One hundred “potentially relevant” e-mails and archive deleted by Lewisham and Greenwich NHS Trust in Dr Chris Day tribunal case

But judge refuses to strike out trust’s response saying Dr Day will get a fair hearing

Dr Chris Day

The Chris Day whistleblower tribunal took a new extraordinary turn yesterday when it was revealed how the trust never properly conducted searches to supply his legal team with all the information he was entitled to receive for the present hearing. . It was also revealed the NHS deleted the NHS email account of the Trust Director who was the formal instructing client in the Day case.

Even more extraordinarily David Cocke, the trust’s communications director, this week permanently destroyed 100 emails which could be ” potentially relevant ” and a whole archive – after the trust had been served with an order by the judge to deliver any missing internal communications involved in the case and a statement explaining their disclosure exercise. Mr Cocke apparently confessed in a signed statement that has been referred to in the Tribunal but not published in the live Dr Day Case page.

Dr Chris Day Whistleblowing Case Page – DrChrisDayDramatic late disclosures of trust emails on Chris Day case forces tribunal to pause the hearing | Westminster Confidential (davidhencke.com)

And at 11.0pm last night the trust suddenly released notes of a telephone board meeting which we know was when the Board approved the controversial settlement of Dr Day’s case previous whistleblowing case in 2018. The Trust and their lawyers had previously denied that any records of the meeting existed to Dr Day, his lawyers and a Judge. Dr Day had pressed for a Tribunal Order for release of the record of this document over a 5 month period but Dr Day and the Tribunal was told no such record existed. Now four years later one has suddenly been released last night via the Trust’s solicitors Capsticks.

The information about the release of the board meeting has also sparked off a potential dispute between the trust and the press. Tommy Greene, a freelance journalist writing for the Sunday Telegraph had put in a detailed freedom of information request about the meeting. He was told by the trust ” that a formal meeting of the Trust Board was not held on Sunday 14th October 2018. Board members did have a confidential teleconference that day.” He is looking at raising this reply with the Information Commissioner.

Andrew Allen QC

These disclosures emerged as Andrew Allen QC, Dr Day’s lawyer, applied to strike out the trust’s response to Dr Day’s case which has gone on for over eight years after he complained about patient safety and inadequate staffing at the intensive care unit and Queen Elizabeth Hospital in Woolwich.

He said: “The manner in which the proceedings have been conducted by or on behalf of R [ Lewisham and Greenwich NHS Trust] has been “scandalous, unreasonable or vexatious “and R has not complied with Employment Tribunal rules or with an order of the tribunal and It is no longer possible to have a fair hearing”.

He then cited the witness statement of Andrew Rowland, a solicitor from Capsticks, the trust’s law firm which revealed that two years ago there had been no proper search for documents – known as the discovery process- which Dr Day was entitled to see as part of his case. Mr Allen said:

i. The precise identity of those whose emails were searched has not been revealed but it clearly did not involve all of the relevant people;
ii. No document preservation or retention instruction appears to have been either given or alternatively adhered to – documents that should not have been deleted have been said to have been permanently deleted;
iii. The nature of the exercise does not seem to have been reasonable – were people (perhaps via their PAs) merely asked to search their own emails?
iv. An extraordinary amount of potentially relevant documentation has been said to be permanently deleted. There is no evidence from any IT expert to confirm this and C [ Dr Chris Day]finds it difficult to accept that e.g. emails from Doctors and other NHS staff could be rendered permanently unavailable in the manner suggested;
v. The explanation given for the permanent deletion of Janet Lynch’s emails { the former trust director of workforce and education] is difficult to accept, given that she was the primary instructing client therefore of clear relevance to the matters that C had raised … Ms Lynch’s departure from Lewisham and Greenwich NHS Trust took place after both of those events;”
Then a second email from Capsticks revealed that on Monday morning – said to be about 5.30 am – Mr Cooke went to the trust and started deleting e-mails on his computer which should have been handed over to Dr Day’s lawyers. This was just before he would be giving evidence at the tribunal for the trust.

Mr Cocke’s action was egregious

Mr Allen described his action as egregious and added in his statement: “Mr Cocke’s actions as described in his witness statement …may amount to a civil or criminal contempt or perverting the course of justice. That is a matter in itself for other authorities. However, if he is to be cross examined, he will need to be cautioned as to his right to remain silent and as to any consequences if he does not remain silent.”

