They can’t or won’t explain internal NHS procedures used to dismiss the perfectly competent cardiologist Dr Usha Prasad
The long drawn out saga over the dismissal of cardiologist Dr Usha Prasad by Epsom and St Helier University Hospital Trust reported earlier on this blog continues. I will be reporting soon on a lengthy Employment Tribunal recently finished where Dr Prasad made serious protected disclosures about patient and staff safety at the trust and senior consultants were cross questioned about the way they treated Dr Prasad.
In the meantime two retired cardiology consultants Professor Jane Somerville and Dr David Ward, who are championing Dr Prasad’s cause, have tried to get explanations from two of the most senior people in NHS England, Professor Stephen Powis, national medical director and Zoe Penn, Medical Director for the NHS London region and lead official for professional standards. Dr Zoe Penn took time out during the pandemic to sit on the internal Maintaining Higher Professional Standards panel which decided Dr Prasad’s future.
At the heart of the matter is a ruling by the internal tribunal that Dr Prasad is ” not fit for purpose” to do her job. This was made by Claire McLaughlan, the never practised barrister who chaired the inquiry. with Zoe Penn. She has refused to explain what that term means which led to the two retired consultants going to the senior NHS officials for an answer.
What the panel could not rule was that Dr Prasad was ” not fit to practice” medicine even though the trust tried its best to be able to do so by sending 43 cases to the General Medical Council to show her failings.
The GMC not only threw out the Trust’s cases but decided to revalidate her to keep on working – taking away the power the trust had to stop her medical career.
Professor Powis’s response to this is: “Fitness for purpose is a phrase used to refer to behaviours which are not in keeping with the doctor’s ability to practise in a particular professional role but do not breach the threshold for GMC action, to be distinguished from those which are not in keeping with GMC
requirements on good medical practice and therefore may have an impact on a doctor’s licence or registration (“fitness to practice”).”
This is a cut and paste job from Claire Mclaughlan’s findings and takes us no further. It almost suggests the panel was upset that the GMC had ruled she was competent and made up something else to get rid of her.
Nobody can point to where in employment law this phrase comes from – let alone any case law of anybody being dismissed for being ” unfit for purpose”. Any employment lawyer who reads this blog is welcome to come forward to explain with some case law.
The other disturbing disclosure from Professor Powis is the way he dealt with requests from the two consultants for an inquiry into the whole saga.
As they say : “How is it possible for Trusts to use cost threats, expensive lawyers and dubious (and unregulated) “independent management consultants” (aka hired guns) of the type used in this case, to push whistleblower claimants into submission and thereby achieve the “desired” outcome, i.e. their dismissal? It seems to us that this case is a particularly bad example.“
They also say: “NHS Improvement has a duty to oversee behaviour of NHS Trusts. Will it continue to overlook the gravity of this and similar injustices? It is time for a review and improvement of NHS disciplinary and dismissal processes which should include senior NHS managers as well as medical personnel. “
Professor Powis’s response was to refer the case to the regional medical director for London, Dr Vin Diwakar, a close colleague of medical director, Zoe Penn. He is a distinguished clinician and a former medical director of Great Ormond Street Hospital in London.
But was he the right person to do this review? He sits on the committee in charge of the re-appraisal and relicensing of medical directors in London with Zoe Bell. Given she was also on the same panel that found Dr Prasad was” unfit for purpose”, it is not surprising that Professor Powis in his own words was ” assured that a fair and independent process has been carried out.”
A really independent review would have called someone outside the London region to do this just as the General Medical Council did when a cardiologist from the North East reviewed her case. His solution would be like Epsom and St Hellier University Trust appointing a friendly cardiologist who would find in their favour at the GMC.
Professor Powis said: “It is not the responsibility of NHS England and NHS Improvement nor that of the
National Medical Director, or NHS England and NHS Improvement more generally, to intervene to resolve in individual employment matters,… although we will consider whether employment matters could indicate wider problems with how a trust is being run.”
However perhaps the most damning issue he is silent about is the disclosure in Dr Ward and Professor Somerville’s letter about the behaviour of the former chief executive of the trust, Daniel Elkeles ( now at the London Ambulance Service) during this period.
I quote:”. It would appear that the CEO acted outside his powers by offering to bribe Dr Prasad to “drop all the actions you are taking against ESTH” and leave the Trust in exchange for which ESTH will “agree to cease the MHPS process”…..By offering these terms he was, in effect, cancelling the investigation. We think this is highly irregular. Do you agree? “
What this shows is that Professor Powis is prepared to ignore unethical behaviour in one of London’s health trusts. Either this internal official process was necessary or it shouldn’t have been brought. It is not a bargaining chip to negotiate with a competent consultant. Frankly I think it is akin to blackmail – drop your complaints against the trust or we will make sure you will regret it.
What this nasty little saga shows is that unaccountable officials at the top of the NHS are either too frightened of health trusts or happy to go along with unethical behaviour in the NHS. It is also reveals that this complicated MHPS system is in need of a radical overhaul. It is like those at the top “unfit for purpose”.
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Issue much more widespread than the public realise
The recent Dispatches programme and article in the Times by journalist Matthew Syed highlighted the plight of whistleblowers in the NHS citing the case of Peter Duffy, a consultant surgeon, working for the Morecambe Bay Foundation Trust. Faced with failures at the trust in the emergencies department he expressed concern for two patients who subsequently died from kidney sepsis.
One would have expected the Trust to have remedied the situation. Instead they turned on him rather than admit any failings. As he told Matthew Syed: ” I was on the receiving end of allegations of bullying, abuse and racism. And so what I hoped would be an attempt to raise standards became an investigation of myself”.
