Category Archives: whistleblowing

Revealed: The battalions of Capsticks lawyers employed to pursue whistleblower consultant cardiologist Dr Usha Prasad

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Dr Usha Prasad

The adjournment on Wednesday of the costs hearing against whistleblower Dr Usha Prasad provided welcome relief for embattled and mentally stressed consultant cardiologist dismissed by the Epsom and St Helier University NHS trust.

But before the case was adjourned by judge Mrs E J McLaren ( and the trust’s claim cut from £180,000 to £24,000) Capsticks had submitted a breakdown of their costs to the judge. They had to do this to get the trust’s costs back and it provides a rare public insight into the length lawyers go to pursue whistleblowers at the trust’s behest.

Remember all the money spent by the trust comes from you the taxpayer and is used by the management of the trust to pursue whistleblowers rather than provide more patient care. And also remember again that in 99.95 per cent of all employment tribunal cases the employee is not asked to pay the employer’s costs.

So the £172,000 bill presented by Capsticks to the tribunal makes very interesting reading. It reveals that at various times no fewer than 20 lawyers and paralegals were involved in countering Dr Usha Prasad various claims. They were paid anything from £82 to £160 an hour. They included two partners on £160 an hour, three in house barristers two on £160 an hour and one on £120 an hour;, two legal directors again on £160 an hour, four senior solicitors on between £130 and £160 an hour; three solicitors on £143 and £120 an hour, two trainee solicitors on £96 an hour and five paralegals on £82 an hour.

Counsel Fees for the barrister Miss Nadia Motraghi totalled £50.775 .These were for a Preliminary Hearing on 30.09.21 and a brief and refresher on a Final Hearing on 01.11.21 for 16 day hearing.

Jessica Blackburn, senior solicitor at Capsticks Ltd

The biggest payout among the 20 lawyers working for Capsticks was to Jessica Blackburn, a senior solicitor who was promoted half way through the case, earned over £47,000 in fees for pursuing Dr Usha Prasad. There is a profile of her on this site here. She was the most combative in her approach , ignoring her doctor’s plea for a postponement and telling her everything she had claimed, including the whistleblower case over an ” avoidable death ” of a heart patient was ” without merit”.

In contrast Dr Usha Prasad could only afford one barrister for part of the time and relied on a friend and fellow consultant Dr Philip Howard to support her pro bono. Otherwise she was a litigant in person facing a team of 20 lawyers.

St Helier Hospital

What is the most disturbing is that the Epsom and St Helier University NHS Trust can ill afford to spend hundreds of thousands of pounds of taxpayer’s money pursuing a consultant cardiologist. She had to spend 28 months in the office on ” restricted clinical duty” while the trust investigated 43 cases against her. They sent them to the General Medical Council which not only exonerated her but extended her licence to practice without the need for further revalidation. Any sane person would have decided then and there to drop all this and reinstated her after the GMC findings.

Instead they continued what can be only described as a vendetta against her putting her under more and more stress until she was barely able to cope attending another tribunal hearing.

Meanwhile the trust is building up debts – the latest board meeting in July revealed it is £35 million in the red ( up from £27 million in April). Patients waiting for cardiac procedures, mainly imaging, and reviews are having to wait longer and the waiting list is growing – up from 2551 in July 2022 to 2901 in April 2023 -according to the NHS waiting list tracker.

Until this started Dr Usha Prasad who had been there since 2010 had seen 15,000 patients and had no complaints. If she had been reinstated the waiting list might not be so high and more patients would have been treated. And all this taxpayers money would not have been wasted if the trust had decided to use their own hr management to sort this out without going to a tribunal.

Councillor Ross Garrod, Labour leader of Merton Council

Meanwhile the growing deficit has led the trust to plan closing St Helier’s emergency department, maternity services and children’s in patient services provoking fury from residents. Councillor Ross Garrod, leader of Merton council, has called for re-assessment of the impact of this and a campaign group has been set up to fight the proposals. The website is here.

It’s time the trust got its priorities right. Stop spending hundreds of thousands of pounds fighting whistleblowers and spend more time and energy in running your services better.

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Judge adjourns £180,000 costs hearing case against whistleblower consultant Dr Usha Prasad

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Trust scales down cost claim from £180,000 to £24,000 in private case management meeting

Typical tribunal room Pic credit: gov.uk

In a surprise move this morning judge Mrs E J McLaren adjourned the £180,000 costs hearing brought by Epsom and St Helier University NHS Trust against whistleblower consultant cardiologist Dr Usha Prasad.

She took the decision before the hearing started and explained that one of the panellists who heard the original employment tribunal hearing under judge Tony Hyams-Parish was now unable to attend. This appears to have happened in the last 24 hours as the acting regional judge Omar Khalil had ordered the hearing to go ahead. No explanation was given why the panellist couldn’t suddenly attend.

The decision also comes as Dr Usha Prasad has repeatedly requested a postponement of the hearing because she is ill and couldn’t think straight because of mental stress and sent the tribunal a doctor’s note confirming this. This had been repeatedly ignored by lawyers Capsticks, who represent the trust, and the tribunal but the judge said yesterday that Dr Prasad’s health will be discussed in a private case management meeting convened immediately after the adjournment. At that meeting with the judge the trust caved in and reduced the costs claim from £180,000 to £24,000 and accepted it would have to wait some time for a fresh hearing.

The adjournment also comes at a time of national public outrage following the baby murder conviction of nurse Lucy Letby at the Countess of Chester Hospital when it was revealed that managers threatened to report consultants who raised the alarm to the General Medical Council and forced them to write a letter of apology to the murderer nurse.

The situation was worse for Dr Prasad at the Epsom trust as she was reported to the General Medical Council by the trust . A document listing 43 cases was sent to the GMC who investigated her and then exonerated her taking the unusual decision to revalidate her to practice without any further application from her. That having failed the trust held an internal inquiry branding her as ” unfit for purpose ” as a human being because they could no longer say she wasn’t an excellent doctor.

