Whitehall whistleblowers: Cabinet Office monitors nothing, knows nothing and does nothing

Cabinet Office – 70 Whitehall Pic credit: Wikipedia Commons

The day after Parliament went into recess a damning Public Accounts Committee report exposes why Whitehall like the National Health Service has such an appalling record in dealing with whistleblowers.

The Cabinet Office, the ministry at the apex of power and responsible for co-ordinating all government policy should be interested in improving public service is turning a blind eye to any concerns that are raised by whistleblowers when things go wrong.

The Cabinet Office is supposed to collect data on whistleblowing across Whitehall but the report reveals it is making remarkably slow progress in doing so.

The report says: “There are some key metrics missing, such as data on “ongoing cases” and the length of time an investigation takes, making it difficult to understand whether cases are taking too long and why that might be the case. “

“The current data collection also does not ask for data on the treatment of whistleblowers which would help indicate whether whistleblowers are being treated fairly. Furthermore, some of the existing data collected lacks detail, for example the data shows that less than 5% of investigated concerns lead to changes in policies or procedures which suggests a lack of action is taken in response to concerns.”

40 per cent of Whitehall whistleblowing cases are about fraud

It goes on: “there is a lack of data analysis and sharing of insights regarding whistleblowing across of the civil serviceThe Cabinet Office does not utilise its central position to analyse the cross-government data it collects. It appears that 40 per cent of the whistleblowing cases involve fraud “but there is no further detail beyond this categorisation so the Cabinet Office do not understand why this is the case.”

“A ‘speak up’ environment is not yet embedded throughout departments to encourage people to comfortably raise concerns. There are still negative perceptions of whistleblowing which can create barriers to achieving the right environment for speaking up. The annual Civil Service People Survey in 2022 had a median organisational score of only 52% of people agreeing they ‘think it is safe to challenge the way things are done in my organisation’. So nearly half think it is not safe.

The report says the Cabinet Office and other departments do not seek feedback from whistleblowers and so are missing vital insights into the effectiveness of the process.

“We have seen no clear indications that any departments routinely seek feedback directly from whistleblowers. Some feedback can be given to departments through their Nominated Officers (senior members of staff who are nominated to receive and consider concerns), but it is not collected in a formal or systematic way for it to be informative and there are limitations with anonymous whistleblower.”

The report calls for a radical shake up across Whitehall with a serious approach from the Cabinet Office to monitor what is going on.

Ray of Hope

There is one ray of hope from one organisation that worked with the National Audit Office and obviously takes whistleblowing seriously – that is the Maritime and Coastguard Agency which is principally concerned with safety at sea and environmental protection. It is a Department for Transport agency. In evidence to MPs it has developed a strong whistleblowing policy and takes cases from both staff and members of the public including ships crew.

A fishing vessel Pic Credit: HM Coastguard UK

The external cases were mainly categorised under danger to the environment or health and safety related issues. These cases included safety of vessels in UK ports, failure to meet the obligations under the Maritime Labor Convention (noise and rest hour disturbance), untrained ship crew and fraudulent issue of seafarer competence certification.

Unlike health trusts the anonymity of whistleblowers is protected throughout the investigation and their names kept from the board of the agency.

The evidence says: “A recent example of protecting the identify of a whistleblower was following a report of health and safety concerns in relation to coastguard rescue equipment in one location. In order to protect the identify of the whistleblower the health and safety investigation manager reviewed equipment at more than one location. Similarly where there have been reports of potential travel and expense claim and government procurement card irregularities, spot checks across several employee claims have been undertaken to avoid identifying the whistleblower.”

As a result last financial year there were 34 whistleblowing investigations – 27 from staff and seven from members of the public.

“The internal cases during 2023-24 covered breaches of the civil service code, conflict of interest, recruitment irregularities, possible fraud, Health & Safety, Safeguarding of employees, Security breach, misuse of official position/ influence by improper pressure, GDPR breach and offer of a bribe. Of the 27 cases, four were not classed as Whistleblowing but “Speak Up” and were referred to MCA HR.

“The external cases during 2023-24  were health and safety issues on passenger vessels, potential security/ GDPR breach by an MCA contractor’s employee, security/environmental issue referred to the Joint Maritime Security Centre, a referral to the National Crime Agency and a modern day slavery report transferred to the appropriate authorities via Gov.Uk”

This appears to be exception rather than the norm. But it shows that if whistleblowing was taken seriously in Whitehall and the NHS far more serious safety issues could be investigated and fraud stopped. This lack of interest in whistleblowing – and the negative attitude towards doctors who report patient safety issues in the NHS – is a nasty blot on our public services. It does nothing to protect the public either.

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
£5.00
£15.00
£100.00
£5.00
£15.00
£100.00

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

The great stonewall: How Mel Stride and Rishi Sunak have stymied 50swomen compensation

Rishi Sunak

After years of waiting for compensation for maladministration and discrimination some 3.5 million 50s born women have been left in limbo yet again even for the paltry sums of up to £2900 compensation recommended as a guideline by Rob Behrens, the former Parliamentary Ombudsman.

The explanation given by both Mel Stride and Rishi Sunak any time they are asked by MPs is that the Ombudsman’s report is so complicated that they will be spending an age to study it. They keep citing that it took Rob Behrens five years to write, deliberately ignoring that the Ombudsman unnecessarily paused his work for nearly two years while the Department for Work and Pensions was facing a judicial review over discrimination from Backto60 – now CEDAWinLAW.