It took five years of toxic attacks and tribunal hearings before he won his case for constructive dismissal. The sad thing is that this is not some isolated instance but appears to be growing in an NHS that is more concerned with its reputation than the safety of patients in its care and is preparing to spend millions of taxpayers money on lawyers fees to undermine any cases brought by whistleblowers. Furthermore it is prepared to spend literally years to wear down anybody who puts their face above the parapet.
Readers of this blog will be aware of the case of Usha Prasad, a popular and competent cardiologist ( the General Medical Council has recently revalidated her) who has been driven out of the Epsom and St Helier University Health Trust ( now merged with St George’s Health Trust),
Today she starts a 16 day employment tribunal hearing as a whistleblower. She is backed by Dr Sola Odimuyiwa, from the hospital trust and two retired eminent cardiologists, Professor Jane Somerville and Dr David Ward, who believe her case is just one example of a malign system designed to cover up failures in the NHS. This week the latter two sent a letter to the Sunday Times which was edited down for publication. This is the full text:
“We thank Matthew Syed (Comment Oct 24) for his frank exposure of some of the “mistakes and weaknesses” of the NHS of which the persecution of medical whistle-blowers, as shown by the heinous story of the consultant surgeon, Mr Peter Duffy. He is one example of many.
It is a doctor’s duty of candour to draw attention to matters which are not safe for patients. This action, in good faith, prevents accidents thereby protecting patients. Hospital Trusts may not respond favourably to such complaints and may use their unbridled powers to instigate prolonged, expensive and vengeful disciplinary processes.
Medicine has learnt some of the lessons from aviation safety but the fair and open treatment of whistle-blowers is not one of them. Hospital Trusts are able to fund these processes because they can access public funds not available to the whistle-blower which is a gross imbalance of power. Shady external “management consultants”, who operate by their own rules, and expensive legal firms are hired by Trusts at great expense with the sole aim of ensuring the dismissal of the troublesome whistle-blower. This certainly affects the recruitment and retention of doctors the NHS so badly needs.
A serious consequence of this nefarious process has been the emergence of a cover-up culture in which the initial deficiencies or ‘protected disclosures’ are inadequately investigated. There is no oversight or regulation of the way Trusts investigate whistleblowers. What informal processes there are may have been designed deliberately to avoid or deflect scrutiny. We have been unable to find a body or organisation to whom to report a Trust’s bad treatment of a whistle-blower. Attempts by supporters of whistle-blowers to engage higher regulatory bodies such as NHS England are usually met with indifference.
For the victimised, whistle-blowing doctor the outcome can be devastating. Their careers are stolen from them. The reputational damage prevents them from securing another job. Serious physical and mental health problems are not uncommon and family lives are destroyed.
We think the investigation of NHS whistle-blowers, of which there have been many notable cases over the past decade, should open and accountable. It is a scandal unknown by the wider public and in need of an independent inquiry.”
A national problem
You can see they believe this is a national problem not an isolated case. It can be backed up by a roll call of cases ( some of which are not yet finished). You can click on the stories reported in various newspapers to get an idea of the scale of toxicity on this issue.
Dr Raj Mattuhttps://www.theguardian.com/uk-news/2016/feb/04/dismissed-nhs-whistleblower-who-exposed-safety-concerns-handed-122m
Dr David Drewhttps://www.theguardian.com/society/2015/feb/11/nhs-whistleblowers-the-staff-who-raised-the-alarmhttps://www.amazon.co.uk/Little-Stories-Life-Death-NHSwhistleblowr/dp/1783065230?asin=1783065230&revisionId=&format=4&depth=1
Dr Kevin Beatthttps://www.standard.co.uk/news/health/nhs-to-pay-ps870-000-to-whistleblower-doctor-who-spoke-out-on-patient-safety-a4384211.html
Dr Chris Dayhttps://www.theguardian.com/society/2018/oct/02/nhs-whistleblowing-protection-tribunal-junior-doctors
Dr Ed Jesudason https://www.drphilhammond.com/blog/2018/06/28/private-eye/private-eye-medicine-balls-1468-march-16-2018/
Mr Peter Duffyhttps://the-medical-negligence-experts.co.uk/lancaster-surgeon-peter-duffy-nhs-whistleblower-book/
Dr Claire Connollyhttps://www.rllaw.co.uk/success-at-tribunal-for-nhs-whistleblower-dr-claire-connolly/
Dr Minh Alexander, who hosts a blog site about whistleblowing having been one herselfhttps://minhalexander.com
Pandemic whistleblowers inchttps://www.independent.co.uk/news/uk/home-news/coronavirus-uk-nhs-ppe-whistleblowers-job-losses-ppe-a9515856.html
Dr Usha Prasadhttps://davidhencke.com/?s=Prasad&submit=Search
Mr David Sellu, a surgeon in the private sector, was treated badly but he was not a whistleblower just a victim of the judiciaryhttps://www.theguardian.com/global/2019/jun/16/they-look-for-a-scapegoat-a-sugeons-battle-to-clear-his-name-dr-david-sellu
But this is not the end of it by many means. Since I took up Dr Prasad’s case I have become aware through a new group. Doctors for Justice, that there are as many as 35, yes 35, other cases. Nearly all the doctors at the moment are requesting confidentiality until their case becomes public at an employment tribunal hearing. There are many, many other doctors who have quietly quit trusts to find work elsewhere because they don’t want to have to fight their employers for years on end.
Under this system it is the patient that pays the price – and in a number of cases the ultimate price – death. That is why this blog is going to keep an eye on what is going on the NHS until someone has the guts to reform the system and take on a bureaucracy that seems more interested in preserving its reputation than improving patient safety.
