My blog in 2021: The year the number of hits reached three million

London fireworks ushering in the New Year. Pic credit: BBC

Happy New Year to all my readers and followers.

This year my blog hit another milestone since it was launched in 2009 after I left the Guardian . The number of hits on the site topped three million – 3,113, 413 to be exact.

Last year this blog received 286,840 hits and over 203,000 visitors. This is smaller than the previous year but still a substantial number for a single handed blog. It is also the year when I started to solicit donations for my investigative work and I have now received close to £2000 in four months.

Part of the reason for the drop is that Back to 60 campaign which I still support has now morphed into a broader campaign – CEDAWinLAW- which people have needed time to get their heads round. Back to 60 was a simple single issue campaign concentrating on getting full restitution for 3.8 million 50s born women who have had to wait up to six years for their pension. Now it has changed into a much bigger campaign covering ALL discrimination against women based on a UN convention which we ratified in 1986 but have never fully implemented- the UN Convention on Eliminating All forms of Discrimination Against Women.

CEDAW tribunal last year attracted a lot of interest

This is now making its mark – two of my highest blogs hits last year- relate to the new CEDAW campaign getting 6500 and over 8,800 each.

The top blog came from a tip off from a reader, Rosie Brocklehurst, who received a threatening letter from the Department for Work and Pensions as part of an anti-fraud exercise to gather information from pensioners. The top line was : ““If you fail to be available for this review and do not contact me, your entitlement to State Pension may be in doubt and your payments may be stopped. ( Bold type my emphasis). This had 25,652 hits.

The second highest at 20,643 came from a 50s woman whose Freedom of Information request revealed the Department for Work and Pensions had never conducted an impact assessment on the effects of raising the pension age for women from 60 to 66.

One older blog which exposed the huge £271 billion savings made by successive governments putting money into the national insurance fund made the top ten blogs – adding another 9828 hits – taking it to an astonishing 331,000 hits since it was published.

Rob Behrens – Parliamentary Ombudsman. His report findings leaked.

One controversial blog leaking the maladministration findings of the Parliamentary Ombudsman’s draft report on 50s women over the raising of the pension age had 9,688 hits. Senior members of the WASPI campaign who knew this wanted me to take it down for fear the Ombudsman would change his mind. This turned out to be groundless and a lot of people were given advance warning.

More next year on Whistleblowers

Next year as well as following through CEDAW, keeping an eye on pension developments, I will also be taking up more and more whistleblower cases -involving doctors in the NHS, Sellafield and other areas. One case I took up last year was the plight of Dr Usha Prasad, a cardiologist who has been dismissed by Epsom and St Helier University Health Trust after exposing an avoidable death there. The combined blogs in her case have topped over 8000 hits. Expect more of this.

Global reach of the blog

An analysis by WordPress shows that my blog has a very big UK audience – over 264,000 hits out of the 286,840 last year – with the remaining 22.700 coming from overseas. Biggest overseas hits were from the United States ( 6821), Spain (3071) and the Republic of Ireland ( 2143). But on a much smaller scale it also has a global reach covering almost every country in the world, including hits from the Marshall Islands, Greenland, Russia, China, India, Mauritius and nearly every country in South America, Asia and Africa plus Canada, Australia and New Zealand and the whole of Europe.

Next year will be challenging – I already have enough new stories to investigate -plus a some long term investigations which take a while to come to fruition. Please continue to donate to my blog to keep my investigations going.

One-Time
Monthly
Yearly

Make a one-time donation

Make a monthly donation

Make a yearly donation

Choose an amount

£5.00
£10.00
£20.00
£3.00
£9.00
£60.00
£3.00
£9.00
£60.00

Or enter a custom amount

£

Your contribution is appreciated.

Your contribution is appreciated.

Your contribution is appreciated.

DonateDonate monthlyDonate yearly

Please donate to Westminster Confidential

£10.00

Exclusive: Three year cover up of avoidable heart patient death at Epsom and St Helier Health Trust revealed at employment tribunal

Cardiologist Dr Richard Bogle admits trust should have told the coroner and the Care Quality Commission about the death at the time

Former consultant also says old X ray machines at Epsom Hospital put staff and patients at risk from radiation when they are fitted with pacemakers

Dr Richard Bogle, the former head of the cardiology department at the Epsom and St Helier University health trust, admitted to an employment tribunal that the trust should have reported the death of a 76 year old heart patient to the Coroner and the Care Quality Commission three years ago.