DWP

In fact their excuse – which was never strong to start with – is rapidly wearing thin. The truth is that civil servants have had months to study the likely outcome of the Ombudsman’s report since it is not much different from the draft report he circulated – and was leaked on this blog – over 18 months ago..

And the Ombudsman knew that civil servants at the DWP then did not believe they had put a foot wrong and rejected any suggestion that there was any maladministration at all. Indeed their draft reply also leaked on this blog – had the temerity to suggest that these women were a load of fraudsters who would put in fake claims so they certaInly should NOT get any compensation.

What is becoming clear to exasperated MPs whether on the Commons Work and Pensions Committee or the Public Administration and Constitution Affairs Committee is that the government have no intention of naming a date when they will reply. And the government know they do not have to implement the Ombudsman’s paltry findings because the law allows them to ignore or reject any recommendation from the Ombudsman.

As Jackie Doyle Price tweeted as the new Tory chair of PACAC : “We are extremely disappointed that the Government is unable to tell us when it is planning to respond to @PHSOmbudsman‘s report into the communication of state pension age changes to #50swomen.”

Indeed are the government going give them any money at all – just issue an apology. That is what Ben Wilkinson, the Telegraph’s head of money said in an article recently and it is echoed by the private pensions industry which was always opposed to the women getting any compensation. And there are signs that some Tories such as Samuel Kasumu, Boris Johnson’s former special adviser, think the same – though their MPs are wary of alienating 50swomen in case they lose even more votes at the next General Election.

Sir Keir Starmer Pic Credit: Chris McAndrew / UK Parliament

Labour are not much better – the party leadership abstained on a Scottish National Party motion- calling for compensation suggesting Sir Keir Starmer is not keen either. Many Labour backbenchers take a different view and have raised the issue of how unfairly the women have been treated.

What is also missing is a more rounded debate. It is centred – no doubt by Higginson Strategy, lobbyists for WASPI, solely on the demands of WASPI which seems content to accept the Ombudsman’s recommended findings.

The debate pushed by CEDAWinLAW for an alternative solution – mediation with Mel Stride, the work and pensions secretary , has been ignored by too many MPs. This too involves a compromise but Mel Stride is not playing. CEDAWinLAW’s lawyers judged it was unlawful of him not to agree to this. And it is pity through not having enough funds to go through the case and the threats of adverse costs by both the DWP and, at one stage, Waspi, that this could not go to court. Waspi. didn’t support any mediation either. Mel Stride has still to reply again to a letter from CEDAWinLAW’s lawyers.

CEDAWinLAW has asked the UN CEDAW committee in Geneva to open an inquiry into the government’s handling of this. If they do the Government will face international criticism and the UK’s reputation for fairness and treatment of women in society will be further damaged.

In the end the government know that by remaining silent they can delay this as long as they like. But ministers should be careful. Although a number of the women are now dead, there is still a sizeable number who could take their revenge on the government through the ballot box. And time is also running out for the government when they have to call a general election.

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
£5.00
£15.00
£100.00
£5.00
£15.00
£100.00

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

Historic conference at the Royal Society of Medicine on Patient Safety paves way for campaign to protect whistleblowers from trusts in the NHS

Yesterday a conference of doctors, patients and journalists held at the prestigious Royal Society of Medicine in London highlighted the appalling treatment of doctors by NHS management who raise patient safety issues to protect patients. Examples were given from doctors who had been dismissed after they raised patient safety issues and how trust managers spend unlimited funds on lawyers to make sure they lose employment tribunal cases, sometimes even aided by the judges hearing them.

The conference arranged by Justice for Doctors, a new organisation representing many of the affected doctors, coincided with a series of articles in The Daily Telegraph, which showed that these are not isolated cases but involve doctors right across the country and is a national problem which trusts are trying to hide.

One of the main organisers is David. E. Ward,, a retired cardiologist from St George’s Hospital, South London, who has already written two guest blogs on this site. I have included his planned closing statement to the conference as a fresh blog from him as it succinctly sums up all the issues that were raised.

By David Ward

First, I would like to thank all the contributors to this historic meeting. In a way it is a celebration of all those oppressed whistleblowers who have spoken up for patient safety.

I would personally like to thank my friend Professor Somerville who has been a driving force behind this and many other ideas to stand up for whistleblowers. Jane and I have been trying to set up a second meeting about Patient Safety for 5 years following the first one in March 2019 when we re-enforced our personal campaign to expose – and do something about – the appalling treatment of doctors who speak up for patient safety also known as ”whistleblowers”. During our campaign we met the Justice for Doctors group who helped to organise this meeting

In the past 3 decades a Hospital Trust with its senior management has accrued the powers to destroy a doctor’s career by imposing restrictions, suspensions, referrals to regulators (GMC, CQC) and, astonishingly, an unfettered power to dismiss. These major life-changing decisions are arbitrary and undertaken, incredibly, without any independent or regulatory oversight. For dismissal, “get out” is apparently sufficient.

Allegations against the victimised doctor may be based on made-up and unsubstantiated claims. If major criteria for dismissal cannot be met there is always the “loophole” of “some other substantial reason” which conveniently does not exclude but also does not mandate any additional explanation.

Doctors who see poor practices, faulty equipment, processes (and the like) are obliged to speak-up by Duty of Candour (HSCA 2008 reg 20). But by speaking up but they may put their careers at risk as we have seen so many times recently.

