis first met Sir Norman with Dr Day and his wife he had not even read the Roddis Associates report – whose findings are one of the main bones of contention between Dr Day and the trust.

As his evidence says: ” At the outset of the meeting, I gave the Trust’s perspective on the case. Dr Day then set out his challenges as to why he considered the statements to be factually incorrect, in particular in respect of the Trust’s first statement and some of the summary findings of the MJ Roddis reports.”

“…Whilst I knew of the headline summary of both reports, I had not read these in full and I did not know every detail of them. However, I was aware that the report had concluded that, overall, the Trust had acted appropriately but there were opportunities for learning and improvement”.

When he was questioned by Chris Day on this he admits:” This made it difficult for me to respond at the meeting to Dr Day on specific questions related to the reports, despite a number of questions from him.”

Kate Anderson never produced a written report but absolved the trust

His solution was to set up an internal review of what had happened to report back to Sir Norman. He appointed Kate Anderson, Director of Corporate Affairs, “who had no prior significant involvement in the case, to conduct the review. Her background is as a qualified accountant in the KPMG Public Sector Audit team, working with NHS organisations in both an audit and advisory capacity. She has strong corporate
governance and audit skills and I had absolute faith that she would carry out a thorough review.”

She had no medical knowledge however and had joined the trust in 2019.

Kate Anderson, director of corporate affairs at Lewisham and Greenwich NHS Trust Pic Credit: Linked In

Further questioning by Mr Allen of Ben Travis revealed a lot of missing information about her report which absolved the trust of doing anything wrong. Mr Travis drafted a letter of appointment but never sent it to her. There were no terms of reference for the internal review, there is no record of who she contacted to conduct the review,. no emails about its progress, In fact her written report does not exist.

Ben Travis said in his witness statement “Kate Anderson concluded that the Trust’s actions and statements had been appropriate. She updated me in person on her findings rather than preparing a written report. However, she reflected her findings in a detailed draft letter” for Mr Travis to send to Norman Lamb, but then Mr Travis decided not to send it to him.

His reasoning was rather curious. “I did not send this letter because Dr Day had begun to reference our
discussions with Norman Lamb in support of his application to set aside the settlement agreement.”

Sir Norman Lamb

He did eventually meet with Sir Norman but nobody took any notes. He said he conveyed the findings of the review but Sir Norman wanted a full inquiry and the press statement taken down. Mr Travis decided not to have one and to keep the statement on the website.

He said that Sir Norman did not pursue this further but missed the fact that Sir Norman then initiated a debate on Dr Chris Day’s plight in the House of Commons

Kate Anderson is not being called by the trust as a witness to explain how she compiled the report though she attended the hearing today as an observer.

But Mr Travis now admits the statement the trust put out was ” clumsily worded”.

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Chris Day whistleblowing tribunal: His wife says family faced £500,000 costs if judge took a dim view of him using covert audio

Dr Chris Day

Melissa Day , a registered nurse, gave evidence on behalf of her husband yesterday describing the dramatic moment when they were told by his lawyers that he could face £500,000 costs unless he settled the case with Lewisham and Greenwich NHS Trust and Health Education England in 2018.

” I understood if Chris were to lose the case, the respondents would as the conference note states claim for “the costs between now and the end of the hearing (£120,000 or more)” This was a significant amount of money which would have caused severe financial stress for our family.

She went on: “A further cost threat was linked to potential credibility findings relating to Chris’s use of covert audio. ln these circumstances, the potential total cost liability could be closer to £500,000 which was more than the value of our house and clearly would have put it at risk.

“At no point were any of the cost threats linked to the truthfulness of Chris’ evidence and I certainly had no concerns about this. I did have concerns about a potential reaction from the judge on the use of covert audio. This is despite what the audio showed about the way the patient safety issues were investigated and the validation it gave Chris’ claims that the Respondents’ made false accounts of his dialogue.”

“In the conference, when Mr Milsom [Chris Day’s lawyer at the time]was asked by Chris what the potential liability would be associated with the cost threats Mr Milsom listed wasted costs in relation to covert recordings with Chris’ potential cost threat liabilities as the conference note confirm”.

” At the time I did not properly understand how wasted costs differed from what I now know are ordinary costs. I had no previous experience of employment tribunals or the different types of cost threats. As they were listed together and reference was made to covert audio, I assumed that Chris would be liable for the costs Mr Milsom had listed.”

No choice but to settle

The couple went home and decided they had no choice but to settle the case even if Chris Day thought he had a chance of winning.

“Chris consulted me and wanted to discuss our options over dinner, I replied that there was no discussion to be had and I was not prepared to risk our family’s security. Chris decided very quickly in the conference that based on the costs threats and my opinion that he was not prepared to accept the risk to our family home and security that proceeding with the case would involve. Chris withdrew the case as a direct result of the costs threats.

“My stated reluctance for him to continue came also as a direct result of the cost threats. There was no doubt in my mind that proceeding with the case was not an option after hearing about the cost consequences despite the serious safety issues at the centre of the case, the unacceptable NHS response to them and the toll that getting this case heard had taken on Chris and our family over the preceding four years.”

She also described the day long negotiations that followed about an agreed statement to be made by the trust and Health Education England that was to follow settlement of the case.

Both HEE and the trust insisted that it had to say that they and their external investigators, Roddis Associates had acted in good faith – despite Roddis ignoring the two deaths at the Intensive Care Unit and that it was adequately staffed – contradicting Dr Day’s case. Both the trust and HEE diverted the issue on to the employment status of their advisers.