The doctor under cross examination from barrister Matt Jackson described the death as “tragic ” and admitted the trust should have informed both the coroner and the CQC. He said that although he was on ward duty he did not know anything about the patient and ” couldn’t have been expected to know about all the patients at St Helier hospital.”

The details came out at a recent tribunal hearing under Judge Anthony Hyams-Parish, brought by Dr Usha Prasad, a cardiologist who has been dismissed by the trust even though the General Medical Council has exonerated and re-validated her as “fit to practice” medicine. She decided to make two protected disclosures under the Whistleblowers Act after the trust covered up her findings on the death. You can read a series of previous articles on this blog about the battle Dr Prasad has had with senior staff at the trust.

The disturbing case of patient Mr P

The patient known as Mr P was admitted in August 2018.Dr Prasad’s witness statement said :”He died of heart failure on 5 September 2018 having been previously admitted from 5 to 15 of August to Ward 6 which is a ward run by cardiology and respiratory medicine at St Helier hospital. Mr P had been admitted with breathlessness and diagnosed with pneumonia. However, an echocardiogram had been ordered by Dr Foran (Cardiologist) which showed evidence of “severely impaired left ventricular systolic function…. [with a] drop in left ventricular function since last scan, previously mildly impaired.” The echocardiogram was performed when Dr Richard Bogle was assigned to the ward and the results could not have been known by Dr Foran. The pneumonia was successfully treated by the respiratory physicians and Mr P was discharged after about 10 days. The echocardiogram had shown signs of severe left ventricular failure but the results were not recognised by the chest physicians or cardiologists on the ward. The patient was discharged after having largely recovered from the pneumonia during his first admission and then was readmitted on 4 September with severe left ventricular failure from which he died shortly afterwards on 5 September 2018. The certified cause of death was heart failure.”

Dr Usha Prasad

Dr Prasad was assigned by Dr James Marsh, the medical director to write up a report on the patient’s death. Her conclusion was that it was a Serious Untoward Incident Level 5 – that is the hospital caused severe harm to the patient leading to his death. This would lead to a report to the coroner and the CQC. The coroner could look at how the patient died and the issues surrounding it to help prevent other deaths.

What followed were attempts by other senior consultants to water down the report and delay its completion which Dr Prasad refused to do. Those involved in this exercise included Mr Karim Bunting, the quality manager at the trust and Dr Simon Winn, Clinical Director for Acute and General Medicine, She was asked to make the report in her words “inaccurate” and Dr Winn drafted an alternative version. He accepted that a serious mistake had been made by not recognising the result of the echocardiogram but put the emphasis on the lack of communication between the respiratory physicians and the cardiologists. He did not accept it as an avoidable death.

It is not known whether the patient’s relatives were properly informed about the circumstances of the death or which version of the report they have been shown if any. There is a duty of candour if someone has died.

Epsom hospital Pic credit: Epsom and St Helier University NHS Trust

The second disclosure of failings at the hospital that came out at the tribunal concerns serious radiation risks from old X Ray machines at Epsom Hospital – which are used when pacemakers are inserted into patients. This puts staff and patients at risk.

Dr Sola Odemuyiwa, consultant cardiologist at Epsom Hospital from 1994 until 2016, He disclosed how an audit by Dr Abhay Bajpai, – specialist in pacemaker devices and electrical rhythms, appointed to take over pacing at Epsom in addition to his other duties – revealed stark contrasts in radiation levels between Epsom and St George’s hospitals. Using a dosimeter, he compared radiation insertion of a similar number of devices at St George’s. With similar average screening times, the total radiation received was substantially higher (up to a hundred times greater) at Epsom than at St George’s.

He says in his witness statement: “When I saw the histograms – the Micrograys of radiation from Epsom a skyscraper beside which the values from St George’s, looked slipper thin, (I attach the relevant data) my heart drummed against my ribs out of apprehension and angry self-reproach as I recalled with dismay how for twenty years I may have been gorging my organs on X-rays. My anxieties ballooned when I learned that Abhay’s readings came from Libra, the more modern of the two machines and that I was often given the older Endura machine, which emitted even higher levels of radiation.”