The “The National Guardian” program introduced by Sir Robert Francis and intended to accommodate doctors who speak-up, evidently does not function as intended. It’s called “marking your own homework”.

Investigations into a whistleblower together with their concerns should be independent of the Trust in which they work and be seen to be so. But evidently, they are not. Furthermore, the Trust managements who make these decisions are themselves unregulated. That doesn’t seem right? Does the phrase “judge, jury and executioner” come to mind? Managers should also be regulated, shouldn’t they?

Arcane procedures such as MHPS appeal hearings can be overseen or conducted by “dodgy” external “agencies” some of which claim spurious credentials. These agencies are, in effect, “hired guns” available and willing – for a fee – to “confirm” the Trust’s unfounded allegations and to assist their aims – to dismiss the “troublemaking” doctor; not because of “incompetence” but because the doctor has “annoyed” Trust management by raising concerns about Patient Safety or something else. The reactions of management are often vengeful, as we have seen.

I know of at least one of these agencies which has appropriated and misunderstood (in a written formal report) the phrase not “fit-for-purpose” to describe a doctor in support a Trust’s decision to dismiss. The agency seemed totally unaware that this is not only fictitious nonsense but possibly libellous. No such phrase exists in English Employment Law. Unfortunately, NHS England has also been duped. I know because I’ve asked – in person.

The Judiciary, in the form of Employment Tribunals may be called into action if the dismissed doctor seeks to restore their career via this route. This is a bad choice by the victim as the evidence confirms. Only 3% of Claimants, “win” – not the most apt word – in this system. Put another way, 97% lose! Is that “open and fair justice”? I think not. Some of the judgments are beyond comprehension.

There are many practices which seem grossly unfair, perhaps deliberately. Some obvious ones stand out:

1. Inequality of arms; the law firms acting for the dismissing Trust are funded by each of us – the taxpayer. The Claimant, the doctor, healthcare worker will have no external source of funds except  perhaps by “crowdfunding”. Furthermore, if they lose their case, they may required to pay not only their own legal fees but the law firm’s fees too! That’s not fair. I can show you some law firm invoices which would shock you. The phrase “inequality of arms” doesn’t touch it.

2. “Cost threats” are a notorious device employed to, shall we say, “persuade” a claimant to withdraw their claims before, during or after a Tribunal. It’s another weapon deployed by the Respondent, the dismissing Trust, to force the claimant to surrender and withdraw their claims.

3. Non-disclosure agreements or NDAs, are devices designed to conceal the devious practices used to threaten the claimant (and, as it happens, to suppress evidence). They have no place in inquisitorial proceedings in this context. They should be banned.

4. The Public Interest Disclosure Act (PIDA) 1998; I quote: a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

In other words, a doctor cannot be dismissed, for example, for raising patient safety concerns. So, any dismissal has to be attributed to another perceived misdemeanour.  Read any recent case and it is evident that the “whistleblowing” or “patient safety” concerns were discounted and irrelevant to the dismissal. It was about an “attitude”, a “manner of speaking” and similar unquantifiable and, in most cases, unverifiable attributions. Ask one of the presenters today.

5. At a time of great need for medical expertise, doctors are still being persecuted and dismissed having committed NO offence. The law firms which spend so much public money to pursue the claimants should have no place in any procedures which are primarily about patient safety. Furthermore, the concerns and the person who raised them should be formally registered and documented, including all steps taken towards a solution. This is not happening. Doctors who raise concerns about patient safety are treated like criminals! This must stop!

6. Last but not least the patient safety concerns, the very things that trigger most of these shenanigans. What happened to those? Well, they get buried and forgotten don’t they. What a wonderful system. All that waste of public funds to destroy a doctor’s career instead of correcting potentially dangerous practices. That is why a register is needed.

The problem is a nationwide one of the same gravity as the “Great Post Office Scandal”. Perhaps NHS whistleblowers need a TV drama-documentary because we have seen how that shifts public opinion and awakens the media with unprecedented force. I’ve already draw up a potential cast list!

Last, there should be a searching, durable, logical and legally sound review of the treatment of ALL whistleblowing related laws and processes. Whistleblowers are the canaries in the coalmine. They do society a favour. They should be praised – not persecuted.

This is the 21st century! What country do we live in?

Thank you all for attending. Thank you to all those who presented. And particular thanks to Dr Salam Al-Sam, Dr Azhar Ansari and the Justice for Doctors group.

UPDATE: Who came and Who didn’t send anyone

Newspapers who sent a reporter: Times, Guardian, Daily Mail, Standard,

Major media who sent a reporter: Sky News 

Major media one would have expect to send reporter:

BBC, ITV, GBNews, LBC

Major regulatory professional bodies who were notably unrepresented: (very bad show I think especially as some of their members Fellows were major subject dig the WB scandal). If they didn’t know or just couldn’t be bothered –  it’s shameful, either way!

BMA, CQC, GMC, Royal Colleges (all of them, Physicians, Surgeons, Obs and Gynae), National Guardians Office (FTSUG), HMCTS (at least they could have send a junior barrister), Law firms; all those with an obvious interest in oppressing Claimants

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
£5.00
£15.00
£100.00
£5.00
£15.00
£100.00

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

The mad waste of public money by UK’s leading nuclear giants to pursue costs against a whistleblower at your expense

Sellafield

One aspect of the second recent cost hearing against whistleblower and human resources consultant Alison McDermott by Sellafield and the Nuclear Decommissioning Authority which was not covered is the cost to the public and us the taxpayer.