Dr James Marsh

The man behind the continual pursuit of Dr Prasad is thought to be Dr James Marsh, the joint deputy chief executive and joint medical director of the St George’s, Epsom and St Helier hospital group, who gave evidence against her at the tribunal.

Jessica Blackburn

In a final act to put pressure on Dr Prasad before today’s tribunal Mrs Jessica Blackburn, the senior solicitor for lawyers, Capsticks representing the trust, sent her two new bundles of documents the previous night and Usha didn’t see it until only a few minutes before the tribunal was due to start. Given she knew she was mentally stressed and was a litigant in person with no lawyer to help her understand them, it looks to me like either a singularly callous act or she was rather late in finalising the trust’s case.

There is a wider issue here. As I have said before in 99.95 per cent of cases at employment tribunals, the employee does not pay the employer’s costs.

The picture that is now emerging is that the exception to this rule is the whistleblower. Usha’s case is not unique in this respect.

Dr Usha Prasad

Cost threats have been made against Dr Chris Day, who has been involved in a ten year battle with the Health Education Executive and Greenwich and Lewisham NHS trust over patient deaths and safety at Woolwich Hospital intensive care unit; Dr Peter Duffy, a urologist at the University Hospitals of Morecambe Bay NHS Foundation Trust, later vindicated over patient deaths; and outside the NHS, Alison McDermott, a management consultant, over bullying and harassment at Sellafield and the Nuclear Decommissioning Authority. Two more whistleblowers have now come forward at Sellafield and are under threat.

This list is the tip of the iceberg – I know of a number of other doctors, belonging to the informal Justice for Doctors group, who haven’t made their cases public yet, who have also been threatened with huge costs.

It is almost as though NHS and public sector managers have devised a standard playbook to use against any whistleblower who dares bring up the issue of patient safety to frighten them from doing anything about it. This is an area which both the inquiry and MPs on the Commons health and social care committee must look into – for the sake of all hospital patients and the nuclear safety of our country. Management bullies who threaten caring doctors and nurses must be removed from their jobs. No whistleblower should suffer like Usha Prasad ever again.

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Judge insists whistleblower Dr Prasad £180,000 cost hearing must go ahead despite her GP’s warning of mental stress

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Acting regional employment judge Omar Khalil

A senior employment judge has intervened to try and force whistleblower consultant cardiologist Dr Usha Prasad, who is now ill, to attend the Croydon costs hearing on Wednesday where she will face a £180,000 bill after losing an employment tribunal case.

Judge Omar Khalil has ignored a letter from her GP warning that she is under severe mental stress after years of appearances before employment tribunals, being referred to the General Medical Council which exonerated her but then lead to an internal inquiry run by the Epsom and St Helier University NHS Trust which tried to brand her as ” unfit for purpose” as a human being because it had to say she was an excellent doctor.

Her disclosure that the trust covered up an ” avoidable death” of a heart patient at the trust by not reporting it to the coroner was confirmed by Dr Richard Bogle, the head of cardiology , during an employment tribunal hearing.

But judge Tony Hyams-Parish, mindful that there are no records kept of tribunal hearings, expunged this disclosure in his judgement which rejected all her claims.

Dr Usha Prasad has asked for a postponement because she doesn’t feel well enough or capable of defending herself against expensive lawyers hired at the taxpayers’ expense by Epsom and St Helier University NHS Trust. She hasn’t the money now to employ a barrister to defend her at the hearing.

Dr P Bailey, her GP in Wakefield has written to the costs tribunal saying “”She is experiencing physical and emotional signs of distress…. she does not feel in an appropriate state of mind at present to represent herself in the process currently.”

“… I would be grateful if her current mental state was taken into account regarding scheduling and potential postponement.”

The regional judge and tribunal are refusing to take any notice of the GP’s plea.

In reply Lynn Head, for the tribunal says today:

“Acting Regional Judge Khalil has asked me to write to the parties.
The claimant’s application to postpone the Costs hearing listed for 23 and 24 August 2023 is refused.
The Hearing has been listed since 8 March 2023 and the dates should thus have been reserved from receipt of that notice.
“The Tribunal has previously addressed that an outstanding EAT appeal relating to liability is not a reason in itself not to proceed with a Costs Hearing. The question of enforcement of any Costs Order (if made) is a separate consideration pending an outstanding appeal.
“The claimant’s request for notes has also received judicial consideration previously, more than once. No details have been proved of the claimant’s important meeting.

“The claimant could have provided dates of unavailability of his counsel (shortly after the Tribunal indicated it would be listing a Costs Hearing (17 February 2023), as the respondent did, but the claimant did not do so.
The Tribunal has considered the claimant’s medical evidence dated 18 August 2023 but in the light of the listing of this Hearing since 8 March 2023, the claimant could and should have made arrangements for alternative representation if her previous Counsel was unavailable. A postponement would cause a considerable delay before the panel could reconvene. That is not an overriding objective. The Liability Hearing took place in November 2021.”
At this stage it is not clear whether Dr Prasad can or will attend the hearing. The presiding judge will then have to decide what to do.

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Jessica Blackburn: The ambitious Capsticks lawyer with a mission to unsettle whistleblowers

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Jessica Blackburn senior associate Capsticks Pic Credit:London Portrait photographer David Woolfall

Jessica Blackburn is the senior solicitor and driving force behind the bid by Epsom and St Helier University NHS Trust(ESHUT) to get record £180,000 costs against Dr Usha Prasad, the whistleblower cardiologist who was dismissed by the trust for her disclosures.

As reported earlier a hearing like this is extremely rare, as in 99.95 per cent of all employment tribunal cases no complainant pays any of the employer’s costs – much to chagrin of big employment law firms like Capsticks.