“Drs Yousef Daryani and Abhay Bajpai, my colleagues on the Epsom site continued to press the Trust over the safety of the X-ray machines. In February 2016, Abhay presented his audit data again at a meeting between Cardiology and Radiology departments. He thought the machines should be replaced. The senior radiographer said she could not change the past but that the machines were working properly.”

He then sought figures for radiation doses he had received during his career at Epsom Hospital.. “The Radiation Protection department at George’s were most helpful and sent me dose records from 2005 to 2008. Where are the data from 1995 I asked. They said they could not retrieve the data from the archive of the Mirion Technologies Dosimetry Services Division.”

The trust itself is adamant that there is nothing wrong with the machines. A long e-mail trail between the consultant and trust officials ended with the Trust insisting that the machines are safe and regularly checked.

Sally Lewis ” our image intensifiers are old and due for replacement “

Sally Lewis, a radiologist and medical examiner at the trust, wrote to Daniel Elkeles, then chief executive of the trust, saying there had been confusion about the reporting of the differing level of doses at Epsom and St George’s using different methods. She said if they had exceeded safety levels it would have triggered an alert.

She admitted; ” We are well aware that our image intensifiers are old and due for replacement … newer machines will with new technology produce lower dose readings which is something we always strive for.”

Dr Odemuyiwa disputes her findings. He said: “The manager misunderstood the report from the Radiation Protection Service. The absorbed dose of radiation, the amount of energy deposit in a small volume of tissue, and the equivalent dose, the impact that dose has on that tissue are numerically the same. The former is measured in mGy and the latter in mSv or milliSievert. Colon and prostate are more sensitive than the head for example.”

A year after leaving the trust he was diagnosed with prostrate and bowel cancer.

He explained to me in an interview: ” When you are fitting a pacemaker you are lying over the patient and are very close to the imaging equipment. If you are going to receive too much radiation the most sensitive organs to cancer are the prostrate and the bowel.”

Dr Odemuyiwa: ” When you are fitting a pacemaker you… are very close to the imaging equipment”

Since he announced his support for his colleague, Dr Prasad, Epsom and St Helier University Trust have declined to revalidate him so he cannot practice medicine.

The trust were contacted about what they intend to do after these revelations but have not responded.

Epsom and St Helier University Trust say on their pinned tweet on Twitter: “We put the patient first by giving outstanding care to every patient, every day.” Draw your own conclusion.

A second blog will look at what the hearing revealed about the issues surrounding the treatment of Dr Usha Prasad. The tribunal is expected to issue its findings in the New Year.

Please donate to my blog Westminster Confidential to help me continue my forensic work.

One-Time
Monthly
Yearly

Make a one-time donation

Make a monthly donation

Make a yearly donation

Choose an amount

£5.00
£10.00
£20.00
£3.00
£9.00
£60.00
£3.00
£9.00
£60.00

Or enter a custom amount

£

Your contribution is appreciated.

Your contribution is appreciated.

Your contribution is appreciated.

DonateDonate monthlyDonate yearly

Please donate to Westminster Confidential

£10.00

Are top NHS officials Stephen Powis and Zoe Penn “fit for purpose”?

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.

Claire McLaughlan , chair of the MHPS inquiry which found ” unfit for purpose”

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.

Disturbing Disclosures

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.”

Daniel Elkeles Pic credit: London ambulance NHS Trust

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”.

Please donate to my blog so I can continue my forensic investigations

One-Time
Monthly
Yearly

Make a one-time donation

Make a monthly donation

Make a yearly donation

Choose an amount

£5.00
£10.00
£20.00
£3.00
£9.00
£60.00
£3.00
£9.00
£60.00

Or enter a custom amount

£

Your contribution is appreciated.

Your contribution is appreciated.

Your contribution is appreciated.

DonateDonate monthlyDonate yearly

Please donate to Westminster Confidential

£10.00

Sellafield Whistleblower Case: Claimant faces a £20,000 legal bill for necessary Freedom of Information and Subject Access Requests

Alison McDermott: Whistleblower

By Philip Whiteley and David Hencke

A law firm in the Sellafield whistleblowing case has put in a bid for £20,000 costs against the claimant Alison McDermott, in part to deal with Freedom of Information requests – even though it emerged at the Tribunal hearing that the firm’s client had failed substantially to provide relevant evidence.