Trust insisted it must say it acted in good faith

She said: “Mr Milsom spent a large proportion of the morning walking up and down Croydon precinct outside Costa on the phone to counsel about the agreed statement. It is clear all these discussions about the agreed statement would not have happened without the cost threats as Chris would not have agreed to the wording that everyone acted in good faith or any similar wording.”

“This statement was particularly damaging to Chris because it gave the impression Chris’ protected disclosures were not about the intensive care unit, focusing only on one situation where there was a problem with medical ward cover on one night and claimed they had decided not to pursue Chris for costs.”

Melissa Day was cross-examined by Dan Tatton Brown, for the trust, over the statement and whether Dr Day’s real reason for settling was because he was going to lose. She completely denied this.

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Chris Day: Lewisham and Greenwich NHS Trust and Health Education England “destroyed my medical career”, tribunal told

Dr Chris Day

Dr Chris Day, the whistleblower junior doctor, has told the tribunal that the eight year battle with the trust and Health Education England, had “destroyed my medical career” and had been at a ” huge cost to me and my family.”

In a long and detailed witness statement to the tribunal he laid out the effect of the trust’s actions ever since he had made his protected disclosures in 2013 and 2014 about staff shortages and serious threats to patient safety at the intensive care unit at Queen Elizabeth Hospital, Woolwich.

He said: “The respondents’ actions over the last 8 years have destroyed my medical career.
“Throughout this litigation, I have worked ad hoc shifts as a locum junior doctor in Emergency Medicine. This often, if not always, involves a 10 hour shift starting early afternoon and ending at midnight. It is these times in which locum cover is needed.
“Had I progressed on my career path with the Second Respondent, I would have been a hospital consultant by 2019. My current arrangement offers me no career path, job security or employment rights. For example, when working during the pandemic in A&E, I caught Covid-19 and, as I fully accept, I had no right to sick pay from either my locum agency or the NHS for the time that I could not work.”

This case is about preventing disclosures being understood by the public

“This present case is therefore not about justice for me and my family for the loss of my career. It is about attempts to undermine my reputation by preventing the disclosures I had raised being understood by the public, press and MPs.
“The actions of the Respondents in their reactions to the issues that I had raised had meant the destruction of my career; and then for them to further undermine my professional and personal reputation to such an extent, could make it likely that many will not listen to a word I say about anything ever again.”

He concluded: “This Tribunal will be fully aware of what happens time after time to claimants that bring
whistleblowing cases against senior and established interests. To some extent this Tribunal may also be aware of the speak up culture in the NHS. The toxic speak up culture in the NHS has been documented in scandal after scandal with the latest being the maternity scandal at Shrewsbury and Telford. This Tribunal will therefore be more than able to understand the pressure that me and my family have been under over the last 8 years. I hope it is clear from what I have set out, that I have raised serious issues that deserve proper consideration.”

Queen Elizabeth Hospital, Woolwich By Paul W – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=79830700

His evidence covered the history of his case from 2013 covering serial misrepresentation of his disclosures at the intensive care unit at Woolwich Hospital, a bitter dispute over cost threats against him and his solicitors by the trust and Health Education England, which led him to settle the case to protect his home and family and the aftermath including a hostile press release issued by the trust and letters sent to 18 MPs and local stakeholders putting their case. He has had two days of robust cross examination by Dan Tatton Brown, the barrister acting for the trust, which has gone into every detail of his case and demanded straight ” yes or no ” answers to complicated points. These included the legal procedures surrounding the move to impose and then withdraw cost threats against him and his solicitors which was later denied had ever happened by the trust.

His witness statement points out that it took six years from 2013 for the trust and Health Education England, who are no longer a party to the case, to recognise that his disclosures as a whistleblowing issue.

Trust misrepresented findings on patient safety

He also found misrepresentations by the trust over a visit by the people from HEE and by commissioning an external investigation by Roddis Associates, which ignored two deaths at the ICU, claimed staffing was adequate and wrongly said a consultant became immediately available when he wanted one. These issues have been dealt with in earlier evidence from two anaesthetists.

He says: “The Respondent has chosen to represent the serious content of my protected disclosures as a one-off situation outside of the ICU about junior doctor cover of medical wards. Such an occurrence, although not trivial, is all too common in the NHS.
“It is clearly not the main thrust of my protected disclosures. The fact the Respondent has wholly misrepresented to the press and MPs my disclosures as not being about the Intensive Care Unit/critical care, but being limited to junior doctor cover on the medical wards paints a picture that my protected disclosures were making a fuss about nothing.”

“It seems to me that this is a clear attempt to smear me; to make me out to have been a vexatious Claimant with a hopeless case that I chose to freely withdraw; and to diminish my standing in the eyes of those who supported me, including the MPs and journalists that were engaged with the issues that I had raised.”

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Consultant anaesthetist links two patient deaths to unsafe staffing at Woolwich Hospital Intensive Care Unit – Chris Day tribunal hearing

Dr Sebastian Hormaeche Pic credit: Linked In

” Troubling” trust commissioned report ignoring patient deaths

A second consultant anaesthetist was highly critical of safety standards at Woolwich Hospital Intensive Care Unit (ICU) in 2013 and 2014 linking the lack of night time trained doctors working there to the deaths of two patients.

Dr Sebastian Hormaeche, an elected member of the British Medical Association Council, provided evidence to the tribunal on expected staffing levels and qualifications of doctors working at the ICU.