During the hearing Deshpal Panesar, KC Sellafield’s lawyer from Old Square Chambers, rather pompously told the hearing that the fact Sellafield was claiming £20,000 off Alison was ” to protect the public purse”. He and the Nuclear Commissioning Authority which was also claiming £20,000 made a huge point that her “unreasonable behaviour” by pursing them at a tribunal meant she should pay a penalty.

What is now emerging from Freedom of Information requests is that the cost to bring this action far outweighs the money they will receive even if they are 100 per cent successful.

Both nuclear giants have already spent a huge sum – nearly £700,000 of taxpayer’s money – fighting Alison, whose consultancy was terminated, after her report revealed bullying and fear among staff at the nuclear site in Sellafield.

Alison McDermott

Now it is known from FOI that both organisations have spent £59,000 between them on preparing the case for the second hearing on top of money they had already spent for the first costs hearing. This doesn’t include the cost of hearing itself which is about another £20,000 considering Sellafield’s lawyers Deshpal Paneser. KC charges £5500 a day for the hearing and Emma Mills, from DLA Piper, who charges £3000 a day . The NDA employed another barrister, Rachel Levene and solicitors Pinsent Mason. Plus there were paralegals at the hearing.

Now one would think that after a High Court judge had ruled that the first costs decision was ” unsafe” and said his view should be taken into account by judge Stuart Robertson, who has heard the second hearing, there would be pause for thought. Both nuclear organisations are also lucky they will not face an appeal. So any sane organisation would decide to leave it there.

Instead we have the economic madness, which no commercial company conducting a risk assessment would follow, of throwing more money at bringing a second case when there is not the slightest chance of getting their money back. Indeed even if they were 100 per cent successful they stand to lose £40,000 and that is by no means certain they will get that. It is only that it is our money from the taxpayer they can throw it around like confetti.

So why are they doing it? The decision must have been endorsed by Euan Hutton, the new chief executive.

Despite previously serving as a Mental Health Champion alongside Ms. McDermott to foster a kinder and more supportive work environment, Mr. Hutton is now relentlessly pursuing costs against her.

In various YouTube videos, Mr. Hutton espouses the importance of treating people with kindness, yet his actions towards Ms. McDermott are anything but.  He actually says that “kindness is putting in the time to think about how different people act differently, that’s what kindness is all about”  [second video from 20 seconds onwards].    By hounding her for costs related to her whistleblowing for the second time, he has subjected her to immense stress and anguish, betraying the values he once claimed to champion.

See https://www.facebook.com/watch/?v=1938802916244720

Euan Hutton’s video.

Now Sellafield receives £6.7 million daily from taxpayers. Mr. Hutton’s decision to waste these funds on a vindictive legal battle against a whistleblower is an egregious misuse of public money. It is a slap in the face to taxpayers who trust Sellafield to use their contributions responsibly.

The Guardian has reported that the National Audit Office will investigate Sellafield’s substantial expenditure.

https://www.theguardian.com/business/2024/feb/15/spending-watchdog-launches-investigation-into-sellafieldI intend to make the National Audit Office aware of this blog post, as it highlights the unethical and hypocritical behaviour of Mr. Hutton. I think the public would strongly disapprove of their money being used to persecute a brave individual who spoke out against wrongdoing.

Mr. Hutton should be held accountable for his actions, which have caused harm to Ms. McDermott and undermined Sellafield’s commitment to employee wellbeing and to a culture of openness.

But perhaps this is the real reason for using public money in this way is to silence anybody else who might be thinking of exposing the dark secrets inside Sellafield. She is not the only whistleblower.

I approached Sellafield and the NDA about this waste of money but both said

“These issues are still subject to legal proceedings. We cannot comment further at this stage.”

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
£5.00
£15.00
£100.00
£5.00
£15.00
£100.00

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

Guest blog: Sellafield deploys reverse glasnost

by Philip Whiteley

Sellafield site

As reported on this blog earlier this week, the confrontational, five-and-a-half-year whistleblowing litigation between equalities adviser Alison McDermott and Sellafield and the Nuclear Decommissioning Authority last week featured a one-day costs hearing at Leeds Employment Tribunal, even though an earlier costs award against Ms McDermott had been ruled as unsafe by the appeal court in London.
The aim of this article is to point to the public interest in matters at the heart of this case that have been treated lightly by the presiding Tribunal judges, and ignored by the two defending organizations (Respondents).

Alison McDermott


There have been strong, conflicting claims on both sides throughout the case, many of which related to the way in which litigation was conducted. These were the subject of last week’s hearing. The two Respondents were represented by KC Deshpal Panesar, for Sellafield, and Rachael Levene, for the Nuclear
Decommissioning Authority, hired by the law firms DLA Piper and Pinsent Masons respectively.

Deshpal Panesar KC

In her address to the court, Ms McDermott reminded us of the public interest in her original report from 2018: the workplace culture at Sellafield. In her address, Ms McDermott reported that just 11% of people on the site strongly agreed that they could speak out without fear of reprisal.
I have seen employee opinion surveys from the site. The scores for the prioritization of safety as an issue are significantly higher than the scores for ability to speak out, indicating a serious gap between formal policy and managerial practices. This matters especially on a nuclear site.