She was educated at the highly selective Wallington High School for Girls and graduated from the University of Southampton Law School in 2014. She took two postgraduate legal practice courses at the private University of Law in London and got a distinction. She was a trainee solicitor at RadcliffesLeBrasseur , a law firm now part of Weightmans. She took a job as a qualified solicitor with Capsticks in 2018 and was promoted to a senior associate three years later. A native English speaker, among the languages she has is elementary knowledge is Yoruba, a West African tribal language. She also played a senior role in Capsticks celebrations of Black History Month last year.

Claire McLaughlan ,chairs MHPS inquiries

At Capsticks she specialises in defending health trusts and the police and cites dealing with whistleblowers as one of her specialities. She is also involved in advising trusts running  complex doctor cases under the national framework, Maintaining High Professional Standards in the Modern NHS – internal hearings like the one already held by ESHUT over Dr Usha Prasad chaired by Claire Mclaughlan that came to the bizarre decision that she was “unfit for purpose”.( see my blog here and here.)

Her top tribunal case cited on her page is one heard by Judge Auerbach in 2021 between Mr Abgeze and Barnet, Enfield and Haringey Mental Health Trust ( judgement here) over the controversial issue of people’s rights in zero hours contracts. Mr Abgeze, who was on a zero hours contract, was suspended and then reinstated by the trust. But because he was on a zero hours contract he was unable to apply for shifts and claimed compensation. Judge Auerbach threw out his claim.

She writes: “This will be a welcome decision to NHS Trusts, and other organisations that have similar casual worker arrangements.”

Certainly as this week’s cost hearing approaches there is a big stand off between her and Dr Usha Prasad who under increasing stress and suffering health issues and asked for a postponement. But it looks like that either Jessica Blackburn doesn’t believe her (despite a doctor’s note) or does not want to believe her and doesn’t want her schedule for the historic case delayed.

Forensic details of Usha Prasad’s finances demanded by Capsticks for the health trust

This is the letter she sent demanding details of Dr Prasad’s finances to make sure she will be ready to pay the £180,000.

“We write in respect of the hearing to determine the Respondent’s costs application against you listed by the Tribunal for 23 and 24 August 2023. The Trust has incurred in excess of £150,000 plus VAT in legal costs in defending your claims (2 and 3), which were all dismissed.  

On 19 June 2023, we wrote to you in the following terms:

“As part of the Tribunal’s consideration of the Respondent’s costs application, the Tribunal may take into account your financial means. Therefore, please can you disclose by 23 July 2023, any evidence of your means if you intend to rely on this at the costs hearing, so that this information can be contained within the costs hearing bundle.”

To date we have received nothing. We are not clear whether this is because, if you are ordered to pay costs, that your position is that you would be financially able to meet any order made by the Tribunal, or, on the other hand that you have elected not to disclose any information. 

We remind you that under Schedule 1,  rule 84 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Tribunal may (but is not required in all circumstances) take into account a paying party’s ability to pay. 

Ability to pay

84.  In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.

If you intend to argue (or might do so, depending on the level of costs awarded) that you would not be financially able to meet the terms of any costs award, if so ordered, the Respondent requests you urgently provide supporting information and evidence of the same.  

This should include:

·         information about your present level of income and remuneration as well as of what you have earned since the liability judgment; any property you currently own (whether in whole or in part, whether land, buildings or otherwise), any investments, and the content of any bank / building society or similar accounts and any other information relevant to your ability to pay an award of costs. This information should cover assets worldwide not only in the UK. 

·         You should also provide information and evidence regarding your financial commitments such as rent/ mortgage. 

·         Evidence to support the information provided should be provided. 

·         As regards your employment related earnings, pay slips, P60s, tax returns or record of invoices paid through agencies or similar and any current or recent contract of employment, or for your services. 

·         As regards bank accounts, savings and investments, including ISAs, this should include copies of your recent bank (etc) statements. Downloaded statements or screenshots from a bank (etc)’s website are acceptable. 

·         The Tribunal will need to understand your current financial commitments, therefore if you have any loans, mortgages, or other regular payments made such as rent or utilities, documents in support of the same (e.g. mortgage statement, loan agreement/payment schedule, rent payments) should be provided. 

·         Where you own one or more properties you should identify the approximate current value of the property concerned and the balance of any mortgage. 

·         Please can you also confirm your current employment/engagement status, including whether the number of hours worked and whether that if permanent or temporary (and if so on what basis) and your residential address.

Threat judge will be told if she does not provide the information

The Respondent will draw this letter to the Tribunal if the information and evidence requested is not supplied prior to the hearing but where you contend (whether in writing, or at the hearing) that your means should be taken into account by the Tribunal. It is important that the Respondent understands your position in good time prior to the hearing. In addition, we urgently request confirmation of your position regarding your financial means in order to address this issue in written submissions, the absence of which is delaying completion.

We look forward to receiving confirmation of your position, together with the requested documentation where applicable, as a matter of urgency.”

When she sent the doctor’s note Jessica Blackburn ignored it. You can see what detail Capsticks want – and other whistleblowers facing cost hearings say they have not received such detailed demands.

I informed Jessica Blackburn I was proposing to write a profile of her. Capstick’s press office replied that she could not comment at this time.

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Usha Prasad: Whistleblower Consultant cardiologist faces record £180,000 cost claim from NHS health trust

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Dr Usha Prasad

It is a fact that among the tens of thousands of employment tribunals held every year claimants do not have to pay their employers costs in 99.95 per cent of all cases.

Therefore it is absolutely extraordinary that Dr Usha Prasad, a whistleblower cardiology consultant at Epsom and St Helier University NHS Trust is facing a special costs tribunal next week for an astonishing £180,000 claim from her employer at the London South tribunal in Croydon.

Even in rare cases where costs are sought the maximum is £20,000 and the level of proof has to be very high. The claimant has to be seen to have been acted “vexatiously, abusively, deceptively or otherwise unreasonably” or has brought proceedings deemed to be misconceived.