His evidence followed a devastating critique last week by Dr Megan Smith on the staffing levels at the ICU run by the Lewisham and Greenwich NHS Trust.

She had told the hearing : “You would not find an anaesthetist or ICU doctor in the country who would accept those ratios. There was a clear and present danger to patient safety – no question about that.”

Dr Hormaeche said that the trust did not follow national standards for doc to patient ratios there but went on to criticise the lack of supervised training for doctors handling emergencies and the way the trust’ called external investigators who presented a false picture of what was happening there. He said:

“The Core Standards state that exceeding this staffing ratio is deleterious to patient care. The ICU cares for the sickest patients in the hospital requiring the most intense level of care and attention and when staffing levels are stretched patients may be exposed to higher degree of risk of harm. This is also impacted by the number and experience of trainees- doctors below the consultant grade, as well as the turnover of patients and the case-mix.”

“Airway skills- the skills required to secure and maintain the airway (intubation) in critically ill patients- are the core element of the anaesthetist’s training and are their fundamental skillset. The sickest ICU patients (Level 3 patients) are those requiring ventilatory support in the form of a breathing tube being inserted into the airway (trachea, or windpipe) in order to help maintain their life support. Situations requiring airway intervention in the ICU typically require the presence of a practitioner with advanced airway skills.

Dr Chris Day

“This is important because an emergency involving an airway issue can be immediately life-threatening, therefore it is a requirement that there be immediate access to a practitioner with advanced airway skills, and in practice this is usually provided by the resident anaesthetists. It should be noted that novice anaesthetists who have not yet completed their lnitial Assessment of Competency do not yet possess advanced airway skills”.

.”I have seen evidence that on 15 October 2014, Health Education England carried out a quality visit at the Trust which recorded concerns from other junior doctors about staff patient ratios and the lack of ready availability of airway support. ln my view, the findings of this quality visit by the HEE and the ICU Core Standards are clearly relevant to Dr Day’s protected disclosures.”

He contrasted this with an external report by M J Roddis Associates, a clinical management consultancy, commissioned by the trust, which said: “The core standards say that the ICU resident / patient ration should not exceed 1:8. These ratios are therefore not absolute.”

Dr Hormaeche said: “…this doesn’t meet safety standards in terms of staffing levels either for doctor to patient numbers or for Dr Day’s level of training at that time. ln my experience this level of cover requires a senior trainee (a Registrar) with advanced airway skills and a higher level of ICU training to be resident in addition to an SHO, who is still undergoing their Core Training, as a minimum.”

M J Roddis Associates said: “Dr Day has immediate access of the resident anaesthetic registrar for airway management “while Dr Day. said the opposite and also warned of serious threat to very sick patients and added of ” I have observed a number of hypoxic cardiac arrests from tubes getting displaced. The unit’s self-extubation rate was high when I was there.”

This is an alarming paragraph – Dr Hormaeche

Dr Hormaeche said: ” This is an alarming paragraph for me to come across lt suggests an unsafe ICU
environment in terms of patient safety, by way of staffing levels and access to advanced airway skills. The term intubation refers to the insertion of a breathing tube, which is a crucial element of life support for the sickest ICU patients. The term extubation refers to the removal of a breathing tube from a patient’s airway.”

” …Self-extubation, however, refers to an unplanned and serious event where a breathing tube has unexpectedly become dislodged or displaced from the airway. This can become a life threatening event.”

He added: “The term hypoxic refers to a low level of oxygen circulating in the blood. This will be expected to occur if a breathing tube becomes accidentally displaced. Severe hypoxia can lead to cardiac arrest and death. To prevent this outcome, immediate access to advanced ainruay skills is essential.”

He then quotes from Dr Day’s evidence about two deaths that followed and linked to staff shortages

“On 7 November and 5 December 2013, two patient deaths occurred at night under the care of lntensive Care. These deaths involved two different non-anaesthetic trained doctors and were declared as Serious Untoward lncidents (‘SUl) and subject to Coroner inquests .The SUI’s involved just the kind of circumstances that I had been concerned to avoid when I raised concerns about patients safety in
August and September 2013.”

Neither deaths were investigated or mentioned by M J Roddis Associates in their report.

Deaths findings fully support Dr Day’s warning

Dr Hormaeche said: “”lt seems to me that the findings of both these Sls fully support Dr Day’s warning in his August 2013 protected disclosures about the training and experience of the grade of doctors used by the Trust to cover the night shift in the lntensive Care Unit under distant supervision.”

The December 5 case involved insertion of a chest drain which was incorrectly sited and pierced the liver. The patient died from haemorrhage according to the coroner.

Dr Hormaeche said: “I cannot understand why Roddis Associates were to exclude these two highly relevant SIs from their investigation.”

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Consultant’s devastating critique of Woolwich Hospital’s intensive care staffing in Chris Day whistleblower tribunal hearing

Trust lose battle to ban consultant anaesthetists giving factual evidence

Dr Megan Smith, consultant anaesthetist and barrister. Pic credit: https://msmedicolegal.com/

A devastating exposure of the health and patient safety dangers at Woolwich Hospital’s intensive care unit in 2013 and 2014 was made by a highly experienced anaesthetist and lawyer on the second day of the tribunal case brought by Dr Chris Day against the Lewisham and Greenwich NHS Trust.

At the opening of the hearing the NHS trust had tried to ban Dr Smith and another consultant from giving evidence to the judge on the grounds that the information was irrelevant, needlessly extending the hearing and a waste of taxpayer’s money. The trust itself has already spent nearly £1m on lawyers in fighting Dr Day’s whistleblowing claims of understaffing and risk to seriously ill patients at the hospital.