Mikhael Gorbachev. Pic credit:BBC

Nearly 40 years ago, following the accident at the Chernobyl reactor in Ukraine, the then leader of the Soviet Union Mikhail Gorbachev recognized that a climate of fear both made such accidents more likely
and delayed a proportionate response. He instigated a policy of glasnost – freedom to speak up – as a direct consequence. This intuitive conclusion by Mr Gorbachev has since been vindicated by numerous workplace studies, which show that workplaces with low engagement and higher levels of fear are statistically more prone to accidents (the Gallup survey cited in this report, for example. the link is  Engaged Workplaces Are Safer for Employees (gallup.com)).
When I was talking with a press officer from the Office for Nuclear Regulation three years ago, in relation to the Ms McDermott case, he was unaware of this link, and assumed workplace culture and safety issues to be separate categories.

Rachel Levene

Rachael Levene, barrister for the Nuclear Decommissioning Authority, appointed by Pinsent Masons, last week claimed that Ms McDermott was not a whistleblower, and not entitled to protection from detriment under Section 47(B) of the relevant legislation. This was a narrow legal argument, while members of the press and the public can observe that Ms McDermott’s central claim of a bullying and toxic culture and an HR leadership that was not on top of the issues, have been the conclusions separately made by several authoritative sources:
 A report by PricewaterhouseCoopers, commissioned by the Nuclear
Decommissioning Authority,
 The BBC, in an investigation reported in March 2021 (as a declaration of
interest, I referred this story to the BBC), Link:Sellafield nuclear site a ‘toxic mix of bullying and harassment’ – BBC News:
 The Guardian, in a report in December 2023, link  Sellafield nuclear site workers claim ‘toxic culture’ of bullying, sexual harassment and drugs could put safety at risk | Energy industry | The Guardian
 The Nuclear Decommissioning Authority’s own representatives, speaking under oath at the main hearing on 29 June 2021, agreeing with the PwC report’s conclusions that the HR function was ‘not fit for purpose’’, praising Ms McDermott’s contribution and expressing surprise at her sudden departure, as
reported on this blog at the time. Link: Nuclear industry leaders contradict each other in landmark whistleblowing case | Westminster Confidential (davidhencke.com)

This evidence was missing from the 2021 Tribunal ruling that found against Ms McDermott. There is no transcript available at an Employment Tribunal, which hampered her appeal. I attended that day and have short-hand notes.
There is a significant public safety risk attended to last week’s hearing. Sellafield’s management were making a very public declaration that if someone dares criticize them, even if they have a strong case, sufficiently well founded to reach the appeal court which reached a balanced verdict, they risk having their professional reputation trashed and suffering the threat of a life-altering financial penalty (the Respondents have bid to claim a total of £40,000 from the Claimant). It is likely that those low levels of freedom to speak out will have fallen even further following last week’s hearing.
The principal tactic of the Respondents has been to promote a pejorative narrative about the claimant, largely based on her response to their own legal tactics. For example, from Mr Panesar we heard him say that Ms McDermott had made a false complaint of fabricated evidence being used against her, in a claim that was then dropped on the eve of a hearing, and that this was unreasonable behaviour.

Sellafield letters unlawfully processed on personal computers – ICO

From Ms McDermott, we learned that the evidence in question consisted of three letters purporting to complain about her conduct while working at the Sellafield site. This evidence was not presented at the beginning of litigation. At the point of her dismissal, she was informed that the sole reason for termination of her contract was financial – an explanation also given to the governing body. After Ms McDermott discovered that some £17 million had been allocated to work of a similar nature, the
Respondents switched to one of competence, admitting it had lied about the initial reason. The three letters only appeared one year later. The letters were produced on personal PCs, contrary to company policy. They were later found by the Information Commissioner’s Office to have been unlawfully
processed, in contravention of data protection law (Judge Lancaster wrongly described the ICO ruling as mere criticism in the 2021 tribunal ruling.)

As reported on this blog before, the metadata was wiped on one of the letters while in possession of DLA Piper. Link Sellafield Broke Data Rules in Whistleblower Case – Byline Times

When restored, the metadata showed that the document had been open for three hours at the point of its creation, during which time phone records showed that the author took a long phone call from the HR director Heather Roberts, the third Respondent in the case.
The focus by Sellafield’s lawyers last week on the style of whistleblowing or protests made by Ms McDermott, ignoring or downplaying their substance, is straight from the anti-whistleblower playbook. It has been used by several NHS trusts to discredit medical professionals raising safety concerns – several of whom were watching last week’s proceedings in Leeds, either in person or by remote link.

In NHS cases such as the case of Dr Usha Prasad (link Unfit for Purpose: The NHS appeal panel that upheld the sacking of Dr Usha Prasad | Westminster Confidential (davidhencke.com)and of Martyn Pitman, the narrative concerns relations with colleagues and associated allegations; again, a highly personal attack on the style of reporting used by the whistleblower, ignoring the substance of their reports.(link

 Whistleblowing ‘cost Hampshire doctor dearly’ after he loses tribunal | Employment tribunals | The Guardian

Quite how such tactics have come to be regarded as acceptable by Tribunal judges is a matter of concern, and is likely to come under scrutiny now that the NHS Whistleblowers’ Group, numbering some 1,600 individuals, has been invited to assist the Thirlwall Inquiry into the Lucy Letby case.
Sellafield’s lawyers and press officers will point to the 2021 ruling which found in their favour – a judgement that got the ICO ruling wrong, ignored swathes of evidence and multiple failures of disclosure by the Respondents. There is a term in football: the ugly win. Sellafield et al won ugly. But this is not football, and the ugliness is a much bigger story than the win.