Mr Allen summed up :”The events of this week and the statements supplied on 5 July 2022 have demonstrated that a proper discovery exercise did not take place in 2020 and now it is effectively asserted by R that it cannot take place given the amount of material that is said to have been permanently deleted.”

He argued: “The manner in which clearly relevant material has been disclosed: late, after the drafting of witness statements, after C has given evidence, after two of R’s three witnesses have given evidence)
with the destruction of evidence; and the realisation that a proper discover exercise was not carried out in the first instance, means that it is no longer possible to have a fair hearing of C’s case. It is now well
over 3 years since the matters complained of.”

Dan Tatton Brown QC

Dan Tatton Brown, while condemning Mr Cocke for destroying the emails, defended him for bringing the issue to the tribunal, admitting he had done this in “a panic because he felt he had let down his colleagues” and insisted he was not involved in the deliberate concealment of documents.

He said it was ” absurd ” and “insulting the tribunal” to demand the trust’s response should be struck out because all the issues involved could be raised in the final submissions by both sides to the judge.

At the time David Cocke said he was ill and would not be able to attend as a witness for the trust. But he informed the judges while they were deliberating that he was now better and could give evidence.

The judge ruled in favour of Mr Tatton Brown and accepted Mr Cocke’s decision to inform Dr Day’s lawyers about the missing documents as not deliberately concealing anything. Judge Anne Martin said they had taken that view before Mr Cocke informed them he could give evidence. The hearing continues next Tuesday.

Please donate to Westminster Confidential to allow me to continue my reporting

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

Response from Lewisham and Greenwich NHS Trust could be chucked out of the Dr Chris Day whistleblower tribunal for ” scandalous and vexatious” behaviour “

Dr Chris Day

In yet another extraordinary dramatic development in the Chris Day whistleblower tribunal judge Anne Martin granted his lawyer Andrew Allen, QC to present a case to chuck out the defence against whistleblowing made by Lewisham and Greenwich NHS Trust.

Chris Day said on his latest Crowdjustice update: “if successful [it]will prevent Lewisham and Greenwich providing any resistance or defence of my whistleblowing claim that they misled the press, MPs and the public about my whistleblowing case and how it settled.”

The tribunal held a preliminary hearing in private today with Mr Allen, Dr Chris and Melissa Day and Dan Tatton Brown, QC, for the trust, to decide whether a case for hearing the strike out of the trust’s case should go ahead.

A strike out – according to employment tribunal rules – is only possible on the grounds

a)   that it is scandalous or vexatious or has no reasonable prospect of success;

(b)     that the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(c)     for non-compliance with any of the Rules or with an order of the tribunal;

(d)     that it has not been actively pursued;

(e)     that the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

The judge , in a very short public session lasting little more than five minutes, announced Mr Allen would be presenting his case for a strike out at tomorrow’s hearing. She also said that the tribunal judges would reach a decision by 3.0pm tomorrow on whether to grant it.

She then said both sides could give their summing up next Tuesday and the judges would give their judgement later. A lot will depend on whether the strike out is successful.

No information has been given about what is behind this extraordinary dramatic turn around of events towards the end of the 15 day hearing.

But the trigger appears to be developments over last weekend when Capsticks, the trust’s solicitors, suddenly released a cache of emails showing that David Cocke, the trust’s communications director, had been copied in or communicated directly with senior doctors who Dr Day complained in 2013 and 2014 about patient safety caused by inadequate staffing at the intensive care unit at Queen Elizabeth Hospital, Woolwich. This was when Mr Cocke was preparing public statements in 2018 against Dr Day which Sir Norman Lamb, the health minister, described as “inaccurate, severely defamatory and deeply distressing to Dr Chris Day”.

The trust had always said there were no communications between the doctors who had responsibility for the intensive care unit at the hospital.

Judge orders Trust to search for more emails

The judge ordered the trust to conduct further searches for emails involving the doctors and the then director of workplace and education, Janet Lynch. It emerged today that the trust was still searching for some emails. Whatever was returned or what the exercise revealed appears to have triggered this request to strike out the trust’s response to Chris

Today should have been devoted to evidence given by David Cocke and further evidence from Dr Chris Day who was due to produce a fresh statement.