She told the hearing : “You would not find an anaesthetist or ICU doctor in the country who would accept those ratios. There was a clear and present danger to patient safety – no question about that.”

In her evidence she listed Dr Day’s concerns:

They were:

2.1.1. Doctor patient ratios were inappropriately high and a risk to patients at Woolwich ICU;
2.1.2. ICU trainees who were rostered to cover the ICU (as well as critically ill patients on the wards and in the Emergency Department (“ED’)) had insufficient clinical experience, training, and competence to fulfil a role of such responsibility which put patients at risk and compromised patient safety;
2.1.3. Senior medical supervision of these ICU trainees was inadequate and a risk to patients at Woolwich ICU which put patients at risk and compromised patient safety.

2.1.4. The Respondents’ managers failed to investigate these safety related matters adequately;
2.1.5. The Respondents’ managers provided false information about the claimants protected disclosures;
2.1.6. The Respondent’s managers provided false information to those investigating these safety related matters.

She went on to list the attempts Dr Day to alert people to the problems. They were:

Dr Roberts in a phone call and email on 29 August 2013

Dr Brooke in a meeting on 29 August 2013 and by email dated 2 September 2013;
Dr Harding, Assistant Medical Director for Professional Standards in an email forwarded on 3 September 2013;
Joanne Jarcett, the off-site duty manager, in a phone call and email on 10 January 2014 and a further email on 14 January 2014;
In addition, the Claimant informed Joanne Janett via email on 14 January 2014 that hospital managers were providing false information and were failing to investigate and deal with patient safety issues in the Respondent’s ICU;
Statements made by the Claimant on 3 June to the ARCP panel (which included a senior doctor from the Trust, Dr Harrison) about patient safety at Woolwich lCU, the hospital arrangements for 10 January 2014,
the events of that night and subsequently and attempts by Trust management to discredit him and present the issue as his competence rather than patient safety.”

Dr Chris Day

She then outlined national standards for intensive care units which were in force in 2013 and compared them to the provision at Woolwich Hospital. She said this meant “In general, [the Consultant/Patient ratio should not exceed a range between 1:8 – l:15 and the ICU resident Patient ratio should not exceed 1:8”

She said: “What he [Dr Day] was saying was that at all times when he was working as the resident night time ICU doctor he was expected to cover 18 ICU beds, assess new critically unwell patients on the wards in the hospital and in the ED, and review a list of ICU outlier patients on the wards who had been flagged as potentially requiring admission to ICU and therefore warranted close monitoring and regular review.”

Woolwich Hospital ICU was “prima facie unsafe”

She concluded: “The Respondent’s ICU was, prima facie, unsafe and (if more than a one-off incident) was something that was required to be rectified by the recruitment of more (and in some cases more experienced) junior doctors.”

She then examined the training and knowledge of junior doctors new to working in ICU’s and again found Woolwich Hospital wanting.

“When ICU trainees first begin their training, they are unlikely to possess many (or any) of the core lifesaving skills and competencies that a qualified higher level ICU trainee or consultant possesses. This means that it is completely inappropriate for these trainees to be left alone to manage the ICU out of hours until the department is satisfied that they possess the required levels of skill and competence.

On Dr Day she said: “Doctors with the level of experience that the Claimant had at the time in question
would not have (and would not be expected to have) anything other than basic airway and lifesaving skills. These can save a life as a temporising measure, but definitive airway access (tracheal intubation) and cardiovascular resuscitation have to be secured quickly or the patient will come to harm. These skills (which are routinely provided by the ICU team) are far more advanced and can only be gained by those new to ICU by being taught and fully supervised in performing them until they have achieved a prescribed level of competence (in 2013/2014 the criteria {or such competencies were set out by the Royal College of Anaesthetists” and other colleges.

She severely criticised the lack of supervision at the hospital and the turned to the hospital’s failure to investigate Dr Day’s concerns about patient safety.

Allegations would have been of grave concern

She said: ” The allegations raised by the Claimant would be of grave concern to any medical professional and any serious incident/governance/ risk manager. The primary concern would be for the safety of the patients in the ICU, particularly given subsequent (apparently avoidable) patient deaths. However, the institution ought also to have been extremely concerned about reputational damage and its standing
with those commissioning its services with whom it would have had legally enforceable contractual agreements. I would expect an immediate and thorough investigation to have been initiated.”

She concluded that the press statements by Lewisham and Greenwich NHS Trust at the time did not show Dr Day’s allegations had been properly investigated.

“it seems to me that the Respondent’s press statements and statements on its own website at best underplay the seriousness of what was occurring in the ICU and at worst were misleading in relation to the same.”

She said :The report that was commissioned in 2014 by the Respondent appears to accept and condone the running of the ICU in breach of expressly stated national standards that were put in place in order to ensure that ICU patients received excellent and, arguably more importantly, safe care. The conclusions of the 2014 report are, in my view, completely at odds with these evidence-based principles and are entirely inconsistent with the principles of the delivery of safe and excellent patient care.”

A second anaesthetist consultant will give evidence on Monday.

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Sir Norman Lamb blows the whistle on “deceitful” NHS attempts to discredit Dr Chris Day in tribunal hearing evidence

Sir Norman Lamb

Sir Norman Lamb, the former health minister, gave evidence on the first full day of the tribunal hearing between whistleblower junior doctor Chris Day and Lewisham and Greenwich NHS Trust. The tribunal is the latest hearing in a nine year battle between Dr Day and the trust over safety standards and staff shortages at the intensive care unit and accident and emergency unit at Woolwich Hospital in 2013-14.

