The scandal of the murdered babies at the Countess of Chester Hospital and the threats by managers to doctors who wanted it investigated has gone global. So has the treatment of Dr Chris Day – who has an international following – and Dr Usha Prasad – whistleblowers at two NHS trusts.

This is a guest blog by Tristam Price, a whistleblower from Wellington, who runs an employment law website with two law advocates in Auckland. Their site Leighton Associates can be found here. They were particularly interested in Dr Usha Prasad’s case as under New Zealand law an unsuccessful litigant can be asked to pay £2000 a day for the hearing.

This is a long read but I thought UK readers would be interested to know how much detailed coverage NZ readers are getting on a site aimed at lawyers and whistleblowers in the country. Two of my blogs on Usha’s case have had nearly 2000 hits on their site.

Where the NHS whistleblower retaliators are – by Tristam Price

Where the NHS Whistleblower Retaliators are – by Tristam Price

Letby case, Countess of Chester Hospital (murder of seven infants, attempted murder of another six)

There were two whistleblowers, Dr Stephen Brearey and Dr Ravi Jayaram who shared an office.

It’s too early to go into too much detail as there is an enquiry underway. But we can stand back and examine publicised reports for evidence of whistleblower retaliation.

• There were 7 deaths for which nurse Lucy Letby was found guilty of murder, between 8 June 2015 and 24 June 2016.
• Dr Brearley raised concerns with managers Eirian Powell and Alison Kelly, Oct 2015.  It was brushed off as a coincidence and no action was taken.
• In February 2016, Dr Ravi Jarayam noted suspicious behaviour (a baby had stopped breathing).
• Dr Brearley demanded Letby be taken off duty in June 2016, after the last two suspicious deaths later found to be murders (the hospital initially refused, but then moved Letby to an admin role, and the deaths stopped).
• Medical Director Ian Harvey and another senior manager Stephen Cross opposed calling the police, preferring another agency the Royal College of Paediatrics and Child Health to investigate, which they did in Sept 2016, recommending a further external review which did not happen.  After Letby’s arrest in July 2018 it was discovered that Ian Harvey had Dr Brearey marked for retaliatory action, namely a complaint to the General Medical Council (GMC).  Fortunately that retaliatory complaint didn’t happen.
• In January 2017 the CEO Tony Chambers met with seven neonatal consultants and insisted they apologise to Letby, and warned them not to “cross the line” again.  That apology happened on 28 Feb 2017 in a mediation that Dr Jarayam attended with Letby (but Dr Breary refused to).  However, the consultants persisted and persuaded hospital management to ask police to investigate. 
• Police quickly launched Operation Hummingbird in April 2017.  Letby was prevented from returning to the neonatal unit and instead worked in the admin role for a further year before her arrest in July 2018.  That was nearly three years after Dr Brearey raised the alarm.   Around April 2018 Dr Brearey found evidence that one baby had been poisoned by insulin.
• Ian Harvey was replaced by Dr Susan Gilby the following month, in August 2018.  She found evidence in Harvey’s office of poor reporting practices and an overly secretive management culture.  A few months later CEO Tony Chambers resigned and Dr Gilby replaced him, staying in that post until 2022.  She is now suing the NHS for unfair dismissal.
• The Telegraph reported that, absurdly (or perhaps in typical DARVO style), Ian Harvey has attempted to shift blame onto the doctors.
• Alison Kelly has been suspended from her subsequent job in light of evidence that emerged during the Letby trial (probably not listening to Dr Brearley in Oct 2015).

Conclusion:

• Whistleblower retaliation at the low end by NHS standards
• Bullying and malicious complaints at the low end by NHS standards
• An overly secretive management culture; we’re not sure if this was normal by NHS standards
• Negligence, which resulted in two more deaths than would have occurred if the whistleblowers were not stonewalled.

However, if Drs Brearley and Jarayan had experienced whistleblower retaliation (perhaps utilising a legal mechanism similar to Leighton Associates’ October 2020 “manual” on gagging whistleblowers with money, threats or both), then almost certainly more premature infants would have died at the hands of Letby.