Epsom Hospital part of the Epsom and St Helier NHS Trust

However it is looking like that where whistleblowers are sacked and go to an employment tribunal more and more judges have agreed to hold cost hearings so the public body can recover some or all of its costs. And lawyers acting for these bodies threaten huge costs against whistleblowers to deter them from proceeding further. This has been used against Dr Chris Day in his decade long battle against the Health Education Executive and Greenwich and Lewisham NHS health Trust over patient safety and , against Dr Duffy, author of ‘Whistleblowing in the Wind’. Non NHS whistleblowers also face this. More recently this involved a case against Alison McDermott, a management consultant, at Sellafield and the Nuclear Decommissioning Authority (NDA), who exposed a raft of bullying, harassment and other grave failings at the nuclear plant.

Alison then faced a £40,000 cost hearing – both bodies sought the maximum figure – with judge Lancaster refusing to accept she was a whistleblower- only to have his decision declared  ” unsafe” by a judge at the high court. He determined that the costs were unsafe and must be ‘quashed.’  HHJ Auerbach also  overruled Judge Lancaster and confirmed that Alison was whistleblower. A FOI has revealed that Sellafield and the NDA have spent an extraordinary sum – £660,000 resisting that she was a whistleblower.

Unbelievably Sellafield and the NDA have just sought to reinstate the cost hearing again with the same judge who made the ” unsafe” costs ruling which has already been thrown out by the higher tribunal. Which of course sends a chilling message to any would be whistleblowers at the most dangerous nuclear site in Western Europe.

In Dr Usha Prasad’s case the trust and its lawyers, Capsticks, have gone one step further by getting a hearing next week wanting the judge to order a £180,000 costs finding against her.

Now in researching whether this has happened before – the only case I found which is highlighted by the Association of Costs Lawyers is Gosalakkal v University Hospitals of Leicester NHS Trust, where the paediatrician who made a series of whistleblowing claims walked out of the costs assessment hearing and ended up being ordered to pay £82,000 to the trust. This went to appeal in 2019 and the judge was criticised for misunderstanding the whistleblowing nature of the case and the initial award was quashed. It turned out there was a breakdown of relationships among consultants there as well, a disciplinary hearing and he was dismissed. He left Leicester and got a new job in the United States.

Judge Heap ruled in April 2017 that she could do this citing rule 78 of tribunal regulations set in 2013 which allows her to exceed the £20,000 limit by having a detailed costs assessment or send it to a county court to decide. I am pretty sure Capsticks will be citing these rules and the case next week.

I am sure the Association of Costs Lawyers would have highlighted any higher settlement than this so this will make the Dr Prasad hearing a new record for tribunals pursuing whistleblowers for costs. The biggest sum ever awarded at an ET tribunal to an employer was £432,001.85 in a dispute between Copthorne Hotels and a Mr Tan who had withdrawn any whistleblowing claims.

The problem for Dr Prasad is that these hearings specifically rule out discussing the merits of previous tribunal hearings in her case. She has had enormous support from other practising colleagues at the Epsom Trust trust. You only have to look at a website to see the appreciation of her work at Pinderfields General Hospital in West Yorkshire to see pages of praise from patients. These were made while the case against her was being pursued by the Epsom and St Helier NHS Trust.

She has still to await the official result of an employment appeal tribunal hearing against her case claiming perversity and bias and error of law by the judge involved ( see below) and the trust has secured a costs hearing in just over five months while the average wait for the overloaded employment tribunal system to hear a case is now 335 days. She has been refused access to the judge’s notes to defend herself and her barrister who appeared for her previously is not available to defend her.

Judge Tony Hyams -Parish

The judge who heard her case Tony Hyams-Parish, threw out all “her allegations of victimisation, sex harassment, and sex and race discrimination” and ignored in his judgement the admission from the trust that it had failed to report to the coroner an ” avoidable death” of a heart patient treated by another doctor and tried to get her to change a report on the incident. My reports of this part of the hearing is the only record that it happened. See it here and here.

Capsticks have seized on this to write to her saying :” The Respondent has incurred very substantial costs indeed in defending the unmeritorious proceedings, of in excess of £150,000 plus VAT. The costs incurred correlate to the Claimant’s unreasonable conduct and the unmeritorious nature of her complaints.”

What is also missing is that the trust put in 43 complaints to the General Medical Council to build up a case against her.. Every one of those complaints was thrown out by the GMC after a highly skilled cardiologist looked at them and she was automatically approved to continue working as a doctor without any further revalidation.

The BMA despite receiving letters of support from her medical colleagues has refused to give her any financial backing to fight this hearing, citing that it did not have a 51 per cent or more chance of success. In my view that is short sighted as far as I can see the hearing is about the costs incurred by the trust in fighting a whistleblower case and if they do not challenge this, they are leaving all their members to be hung out to dry by NHS trusts.

Not to put to fine a point on all this my thoughts are this has all the hallmarks of being a ” Kangeroo tribunal ” next week where a litigant in person, an excellent doctor, is being arraigned by legal heavyweights with little chance of being able to defend herself. Let’s see if this is true next week

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Half baked and half finished: How courts and tribunals burned through £1 billion on computers to improve access to justice and failed

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Royal Courts of Justice

It is portrayed by HM Courts and Tribunals Service as “our vision for reform to make the justice system more straightforward, accessible and efficient.”

But this £1.3 billion digital court reform programme has been exposed by the National Audit Office and last week by the House of Commons Public Accounts Committee for having failed to meet its objectives. This ambitious programme started in 2016 has been much delayed and only half completed. As MPs commented last week it has ” burned through” over £1 billion of public money and is the on the verge of running out of cash before half the benefits can be realised.

No one would argue that the courts and tribunal system is antiquated and needs reform. One only has to watch judges in the employment tribunal system writing down what claimants and respondents are saying by hand in courts that don’t keep proper records of hearings to realise how antiquated it is.