Sir Norman, now chair of the neighbouring South London and Maudsley NHS Foundation Trust, had been summoned by Dr Day’s legal team to appear. His evidence which largely was not challenged by the trust revealed the various correspondence he had with both the trust and Dr Andrew Frankel, a former postgraduate dean at the now merged Health Education England.

Health Education England succeeded at an earlier tribunal hearing this year in removing themselves from the case after Dr Frankel admitted he had acted deceitfully without HEE’s knowledge in trying to change Sir Norman’s mind over Dr Day’s case. I wrote two blogs about this earlier this year. They are here and here.

Dr Chris Day

Sir Norman told the hearing he had probably had around 9 or 10 meetings with Dr Day since 2017. This included one with Jeremy Hunt, the health secretary, others with Dr Frankel and Ben Travis, then chief executive of the trust.

At the meeting with Jeremy Hunt on 23 May 2018 “Dr Day set out details of his case and in particular the reality of the night time staffing at the relevant hospital’s lntensive Care Unit, the fact that it departed
significantly from national standards of safe levels of staffing, and that there were two deaths associated with the working conditions. The investigations at the time described clearly unacceptable staffing as acceptable.”

At the next one on 1 November 2018 came after Dr Day had settled the case after being threatened by the trust for costs and his legal team was also threatened for wasted costs. 

Sir Norman said: “I remember being very surprised that Chris had settled the claim before the end of the tribunal hearing given the fact that he had spent years working to get the chance to put his case to the tribunal. Chris told me that he had been faced by an impossible dilemma. He told me that he feared losing his family home if costs were ordered against him. He said he had consulted his wife on the decision, and they had agreed that as parents, he could not carry on. Chris told me that Mel, his wife, had urged him to settle “

“ln preparation for this hearing, I have seen an email dated 30 November 2018 from
Dr Day’s then Barrister, Mr Chris Milsom, to Dr Day. Mr Milsom confirms what he was told by the NHS’s barristers about the consequences of Dr Day continuing the case. Mr Milsom further states that ‘this was a “sophisticated discussion” that was in “no way invited by [Mr Milsom].” 1 can also see reference to wasted cost consequences directed against Dr Day’s former legal team by the NHS Counsel.”

This bit of evidence led to lengthy cross questioning by the trust’s barrister, Dan Tatton Brown, who tried to get Sir Norman to agree that Dr Day had settled because he felt he might lose the case and face costs which were not meant as a threat. Sir Norman disagreed.

Dr Andrew Frankel

Sir Norman’s later evidence shed even more light on the behaviour of Dr Frankel who arranged a meeting with him in 2019.. Evidently he claimed that an inquiry he set up into Dr Day’s allegations had said there was no suggestion any point (sic) that the panel had been briefed negatively about Dr Day.”

The report claimed wrongly “Dr Day had variously been described as ‘tenaciously going on and
on’ about it,’ gripped by angst’ and ‘shaking as he recalled events’ and ‘locked in.

One of the report panel members, Dr Madhurie Chakravarti-Chattopadhyay states in her statement to the Employment Tribunal for the 2018 hearing that:’ l did not feel that the report portrayed the situation as accurately from my perspective as I would have wanted.’
She states that she was: – ‘very surprised to find that various phrases in inverted comma ‘seemingly quoting me, when I could not recall saying fhose phrases”

.ln another statement to the Employment Tribunal, Dr Hans Sauer, who was Dr Day’s clinical supervisor at the time of the ARCP Panel meeting on 3d June 2014, stated of Dr Day; ‘He is a competent and confident trainee with a skill set which exceeds the expectations of someone of his level of training. He is aware of his limitation and not afraid to ask for help and advice.’

He states that ‘l find these allegations extremely surprising as during the whole period of my engagement with the Claimant I never noticed any basis for such allegations”.

Dr Frankel then accepted that Dr Day had raised serious and legitimate concerns about the respondent in his protected disclosures. Yet I have subsequently been informed that Dr Frankel had not stated any of this in his witness statement for the Employment Tribunal hearing in 2018″ and said his workload was acceptable.

Finally he met Mr Travis after the trust had put out a statement criticising Dr Day.

defamatory statements

Sir Norman wrote to Mr Travis saying;

” It is my belief that aspects of the Trust’s public statements (as referred to in Chris Day’s letter) are severely defamatory and should be withdrawn forthwith and that there should be a full apology. I should stress again that the inaccuracies in the public statements by the Trust are not only defamatory but are deeply distressing. They are damaging to Chris Day’s reputation.”

Mr Travis said he couldn’t comment after Dr Day won a case to bring a further hearing. The tribunal continues.

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Jeremy Hunt and Sir Norman Lamb back whistleblower doctor’s epic patient safety struggle at a tribunal from Monday

Official portrait of Jeremy Hunt. Pic credit: Parliament.uk

Trust wants to ban two expert anaesthetists from giving evidence for Dr Mark Day

An epic nine year struggle between junior doctor Chris Day and Lewisham and Greenwich NHS trust over patient safety at an intensive care unit and accident and emergency department comes to a head at 15 day employment tribunal on Monday.