Overall, while some poor decisions were made between October 2015 and June 2016 when Letby was finally put on administrative duties, putting a halt to the suspicious deaths and sparking investigations, however clumsily, there does not appear to have been whistleblower retaliation, just stonewalling.  Nobody close to the Letby case is likely to come out of this unscathed, but at least there should be comfort in the apparent absence of a “smoking gun” of whistleblower retaliation.

Epsom Hospital – Usha Prasad

Epsom and St Helier University NHB Trust (Epsom-St Helier), 15km South of Central London is where Dr Usha Prasad received the full Machiavellian treatment at the hands of senior management as punishment for making Public Interest Disclosures in relation to a coverup of the avoidable death of a heart patient.  Epsom-St Helier made 43 complaints about her to the GMC.  All were found to be without merit.  However, Epsom-St Heliers’ counsel did manage to argue Dr Prasad out of her whistleblower protection and her personal grievance for unjustified dismissal was unsuccessful.  In the vast majority of these cases, costs lie where they fall, but Epsom-St Helier chose to pursue Dr Prasad for costs anyway. 

Dr Prasad is now unable to afford a lawyer and her GP advised the Employment Appeal Tribunal (EAT) that she was too unwell to attend a hearing on the costs claim against her.  Judge Khalil ruled that the 23 August hearing would go ahead anyway.  But given the fallout from the Letby case, Epsom-St Heliers appear to be panicking, with an initial reduction of its demand to £24,000, 13.3% of the amount it sought last week.  A hearing on the new amount was adjourned by Judge McLaren.

But the CEO can’t un-ring that bell.  While much of the litigation pre-dates “Ms T” who has been the CEO since August 2021, the initial £180,000 costs claim of against whistleblower Dr Usha Prasad seems unlikely to have progressed without the sweep of Ms T’s pen, or the click of her mouse.  If that is to be her legacy, it’s an unfortunate one.

For those who were wondering what Epsom-St Heliers’ values are:

“Above all we value RESPECT

It helps us to live our behaviours:

• Kind
• Positive
• Professional   
• Teamwork. 

So we can achieve our mission statement: outstanding care, every day.”

Erm… that’s nice.  Let’s see what’s happening about 15km northeast.

Lewisham Hospital – Dr Chris Day

The South London Trust Lewisham and Greenwich NHS Trust (Lewisham-Greenwich) dismissed whistleblower Dr Chris Day in 2014, and he has been involved in litigation since.  He had similarly raised concerns about patient safety.

Lewisham-Greenwich website says:

“The judgment of the June/July 2022 Employment Tribunal case between Dr Chris Day and Lewisham and Greenwich NHS Trust has been published. This has been a complex, long-running and high-profile case, difficult for many involved.

The Trust welcomes the Tribunal’s finding that “the Claimant’s claims of detriment for having raised protected disclosures are not well founded and are dismissed.”

The judgment did find, however, that some of the wording of a press statement issued by the Trust was detrimental to Dr Day. We apologise for that.

We also recognise that the judgment contains some criticism of the Trust, in particular with reference to storage and retrieval of corporate records. We acknowledge that there are lessons to learn here and we commit to doing so.

As a Trust we are fully committed to an open culture, where everyone should feel able to raise any concerns, and be supported in that.”

Lewisham-Greenwich destroyed evidence valuable to Dr Day, apologised for it, and won. 

On whistleblowing, Lewisham-Greenwich’s website goes on to say:

“About Freedom to Speak Up (FTSU) guardians

FTSU guardians in NHS trusts were recommended by Sir Robert Francis, following his review and subsequent report into the failings in Mid-Staffordshire. FTSU guardians have a key role in helping our staff with concerns they might have with or within the Trust. The guardians help ensure our Trust is an open and transparent place to work, where everyone is encouraged to speak up safely to address any concerns or issues they might have.”

Yeah, good luck with that, Lewisham-Greenwich staff.

We won’t be surprised if more NHS cases come out of the woodwork.  But are we suggesting New Zealand is any better?  No.  For example, a District Health Board spent at least £150,000 on a SLAPP against a cardiac physiologist and her advocate, and a Tauranga City Council had a whistleblower, who it had already bankrupted on indemnity costs, briefly jailed for refusing to cease disclosing the Council’s malfeasence.

With the fallout from the Letby case it seems likely that the burden of whistleblower retaliation will shift to the retaliators themselves, and not only in the UK.

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