But once again it looks like that Whitehall has fallen for an expensive simplistic digital solution for a service which is incredibly wide ranging and complex. The aim was to create a common computer platform to serve 44 different aspects of justice from the criminal courts to magistrates courts and from the family and divorce courts to the probate service and the tribunal service.

Timetable five years behind schedule

It also had a timetable to be completed by 2020. Now we will be lucky whether the truncated programme will be up and running by 2025. Also £1.3 billion won’t be enough – there is only £120 million left to spend and that is nowhere enough to meet what is needed. And £22 million was wasted trying to integrate the Crown Prosecution Service into the system which didn’t work.

Also there are promises of big savings by going digital. This is always promised and we will see whether that really happens.

Also plans to have fully digital probate and divorce services had not fully worked. The MPs said:

“HMCTS found that significant proportions of its online divorce and probate cases required manual interventions from staff and in March 2022 HMCTS identified that 55% of divorce cases could not be completed online.”

In addition it appeared that both services discriminated against ethnic minorities.

Both the Bar Council and the Law Society were not impressed. The report says:

The Law Society “explained that there were functionality issues with online portals for family services, such as family public law. These issues led to problems, including instances of solicitors not getting necessary notifications which made the system difficult to use and, in some cases, significantly delayed cases. It told us that it had frequently expressed concerns to HMCTS about the functionality and design of some reformed services.”

System developed in a vacuum – Bar Council

The Bar Council told MPs:” the designers and producers of the common platform appeared to
have a limited understanding of working needs and practices, and “displayed a marked reluctance for the system to be designed in conjunction with, and for the benefit of, professional court users”.

It said it looked like the system had been designed in a vacuum.

As for the general public, it looked like that it was going to be a problem at magistrates courts ,purely because most of the defendants didn’t have any legal representation and therefore might not have proper access to the system to defend themselves.

Meanwhile the project continues so far with the pausing of integrating possession orders, special tribunals except for the Criminal Injuries Compensation Tribunal.

Dame Meg Hillier MP

Dame Meg Hillier MP, Chair of the Committee, said:

“Our courts were already stretched thin before the pandemic, and the backlogs now faced pose a real threat to timely access to justice. These are services crying out for critical reform, but frustratingly HM Courts & Tribunal’s attempts appear in some cases to be actively hindering its own staff’s ability to carry out their jobs. In particular, the roll-out of the Common Platform digital system was a blow upon a bruise for pressured court users.”

Given there are already many issues whether the courts do deliver justice, this rather botched computer programme does not give you much faith in the system.

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My blog tops 300,000 hits in 2022 – a year of frustration for pension campaigners and whistleblowers

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Happy New Year. Last year My WordPress blog reached 304,297 hits with 218,257 unique visitors – compared to 286,840 hits and 203,099 visitors the previous year.

This figures does not include hits on my Facebook and Linked In sites which means the numbers are actually much higher though more difficult to exactly measure. Nor does this include my articles on Whitehall and Westminster for Byline Times. Byline Times is worth subscribing to for all the other independent journos who contribute to it.

Thanks to everybody who chose to read my stories and special thanks to those who kindly donated to my site. Last year I raised some £5600 via WordPress plus another £1600 through Paypal before charges.

The two campaigns I run on this site – the demand for full restitution for the 3.6 million women who lost out when the pensions age was raised from 60 to 66 – and valiant whistleblowers fighting for justice in the NHS and at the nuclear facility in Sellafield – attracted the most interest.

The Department for Work and Pensions emerged as the most hated ministry by pensioners and benefit claimants.

DWP most hated ministry

The biggest hit on the site was not from my campaign for the #50swomen but from the blog exposing the millions of people who have been swindled by the DWP out of a Guaranteed Minimum Pension. Here I was helped out by a retired expert on the issue Christopher Thompson who has tirelessly pressed ministers and the Commons DWP committee to do something about it. This attracted 15,281 hits.

Four blogs on the 50swomen campaign attracted over 10,000 hits – the highest being my report of the WASPI meeting at the Labour Party Conference which attracted 12,405. My report on the proposed remedies for the women by the Parliamentary Ombudsman which I and many women see as a betrayal attracted 10,054 hits. An opportunity to download the summary of the changes attracted 4,400 people to do so – adding a little to more transparency given only a selected few were supposed to see it.

Dr Day case was followed across the world

On the the whistleblower front I decided to do a daily report on the Dr Chris Day case – the appalling story of a junior doctor who lost his training place because he tried to expose patient safety dangers at an intensive care unit at Woolwich Hospital where two patients had already died. This was really old fashioned journalism when people used to cover courts regularly – in this case an employment tribunal – making the proceedings publicly accountable. It paid off not only with a big following of the blog here but thousands of people followed it on Linked In including doctors from Denmark, Australia, New Zealand, the US, Canada and Brazil. He lost the tribunal despite the health trust destroying 50,000 emails relating to its case that should have been examined by the tribunal. But the good news is that the British Medical Association is backing his appeal.

There is similar interest -including internationally – in the tribunal case of Alison McDermott who was commissioned by Sellafield to review its human resources policies and found appalling shortcomings and also in India and the UK in the fight by Dr Usha Prasad, the former cardiologist at the Epsom and St Helier University Trust, who was sacked after refusing to change a report on an ” avoidable death” there that should have been reported to the coroner. My thanks to two retired cardiologists, Dr David Ward and Jane Somerville for their help on these cases.

Whistleblower cases call into question the employment tribunal system

These cases have thrown up serious questions about the competence and bias of employment judges and called in question the entire running of the employment tribunal system and its failure to keep records of cases. I am now beginning to be inundated with dissatisfied people who feel they have been cheated by going to an employment tribunal.

This year has been a frustrating year for whistleblowers and for women seeking a just solution to maladministration and direct discrimination over the raising of the pension age. But there is no reason to stop reporting this – though I will be taking a long break at the beginning of this year only to come back reinvigorated.

One final point. A very small minority of people are trying to put up comments on this blog using false names from fake email addresses. I see some national newspapers are no longer going to put up comments on the web from people who don’t declare who they are. So from this year I will no longer carry comments from people who do this.

