Judge holds hearing to decide whether Dr Usha Prasad unfair dismissal case can go ahead

Posted on April 16, 2024 by davidhencke

Dr Usha Prasad

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.

Rehana Azib KC: Pic credit: Keble College, Oxford

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.

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Whistleblower Dr Chris Day’s appeal: Has Judge Andrew Burns KC ruling made it impossible for him to get open justice?

Posted on April 7, 2024 by davidhencke

UPDATE: In a further twist in this long saga, High Court judge Dame Jennifer Eady, President of the Employment Appeal Tribunal initially took a decision not to read Dr Day’s letter complaining about the injustices in the procedure of his tribunal case against Lewisham and Greenwich NHS Health Trust . Now it has been decided that another judge will rule whether she should read the letter. Such a move has been opposed by the trust, who are represented by Old Square Chambers.

Superficially the ruling by Deputy High Court judge Andrew Burns looked like a victory for the long campaigning whistleblower Dr Chris Day to get a fair hearing at his forthcoming Employment Appeal Tribunal. He was granted an appeal on six of the ten grounds presented to the hearing and he was publicly commended by the judge for restoring the employment rights of 54,000 doctors which had been taken away in a sleight of hand by the now merged Health Education England.

But a closer look at the judgement gives a rather different picture. Instead of allowing a full appeal of employment judge Ann Martin’s flawed hearing he introduced caveats and blocked the re-examining of crucial issues. These include examining whether MPs and the press have been misled by the NHS and their lawyers, whether deliberate concealment has occurred and such startling behaviour as a Lewisham and Greenwich health trust communications director destroying mid hearing 90,000 emails that could have helped Dr Day’s defence and subsequently declining to appear as a witness.. It also allowed the health trust’s lawyers to to traduce Dr Day’s public reputation and misrepresent his motives without fear of being dragged before the libel courts or even being properly cross examined about this at the tribunal.

Three Wise Monkeys – a rather good print by Swedish musician and artist Andreas Magnusson see https://printler.com/en/poster/167372/

In short Andrew Burns judgement is a ruling equivalent to the infamous “three wise monkeys” carving at a Japanese shrine. He ” sees no evil, he hears no evil and speaks no evil” at that flawed tribunal. And he has been given by Dr Day a chance to review his findings to take account of these omissions.

Dr Day’s points requesting a review are here.

To put it simply he is blind to Ann Martin’s mishandling of that tribunal, he is deaf to Dr Day’s arguments to put this right, and he is silent about the outrageous behaviour of the trust’s employees and their lawyers, particularly Ben Cooper, KC on traducing Dr Day’s reputation and it being broadcast to MPs, the public and other trusts.

As Dr Day puts in an email accompanying his crowd justice website ” which goes into all the legal details “The Judge has allowed me to have an appeal but taken all my weapons and has blocked key issues being explored.”

The language used against Dr Day by Old Square chambers lawyer Ben Cooper would be defamatory outside a court room. He is described as ” having an obsessive belief in his victimhood”, accused of an “elaborate rewriting of history by him to fit in with his narrative” and condemned his evidence as ” dishonest and underhand.”

When pressed on this by Dr Day’s barrister Andrew Allen KC at the June 2022 Mr Cooper conceded he had no example of what he meant from Dr Day’s witness statement and Mr Allen was then prevented from cross examining Mr Cooper on Dr Day’s supplementary statement rebutting Mr Cooper’s insults and allegations.

My Statement on Ben Cooper KC – DrChrisDay

To make matters worse Ben Cooper’s attack on Dr Day’s character has been picked up by a lawyer defending lawyers Hill Dickinson against Dr Day in another case. Dijen Basu, KC from Sergeants Inn Chambers, in a skeleton argument in a case still to be heard said of Dr Day ” The diagnosis of whistleblowitis is a pithy way of describing a man who had developed an obsessive belief in his own victimhood to the point of being prepared to dishonest and underhand in pursuit of what he saw as the virtue of his cause as Mr Cooper described him.”

The irony of this attack is the case revolves around Hill Dickinson depriving 54,000 junior doctors of their whistleblowing rights whilst not revealing key commissioning contracts in disclosure the firm were paid to draft. Now who was really being dishonest and underhand!

As Dr Day purchased the transcript of Ann Martin’s tribunal he has been able to point out that cross examination of Ben Cooper’s claims was halted by the judge but she went on to allude to Ben Cooper’s argument against Dr Day in her public judgement. Dr Day argued that this a breach of court procedure but the judge did not agree.

Judge Andrew Burns did agree he had made a mistake in describing Dr Day’s withdrawal in a previous hearing in this long dispute as being caused by duress rather than misrepresentation.. This was when his lawyer Chris Milson, without his instructions, tried to negotiate a settlement which included a confidentiality clause. Dr Day was able to get Judge Burns to accept that his case was not one of duress but one of serious allegations of misrepresentation from a number of lawyers whose accounts of the infamous settlement of the Day Case in 2018 do not add up.

Dr Day has now written to Judge Dame Jennifer Eady, President of the Employment Appeal Tribunals, asking her to intervene.

Letter to Dame Eady President of the Employment Appeal Tribunal – DrChrisDay

He writes: “It may come as no surprise that I and large numbers of doctors feel deeply let down by the way the EAT has handled my case over the last 10 years. I believe its decisions have not been logical and have ignored evidence, pleadings and important appeal points. I believe the most likely explanation for
this is the EAT’s failure to manage properly the conflicts of interests and human factors that have come into play when Judges have dealt with certain issues in my case affecting their legal colleagues.”

He goes on: “The destruction, concealment and ignoring of large amounts of evidence at the June 2022 ET hearing of my case and the obstruction of 2 of our proposed cross examinations was widely reported and shocked people. Many were expecting these obvious issues to be dealt with decisively by the appeal tribunal. Instead, I have had to get into an argument with the EAT about whether such extraordinary conduct is enough for me to advance procedural unfairness as a ground of appeal”

He adds: “I am seriously considering whether I can proceed with an appeal in this court whilst the EAT refuses to answer” these points.

A check on social media of Judge Burns X account by 54,000 doctors, a group who campaign for the whistleblowing rights of junior doctors reveals how closely 3 of the lawyers involved on both sides of the Day settlement are connected socially.

Judge Andrew Burns, a former lawyer at Devereux follows and is followed by Chris Milsom – Dr Day’s lawyer in a previous 2018 case that settled ; he follows Old Square Chambers, which has a leading role in pursuing whistleblowers; Martin Hamilton, managing partner, Capsticks who Dr Day alleges misled MPs and the Board of Lewisham and Greenwich about his case and settlement. Other followers include Nadia Motraghi, KC, another Old Square Chambers that was against Dr Day, who also pursued Dr Usha Prasad, a whistleblower cardiologist at Georges and Epsom St Helier NHS trust.

Finally it turns out that judge Dame Jennifer Eady – whom Dr Day is relying on to adjudicate about this – is a former lawyer at Old Square Chambers from 1990 to 2013. During her time at Old Square Chambers, for 13 years from 2000, Ben Cooper KC, and from 2004 Nadia Motraghi were colleagues. It would be amazing if they don’t know each other very well as they practised in the same field.

So how will Dr Day get a fair hearing when three of the lawyers he is accusing of misleading on the settlement are so closely linked to the judge and the final arbiter is their former colleague now in an all powerful position to control the entire employment appeal tribunal system.

My final point from covering a number of whistleblower tribunals is that I am disgusted at the way very senior professional lawyers seem to enjoy denigrating, insulting, and belittling the careers of eminent doctors whose main concerns are to protect the public from bad medical practices which endanger lives.