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.

extraordinary convoluted story

What followed is an extraordinary convoluted story of denial of the problem by the trust, misleading statements, poor investigations, threats of a huge legal bill which led him at one stage to settle the case only for it to be re-opened at a hearing before another High Court judge. There is a detailed blog by Dr Moosa Qureshi on CygnusReports.org which goes into forensic detail of the twists and turns of his case so I won’t repeat all the detail. I recommend you read his account. The costs of the protracted legal action to the NHS trust now amount to little short of £1million

A recent blog on my site looked at one aspect of the case, illustrating what appear to be underhand methods by a former dean at Health Education England to persuade Sir Norman Lamb, then a Liberal Democrat MP, not to pursue Dr Day’s case. Health Education England disowned his action at an employment tribunal and succeeded at being taken off as a party to Monday’s proceedings.

The issue will not go away next week as unusually Jeremy Hunt, the former health secretary, will give a statement to the tribunal, as a witness for Chris Day.

Sir Norman Lamb

Sir Norman Lamb, also a former health minister, will appear as a witness for Dr Day at the hearing so people are likely to hear a lot more about what actually happened.

Two highly distinguished consultant anaesthetists were also scheduled to give evidence on behalf of Dr Day. They are Dr Sebastian Hormaeche and Dr Megan Smith .

Dr Chris Day

The trust will try during the proceedings to ban them giving evidence.

The case is likely to look at the role of lawyers and also the role of M J Roddis, a clinical management consultancy in this case. They were employed by the trust to investigate this case and Dr Day claims they misrepresented his evidence, played down the problems, and omitted some damaging information about patient care.

The tribunal hearing will not be available on line as the court has decided in advance it will be an ” in person” hearing – even though three of the first five days will be held during a national rail strike.

Nor is it likely to be officially recorded. But Chris Day, who is represented by lawyers paid by the British Medical Association, has engaged a Ministry of Justice approved note taking service so there will be a full transcript of the proceedings.

I put some points to the trust and asked them for any comments they might wish to make but officials did not respond.

UPDATE: Since this post was published the employment tribunal has done a U-turn and decided to hold the hearing online which means it will be more accessible to the press and public It will not be held at Croydon, south London as there was not a judge available to preside over the 15 day hearing.

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Exclusive: The horrendous painful death of a Met Police communications officer in St Helier hospital

Robert Sheppard, a civilian Met Police communications officer, who died in agony at St Helier Hospital.

Near death and shouting, in pain all night and day, being totally  confused and hallucinating a nurse said “he will just have to deal with it.”

This is a tragic story of the treatment of the last days of Robert Sheppard. It is a tale of medical error, bad treatment, appalling hospital facilities, mistakes, bad nursing care and a potential cover up of a hospital acquired infection. It could have been completely different if the hospital hadn’t blocked him from being transferred to a local hospice so he could have spent his last days in peace. His widow found out later that the hospice would have taken him.

His widow, Wendy, came forward when she read the story on this blog of the ” avoidable death” of Mr P, a heart patient , a couple of months before at the same hospital. This came out during an employment tribunal hearing brought by Dr Usha Prasad, a cardiologist, when the former head of cardiology, Sr Richard Bogle admitted the hospital should have reported his death to the coroner and the Care Quality Commission three years ago. The judge handling the case Tony Hyams-Parish, airbrushed all the details of the death from his judgement.

The story also reveals the timidity of the Parliamentary Ombudsman, Robert Behrens, who when he examined Mr Sheppard’s treatment, avoided investigating wider safety issues at the hospital.

Daniel Elkeles former chief executive of the trust

The facts in this story are stood up by two confidential letters from the former chief executive of the Epsom and St Helier University Hospital Trust, Daniel Elkeles to his widow.

Mr Elkeles was full of apologies about his treatment but played down the issue of a hospital acquired infection there – which would have had to be reported by law..

Mr Sheppard, who was well treated as a cancer patient at the Royal Marsden Hospital,- was admitted to St Helier’s emergency department with an obstructed bowel on October 10, 2018. A mistake was made when a nasogastric tube was inserted to drain fluid from his stomach but had to be repeated after it became clear it had not reached his stomach. The Ombudsman absolved the hospital from the initial mistake as there are no national guidelines about inserting nasogastric tubes.

Mr Sheppard was put on the Mary Moore Ward in an old building. He was given by mistake a blood stained pillow, he had no bedside lamp and another patient’s damp possessions had been left on his bed.

He picked up a bacterial infection called klebsiella which attacks people with a weak immune system but was discharged on October 22.The hospital insisted that nobody else admitted at the time had the infection.

He was readmitted the next day to ward B1 with a chest infection and tests were carried out and he had got the bacterial infection. From there until his death on November 13 he remained with a fever and back pain and also became hypoglycaemic.

The ward facilities were not much better than Mary Moore ward. Brown water came out of the taps because of a rusting 82 year old water main but the hospital insisted the water was safe. Again he did not have a bedside lamp that worked and bandages were found in his bedding. He requested a wheelchair but the hospital said it didn’t have one for his ward. Also hand sanitiser was not replaced.

As his life ebbed away the chief executive apologised for the ” insensitive ” way the medical staff treated him over his wishes to be resuscitated .

Doctor was ” Grim Reaper”

Wendy said “One morning a Doctor came into Robert’s room  and stood at the end of his bed rather akin to The Grim Reaper and read out a list of the areas Robert had his Cancer in his body. Robert already knew about everything. It was just the way it was done he felt they had written him off.  It was a point of justification by the Hospital without mentioning the Hospital acquired infection Robert had caught courtesy of St.Helier Hospital telling him the Cancer was going to kill him instead. “

The weekend before he died was the worst. He was visited by his 92 year old mother and brother who found him unconscious. His wife stayed with him but found nurses were not bothered to see him and finally workman came in to repair taps just he was about to die.