The costs application by Pinsent Masons on behalf of the Nuclear Decommissioning Authority, if successful, could set a precedent that weakens a citizen’s right to request information. It would appear to undermine the will of Parliament, given that when the Freedom of Information Act was passed MPs specifically rejected the idea of levying a fee for FoI requests.

The other law firm in the case, DLA Piper, simultaneously put in a bid for £20,000 costs against Ms McDermott – the maximum allowed without being subject to a further hearing – listing other factors, principally changes the claimant made in the detail of her case.

Sellafield site Pic credit: gov.uk

At the three hearings in the case held so far there has been overwhelmingly strong evidence indicating that Ms McDermott’s FoI requests were both proportionate and necessary. She said: “The governing body [the NDA] in its ordinary disclosure, released one email. Then, when I put in direct subject access requests, many more emails proved that they had been asking questions about the termination of my contract. Then, at the hearing it emerged that Heather Roberts [former HR director at Sellafield] had withheld a key document that said that the NDA was very concerned about the timing of my termination and that conversations had been held. This information was never released.

“The Freedom of Information requests also revealed that contracts had been awarded for HR services, including EDI [equality, diversity and inclusion] services, for the value of £17 million. It was only after that that they [Sellafield] switched from financial reasons [for dismissal] to one of performance.”

Ms McDermott, an independent EDI consultant hired by the nuclear plant Sellafield, had her contract terminated the first working day after making a report detailing systemic discrimination and bullying at the plant, a pattern confirmed by a BBC investigation which reported earlier this year.

At the tribunal hearing in June-July 2021 her barrister, James Arnold, pointed to directly relevant evidence only coming to light shortly before the hearing – after a period of more than two years since litigation began. He was not contradicted by either Respondent (see our coverage on 30 June). This hampered Mr Arnold’s ability to call witnesses, and cross-examine them. Ms McDermott was not successful in linking the detriment she experienced to the reports she made, although she is appealing the ruling.

Law Firm Pinsent Masons claimed FOI requests were ” vexatious”

The law firm, Pinsent Mason, claimed that the requests for Freedom of Information and Subject Access Requests, were part of vexatious, abusive, disruptive and unreasonable behaviour by Alison McDermott against both Sellafield and the Nuclear Decommissioning Authority.

In a letter to the court the firm said she had “submitted four Data Subject Access Requests and six Freedom of Information Requests over the last three years, the majority of which were complex and involved significant work and additional legal time and cost by the Second Respondent [the NDA] to answer.”

It added it meant ”significant inhouse legal resource time and wider staff management time responding to data subject access requests and Freedom of Information Requests linked to the claim”.

Pinsent Mason said the NDA had spent £200,000 fighting the case and wanted £20,000 – the maximum it can claim at a tribunal – back.

Solicitors Regulation Authority takes no action against law firms

A critical response came from the Solicitors Regulation Authority who claimed that Ms McDermott had confused the difference between using all the information from Subject Access Requests with what was relevant to the case at the tribunal. The letter suggested that she should have highlighted more information from the requests if she thought the tribunal was not looking at the issue – citing the ruling from the judge.

The letter from the SRA making this point, dated 30 September 2021, cites from an earlier Tribunal ruling – following the strike-out hearing in July 2020. This was fully one year before the full hearing, where further directly relevant evidence came to light, as noted by Mr Arnold, including the correspondence in which the governing body admitted to nervousness about the timing of her dismissal.

DLA Piper wipes metadata and says it was a mistake

On another matter, as reported earlier, metadata was wiped from a piece of evidence in the case while in possession of DLA Piper, representing Sellafield, shielding information on authorship and time of creation of the document. The metadata was released to the claimant upon request.

The matter was referred to the Solicitors Regulation Authority, which decided in September to take no action. It accepted that this was a genuine mistake by DLA Piper, although its own investigation was inconclusive.

Pinsent Masons, for the Nuclear Decommissioning Authority, did not respond to a request for a statement or interview.

A spokesman for DLA Piper said: ‘As a matter of course, DLA Piper does not comment on client matters. We refute allegations of wrongdoing on the firm’s part. The employment tribunal’s decision is open to the public and we would refer you to this for details of the case and the outcome.’ The Solicitors Regulation Authority did not respond to a request for an interview or statement.