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
£5.00
£15.00
£100.00
£5.00
£15.00
£100.00

Or enter a custom amount

£

Your contribution is appreciated.

Your contribution is appreciated.

Your contribution is appreciated.

DonateDonate monthlyDonate yearly

Please donate to Westminster Confidential

£10.00

Sellafield whistleblower fights nuclear giants to avoid a £40,000 costs order for the second time around

Alison McDermott

Alison McDermott, a human resources and diversity consultant, was back at a tribunal last week fighting a second attempt by Sellafield waste facility and the Nuclear Decommissioning Authority (NDA) to demand costs after she brought a whistleblowing case against both of them.

The consultant was sacked by Sellafield after she compiled a report at their request which revealed bullying at the plant and since then has faced a tribunal and an appeal tribunal before this fresh action bought by both nuclear bodies. She lost the first tribunal heard by judge Lancaster who originally ordered she should pay the £40,000 costs. But an appeal judge Auerbach overturned the costs order as ” unsafe”,

This week both bodies decided to spend more taxpayers’ money and appeal the judge’s order to ditch the costs. If Sellafield succeeds it will recover just six per cent of the huge lawyers fees both bodies had paid to pursue her for years.

The hearing opened with a blistering attack on her by Sellafield’s lawyer, Deshpal Panesar KC, Of Old Square Chambers who is paid £5.500 a day, effectively said that everything Alison McDermott said , including her whistleblowing detriments was a ” baseless lie”.

He told the tribunal she had made  “baseless claims of the most damaging sort, representing an existential threat to the careers of multiple public servants, based on multiple untruths”. Indeed so strong was his attack that a person who overhead part of the proceedings thought I had tuned into the Old Bailey and was hearing the denunciation of a convicted criminal.

Rachel Levene

Rachael Levene, representing the NDA, said Ms McDermott had “acted unreasonably”  by involving the nuclear body in the case at all. She claimed that the body, which works closely with Sellafield, was not involved and Ms McDermott should have known that because of all the evidence it produced. Given that the body had failed to extradite itself from the tribunal in the first place, this seemed to me rather a chilling attitude to take as it suggests that claimants should be blamed if they bring a case at all.

The NDA then raised that it had offered £160,000 to settle the case – even though it was arguing at the same time it should not have been involved in the first place – but this had been rejected by her. Ms McDermott has said that she did not settle the case over the money but over a point of principle to raise the issue in a tribunal. She also said that judge Lancaster had refused herself and her husband’s request to contest the NDA’s version of what happened at the meeting when the offer was made.

Sellafield

Alison McDermott countered arguments by Deshpal Panesar by pointing out that the appeal judge had ruled that the costs had been ” unjustly awarded ” and questioned his assertion that she was not a whistleblower by pointing out that the appeal judge decided she was and that judge Lancaster’s tribunal had erred in its judgement on two disclosures.

She also pointed out that she had pressed repeatedly for mediation to solve the dispute but this had been rejected and also that both sides had decided to spend hundreds of thousands of pounds on expensive lawyers when they had big human resources and legal departments, over 100 at Sellafield, which could have handled the case.

Moral obligation to scared staff at Sellafield- Alison McDermott

She told the judge :”I was brought in to do a job and I did my job. I felt a deep moral obligation to the people I was speaking to who were telling me how scared and stressed they were by the culture at Sellafield.”

She said she was told by Lesley Bowen, a senior HR Manager, at Sellafield that she was let go for financial reasons.  Ms McDermott asked if there were any other reasons and Lesley Bowen confirmed  in writing that it was purely down to financial constraints. But after Ms McDermott found out they had spent £17 million awarding HR contracts they changed their tune and said they had lied to her and that they were really letting her go due to performance concerns. Which is odd as they had just rehired her, according to Ms Bowen, due to her excellent past performance working across Sellafield and the NDA.

At an earlier tribunal she had felt she had been treated by Mr Panesar equally badly during cross examination

She told me:” I found he transgressed professional boundaries and went further and took no account that I was vulnerable to such criticism.
“Over many days he accused me of being “motivated by spite,” “self-serving,” “self-absorbed, “wholly intent on chasing a windfall”, “seeking to ruin the reputations of HR staff at Sellafield” and even “acting out of revenge” .

She also disputed any idea by submitting a Freedom of Information request to obtain information that had been withheld by Sellafield and the NDA amounted to ” unreasonable behaviour.” These included information that both Sellafield and the NDA has spent £670,000 between them on lawyers and the NDA has just spent another £45,00 on prelimary legal work to recover £20,000 from her.

She pointed out that she and a witness on her behalf, another whistleblower at Sellafield, Karl Connor, had experienced ” unremitting stress” from the management at Sellafield.

She concluded: “The Tribunal is implored to recognise the substantial challenges the Claimant has faced in bringing this whistleblowing claim which has now been ongoing for 5.5 years.  The Claimant asks the Tribunal to affirm whistleblowers’ vital role and prevent further harm or costs to the Claimant. The significance of not penalising whistleblowers is particularly acute in the context of Sellafield Ltd, a nuclear facility where the potential consequences of unchecked wrongdoing could be catastrophic.”