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Earlier this month the appeal panel set up by the Epsom and St Helier University NHS Trust under Mrs Claire McLaughlan rejected the appeal by Dr Usha Prasad, the cardiologist, against her sacking. She is said to be ” unfit for purpose”. For many the verdict was thought to be inevitable given the enormous lengths the trust had gone to dismiss her, but the findings are worth highlighting because it is a perfect example of why this internal system is in disrepute and needs to be scrapped.
The unwieldly nature of the Maintaining High Professional Standards Appeal system set up in 2003 by the NHS is itself “unfit for purpose” as illustrated by an enlightening article in the Health Services Journal by Alastair Currie, a partner with the law firm Bevan Brittan.
“No sane NHS manager would use MHPS”
He wrote: “MHPS is a calamitous mess of a document,” and goes on to say:
“MHPS, at 59 pages, is a bloated mixture of inconsistent policy verbiage and labyrinthine procedure. It seems designed to promote High Court debate … and so it often does. There is a devastating trail of case-law left by MHPS, each case involving a doctor or dentist and their employer becoming miserably entrenched in MHPS for years before landing in the courts.”
“No sane manager wants to touch MHPS, let alone use it frequently or to intervene early in borderline bad practice. It is well known that any attempt to use MHPS risks years of disputes and litigation.”
So it is a supreme irony that the law firm Bevan Brittan is the very company that facilitated the MHPS hearing on the Usha Prasad case. While Alastair Currie denounced the system in the most colourful language, his colleague Tim Gooder, was fixing up the arrangements for the hearing. Still never get between a law firm and their business to make money. I wonder which ” insane” manager from the trust engaged them.
Now to the hearing itself. The report begins with a desperate defence that the three main members of the panel are independent. Claire McLaughlan emphasises that she is a non practising barrister. What she should have said, I am told, is that she is an unregistered barrister because she has never worked for a law firm and never completed any pupillage. The analogy which she should know is that a qualified doctor is not properly qualified until he or she has worked in a hospital.
Dr Zoe Penn has a high flying job as a medical director and lead for professional standards at NHS England and Improvement (London region). She, I understand, has refused to communicate any explanation of the decision hiding behind the “labyrinthine procedure” of MPHS.
And Ms Aruna Mehta, a former banker and non executive director of the trust, I gather was appointed to the trust without any competition for the post.
The panel could not find that Dr Prasad was ” not fit to practice” because she has been both exonerated and revalidated by the General Medical Council. They didn’t even bother to read all the detailed expert findings in the GMC report. So citing the bad relations in the hospital trust between medical colleagues they decided that Dr Prasad was not fit for purpose.
Back of an envelope decision
The relevant paragraph said: “The GMC were concerned with Dr Prasad’s fitness to practise whereas the MHPS panel were concerned about Dr Prasad’s fitness for purpose. The Panel are fully cognisant that these are two different considerations, with different tests, thresholds, processes and outcomes. Fitness to practise distinguishes behaviours which are not in keeping with GMC requirements on good medical practice and therefore may have an impact on a doctor’s licence or registration from behaviours which are not in keeping with a doctor’s ability to carry out a particular professional role. Although the latter do not breach the threshold for GMC action it does mean that a doctor is not fit
Yet nowhere are these different tests and thresholds explained nor how a human being rather than a system or faulty goods can be classified as unfit for purpose. It is as almost Mrs McLaughlan made the concept up on the back of the envelope just to find anything to attack her. And also safe in the knowledge that the MHPS protects her from explaining herself.
Certainly there are purple passages slamming Usha Prasad’s perceived failings: “Dr Prasad made mediation unviable, refused to participate in a behavioural assessment, made a placement impossible, refused a sabbatical, did not engage with the Trust’s MHPS investigation, responded antagonistically throughout and submitted multiple grievances as a result of any challenge. She appears unable to accept help from her peers but sees everything through the prism of victimhood.”
Yet this is at total odds with reports from Pinderfields Hospital near Wakefield where has received glowing tributes for being able to work there with colleagues while on a placement from St Helier – the report seems to suggest that she is a Jekyll and Hyde figure.
The report does not exonerate other senior figures in the cardiology department. Dr Richard Bogle, who was head of the cardiology department, is criticised: “The Panel were concerned about some of Dr Bogle’s actions and non-actions while clinical leader and how little leadership he demonstrated. He displayed little empathy in relation to the anonymous letters. As the departmental leader he could have undertaken an investigation himself into the relationships within the department.”
Also the inquiry has to admit that the way the trust collected evidence against her to send to the GMC was dubious. “The 43 cases do appear to have been gathered in a haphazard, rather than properly random, fashion. This could be construed as a hunt for evidence rather than a proper audit of clinical care against known gold standard best practise which is properly comparative with others i.e. benchmarking.”
This sorry saga has ended with a popular and competent cardiologist dismissed from the trust and declared to be ” unfit for purpose” as a human being. The truth, as I see it, is that it is the system that judged her that is ” unfit for purpose” not Dr Prasad.
THE USHA PRASAD FILE: PREVIOUS STORIES
Professor Jane Somerville, a distinguished cardiologist , who took part in the first heart transplant in the UK, has put up this comment on the situation:
This story highlights a serious problem within the National Health Service which needs urgently to be addressed by the Department of Health. The number of new whistleblowing scandals is steadily increasing. It is concerning when dismissal of a senior doctor following a “whistleblowing” event (as in this case) occurs at a time when insecure young doctors and new consultants are worrying about what sort of National Health Service has employed them – and in the middle of the worst pandemic for 100 years! In David Hencke’s excellent factual reports, a BAME consultant, easily bullied by the Trust despite being found by our regulatory body (the GMC) to be ” fit to practice” has lost her livelihood on grounds of not being “fit for purpose”. This interesting phrase does not appear in English Employment Law, and when used applies to services or goods. Perhaps the Trust wishes to show she is as useless as a cardboard box!
