Andrew Allen QC attacks the trust for its unprecedented ” brazen attitude” throughout the hearing

New hitherto undisclosed documents by Lewisham and Greenwich NHS Trust in the Dr Day employment tribunal, sent the night before it was hearing closing submissions from lawyers, reveal the trust secretly briefed the chief executives of NHS national bodies and four trusts on an inaccurate view of Dr Chris Day’s whistleblowing case.

The so called “briefings” were the same as a press release written by David Cocke, the trust’s communications director who has destroyed a large number of “potentially relevant” emails held by the trust and declined to give evidence.

The documents disclosed by the Trust on Thursday night revealed these “so called briefings” had been sent to the heads of NHS England and NHS Improvement.

Ben Travis, the chief executive of Lewisham and Greenwich NHS Trust also wrote in a memo that he was talking to Chris Hopson, then chief executive of NHS Providers, to brief him about Dr Chris Day’s case..

The trust had already failed to disclose (and was criticised in 2021 by an employment judge) that it sent them to 18 other stakeholders, including MPs and council leaders, which is at the centre of the dispute between Dr Day and the trust.

They are a key part of his claim that he suffered detriment for his protected disclosures nine years ago on patient safety and inadequate staffing at Queen Elizabeth Hospital, Woolwich’s intensive care unit.

Sir Norman Lamb, the former Liberal Democrat health minister, described the content of these documents released in 2018 as ” inaccurate, damaging and defamatory” .

Dan Tatton Brown QC, said, in his summing up for the trust, described them as ” partisan” needed by the trust to counter what he called a misleading press article in the Sunday Telegraph about the case at the time. He also said part of the release praised Dr Day for his whistleblowing, although Andrew Allen, QC, pointed out that the entire document does not have to be critical of Dr Day for a detriment to succeed.

Mr Allen told the tribunal that the letters had gone in 2018 to 4 CEOs of neighbouring Trusts: Amanda Pritchard, CEO, Guy’s and St Thomas’, Peter Herring, Interim CEO, Kings, Matthew Trainer, CEO, Oxleas, Dr Matthew Patrick, CEO, South London and Maudsley ; and to Steve Russell at NHS Improvement and Jane Cummings at NHS England.

The latest disclosure contradicts evidence given to the tribunal by Ben Travis last week, who said nobody else had received any statements.

Mr Allen’s submission said: “C [Dr Day] believes that R’s[the trust’s] conduct of this litigation – in particular the failure to preserve evidence; the inadequacy of the initial discovery exercise; the destruction of Janet Lynch’s[ former director of workplace and education] emails; the destruction of emails by David Cocke ; and the other various ways in which evidence has been placed beyond reach a has placed the fairness of the hearing in jeopardy. C believes that R’s response should have been struck out. R’s behaviour since the outset of this litigation, as highlighted through the revelations during this hearing has been contemptuous towards C and towards the tribunal. R’s attitude towards tribunal rules and tribunal orders appears to have been to use them to seek advantage.“

Mr Allen tore into the trust for the derogatory way it treated Dr Day. He said it had repeated accused him of lack of integrity. claimed he wanted to become a millionaire through his patient safety disclosures, described him of having unreasonable beliefs including conspiracy theories and being of a ” suspicious disposition”.

Mr Allen reminded the Tribunal of Dr Smith’s evidence on Dr Day’s protected disclosure, quoting Dr Smith (the Consultant anaesthetist the Trust tried to exclude from the Tribunal)  who stated,” For the avoidance of doubt, in my view, based on my own practical experience, the ratio of 1:18 in the Respondent’s ICU was, prima facie, unsafe and (if more than a one-off incident) was something that was required to be rectified.”

With the addition of the transcript that has been running throughout hearing, Dr Smith’s verbal warning to the Tribunal on Dr Day’s warning about patient safety in 2013 which Dr Smith clearly endorsed with the words, “There was a clear and present danger to patient safety: absolutely no question about that.”

Instead Mr Allen said the trust had failed by not doing a proper search of documents or even the right people’s documents, not disclosing relevant documents and deleting documents involving key people.

As a result people gave untrue statements to the tribunal.

Mr Allen told the tribunal that trust had “presented two institutional witnesses (Ben Travis and David Cocke ) whose witness statement evidence is so undermined by the fact of and the content of R’s late disclosure (not to mention Ben Travis’s own oral evidence) that they can no longer be regarded as reliable witnesses of truth. These witnesses were the people in charge of carrying out a discovery exercise involving searching their own in boxes for relevant material – which they clearly failed to do adequately given that plainly relevant material had been squeezed out of R over last two weeks – produced in a piecemeal fashion only because of questions upon questions from C pointing out the inadequacy of the exercise being conducted.”

Mr Cocke could have destroyed 90,000 emails

He then gave a run down of a coruscating cross examination he would have given David Cocke if he had turned up – pointing out Cocke in his second witness statement destroyed 90.000 emails altogether, questioning in detail that statement he had sent out to the stakeholders and challenging him that he had made misleading statements to the press by downplaying Dr Day’s patient safety disclosures  and misrepresenting investigation findings..

He then went on to the witnesses who were never called by the trust including the four doctors who handled Dr Day’s protected disclosures and the two directors that were the current and former legal client in the Trust that instructed the lawyers in the case. These individuals were present in the public gallery

“As well as Drs Harding, Brooke, Patel and Luce, the other ghosts at the banquet are Janet Lynch and Kate Anderson. Ms Lynch is happily alive and well and working as Interim Director of People and Organisational Development at Hertfordshire Partnership University NHS Foundation Trust.

Ms Anderson (a key witness in relation to detriment 4.2 concerning the lack of adequate response) is not only happily alive and well and working at R, but she watched some of the hearing. No reason has been offered by R for failing to call these people as witnesses.

“The tribunal is asked to infer that this is because presenting people to give evidence whose knowledge of the issues could not be disputed would have detracted from R’s aim which was to present DC and BT as the innocent people responsible for the public statements made by R and who were largely ignorant of any inadequacies in the content.
“That strategy has imploded under the weight of the content of the late disclosure that we have seen and the revelations about the inadequacy of the disclosure exercise that we have begun to learn about.”

Mr Allen asked the tribunal to discount David Cocke’s evidence entirely. because of his non appearance and his action in destroying documents. Mr Tatton Brown maintained earlier he had done the latter in a panic and because he thought he had failed his colleagues.

Mr Tatton Brown earlier told the tribunal that ” the trust has not instructed me to put the boot into Dr Day” but went on to accuse him of being a difficult witness who didn’t answer questions, having conspiracy theories criticising distinguished judges and the medical establishment and accused him of using his crowdfunding money to go on a holiday. All these allegations were refuted by Mr Allen.

Mr Allen exposed the smear about the holiday with the fact that the Doctors Association had presented Dr Day and his wife with a surprise gift of funding for a holiday and that as a surprise gift it clearly had nothing to do with Dr Day’s Crowdjustice campaign that has been used only on legal fees.

Mr Allen defended Dr Day’s criticism of numerous appeal judges that had engaged in fact finding. Mr Allen also described that Simler LJ had granted him leave to appeal on all three grounds to challenge the controversial settlement in the case and then rescinded the permission on the basis that it had been a clerical error, a frankly bizarre set of circumstances even for a lawyer, it was this context that Dr Day  was asked: “Is this part of the great medical legal coverup that you believe in?”. Dr Day maintained it was more than a clerical error and at the very least was a professional mistake.

The tribunal reserved judgement and will announce its decision later.

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