On the surface this looks bleak for the trust who have spent nearly £1m on lawyers and external clinical management consultants M J Roddis Associates fighting Dr Day for nearly nine years.

Please donate to Westminster Confidential to allow me to continue my reporting

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

Dramatic late disclosures of trust emails on Chris Day case forces tribunal to pause the hearing

QC’s clash on whether trust’s explanation was “tendentious nonsense” or “cock up rather than cover up”

Andrew Allen QC Chris Day’s lawyer

Employment judge Anne Martin has ordered Lewisham and Greenwich NHS Trust to conduct a search of further emails and personal communications between staff and doctors after an extraordinary revelation that it had held back relevant emails on Dr Day’s whistleblowing case which could affect the outcome of his tribunal hearing. The disclosure order is here.

The disclosures came out of the blue over the weekend when at 9.30pm on Friday Capsticks, the trust’s solicitors, sent a cache of emails to Dr Day’s lawyers revealing hitherto undisclosed emails between Dr Dan Harding, an intensive care consultant and Assistant Medical Director for Professional Standards  at the trust and Janet Lynch, then director of workforce and education. They were sent and copied to David Cocke, director of communications who was drafting statements in 2018 for Ben Travis, the chief executive, to send out to the trust’s stakeholders and the press which were highly critical of Dr Day.

Dr Harding was one of the first persons Dr Day complained to about patient safety and staffing issues at the Queen Elizabeth Hospital in 2013 – which are at the centre of his whistleblowing case.

The full list of undisclosed material are emails :

a. From Janet Lynch to Doctors Aitken, Patel, Harding, Luce and Brooke, cc’d to David Cocke dated 22 October 2018 at 20:29 attaching a draft of what would become the 24/10/18 statement;
b. From Duncan Brooke to Janet Lynch and Doctors Aitken, Patel, Harding and Luce, cc’d to David Cocke dated 22 October 2018 at 20:28;
c. From Dan Harding to Dr Brooke, Janet Lynch and Doctors Aitken, Patel, and Luce, cc’d to David Cocke dated 23 October 2018 at 8:48
d. From David Cocke to Drs Harding and Brooke, Janet Lynch, Drs Aitken, Patel and Luce dated 23 October 2018 at 12:38.

This morning Capsticks sent another another 13 undisclosed emails mainly involving David Cocke, who should have given evidence today.

Janet Lynch, former director of workplace and education at the Lewisham and Greenwich NHS Trust

Pic credit: Hertfordshire Partnership University Trust where she how works

In his application to the tribunal for any further emails to be produced, Andrew Allen, QC says:

” Janet Lynch refers to her attachment having had input from Capsticks, David and Ben and having “already been through a number of iterations” and “Liz has seen an earlier version”. No previous iterations have been disclosed. No communications between Janet Lynch, ‘David’, ‘Ben’ or ‘Liz’ have been disclosed. The process by which the statement of 24/10/18 was put together is highly relevant to the question of causation, which will be the central issue for the tribunal in this case;

“These emails are not merely relevant to a specific issue that has arisen during the course of evidence. It is relevant to a core part of C’s case that has not only been evident since the claim was presented to the tribunal but has also been highlighted on a number of subsequent occasions. It therefore casts in doubt the integrity of the whole of the discovery and disclosure exercise by R [Lewisham and Greenwich NHS Trust].

The trust claimed it had decided to release the new emails because Dr Day had changed his case during the hearing.

Trust claimed it didn’t disclose emails because Mr Cocke innocently deleted them

It said: “Mr Cocke made those enquiries as a result of the way in which the Claimant’s case had changed over the course of the hearing, and in particular the Claimant’s questioning of Ben Travis, which made it clear that the Claimant had the concerns about the involvement of clinicians in the preparation of the press statements.”

The trust also said Mr Cocke had trouble with his emails.
” He has historically had difficulties with his emails and has had to delete emails to free up storage space (before the current claim was lodged). He has rechecked his email folders to search for these new documents and has not found them. He infers that they were innocently deleted as part of his attempts to free up storage space. He was not previously aware that any potential emails might have been “lost”. “

Mr Allen described blaming Dr Day as ” tendentious nonsense”.

“The Claimant’s case has not changed. It has always been his case that the statements were detrimental on grounds of his protected disclosures. That no discovery exercise had been carried out on the communications of the recipients of the protected disclosures (Drs Roberts, Harding, Brooke, Luce and Patel) is a clear failure in the disclosure exercise.”