Why does the Department of Health or NHS England allow hospital Trusts to do this, to fight whistleblowing staff but fail to address their original concerns or even pay any lip service to them, using vast sums of taxpayers money (>£700k going on £1m in the case of Dr Chris Day, see @drcmday on Twitter) which the “little person”, the doctor under fire, cannot hope to match? In an exercise of gross imbalance of power and taxpayers’ money Trusts respond to whistleblowers by using panels of seemingly prejudiced and dubious panellists and often expensive lawyers.
These bullying Trusts have too much power and no one seems to be able or willing to control their excesses. This is not a unique case. There have been several very prominent examples in the national press over the past 2 decades. The Department of Health should be concerned about the oppression of their vital professionals, unequipped to fight back and often not helped by representative bodies (such as the BMA), or seniors who may themselves be too frightened of a Trust’s retribution. This cannot be a fair outcome for whistleblowers whose primary motives are to preserve and maintain patient safety, often requesting simple as well as fundamental changes and fair but thorough investigation of underlying problems. A Trusts’ response to whistleblowing often seems corrupted by internal bias. The Department of Health turns a blind eye or does not care. Sir Robert Francis QC was asked to report (2010 and 2013) on failings of Mid Staffs management and avoidable loss of lives. He made many (290) recommendations and introduced the Freedom To Speak Up Guardian. Only a few of 290 recommendations were adopted and FTSU process is not functioning as intended. The Dept of Health should be ashamed of ignoring its responsibilities to the NHS, its doctors (and nurses) and the British electorate. Not to mention the huge sums of taxpayers money expended to save face and cover up the initial problems as well as the labyrinthine process itself.
Professor Jane Somerville
The National Health Service has a largely hidden system of justice when a health trust is involved in a dispute with a doctor. It holds internal inquiries and appeals in private to decide whether a doctor should be dismissed.
The people who chair and sit on the inquiry are drawn from a list that a health trust can choose. The same people are also chosen and paid by trusts to build up a case against a doctor. The people who get onto the list normally have had a career in the NHS but are now running their private businesses in Claire McLaughlan’s case offering rehabilitation to doctors who have fallen foul of their own health trust.
I have chosen Claire McLaughlan as an example because she has been and is involved in three high profile cases where doctors have challenged decisions by health trusts to dismiss them. They are Dr Raj Mattu, who won a spectacular £1.2 million settlement after being unfairly dismissed for warning about patient safety in a cardiology department; Dr Chris Day, who is still fighting his dismissal for warning about patient safety at an intensive care unit at Woolwich Hospital, and as readers of this blog will be familiar, Dr Usha Prasad, a consultant cardiologist at the Epsom and St Helier University Health Trust, who is currently awaiting an internal inquiry appeal over her dismissal from the trust.
I did offer Claire McLaughlan an opportunity to comment but have received no reply to my request.
From Royal Navy nurse to clinical assessment services
Claire McLaughan’s nursing career started in the Royal Navy before she became Head of Fitness to Practise at the Nursing and Midwifery Council and then moved to the now renamed National Clinical Assessment Service (NCAS) becoming, an Associate Director. There she developed the NCAS Back on Track Services for doctors, dentists and pharmacists between 2008 and 2014.
She also did obtain a law degree and was called to the Bar but as far as I could ascertain never practised as a barrister despite calling herself a non practising barrister. Certainly the Law Society do not appear to have any records of her working for chambers.
She left NCAS and set up her own business which offers a huge list of services which are listed on her Linked In page. It begins “Claire provides bespoke, holistic services and access to resources relating to performance management, revalidation, remediation, reskilling and rehabilitation for health professionals and the organisations they work in.”
Her company CC McLaughlin Services ( website here) which appears to be run according to the website from their home in Stockbridge, Hampshire, ( though it has a registered office in Winchester), which they purchased according to the land registry for £600,000 in 2010.
The latest Companies House accounts for the firm show that she and her husband, fellow director, Charlie ,have a thriving business. Latest company returns show it made a profit of £137,000. Both directors pay themselves in dividends rather than salaries which is more tax efficient.
While working in the private sector she holds a number of NHS posts including Chair for NHS England’s Performers List Decision making panels( they decide the internal inquiries) She is also an Invited Review panellist for the Royal College of Paediatrics and Child Health and an appointed lay member of the Royal College of Veterinary Surgeons.
Given this stellar series of appointments it is rather surprising that in two cases she has been subject to criticism- and in one case had to apologise.
The first case involved Raj Mattu, a cardiologist with the University Hospitals Coventry and Warwickshire NHS Trust. He was dismissed after he warned of serious patient safety problems at Walsgrave Hospital. He lost his court battle but won an employment tribunal and was awarded over £1m damages in 2016.( see here).
Claire McLoughlan, who appeared for the trust, was criticised by employment judge Pauline Hughes for an important omission in her evidence. The extract in her judgement says:
Her second case was highlighted by Chris Day. She was paid by Greenwich and Lewisham NHS Trust to investigate his claims of patient safety concerns at and was working with M J Rhoddis Associates. They were paid over £40,000 for the work.
In a recent letter to the Care Quality Commission Mr Day said that he came to a meeting with them to explain the circumstances of his concerns – only to find afterwards that the record of what happened had been completely altered, important points were left out, his views were distorted and comments attributed to him which he never said.
He got an apology from Mrs Mclaughlan and the record was altered.