NHS Whistleblowers: Persecuted and trashed by managers to cover up patient safety issues

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.

Dr Usha Prasad

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.

Whistleblowing cases

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.

Please donate to this blog to allow me to continue my forensic reporting of public issues.

One-Time
Monthly
Yearly

Make a one-time donation

Make a monthly donation

Make a yearly donation

Choose an amount

£3.00
£5.00
£10.00
£3.00
£9.00
£60.00
£3.00
£9.00
£60.00

Or enter a custom amount

£

Your contribution is appreciated.

Your contribution is appreciated.

Your contribution is appreciated.

DonateDonate monthlyDonate yearly

Please donate to Westminster Confidential

£10.00


Top retired Cardiologist calls for whistle blowing to be a “routine and acceptable practice” throughout the NHS

Dr David E Ward, retired cardiologist

This is a guest blog by David E Ward, a distinguished retired cardiologist, formerly at St George’s Hospital, South London, in response to my last blog on the case of Dr Chris Day and a series of blogs on the case of Dr Usha Prasad

The treatment of bona fide whistleblowers working in the British NHS is egregious and primitive. This is amply exemplified by many publicised WB cases over the last 2 decades: Dr Raj Mattu, Dr David Drew, Dr Kevin Beatt, Mr Peter Duffy, Dr Chris Day, Dr Usha Prasad and many others (see Google). Just think for a second or two – is it appropriate to threaten the career, the livelihood, the families of these honest doctors who were only doing the “right thing” by drawing attention to what they honestly perceived were remediable shortcomings? In fact, it is required of doctors to report any perceived shortcomings (Hippocratic Oath and all that and more recently with the “Duty of Candour”).

How is it possible – in the democratic UK – to threaten a doctor with such punitive costs that they are forced to withdraw their legitimate claims or risk potential bankruptcy? Isn’t this behaviour something we might associate with some autocracies toward the east? In the case of Dr Chris Day, the sum spent on pursuing (persecuting) him must now be more than £1,000,000! All to extinguish the career of an honest doctor who sought only to improve the care of patients in his unit. Wouldn’t it have been more sensible (litotes here) to spend that huge sum of money on improvements to the unit in question? (see CrowdJustice, http://54000doctors.org/blogs/timeline).

Successive health secretaries did ” little or nothing” to help whistleblowers

Jeremy Hunt, former health secretary now chair of the Commons health and social care committee

Successive Health Secretaries have done little or nothing to support whistleblowers. Jeremy Hunt (yes, he who did so much damage to the NHS; see Caroline Molloy, http://www.openDemocracy essay) asked Sir Robert Francis QC to report on the issue (see Google) but then ignored most of his recommendations or feebly implemented some (for example, the Freedom to Speak Up Guardian which doesn’t really work, to say the least). The last SoS for Health and SC did nothing at all to support WBs to my knowledge (OK, there is a pandemic). The present one has probably never heard of any of the names listed above or even what whistleblowing within the NHS means! What is more disturbing is that other powers-that-be, for example the NHS Medical Director, the Head of the NHS (whoever that will soon be), other Ministers etc, seem to take no interest in this problem, none whatever. The Health and Social Care Select Committee could take an interest but it is chaired by Jeremy Hunt – who is too occupied with his own self-importance and whose record as SoS speaks for itself – so I don’t expect any action there. Perhaps these grandees are too far removed from day-to-day whistleblowing in the NHS. It wouldn’t take much time to find out what is happening at grass roots.

Time to create a public register of whistleblowing cases

Some tentative suggestions:

1. Create a register of WB cases. Whistleblowing investigations are almost invariably secretive. Why? Apart from clinical details what else need to be anonymised? All reported and ongoing whistleblowing cases should be logged in an open and accessible register kept by an independent (is that possible?) body, preferably independent of the Trust and possibly the NHS and its Byzantine structures. Progress of a case should be openly documented and questions may be submitted. Resolved cases would be available, uncensored, for retrospective scrutiny. Openness might deter shady deals behind closed doors (yes, they do happen). Above all the external investigators should be accountable to the Trust and their own professional organisations.