Judge Stuart Robertson reserved judgement which will announced later.

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
£5.00
£15.00
£100.00
£5.00
£15.00
£100.00

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

Judge holds hearing to decide whether Dr Usha Prasad unfair dismissal case can go ahead

Dr Usha Prasad

Dr Usha Prasad, the whistleblower cardiologist sacked by the Epsom and St Helier University Hospital Trust, was back at an employment tribunal yesterday to fight for a hearing that she had been unfairly dismissed.

The public hearing was delayed for nearly two hours because 400 pages of legal papers from the trust could not be immediately accessed to be read by the judge. So both sides spent three hours presenting oral evidence instead.

The successor trust, St George’s, Epsom and St Helier Hospital Group, is seeking to strike out her case saying a decision at a previous tribunal by Judge Hyams-Parish, which came down in favour of the trust over her claims of discrimination, victimisation, harassment and whistleblowing meant it should be the end of the matter.

Miss Rehana Azib, QC, for the trust argued that her dismissal was the consequence of the failure of her claims and there was no need for a further hearing.

To add to the confusion in the day Dr Prasad said a decision that the case should go ahead had already been taken in September 2022 – more than 18 months ago. . She said Judge Balogun had already rejected an attempt by the trust to strike out this further hearing and ordered that the case will be listed for a case management hearing for 2 hours and a separate full hearing listed for 3 days. “

She was told by the present judge that this ruling had been reconsidered by the judge. However it is extraordinary that Miss Azib excluded the letter saying the trust’s first strike out was unsuccessful from the trust’s bundle for the hearing. Dr Prasad had received no notice that this had been changed but yesterday’s hearing still went ahead.

Rehana Azib KC: Pic credit: Keble College, Oxford

Miss Azib, KC from 2, Temple Gardens Chambers, based nearly all her entire case against Dr Prasad on Judge Tony Hyams-Parish’s judgement. She also tried to extricate Jacqueline Totterdell, group chief executive of the trust, from the case brought by Dr Prasad by arguing she was not chief executive at the time at the time of her dismissal. She has however continued to authorise lawyers to pursue Dr Prasad. There followed an argument that her post represented the main body of the trust. Ms Azib told the judge that to bring a case against her personally rather than the trust would cause her stress and be time consuming from her other duties.

I covered the Hyams- Parish judgement at the time. My blog on his judgement is here.

Judge Christina Morton

The most dramatic part of the hearing came when Dr Prasad, challenged by Miss Azib’s statement that none of actions by the trust were judged by Hyams-Parish to have been connected to her whistleblowing claims, produced a stream of examples.

This included an attempt by Dr. James Marsh, now group deputy group chief executive, to water down her whistleblowing report on the ” avoidable death ” of heart patient, Mr P, which the trust confirmed at the Hyams-Parish hearing had never been reported by Richard Bogle, head of cardiology to the coroner or the Care Quality Commission. Her refusal to do seemed to lead to her internal disciplinary hearing..

She pointed out that there was no independent expert at the hearing to examine the case against her, all the people were colleagues of Dr Marsh and his wife in both NHS and private practice. A list of what turned out to be vexatious cases of her failures sent to the General Medical Council by the trust was compiled by Dr Marsh’s close colleague. They were thrown out by the GMC who exonerated and revalidated her to work anywhere in the UK. Judge Hyams-Parish did not want to see their report.

The most telling example was an email from the then chief executive of the trust Daniel Elkeles, offering to abandon the internal disciplinary proceedings against her if she dropped the tribunal case against the trust which contained the whistleblowing claim. He would help to revalidate her so long as she left the trust.

She also pointed out that she was banned from any clinical duty and told to stay in the office for 28 months before the disciplinary hearing and her dismissal. Since she saw 2,000 cardiology patients a year, this meant that the NHS – which was also hit by the pandemic- was depriving thousands of patients seeing a consultant whom the GMC had judged was perfectly competent to do her job.

As you will see in my contemporary blog on the Hyams-Parish judgement I noticed the judged ignored the plight of Patient P and the evidence of the letter from the chief executive to her at the time

She also accused lawyers for the trust of witholding information and misleading previous court hearings – particularly not revealing that when she could not attend a hearing the text of a doctor’s letter explaining why. The respondent’s lawyer also told the judge that Dr Prasad hadn’t submitted ” any particulars of her claIm” over this case yet she had submitted them to the respondent last April. She also didn’t tell the judge Usha’s detriment case had been listed for an appeal.

The accusations led Miss Azib to remind the judge that serious allegations had been raised in ” an open hearing.”

I got the impression that the lawyer and the judge would have much preferred this hearing to have been held without the public and the press being present. It is a good example of why there ought to be more coverage of what happens at employment tribunals.. The judge is reserving judgement.

Facts surrounding the case

The trust has engaged and paid 33 lawyers to pursue Dr Prasad over the last six years at a cost of hundreds of thousands of pounds to the taxpayer.