Now at the moment Mrs McLaughlan is about to issue her verdict as chair of an internal inquiry on the fate of Dr Usha Prasad, who has already been exonerated by the GMC, so there can no question of patient safety being at risk. There is the question why this appeal is being heard while we still have a pandemic and St Helier hospital has been hit badly by it. It goes against NHS guidance to have it now and Mrs Mclaughlan as chair of the NHS England Performers List should know. Obviously she has not followed NHS guidance in this instance.
Is it a chumocracy?
These internal NHS hearing are areas where journalists rarely investigate but to my mind raise a lot of questions which need answering. Is this rather closed system open to chumocracy? How curious that people can glide between the public and private sector running a successful business on the proceeds? How independent are these people if they are paid by the trust which obviously in all three cases wants to get rid of the doctor concerned?
And most importantly whatever findings come out – they can ruin the professional careers of doctors – and should that be left to a secretive system to decide their fate? And why is all this taxpayers’ money going on these long and drawn out proceedings which are money making troughs for all the lawyers concerned?
The Migration Museum – an innovative project to create the first permanent home for a museum in the United Kingdom devoted to a story that probably affects every person in the country – is looking for new trustees.
They will come at a time when the museum – at present in a temporary home in a shopping centre in Lewisham, south London is planning to boost its profile and move centre stage to highlight the issue and all its extraordinary facets.
As the prospectus for new trustees says
” Never before has there been stronger justification for there to be a welcoming and stimulating cultural institution – away from the polarising noise of politics and the media – to explore some of the most pressing issues of the day – migration, race, Brexit and our colonial past among them – in a richly aesthetic atmosphere of calm reflection.”
Aim, Vision and Values
The projects aim, vision and values are summed up in three paragraphs:
“Our Mission is to deliver a popular, high-profile and accessible cultural institution, to which every person in the country can feel a sense of belonging and that puts Britain’s migration story at centre stage.
“Our Vision is of a society in which we all (for we all have migration stories in our family past, if we dig a little) feel connected and represented in an essentially British shared migration story.
” Our Values are to promote tolerance, understanding, respect and participation, and to engender a real sense of representation, both beyond our organisation and within it. This means that we are strongly committed to promoting diversity and representation within our Board, not only to reflect the lived experience of our
audiences, but also to deliver role models for those who join, or aspire to join us, as trustees, employees, volunteers or collaborators. “
For the last few years the museum has already put on a number of exciting events – from recreating the Jungle camp ( and all the art) made by migrants in Calais to putting on a concert by Aeham Ahmad, the incredibly brave and talented pianist who played his piano on the streets of bombed out Yarmouk in Damascus until he was forced to flee by the Syrian dictator Assad to Germany.
More recently during the pandemic there has been a digital exhibition of migrants contribution to the NHS and a series of digital exhibitions telling the story of emigration from the UK and those who were left behind.
For those who might be interested the deadline for applications is May 3 and the prospectus and all the details are here.
I am one of 120 Distinguished Friends of the Migration Museum and am a strong supporter of the project. I have also written a number of stories on this blog on some of their past exhibitions. Here are a few of them.
Dr Usha Prasad, the cardiologist currently appealing against her dismissal from the Epsom and St Helier University Trust, has been exonerated by General Medical Council of any medical failings or putting patient safety at risk.
The decision by the GMC not only rejected a dossier of complaints from the trust but decided that the issue was closed and will not be re-opened again by the GMC.
The decision is part of a long running saga that has been going on for nine years and heightened by an anonymous letter sent by Dr Perikala, a staff doctor, who made the patient safety allegations in an anonymous letter to the General Medical Council, Care Quality Commission, Daniel Elkeles, the chief executive of the trust and Jeremy Hunt, then the health secretary in 2015.
The GMC initially declined to investigate Dr Perikala’s anonymous complaint but the trust has persisted in pursuing her at the GMC.
I understand Dr James Marsh, the trust’s medical director, and Dr Richard Bogle, the lead cardiologist at the trust, compiled a dossier of no fewer than 43 cases which they claimed should be investigated. The GMC narrowed it down to seven cases and sent them for review to a very distinguished consultant at the James Cook Hospital in Middlesbrough whose career has spanned work at Papworth Hospital and Addenbrooke’s Hospital in Cambridge. The very detailed report came back completely exonerating her of any failings. She has also received glowing references from Pinderfields Hospital where she is currently working as a cardiologist after the Epsom trust dismissed her.
The GMC’s decision comes just as an internal inquiry into her appeal is under way. This is being heard by Claire McLaughlan an independent consultant, and Associate Director of the National Clinical Assessment Service with an interest in the remediation, reskilling and rehabilitation of healthcare professionals. The case was also being followed by Dr Zoe Penn, Medical Director NHS England ,London Region and Lead for Professional Standards. She is sitting on the panel with Claire McLaughlan. Ms Mclaughlan runs a private business with her husband in Hampshire.
The fact that the hearing is taking place now is questionable since Professor Stephen Powis, national medical director of NHS England, told health trusts NOT to hold such hearings when the NHS is under pressure from the pandemic. I checked with the press office of NHS Resolutions and they have supplied me with the guidance for such hearings. They really should only be held if there is an absolute necessity and immediate risk to patient safety. Now with the GMC deciding there is no current and immediate risk to patient safety in Dr Prasad’s case – this makes the hearing even more questionable.
Officially the GMC will not comment on personal cases but they did confirm her clean bill of health entry on their public register which is reproduced below. All entries on this register have to be kept up to date on a daily basis. The saga continues but the case being made by the trust looks pretty weak after this decision by the GMC.
There are three earlier blogs on this issue.
Since this blog was published I have had this strong message of support from Justice for Doctors. Here it is:
Dear Mr. Hencke, you are doing an excellent job by highlighting the problems with our NHS and how splendid doctors like Usha Prasad had been treated. It was very courageous of Usha to challenge the wrongdoings and the harsh decisions by our health institutions at a time when the GMC are calling retired doctors to rescue the overstretched NHS.