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Fresh revelations on the national role of top NHS law firm disclosed in the latest hearing in the long running Dr. Chris Day whistleblower case

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Dr Chris Day

A preliminary two day employment tribunal hearing has led to fresh revelations about the national role of one of the NHS’s top law firms, Hill Dickinson, that acted for Health Education England against whistleblower junior doctor, Dr Chris Day, in a case that has now been ongoing for 8 years and was also against the South London Trust Lewisham and Greenwich NHS Trust.

Day alleges Hill Dickinson failed to disclose over 200 commissioning contracts between Health Education England and NHS Trusts around England including a contract with Lewisham and Greenwich NHS. The significance is that these contacts proved Health Education England’s status as a second employer of junior doctors.

This is something that Health Education England and Hill Dickinson spent 4 years denying, between 2014 and 2018, at huge expense to the taxpayer in order to argue junior doctors out of whistleblowing protection.

This was in order to stop Dr Chris Day’s case ever being heard. The Tribunal were told that not one of these contracts was disclosed in the litigation and were obtained in 2019 by a freelance journalist, Tommy Greene who was writing about the case in the Telegraph. The scandalous focus of the hearing was that Hill Dickinson profited from not disclosing the contracts in litigation arguing that it was fanciful for Day to assert HEE as an employer of doctors.

Tommy Greene freelance investigative journalist Pic credit: Twitter

The Judge was told that Tommy Greene had also found that Hill Dickinson were paid handsomely to draft the very contracts that were not disclosed most notably the one between HEE and Lewisham and Greenwich NHS Trust.

The Judge was referred to a complaint to the legal regulator from Sir Norman Lamb and Tommy Greene that set these details out.

 SRA Complaints Sir Norman Lamb (54000doctors.org)

And a debate in Parliament where the 2 MPs Justin Madders and Sir Norman Lamb further explored the matter;

Sir Norman Lamb

Justin Madders stated;

“Health Education England effectively sought to remove around 54,000 doctors from whistleblowing protection by claiming that it was not their employer.”

 Sir Norman Lamb stated;

“Is the hon. Gentleman aware that the contract between Health Education England and the trusts, which demonstrates the degree of control that Health Education England has over the employment of junior doctors, was not disclosed for some three years in that litigation? It was drafted by the very law firm that was making loads of money out of defending the case against Chris Day. I have raised this with Health Education England, but it will not give me a proper response because it says that the case is at an end. Does the hon. Gentleman agree that this is totally unacceptable and that it smacks of unethical behaviour for that law firm to make money out of not disclosing a contract that it itself drafted?”

Dr Day has fought an eight year battle with the Lewisham and Greenwich NHS Trust and Health Education England over protected disclosures about patient safety in the intensive care unit at Woolwich Hospital which associated with  two avoidable deaths.

He recently lost a case against the trust despite it being revealed that hundreds of emails and documents had been withheld from him including notes of a crucial trust broad meeting which discussed and decided the fate of his case. Some 50,000 emails involving his case were also destroyed by a senior trust official, David Cocke, during the hearing. He was also due to be a witness in the case but never gave any.

This new hearing has been brought by Dr Day over ” wasted costs” in an earlier hearing after he was pressed to agree to a settlement with the trust which exonerated the NHS or face huge costs which would have lost him his family home.

Day was arguing that had he known the truth he would not have agreed to three separate compromise agreements made with the NHS, one of which protected all lawyers in the litigation from wasted costs stemming from misconduct and another that paid Day a £55k contribution of his legal costs which was only a fraction of what he spent resisting the false arguments in this case on HEE’s employer status.

At this hearing Day asserted that the  settlements should be set aside after new information came to light following a freedom of information disclosure to investigative journalist Tommy Greene. The Judge at the hearing was also taken to references made by Tommy Greene and Sir Norman Lamb to fraud and other offences based on a legal opinion that had been instructed by Tommy Greene.

SRA Complaints Sir Norman Lamb (54000doctors.org)

In this hearing the Judge only had to decide whether Day’s wasted cost claim against Hill Dickinson was strong enough to progress to a full hearing where Hill Dickinson would be subject to a disclosure order for all relevant documents and emails relevant to this dispute. Hill Dickinson argue the settlement agreements should prevent the case progressing to full hearing.

Andrew Allen KC

The hearing revealed that Hill Dickinson were paid to re-draft contractual agreements for 200 other trusts as well as Lewisham and Greenwich. The contract with highest values was revealed as £79m. As Andrew Allen argued: “The LDA disclosed nearly three years after the 2015 strike out hearing,(an outdated LDA not drafted by Hill Dickinson), showed that the 2nd Respondent[ Health Education England] was responsible for substantial terms under which the Claimant”. This was a position that had been plainly denied on multiple occasions in several courts. Andrew Allen KC continued;

” The entire basis for the strike out application had been false. The argument run by the 2nd Respondent that it was ‘fanciful’ to suggest that the party which substantially determined the terms and conditions of the Claimant’s engagement was or could have been the Respondent was completely wrong.”

Extraordinarily Hill Dickinson claim that the lawyers representing Health Education England in the case did not know about the new agreement and even other lawyers working for Hill Dickinson didn’t know about it.

Andrew Allen KC said: “Had the Claimant known then what he knows now, he would not have entered into an agreement which could stop him applying for costs against Hill Dickinson. It is in the interests of justice to permit the Claimant to progress this application. His full skeleton argument is here.

Angus Moon KC pic credit: Sergeants’ Inn Chambers

Mr Angus Moon KC for the Health Education England argued that the non disclosure of the document was not relevant to Dr Day’s whistleblowing case. made no material difference to his case, and to throw out the agreement would break the finality of all agreements reached in courts. He also warned the press and the public reporting and observing the case that any reference to Hill Dickinson should not suggest that they had done anything wrong. He wanted Dr Day’s application struck out while Mr Andrew Allen, KC made it clear that this should not happen as the preliminary hearing could not investigate nor discuss the actions of Hill Dickinson without a full hearing at the tribunal.