2. Make cost threats unlawful. No Hospital Trust should be permitted to use the threat of costs against a “little person” (i.e., doctor) who cannot possibly equal the financial power of the taxpayer-funded persecution to defend themselves (yes, for it is us, the taxpayer, who pays the bill for the outrageous sums mentioned above to “thwart” the WB but we have no say whatever in the process). If money is to be spent in this process it should be wisely and fairly spent and shared equally between the participants, that is the victim (the doctor) and the aggressor (the Trust).

3. Make Internal hearings demonstrably independent of both parties. All WB cases which are subject to “internal” hearings (for example Maintaining High Professional Standards panels) are vulnerable to potentially corrupt processes (as some of the above cases probably have been). They should be heard by independently appointed persons (this will require some checking because as we have seen not all so-called “independent” chair-persons are quite as independent as they may appear – see Dr Usha Prasad blogs here) and open to external scrutiny by independent authorities or suitably qualified persons. Minutes of internal hearings should be made accessible. (Employment Tribunal proceedings are already largely in the public domain).

Make falsified evidence a criminal offence

4. Make falsification of evidence by either party an offence (I think there is a name for this beginning with “P”). If defence of a whistleblowing claim by a Trust is found to be untrue or contain false or falsified “evidence”, or in some other way is dishonest (there may be some of that in some of the ongoing current cases mentioned above…) there should be appropriate retribution for the Trust and managers involved. Incidentally, it is usually managers who instigate the persecution and recruit the heavy (taxpayer-funded) lawyer-supported defence without accepting any personal responsibilities themselves. Also, the use of public money in this way could be regarded as fraudulent and a misuse of taxpayer funds.

5. Ensure the original WB claim is clearly stated. The original concern which prompted the WB to speak out should be clearly and concisely stated in language that the “man on the Clapham omnibus” (Lord Justice Greer, 1932) can understand. It should never lose its primal status. It defines the whistleblower in the first place. WB have, by definition, concerns about the environment in which they are working. They make what is termed a “protected disclosure” (Protected Disclosures Act 2014, Health Act 2004). It is remarkable that these concerns are not infrequently submerged (or completely forgotten) by the ensuing investigative process – which is often more about the Trust and its managers avenging a perceived insult by the WB than seeking solutions.

Health Trust managers use lawyers to “crush honest doctors”

Lastly, what is it that Trusts’ and their managers are so keen to defend seemingly at any cost? Very expensive lawyers are used to “crush” an honest doctor, the “little person”. A defence possibly costing much more than it would to correct the shortcomings exposed by the WB in the first place. Is it the Trusts’ or its managers’ reputations that are at stake? Would the CQC ratings be adversely affected if the Trust was found to be at fault? Are there hidden misdemeanours which might be revealed? Why do these proceedings always come across as a potential “cover-up” by the Trust? Shouldn’t the grossly disproportionate defensive stance itself raise serious questions worthy of further investigation?

It is high time the treatment of NHS whistleblowers is once again raised at the highest level (for example, in the House of Commons following the example of Sir Norman Lamb, see report above). Too many professional lives (not only doctors but nurses, physios etc) are being destroyed for no good reason. This is bad news at any time but in the middle of a pandemic it is nothing short of scandalous. Whistleblowing in the NHS is not taken seriously enough and may be a factor persuading some doctors to voluntarily leave the profession before time. In an open liberal society with everyone working for the good, “whistleblowing” should be a routine and acceptable practice. Sadly, it is cause of great distress and stigma.

BMA and ex health minister Norman Lamb back whistleblower doctor Chris Day in patient safety battle

Dr Chris Day now being backed and funded by the BMA Pic credit: Twitter

The tables are beginning to turn in a seven year battle which has cost £700,000 so far to the taxpayer between Chris Day, an anaesthetist in an intensive care unit ,employed by Lewisham and Greenwich Health Trust.

The case against the trust and Health Education England has been drawn out over seven years at employment tribunals and appeal tribunals. He was forced into a settlement in which he had to withdraw his allegations of patient safety being at risk at the ICU unit at Woolwich Hospital in return for the trust accepting he had genuine concerns as a whistleblower at Woolwich Hospital between 2013 and 2014. The trust , using expensive lawyers, threatened to land him with huge legal bills if he continued and started cross examining their witnesses. The allegations included poor staff ,patient ratios at the ICU and inadequate medical supervision. He also made the same allegations to Health England Education.