Without dedicated and committed doctors like Usha Prasad, our NHS will crumble and collapse. The misleaders and bullies will remain to demolish what goodness is left in our NHS. Unfortunately, most doctors retire or change location whenever they were unfairly challenged. Moving away will not solve the problem but encourage bullies and harassers to thrive and do more damage.
In our view, Dr. Prasad has won the moment she decided to stand firm and challenge the discrimination, the harsh and unfair decisions. We congratulate both of you for raising awareness about what goes on in our hospitals and congratulate Usha for her courage and conviction.
On behalf of Justice for Doctors
The Parliamentary Ombudsman has already – as I wrote in an earlier blog – faced a critical report from MPs on the way it handles some of its work.
And Michael Gove, the Cabinet Office minister, has also turned down any prospect of new legislation to modernise the service by combining its work with the local government and social care ombudsman.
Not content with that, Rishi Sunak, the Chancellor, has now postponed a three year funding programme which would have allowed it to introduce changes to improve matters.
Instead The Treasury has decided to give it just one year’s worth of funding and instructed it to concentrate on handling complaints arising out of Covid 19 pushing aside other grievances..
Details of this latest bad news has not been put out in any press release by the Ombudsman but has been hidden away in the correspondence section of the House of Commons Public Administration and Constitutional Affairs Committtee.
A letter from Rob Behrens, the Parliamentary and Health Service Ombudsman, to William Wragg, the Tory chair of the committee, reveals the not very bright future for people wanting to take the NHS to the Ombudsman or for the 1950s born women hoping for compensation for maladministration over the six year rise in the date they could claim their pension.
In the letter Mr Behrens says “We will postpone the launch of PHSO’s new three-year strategy until we can secure the three-year funding settlement necessary to deliver it. Instead, we will use 2021-22 as a bridging year to lay the foundations for the new strategy and focus on addressing the significant operational challenges facing PHSO’s service.”
Severely affected by Covid – 19
He goes on to describe what next financial year will be like:
“PHSO’s service has been severely affected by the ongoing COVID-19 situation in a number of ways, from the impact of school closures on the availability of staff, to pressures on the NHS that mean services are taking longer to respond to PHSO’s requests for information.
“As a result, PHSO is closing substantially fewer cases than usual and, in turn, this means a growing number of complainants are waiting for their case to be allocated to a caseworker.
“Although we have started to recruit some more caseworkers, it takes a minimum of six months to train new staff and even with additional caseworkers, it is clear that complainants will face increasingly long wait times unless we take further action.”
Delaying revealing the size of the complaints waiting list
I asked the Ombudsman to give me details of how many cases they were and how long they were taking. I also asked about the size of the waiting list. Simple questions enough if they are on top of the job. Instead they have decided to turn it into a Freedom of Information request which will give them a month or two to reply. I will report back when I have the figures.
In the meantime the letter says: “This means we will prioritise the quality and productivity of PHSO’s core complaints-handling service. We will also use 2021-22 to carry out preliminary work to support the new three-year strategy, such as improvements to some of PHSO’s core systems and processes, and highlighting
opportunities for Parliament to make essential improvements to PHSO’s legal framework, such as removing the MP filter.” The latter point is that all complaints have to go through MPs at the moment.
The whole situation is not good at all. But I am not surprised that the government is not keen on funding or modernising the service. A more efficient service will bring to light injustices – which means a bad press for government services – and ministers don’t like bad publicity. Far better to deprive the Ombudsman of cash and keep the announcement hidden in the correspondence column of a committee.
If you have a complaint about a government department or the National Health Service your last port of call is Rob Behrens, the Parliamentary and Health Service Ombudsman. He is the current post holder of an institution set up 54 years ago by the second reforming Labour government led by Harold Wilson.
A report by MPs today is both critical of the performance of the Ombudsman – particularly over transparency – and of the government for not even considering new legislation to give the Ombudsman fresh powers and bring its work into the 21st century.
The minister blocking any change is Michael Gove, the Cabinet Office minister. He has ruled out any new law that could streamline the operation by combining its work with the local government and social care ombudsmen; give it powers to initiate investigations and strengthen its work dealing with complaints.
No doubt as one of the country’s leading power couples – Michael Gove and Sarah Vine – are able to use their influence through the current ” chumocracy” to deal with any complaints they might have without having to resort to anybody like the Parliamentary Ombudsman But for ordinary people it is quite different
As the Chair of the Public Administration, and Constitutional Affairs Committee, Tory MP William Wragg MP said:
“The Committee appreciates the pressing priorities facing the Government, including, of course, the current pandemic. But reform of the legislation governing the PHSO is worthy of parliamentary time. The PHSO represents the final stage in a complaints process that can be traumatic for complainants and may include serious matters such as the death of a loved one. It is essential that people have faith in a transparent, effective organisation. The current out-dated legislation undermines this crucial ambition”.
No action yet on long standing 50s women complaint
This leaves questions about how good Rob Behrens is in doing his job given the current restraints. He is currently looking at whether women born in the 1950s are entitled to any compensation for maladministration for failing to notify them of the raising of the pension age. And he is taking his time about it – despite MPs encouraging and recommending WASPI supporters to follow this route. Indeed the report includes a complaint from Frances Martin:
Her submission said:( I have left the capital letters) “There Is Still No Definitive Time Line For Finalisation, Nor, Importantly Has There Been Any Attempts To Provide An Impact Assessment, Notwithstanding, All Of The Above I Am Without Any State Aid Benefits Since Nov 2015, Am Redundant In A Jobs Blackspot And Have Been Excluded From Financial Assistance Through Rishi Sunak’s Furlough Scheme. As A Woman Of Over 60 Am At Greater Risk With Regard To The Covid Outbreak. None Of These Facts Seem To Have Been Considered By An Organisation Which Purports To Be Fair/Impartial Etc And Certainly Is Not Best Practice In Any Organisation That I Have Worked In Both In The Uk And Overseas.”