Dr Chris Day’s Crowdjustice page explains more about what this hearing against Hill Dickinson was about with a link to the legal paper including Andrew Allen KC’s skeleton arguments. the link is:

https://www.crowdjustice.com/case/junior-doctors-whistleblowing-protection 

Dr Day has recently published a Linked In article explaining the twists and turns of his 8 years of whistleblowing litigation. The link is here.

Background note: Hill Dickinson is a 212 year old law firm, founded in Liverpool and now a big international firm. Its famous cases included acting for the White Star line, owners of the Titanic when it faced claims in the US courts after it sunk and for Cunard, owners of the Lusitania torpedoed by a German U boat in 1915.It also employed one of the first women to become a solicitor, Edith Berthen, in 1927.

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How the Tories keep our Parliamentary Ombudsman powerless – while telling the rest of the world they back the highest standards

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Rob Behrens Parliamentary Ombudsman

A high powered peer review of the Parliamentary Ombudsman has exposed the hypocrisy and double standards of the present UK government towards people having the right to redress from bad and unfair public and NHS treatment.

The report released from an international panel of Ombudsmen , an academic and a UK housing ombudsman concludes with a polite but damning assessment of the failure of the government to keep its word to strengthen the Ombudsman’s powers. Members of the panel included both the Greek and Israeli Ombudsmen and a respected academic, Professor Robert Thomas, Professor of Public Law, University of Manchester.

The UK is a member of the Council of Europe Venice Commission which lays down what are known as the ” Venice Principles” – an international standard to guarantee the independence of the Ombudsman and the human rights of people to have direct access to the Ombudsman to make complaints about their treatment by public services.

The UK then co-sponsored a UN resolution incorporating these standards for the entire world – telling every country that Britain was in the lead on this issue.

But then under successive Tory governments of Boris Johnson, Elizabeth Truss and Rishi Sunak nothing has not only been done but ministers have taken active steps to thwart reform.

The most obvious example is Michael Gove, who used his power in the Cabinet Office, to block any bill-even a draft bill- coming before Parliament to the despair of the Commons Public Administration and Constitutional Affairs Committee (Pacac) which under a Tory MP wanted this to happen.

The situation is remarkably similar to the government’s attitude towards the UN Convention on the elimination of all discrimination against women and girls (CEDAW) which Margaret Thatcher ratified in 1986 and had still not been properly implemented 40 years on . This is now the subject of a review from the convention in Geneva which criticises the UK for not implementing it properly and is demanding answers.

The conclusions of the peer review couldn’t be clearer:

Professor Rob Thomas Pic credit: Administrative Justice Council

“The ‘Venice Principles’ lay down a set of international standards and principles on the protection and promotion of Ombudsman institutions. These have been accepted by the UK, as a member of the Venice Commission of the Council of Europe in 2019. They were also adopted by the UN in a motion co-sponsored by the UK Government in 2020.

” In several respects, PHSO’s legal framework complies with the ‘Venice Principles’, but not in other respects. PHSO’s statutory framework is now out of date and widely seen as being unnecessarily restrictive. PHSO is also out of line with other UK Ombudsman offices, which possess powers that PHSO does not.
“This means that citizens in some parts of the UK do not have the same rights as others. We are aware that reform of the Ombudsman is a long standing and unresolved issue, although it has become an increasingly urgent matter which makes the work of PHSO more difficult. PHSO is doing everything it can reasonably do to make the argument for reform. What is required is action from the UK Government and Parliament. Any reform must maintain PHSO’s direct reporting line into Parliament to preserve its absolute independence from Government.”

Andreas Pottakis, Greek Ombudsman and President the International Ombudsman Institute -Europe

The report backs this up with a traffic light (red, amber, green) system of points where it measures the consistency and performance of the Ombudsman with the Venice principles.. Nearly all the red and amber points are caused by the failure of the government to legislate to strengthen the Ombudsman.

The government does not meet the principle that “Any individual or legal person, including NGOs, shall have the right to free, unhindered and free of charge access to the Ombudsman, and to file a complaint.” Instead a complaint has to be filtered by an MP or in the case of the NHS there has to be a “safe space” for administrators to look at the complaint before the Ombudsman can act.

There is no legal provision to protect whistleblowers who contact him. He, unlike his Welsh, Scottish and Northern Ireland Ombudsmen cannot initiate investigations. It is not clear whether he has full powers to force people to respond to him and certainly his recommendations don’t have to be followed by the government if he finds maladministration. There is not proper protection for his position by law and even the recruitment of a successor is limited, so not all people can apply.

Venice Principles give Ombudsman right to recommend changes to the law

The Venice Principles give him the right ” to have the power to present, in public, recommendations to Parliament or the Executive, including to amend legislation or to adopt new legislation” and this is definitely not allowed in England – otherwise he could go further on the case of the 50swomen who lost their pensions for up to six years.

Now you might think the Ombudsman would make a great deal out of this report to press the government to expand his powers or show up ministers for failing to keep their obligations to an international agreement they signed.

But the heading on his website is “World’s first official international ombudsman review finds UK service is robust and good value “. Yes the report does make good points about improvements in the running of the Ombudsman’s |Office but its fundamental objection is given muted coverage – buried down in the copy.

Further down the press release Rob Behrens, the Parliamentary Ombudsman, says: “The peer review rightly says that the UK is out-of-step with other modern Ombudsman services in terms of our statutory framework. Without powers of own initiative, I am hamstrung from investigating many systemic issues that no one is looking at. Legislative reform of the UK Ombudsman service would mean fewer barriers to justice and more opportunities to prevent injustice happening in the future.”

I think a more gutsy Ombudsman would fight his corner better -particularly as this government is on the back foot when it comes to defending decent public services and upholding standards in public life.