Trust forced him to settle by threatening him with huge legal bills

As he said: “After two and a half days of my six day cross examination I was contacted by my legal team and told that the NHS respondents had decided to inform me of their intention to seek costs for the entire four week hearing if I proceeded to cross examine any of the NHS’s14 witnesses and ended up losing the case,”

He had no option but to withdraw to protect his wife and family from bankruptcy should this threat be carried out.

“real prospect of success” says judge

But he has won the right to get the enforced settlement out aside and take his case to the Court of Appeal. In giving judgement the Rt Hon Lady Justice Ingrid Simler DBE stated in the Order of the Court of Appeal that “I consider this appeal has a real prospect of success. Permission is granted”. Simler LJ is a highly experienced Judge and she was previously the President of the Employment Appeal Tribunal.

Until now he was left with trying to raise money so he could afford to pay the lawyers to fight the trust. In the last week in what amounts to a major change of heart, the British Medical Association has decided to fund his battle. Internal sources say this may be the first time the BMA has decided to fund a doctor in a whistleblowing case.

A BMA spokesperson said:

“Chris’ case has brought into sharp public focus the challenges and adverse experiences which doctors can face when they make public interest disclosures to blow the whistle on safety concerns they identify, in the course of carrying out their job.

“Doctors have a responsibility to raise concerns they have about the safety of their patients and yet too often they are put in the position of having to blow the whistle on organisational failures when the organisation in question fails to act. The BMA’s own research shows a majority of doctors work in a culture of fear and are worried about recrimination if they speak out about patient safety concerns. The BMA has been calling for an open culture, where speaking out is encouraged and supported and where our NHS learns from concerns and errors, to improve safety for patients.

“The BMA carried out a comprehensive external review of its member support services and we are now making significant improvements in how we support whistleblowing cases and indeed all members who raise concerns within the NHS. This includes offering more specialised legal support given the complexity of such cases. We are grateful to Chris and other BMA members for their input to this review. Different processes would have been followed if Chris’s case was to arise today and we are pleased to be able to offer Chris the support he needs in the next stage of litigation in his case as well as in the wider interests of the profession and patient care”.

Chris Day said:

“I am pleased to announce that I will be accepting support from the BMA in the next stage of litigation in my case.

“I have always remained a member of the BMA and it is clear to me that the new leadership at the BMA is committed to supporting me and my family where it is able to do so. The Association has spent considerable time and effort understanding my situation and provided me with expert legal advice as I considered the best way forward.

“I know the BMA has undertaken a great deal of work to consider how it supports whistle-blower cases and it has sought to learn from the past. They have established new arrangements to ensure better support for potential whistle-blowers, including guaranteeing a meeting with a specialist solicitor and case manager that now takes place before any case is considered too weak to proceed or on cases that are initially considered strong enough to proceed where this view subsequently changes.

Sir Norman Lamb. Pic credit: Twitter

“I look forward to working with the BMA. The BMA has a critical role in ensuring that no doctor should ever be forced to choose between their career and the safety of their patients and I would encourage every doctor and medical student to join the BMA and take an active role in shaping their trade union. Doctors need a trade union now more than ever.”

Chris Day has also got the support of Sir Norman Lamb, the former Liberal Democrat health minister, who backed him while he was in government. Sir Norman is now the chairman of the South London and Maudsley NHS Foundation Trust., the neighbouring trust to Lewisham and Greenwich. Despite some concern in the NHS establishment he is to continue to support Chris Day and will be a witness.

Given the dire findings in the Usha Prasad case with Epsom and St Helier University Health Trust, reported in this blog, this development is the best news a whistleblower doctor can get.

Nuclear industry leaders contradict each other in landmark whistleblowing case

Whisteblower Alison McDermott

Guest Blog from journalist Philip Whiteley who is covering the whistleblowing case with me

A split emerged between two leading employers in the UK nuclear industry at Leeds Employment Tribunal, in a case where they are both respondents in a whistleblowing claim, in the session on Tuesday 29 June. Representatives of the governing body the Nuclear Decommissioning Authority overwhelmingly backed the version of events put forward by the whistleblower, undermining the defence of Sellafield, the nuclear reprocessing plant.