Both the MPs and the general public have raised a number of shortcomings. For a start he muddies the waters on the cases he takes up. The MPs report he conflates cases that “are not ready to be taken forward” and “should not be taken forward” so we don’t know what he is doing. He doesn’t report on the number of partial decisions.
He was accused of misleading Parliament by not proactively reporting that you can’t directly compare the figures for the number of cases referred to him over the last two years – because a new digital case system has made it impossible.
Since this blog was published there has been a sharp exchange of views between the Ombudsman and the chair of the committee over whether Rob Behrens misled Parliament by not proactively reporting the number of cases referred to him accurately. Mr Behrens accused the committee of being ” factually inaccurate” in suggesting this. William Wragg, the chairman, stood his ground and said MPs felt there were discrepancies in his evidence and it was important the Ombudsman updated information to MPs in a timely manner. He said that did not mean he was misleading Parliament. Letter exchanges are here and here.
He comes out well in treating people with dignity and respect and listening to their claims. But comes out badly for the time he takes to come to a decision and explaining it to the complainant.
More seriously he doesn’t seem to check back with the complainant that he has got all the information or give them a progress report.
” systemic disability discrimination in the Ombudsman’s office”
The report also contains some very critical comments from the public about the Ombudsman’s handling of some cases. MPs don’t investigate them but attach them to the report.
In one just known as A7 on the death of a disabled child in NHS care the person wrote: “In my and the experience of other parents of disabled children, rather than impartially investigating concerns concerning disabled children, with parity of esteem, investigations seem to be focused on justifying the actions of health professionals, however, unreasonable that behaviour is.”
The person added: “This seems to be a manifestation of the systemic disability discrimination found in poor parts of the NHS spreading to the PHSO office.”
Another from Dr Minh Alexander and Ms Clare Sardari on “a mishandled referral to the Care Quality Commission under Regulation 5 Fit and Proper Person, about an NHS trust director who had been found guilty of proven whistleblower reprisal and breach of the NHS managers code of conduct (an under-declared family interest), who was subsequently convicted of fraud and also criticised for her attempts to resist the proceeds of crime process.”
Ombudsman can’t “deliver accountability and good governance”
They conclude: “There was a lack of rigour by the PHSO in pursuing compliance with its recommendations for corrective action by the CQC, notwithstanding its lack of enforcement powers. It seemed to us that a procedural box had been ticked and thereafter, the PHSO was not interested in enough in ensuring that there was learning or genuine remedy of injustice.”
“We do not consider that the PHSO model is robust enough to deliver accountability and good governance in public life, because of insufficient powers and the lack of a duty on the PHSO to enforce improvements and corrections. It does not seem good value for money (budget 2019-20: £25.942 million) and we ask parliament to consider an alternative model of conflict resolution.”
I could go on with other examples. Suffice to say both Mr Michael Gove and Mr Rob Behrens seem to have a lot of explaining to do. Mr Gove for not bothering to do a thing about updating and strengthening the Ombudsman’s role and Mr Behrens for not being up front with complainants on how he is conducting his investigations.
Epsom and St Helier University Hospital Trust has hit the headlines by allowing the Times (behind paywall) access to their intensive care unit to see the heroic work of doctors and nurses fighting to save people’s lives from the scourge of Covid 19.
This highly commendable act brings home to the public the work of the NHS saving lives and the heartbreak caused by the Uk’s appalling death toll from the pandemic.
Yet while all this was going on the trust chose to hear an appeal by Dr Usha Prasad in the very week when Covid 19 admissions are expected to peak taking away highly skilled consultants away from the front line caring for patients not only fighting the scourge of Covid 19 but from other life and death surgery involving heart, kidney and liver disease. They also tried to take away consultants working for other trusts and a private hospital to bolster their case against her.
The timing of the appeal hearing appears to go against advice from the top of the NHS as prescribed by NHS Resolutions and by Professor Stephen Powis, national medical director of NHS England, NOT to hold such hearings when the NHS is under such pressure.
I checked with the press office of NHS Resolutions and they have supplied me with the guidance for such hearings. They really should only be held if there is an absolute necessity and immediate risk to patient safety.
The guidance says: “We recommend that serious consideration should be given at this time as to whether alternatives to exclusion or substantial restrictions on clinical practice can be considered, so that the practitioner is not removed from the workplace at a time when there is such immense pressure on clinical staff. “
In Dr Usha’s case there was no immediate risk to patient safety as she is currently a locum cardiologist at Pinderfields Hospital in Yorkshire. There have been no complaints there, quite the opposite, and neither have the General Medical Council ruled she is not fit to practice.
Yet the trust decided to rush ahead with this hearing and not surprisingly, in the current situation, came to grief.
The original plan was for a one day hearing with five witnesses for the trust in the morning and for Dr Usha Prasad’s witnesses in the afternoon. The hearing was organised by Bevan Brittan, a law firm ( more taxpayers money for lawyers). The chair was Claire McLaughlan an independent consultant, and Associate Director of the National Clinical Assessment Service with an interest in the remediation, reskilling and rehabilitation of healthcare professionals. The case was also being followed by Dr Zoe Penn, Medical Director NHS England ,London Region and Lead for Professional Standards. She is sitting on the panel with Claire McLaughlan.