A more cynical explanation is that the government don’t want the public to have greater rights to complain as they are fearful of more bad administration and scandals coming to light But they want the rest of the world to think Britain is a beacon of good government in this area -knowing this is a lie.

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Andreas I. Pottakis

Tribunal of the Absurd: My Verdict on the Dr Chris Day whistleblower case

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Dr Chris Day

An employment tribunal under Judge Anne Martin has thrown out whistleblower Dr Chris Day’s claims against the Lewisham and Greenwich NHS Trust after an eight year battle about patient safety at the intensive care unit in Woolwich Hospital.

In a bizarre ruling the judge has managed to discredit the evidence of Dr Day’s witnesses, including the present Chancellor of the Exchequer, Jeremy Hunt and two very senior medical experts.

She glossed over the disclosure of the deliberate destruction of 90,000 emails by the NHS Trust, which should have been provided as more evidence of what happened during the eight year long dispute.

She played down false evidence given under oath from the trust’s chief executive, Ben Travis, that there was no record of a board meeting which discussed his case and approved the settlement when a note of the meeting came to light. Evidence here.

She is remarkably sympathetic to David Cocke, the associate director of communications at the trust destroying the 90,000 emails, which is a criminal offence, and accepted the excuses of the NHS Trust to avoid him attending the court where he would be cross examined.

Jeremy Hunt; Official Portrait

She did have the opportunity to strike out the trust’s defence midway through the hearing when it became clear that large volumes of potential evidence had been withheld and destroyed but decided there was enough evidence to continue the case. Now with this judgement we know why – perhaps she didn’t want to hear anything else that would prevent her finding for the trust.

Despite a long rambling 67 page judgement Judge Martin’s findings are as notable for what they omit as much as what they disclose and seems to cast doubt in one instance on the integrity of Dr Day while accepting at face value anything put forward by the trust.

Sir Norman Lamb

Dr Day was backed by two prominent politicians Jeremy Hunt and Sir Norman Lamb, a former health minister. Early in the judgement she disposes of Jeremy Hunt’s evidence by saying ” it relates to what he was told by the Claimant about the protected disclosures he had made. It does not refer to the
statements made by the Respondent which are the subject of this hearing. The Tribunal does not understand why his witness statement was put forward.”

This odd statement by the judge seems to suggest that Dr Chris Day told Jeremy Hunt t what to say – which I find hard to believe. I think Jeremy Hunt can make up his own mind and wouldn’t have given that statement if he hadn’t thought something was wrong. Sir Norman Lamb who was very vocal about the trust’s failings in treating Dr Chris Day – enough to want an inquiry – is said by the judge to have been treated ” fairly” by the trust.

Dr Megan Smith

The two medical witnesses Dr Megan Smith and Dr Sebastian Hormaeche were also dismissed as biased because they were supporters of Dr Chris Day’s whistleblowing activity. In fact Dr Day has never met Dr Megan Smith. She effectively demolished the case provided by the trust’s ” independent” consultant Roddis Associates, that staffing levels at the intensive care unit were adequate by quoting the national guidelines. 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.”

Yet this fact- it is fact not a campaigning point by Dr Day – is ignored completely.

She said: “I have been a member of my hospital’s Serious Incident Review Panel and am currently the mortality lead for the department of anaesthesia with responsibility for investigating any patient deaths. I am also a practising barristerand I carry out expert witness work (primarily in the field of clinical negligence) for”. She linked Dr Day’s safety concerns at the ICU to the two deaths there.

When it comes to the treatment of Mr Cocke the judge almost turns somersaults to protect his activity. The passage where she describes him shows up her unconscious prejudice in favour of the trust.

“It was Mr Cocke who opened this can of worms. It was he who contacted Dr Harding [one of the doctors that Dr Day raised the issue of the icu) and he who forwarded the emails provided by Dr Harding to the Claimant. He has been open about deleting the documents.

” It was not a situation where he owned up only because he had been found out. This does not strike the Tribunal as the actions of someone who is mindset on concealing documents and lends some credence to his explanation.””

And on his non appearance:”The Tribunal’s view at that time was that considering the medical evidence from Mr Cocke’s GP there was no medical reason Mr Cocke could not give evidence and if he did not give evidence then this was a decision of the Respondent.
Further medical information was then obtained which said that Mr Cocke was too unwell to attend to give evidence. Mr Cocke did not give evidence. On balance the Tribunal is satisfied that Mr Cocke was unfit to give evidence.
“Whilst the members of this Tribunal are not medically trained, it appeared that the apparent contradictions raised by the Claimant were indicative of a progressing mental health issue and this taken together with the irrational act of deleting emails points to Mr Cocke being quite unwell especially as it was he who first provided extra documents that had not been disclosed. We do not doubt that Mr Cocke is ill, but accept that there is no independent medical information explaining the nature of his illness and how it manifests.”

First of all it remarkably prejudicial for a judge to describe the unearthing of documents that should have been provided four years ago in discovery as “a can of worms” and secondly it is remarkable for a judge to decide to excuse a criminal act as a mental health problem. That seems a job for a psychiatrist not a judge who admits she has no medical expertise.

Harold Pinter: Pic Credit: National Portrait Gallery

Pulling this altogether this hearing would make a splendid play for the Theatre of the Absurd – it reads a bit like a plot by Harold Pinter than a serious contribution to judicial case law..

I hope some playwright considers putting together a play or TV drama on Dr Day’s epic eight year struggle for justice for patient safety. It should be dedicated to the two people who unfortunately died at Woolwich Hospital ICU and whom the trust prefers to forget.

I can’t imagine a more fitting place for Judge Anne Martin, Ben Travis and David Cocke to appear than a hard hitting and satirical play at the Edinburgh Fringe.

Note: Dr Day is currently raising cash for a further hearing next month in connection with this case and the involvement of the Health Education England – the link is
https://www.crowdjustice.com/case/junior-doctors-whistleblowing-protection/

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