He pointed out that Dr Day had pressed whether any of senior doctors had any input in the statements made by Ben Travis about him and there had been no suggestion then they did -until these emails emerged.

He also pointed out that there was no search at all of Janet Lynch’s emails or of Kate Anderson, director of corporate affairs, who was asked to produce a review of Dr Day’s protective disclosures, but never produced a written report or any paper trail.

He said the non disclosure of the documents had multiple consequences. Among them were: “It puts in serious doubt whether this tribunal at this hearing can come to a fair decision – that is a point that must wait for full disclosure as must any question of whether R’s response should be struck out for abuse of process;”

“It makes clear that the evidence given by Mr Travis to the tribunal was inaccurate (to put it mildly) as is the evidence in the signed witness statement of Mr Cocke. That will be the subject of submissions in due
course if this matter proceeds”

Dan Tatton Brown, lawyer for the Lewisham and Greenwich NHS Trust

Dan Tatton-Brown, QC, for the trust, said that the non disclosure of the emails were a ” cock up not a cover up”. He said David Cocke’s action is not releasing them because they had been deleted by him was ” entirely innocent.”

” If they had been deliberate he would have deleted a very damaging one where he said Sir Norman’s Lamb’s call for a public inquiry was ” appalling”, he told the tribunal.

He also insisted that the disclosure of the emails would help the respondent’s case and not help Dr Day.

He had to make his initial submission without taking instructions from the trust.

The tribunal is determined to finish this week and will take the final witness on Thursday and submissions on Friday.

Please donate to Westminster Confidential to allow me to continue my reporting and 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

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

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

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

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

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

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

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

Chief executive never read the Roddis report in full

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

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

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

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

Kate Anderson never produced a written report but absolved the trust

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

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

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

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

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

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

Sir Norman Lamb

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

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

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

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

Please donate to Westminster Confidential to allow me to continue my reporting

One-Time
Monthly
Yearly

Make a one-time donation

Make a monthly donation

Make a yearly donation

Choose an amount

£3,500.00
£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

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

Dr Chris Day

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

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

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

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

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

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

No choice but to settle

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

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

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

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

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

Trust insisted it must say it acted in good faith

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

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

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

Please donate to Westminster Confidential to allow me to continue my reporting.

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

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

Dr Chris Day

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

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

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

This case is about preventing disclosures being understood by the public

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

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

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

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

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

Trust misrepresented findings on patient safety

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

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

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

Please donate to Westminster Confidential to allow me to continue my reporting.

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

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

Dr Sebastian Hormaeche Pic credit: Linked In

” Troubling” trust commissioned report ignoring patient deaths

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

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

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

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

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

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

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

Dr Chris Day

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

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

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

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

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

This is an alarming paragraph – Dr Hormaeche

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

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

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

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

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

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

Deaths findings fully support Dr Day’s warning

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

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

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

Please donate to Westminster Confidential to allow me to continue my reporting.

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

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

Trust lose battle to ban consultant anaesthetists giving factual evidence

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

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

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

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

In her evidence she listed Dr Day’s concerns:

They were:

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

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

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

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

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

Dr Chris Day

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

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

Woolwich Hospital ICU was “prima facie unsafe”

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

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

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

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

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

Allegations would have been of grave concern

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

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

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

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

A second anaesthetist consultant will give evidence on Monday.

Please donate to Westminster Confidential to allow me to continue my reporting.

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

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

Sir Norman Lamb

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

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

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

Dr Chris Day

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

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

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

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

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

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

Dr Andrew Frankel

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

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

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

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

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

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

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

defamatory statements

Sir Norman wrote to Mr Travis saying;

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

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

Please donate to Westminster Confidential to continue my 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

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

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

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

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

The story began in August 2013 when Chris Day, a junior doctor initially complained about inadequate staffing. It got worse in January 2014 when he was working overnight in the intensive care unit at Queen Elizabeth hospital in Woolwich when two locum doctors failed to show up. He had to cover other wards and A&E and reported his concerns to managers. He saw this as putting patients in such a sensitive area at serious risk.

extraordinary convoluted story

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

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

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

Sir Norman Lamb

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

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

Dr Chris Day

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

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

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

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

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

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

Please donate to my blog for more detailed and forensic coverage.

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