The chief executive has apologised for this. ” I am extremely sorry that we did not respond with compassion and understanding to your request for nursing support at the end of Mr Shepherd’s life. I am very disappointed that you endured this situation alone and can only apologise that we failed you”.

Even after his death mistakes were made. His initial death certificate airbrushed out the bacterial infection and his cremation notice described Mr Sheppard as retired when he was still working for the Met Police.

” I will never forgive St Helier hospital “

Wendy said:” Dying with dignity was something not given to Robert. I will never forgive St.Helier Hospital. It’s failures towards Robert were ‘swept under the carpet’ by the Hospital management.  My complaints were misconstrued to make St.Helier look in a better light and incidents that happened weren’t recorded in Robert’s medical notes so I am told. “

The Ombudsman’s report concluded: “We have found failings with the support doctors and nurses gave to Mr D[Robert Sheppard] and Ms N[Wendy Sheppard] in the final stages of his life, and that Mr D’s privacy was interrupted in the final moments of life. We also found a failing with how nurses responded to Ms N’s requests for hand sanitiser. What happened led to a loss of dignity for Mr D and made his death even more upsetting than it already was for Ms N.1

The Ombudsman rejected Wendy’s concern about the hospital bacterial infection – weakly citing that for data protection reasons it could not investigate other people. It also said it had no power to investigate mistakes in death certificates. Another example of the weakness of the Ombudsman system.

St Helier Hospital

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Guest blog: The appalling treatment of NHS whistleblowers parallels the Post Office sub-post masters scandal

Dr David.E.Ward,

 David E Ward, a distinguished retired cardiologist, formerly at St George’s Hospital, South London, responds to the judgement by Tony Hyams-Parish on the case of Dr Usha Prasad

The treatment of NHS whistleblowers is a national scandal of the same iniquitous order of magnitude as the miscarriages of justice meted out to the sub-postmasters. This latter saga began 20 years ago after the installation of faulty software called Horizon from Fujitsu. Incredibly it was not picked up for years because the victims were not believed or they were accused of lying. The evidence was not properly collated or scrutinised. Or was it, but no-one said anything. “No other post office has had this problem” they were told. Perhaps the current Judge led inquiry will find out. Many were incarcerated. Some sold their homes to pay thousands of pounds of fictitious till deficits. Sadly, some committed suicide.

The sequence of events for NHS whistleblowers is different but the outcomes are strikingly similar. The NHS whistleblowers’ stories are largely unknown to the wider public apart from the occasional one featured in a national newspaper.

The WB raises a concern, which by the way is their duty under law, (Duty of Candourhttps://www.legislation.gov.uk/ukdsi/2014/9780111117613)

but instead of welcoming the exposure of the defect of a system (e.g. number of beds in a limited space), faulty equipment (e.g. a diagnostic machine) or a process (e.g. errors in admission procedures – wrong patient or wrong procedure) any of which may lead to patient harm or even death), the Trust fails to act but instead embarks upon a path of vicious and disproportionate reprisals against the WB.

The consequence of this chain of events is often catastrophic for the individual. The whistleblowing doctor may be subjected to repeated internal hearings, quasi-disciplinary proceedings, Maintaining High Professional Standards hearings etc. The latter may be chaired by lay persons with a legal qualification but posing as a barrister. Most doctors subject themselves (they raise an appeal) to an Employment Tribunal in the hope that justice will prevail. Sadly it does not. These proceedings are not formally recorded for later open scrutiny. The judge’s notes (such as they may exist) are private and not made available. It is also a criminal offence to make an electronic recording. The litigant can take notes but how do they manage to do that whilst giving evidence or listening intently to the evolution of their own fate? A preposterous suggestion.

Expensive lawyers who support the health trust

There is another major factor in these processes. They could not proceed without the complicity of the teams of expensive solicitors and barristers who support the Respondent. All this is paid for by the taxpayer. The claimant will of course have their own legal support if they can afford it but which is obviously limited by costs. This gross “inequality of arms” is a major factor in the final “justice” handed out. I don’t think many of us would call that fair and just. Doctors are threatened with enormous costs which in most cases could only be met by selling the family home. Why? Oh yes, it’s to force them to withdraw their claims and believe it or not it usually works!

Judge Tony Hyams-Parish

At Employment Tribunals it appears that the sum total of evidence is not scrutinised. Some evidence appears to be selectively omitted at the discretion of the ET Judge. In the Dr Prasad case (see David Hencke’s last blog) the admission by the lead of cardiology (Dr Richard Bogle) that a death which should have been reported to the coroner was not reported but “covered-up” is not even mentioned in the final judgment! One could ask for the transcript to check that this observation is correct. (Oh, no I can’t because there is no transcript but I did attend the virtual ET hearing and can vouch that I heard it stated!) That worked out quite well then didn’t it? To an outside observer who has some vicarious experience of these Tribunals it is nothing short of gobsmackingly incredible in a western democracy (I don’t have the full panoply of words to describe it!).