It went wrong from the beginning. Instead of starting in the morning, it didn’t start until the afternoon. Two of the five witnesses didn’t attend because, unsurprisingly, they had urgent clinical duties in the middle of a pandemic. None of Dr Prasad’s witnesses were heard as there was not enough time and there will have to be another day set aside for the hearing.
The five people who were due to attend for the trust were extremely busy. They are Dr Richard Bogle, cardiologist at Sr Helier and St George’s ( see CV here):Dr James Marsh, medical director for the trust; Dr Peter Andrews. clinical director and renal specialist; Dr Yousef Daryani, a cardiologist from Ashtead Hospital; and Dr David Fluck, medical director, from the Ashford and St Peters NHS Foundation Trust. The last two did not attend.
Who is missing for the trust is Dr Perikala, the more junior doctor, who made the patient safety allegations in an anonymous letter to among others, Jeremy Hunt, then health secretary presumably expecting he should rush down to St Helier Hospital and put a stop to Dr Prasad immediately. His letter – the subject of three employment tribunal hearings – for some reason does not factor in this hearing.
Altogether I find as a layman this is an extraordinary state of affairs- petty bureaucracy run riot. The tragedy is that this is happening when thousands of NHS patients are dying and medical staff are completely stretched. It undoes all the commendable work the trust has done to bring public attention to how the NHS is doing its best to help people in their direst hour of need.
Just before Christmas I carried a blog on a tribunal held in Croydon looking into allegations of sexism and racism brought by Usha Prasad, the sole woman cardiologist employed by the Epsom and St Helier University Health Trust. The case centred round an anonymous letter by a junior doctor who believed she put patient safety at risk and sent it to the chief executive, the Care Quality Commission, the General Medical Council; Jeremy Hunt, then secretary of state, and one of her patients.
She lost the case at a bizarre hearing presided over by employment judge Katherine Andrews which would only discuss whether the letter was racist or sexist.
But now two very eminent cardiologists Professor Jane Somerville and Dr David E Ward, have come forward to speak out in her defence – and raise much wider issues about how our National Health Service is being run and how trusts are using taxpayers’ money to pay large sums to lawyers to silence people who raise uncomfortable issues they would rather brush under the carpet.
Professor Jane Somerville, now 87, is one of the country’s leading cardiologists. She recently was awarded the World Heart Federation Award for Outstanding Contribution to Cardiovascular Health for defining the concept and subspecialty of grown-ups with congenital heart disease (GUCH) and being chosen as the physician involved with Britain’s first heart transplantation in 1968.
David E Ward has recently retired as a cardiologist at St George’s Hospital, in South London.
This is Jane Somerville’s detailed comment:
“There are many serious problems that are illustrated from this sad report of the ruining of a young doctor’s career as a cardiologist. She was an obvious target for bullying, harassment, and victimization by management at all levels. Why? Because she was Asian (foreign), small and female. This is such easy picking for those in charge to establish a continuous stream of it as indeed is shown over years.
“What is of more concern is the failure of the regulatory bodies and support services on which we have been brought up in medicine to believe they will be there for us to help give advice and support when in need. Just to name a few involved in this case: BMA, legal representation, GMC, MPA or MDU and indeed, the civil law itself. This is particularly important as the offending trust can afford on taxpayers money to engage the best advisors and the young doctor cannot afford to enlist such help.
questioning integrity and fairness of the judiciary
“Now from this case, one is forced to question the integrity and fairness of the actual judiciary. This is something one hopes in a civilised country one would never need to do. However in this case it is clear to assume that what has been reported is true, that the judge was biased against Dr Prasad with more than one example and did not allow relevant evidence (letters) to be shown.
“It is clear from the beginning of this case which started with simple complaints related to poor bureaucratic and system management which was influencing safety and comfort of patient management and continuing a few months later with acceptance from the trust with anonymous letters from her junior colleague and unacceptable behaviour in contacting one of her patients, that the trust was not interested in being even handed to her and worse, wanted to get rid of her.
” In these current times of enormous difficulty and pressure in the NHS where it is clear that junior staff and nurses are needed and should be valued and cared for, that one must wonder why anyone would want to work in this trust or other trusts who have shown similar behaviour, victimising a young useful doctor. Despite what claimed, doctors who draw attention to something wrong for patients or staff safety (whistleblowing), have little or no protection in the bullying Trust.
The Department for Health with all its talk needs to address this matter urgently and stop just giving lip service to the excellent recommendations (Sir Robert Francis QC) that have been made to them. They must be made responsible for this bad behaviour by trust managers which alas is not unique to Dr Usha Prasad.
Dr David E Ward
Dr David E Ward commented earlier on my blog as aceofhearts44. He is now happy to repeat his view in his own name.
“I know Dr Prasad as friend and colleague. I and a senior eminent British cardiologist have been supporting her cause for sometime. It is astonishing that what was initially an anonymous complaint has led to a chain of events culminating in the dismissal of a small, female doctor of Asian descent. It smacks of bullying, victimisation and other behaviours doesn’t it?
Something is seriously amiss in this story. It needs to be exposed. It’s heartening that a respectable journalist has taken an interest (we tried unsuccessfully to get others involved). Let’s hope justice is done. Sadly I’m not optimistic. We will continue to support Dr Prasad in any way possible.”
Something seriously wrong in the NHS
These are not the only people who are concerned. I have had a number of people contact me – some in confidence – who are raising similar behaviour elsewhere – and want me to look into other cases. Since this is not a mass circulation blog – with the exception of the campaign I have backed for justice for the 1950s born women who are having to wait another six years for their pensions – it suggests to me that there something seriously wrong in the NHS and needs a thorough investigation. Otherwise I would not have such a strong response.