The case is being brought by Alison McDermott, an experienced equalities professional, who is claiming her sudden termination of contract by Sellafield in October 2018 was in response to her making protected disclosures on acts of bullying at the nuclear reprocessing site in Cumbria. Sellafield’s management initially claimed that the reason for her dismissal was financial only, although at the tribunal it has produced witnesses reporting concerns over her performance.

On Tuesday three senior executives from the governing body, the Nuclear Decommissioning Authority, offered sharply contrasting evidence. All expressed admiration for Ms McDermott’s contribution to improving policies of equality diversion and inclusion (EDI), and all confirmed that there had been concerns over the competence of the HR director who sacked her, Heather Roberts, and the HR function at the nuclear site.

Sellafield Human Resources department ” not fit for purpose”

All said the reason they were given for Ms McDermott’s dismissal was financial. David Vineall, Group HR director at the NDA, said that Ms McDermott had been integral to the EDI ‘journey’ that the industry was embarking on. Under questioning from Ms McDermott’s barrister James Arnold, Mr Vineall conceded that the HR function at Sellafield was ‘not fit for purpose’, the words used in a damning report he had commissioned by external consultancy PricewaterhouseCoopers.

The court heard how the governing body had recommended that Ms Roberts be replaced by Mike Barber, an HR manager at the NDA. Mr Barber, one of the witnesses for the NDA on Tuesday, said he had ‘a very good working relationship with Ms McDermott’ and was ‘surprised’ to hear of her sudden dismissal.

Some of the most damning evidence undermining Sellafield’s case only came to the court’s attention in recent weeks. Mr Arnold pointed to the date of 26 April 2021 when the claimant first learned of an email from 23 October 2018, just a few days before Ms McDermott learned of her dismissal, in which Mr Vineall wrote to colleagues following a meeting with the then Sellafield CEO Paul Foster the day before, where he suggested that Ms Roberts be replaced immediately.

Nuclear Decommissioning Authority ” very nervous” about Ms McDermott’s dismissal

Just last week, the tribunal heard for the first time evidence from Ms Roberts that she had a made a note stating that the NDA was ‘very nervous’ about the timing of Ms McDermott’s dismissal so soon after her critical report.

The revelation that the respondents had hidden evidence from the claimant and the tribunal that was helpful to her case until this year is particularly significant, because there were earlier hearings in the case. There was a preliminary hearing in July 2019, and Ms McDermott had been granted a strike-out hearing, on the basis that her case was strong.

The strike-out hearing took place on 7 July 2020, some nine months before the revelation of Mr Vineall’s email, and 11 months before more evidence from Ms Roberts, also central to the case, was made available during the hearing itself. Judge Lancaster did not rebuke the respondents for this, but it potentially constitutes a breach of tribunal rules by the respondents, as well as a potential breach of whistleblowing legislation, as it potentially caused detriment to the claimant.

Had Judge Batten, sitting alone last July, been made aware of all the relevant evidence, she may have awarded a strike-out in Ms McDermott’s favour, sparing her the ordeal of a further year of litigation and a three-week full hearing.

Section 47 (A) of the Public Interest Disclosure Act 1998, under which the case is being brought, specifically prohibits employers from imposing a detriment on a whistleblower as retaliation for raising issues of concern in the workplace.

Mr Arnold reminded the court that much of the evidence has only been made available to the tribunal as a result of the claimant’s own efforts through subject access requests and Freedom of Information requests. This would indicate a strong claim of failure to follow tribunal rules – potentially a criminal offence by the respondents – though Mr Arnold did not press the case.

Ms McDermott’s data protection rights breached by Sellafield

Sellafield already has a ruling against it in the case. In January, the Information Commissioner’s Office ruled that it had breached Ms McDermott’s data protection rights in the handling of three letters of evidence on which Sellafield is relying to support its case in the tribunal over her performance issues. The letters were produced on non-secure home PCs. The tribunal has permitted Sellafield to use unlawfully produced evidence.

On one of the letters, the metadata was wiped while in possession of DLA Piper, Sellafield’s law firm, temporarily hiding details on the document’s authorship and time of creation. The law firm is separately under investigation by the Solicitors Regulation Authority over the issue.

The case continues.