Former post office workers celebrate outside the Royal Courts of Justice, London, after having their convictions overturned by the Court of Appeal. Thirty-nine former subpostmasters who were convicted of theft, fraud and false accounting because of the Post Office’s defective Horizon accounting system have had their names cleared by the Court of Appeal. Issue date: Friday April 23, 2021. PA Photo. Photo credit : Yui Mok/PA Wire

The Post Office workers (Horizon scandal) did not commit any crimes neither did the NHS Whistleblowers. They have not broken any laws. Yet how is it that they have failed to present a case of sufficient strength to convince an ET Judge? Their punishment for exposing potentially harmful processes, which could save lives, is to be condemned, lose their careers, their livelihoods, their homes and in some cases their families or even their own lives. Put simply they are crushed by massive inequality of arms – expensive lawyers funded by the taxpayer. Swathes of evidence is ignored.

Is there some sort of collusion between the judiciary and the respondent or their legal representatives? Some MHPS hearings are seemingly very dodgy (some doctors/victims have observed this and can demonstrate it with evidence) up to and including the invention of spurious legal terms such as “fitness for purpose” which is unknown in British Employment law (see David Hencke’s blog on the Maintaining High Professional Standards Appeal).

Then there is always the possibility of undeclared conflicts of interest in the appointment of an ET officials. Just saying…..

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Judge covers up “avoidable death” of heart patient and General Medical Council revalidation of Dr Usha Prasad to dismiss her whistleblowing case

Employment Judge Tony Hyams-Parish Pic credit: dmhstallard.com

Publication of avoidable death scandal at Epsom and St Helier University Health Trust leads to another relative coming forward and queries about a former senior staff member in Jersey

An employment judge has thrown out Dr Usha Prasad’s whistleblowing case and all her allegations of victimisation, sex harassment, and sex and race discrimination.

She is also facing a costs claim of an astounding £150,000 plus VAT via the law firm Capsticks from the Epsom and St Helier University Health Trust.

A letter from Capsticks says: ” The Respondent has incurred very substantial costs indeed in defending the unmeritorious proceedings, of in excess of £150,000 plus VAT. The costs incurred correlate to the Claimant’s unreasonable conduct and the unmeritorious nature of her complaints.”

Judge Tony Hyams-Parish’s judgement is long on the detail of all the various top management’s moves against Dr Prasad which led to an unprecedented 28 month suspension from clinical duties and remarkably short on any evidence given by her and her witnesses. He exonerates the actions of the senior management and ignores claims by any of her witnesses. And given he goes into such detail it is rather surprising he doesn’t mention that Daniel Elkeles, the former chief executive of the trust, offered to abandon the internal disciplinary proceedings against her if she dropped the tribunal case against the trust.

Indeed the most twisted part of his judgement is what he leaves out. Take the issue of the GMC revalidation of Dr Prasad. This is his purple passage:

“The Tribunal was invited to consider was the outcome of the claimant’s hearing before the GMC. The GMC began an investigation into the claimant which concluded in March 2021 with no further action to be taken. The claimant continued to state throughout this hearing that she had been exonerated by the GMC, suggesting that their conclusion must cast doubt on the actions and motivations of the respondent. However, the Tribunal found it difficult to draw any such conclusions from the GMC outcome. The Tribunal was not shown the content of the GMC referral or the case examiner’s report. Whilst the GMC and the respondent were looking at the same cases, their remits were likely to be quite different. In any event, the Tribunal was not shown sufficient evidence to decide either way.”

Really? The GMC judgement was entirely based on a list of 43 complaints submitted by the trust and obviously the trust expected it to be endorsed by the GMC. Instead it was sent to very experienced cardiologist in Middlesbrough who had worked at Papworth Hospital and he could not find anything wrong. And not only was this finding approved by the GMC, they revalidated her – taking away the power of the trust to do this. Given many doctors feel they are not well treated by the GMC, this was a remarkable outcome. The GMC was telling the trust to get stuffed.

Dr Usha Prasad with the former chief executive of the trust, Daniel Elkeles

The second area is the glossing over of the main whistleblowing claim. It centred around the avoidable death of a 76 year old man, Mr P, from heart failure, partly caused by negligence, muddle and poor communication at the trust. Dr Usha Prasad, who had no part in the care of the patient, was asked to review the case as an independent person. Evidence was given that an attempt was made to get Dr Prasad to rewrite her findings which included that the death should have been reported to the coroner and the Care Quality Commission. At the hearing Dr Richard Bogle, former head of the cardiology department, admitted that this should have been done – basically saying Usha Prasad’s judgement was right.

But this has been airbrushed from the judgement. If I hadn’t been there to report the case, no one would be the wiser that this happened.

Judge Tony Hyams-Parish disrespectful to dead man’s family

Not only to do I find this a gross omission but in my view the judge is being disrespectful to the man’s family by removing the details of the whistleblowing case. It is though he is thinking so what, a 76 year old dies, who cares?

But Judge Hyams-Parish knows he is on solid ground to ignore all this. He has already told Usha Prasad there is no recording or transcript of the proceedings, and his judges’ notes will never be released. So his judgement is the only record. And it is criminal offence if anyone has a recording.

Judgement a stain on British justice

My view is that this judgement is a stain on British justice which is supposed to be the epitome of ” fair play” and full transparency.

Instead it appears to me to more akin to Russian and Chinese justice .Here there is a semblance of justice but the result is a foregone conclusion. What appears in this case is the forces of the Establishment have been marshalled to intimidate and destroy an individual for the benefit of state power.

One good result of the publicity is that a relative of another person who died at St Helier hospital has come forward to me to investigate their case. And what happened at St Helier seems to have been picked up in Jersey, where this blog has a small circulation, and queries are being raised about a former senior manager at St Helier.

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