Nearly 10,000 NHS cardiology patients in South London and Surrey have been deprived of being treated by Dr Prasad while she was restricted from doing any clinical 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
£5.00
£15.00
£100.00
£5.00
£15.00
£100.00

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

Why babies now could face brain damage at the health trust that sacked whistleblower obstetrician Mr Martyn Pitman

Dr Martyn Pitman

Thousands of followers of this website may remember last year’s nine blog coverage I gave to the employment tribunal over the sacking of whistleblower Mr Martyn Pitman at Hampshire Hospitals NHS Foundation Trust (HHFT). He lost the hearing. He was belittled and and repeatedly insulted  by the former head of chambers, Mark Sutton of Old Square Chambers, including calling him a ‘freelance agitator,’ only to later be forced to retract that slur. Sutton, who picked up a big share of the £650,000  taxpayer funded legal fees pay out to represent the trust, approached the ET by portraying Mr Pitman as something of a tyrant, an assessment clearly not shared by his previous colleagues, who actually worked with him, attending in numbers at the hearing, or indeed by his thousands of  social media supporters

 Mr Pitman was sacked because it was said his employment there was ” a present danger to patient safety ” by the former chief medical officer of the trust, Lara Alloway. It was also claimed that his relationship with the Trust’s senior management had ‘irretrievably broken down”. Yet it was he who had raised patient safety issues which was stomped on by non-clinical senior midwifery managers, despite identical concerns also being raised a few months later by several senior clinical  midwives.

Dr Lara Alloway now chief medical officer for Hampshire and the Isle of Wight Integrated Care Board

Well now a year on, following Mr Pitman’s dismissal, it is revealed that there is a ” present danger to patient safety ” in the maternity wards at the trust – a more than five fold increase in the number of babies delivered there with labour-related hypoxic brain injury (Hypoxic Ischaemic Encephalopathy: HIE) many of which may have been preventable.  According to the Trust’s latest on-line patient information approximately 5,700 babies are delivered across its 3 sites.

The trust had an extremely low rate of HIE until now


In the final year of Mr Pitman’s Consultant tenure at HHFT, prior to his formal dismissal, the HIE rate across the Trust was reported as  0.5 per 1000 deliveries – equivalent  to less than 3 babies per annum. In 2023, the year following his dismissal, the rate increased, in a previously unprecedented fashion, to 2.5 per 1000 deliveries, equivalent to 14 babies per annum.

Of course the trust dispute this – even though it was published in a very thorough article by Sirin Kale for Guardian Society. The full article is well worth a read and you can link to it here.

The trust communications department described the article as misleading. A statement said:

 “There are instances in Ms Kale’s reporting where we believe her reflection of the facts is misleading. This interpretation of the data fails to provide the reader with the wider context required to understand it. It therefore runs the risk of unreasonably undermining public confidence in a service which is safe and performing well. To avoid misleading the public we would strongly suggest that your article must explain that the rate of HIE in live births with Hampshire Hospitals is well within the normal limits.”

I might have believed them but for an internal power point presentation at a clinician led Neonatal Morbidity and Mortality meeting held at the trust in February. Reproduced below it says precisely the opposite to what the communications department is claiming – that cases of HIE are ” significantly worse than the network average”. It also proposes tough action to combat it. If people are to believe there is no problem and everything is safe – such action speaks volumes.

This particular issue at the trust was one of the problems raised by Mr Pitman in 2019 when he made his whistleblowing complaint in early 2019.

He told me:”  I had a specialist interest in fetal monitoring, CTG interpretation and labour management optimisation. Throughout my period of tenure I was responsible for cross-site staff teaching of fetal /CTG monitoring and had developed a regional reputation for my expertise in this area. For several consecutive years I had been praised for playing a significant role at RHCH in minimising the HIE rates down to commendably low levels well below the network and indeed national average for 2 consecutive years. For instance, we achieved the enviable statistic of not having a single poor maternity outcome attributed to CTG misinterpretation. This dramatic deterioration, in a critical maternity  outcome metric, that I was passionate about and had successfully devoted my focus and clinical attention to, to have occurred within the 12 months since my dismissal will certainly not have escaped the attention of  either the senior midwifery managers or the Trust’s senior management.”

Indeed significant events back in 2019, that led to Mr Pitman’s formal investigation and eventual dismissal included a a dispute between him and the midwifery managers about the dangers of sub-optimal fetal monitoring, including the potential pitfalls of assessing the baby’s heart rate using hand-held dopplers (intermittent auscultation) and confusing the baby’s heart rate with that of the mother.

He told me:” I was concerned that deteriorations in the standard of fetal monitoring and, particularly midwifery complacency in this regard in what were thought to be low-risk mothers was a developing concern and that if it was not addressed would lead to worse outcomes and, potentially increased baby injury (HIE) and death rates. This warning was completely and utterly ignored by the senior midwifery management. ” Such concerns have been highlighted repeatedly in other units across the UK, including the recent reviews undertaken by Donna Ockenden”.

What he predicted and was striving to prevent, by making practice recommendations, in the April 2019 Fetal Monitoring Guideline meeting has now happened. Instead of supporting him moves were made to silence him and to get him out of the way.

He said: “The very evening after this, unusually confrontational and adversarial, guideline meeting was when I was first ‘invited’ to a meeting which eventually developed into my formal disciplinary investigation. The senior midwifery managers had decided that my attempts to prevent their dangerous normalisation agenda had to be stopped

Two terrible baby births at Winchester hospital

Worse then happened, within just a week of this fateful meeting. As well as the tragic case raised in Sirin Kale’s article distressing case,  where a baby was deprived of oxygen throughout labour and delivery . This second baby was delivered within just hours of the case featured in Sirin Kale’s Guardian article. Mr Pitman was the Consultant on-call in the Winchester Maternity Unit when both these tragic cases were delivered but, as they were midwifery-led, as they were believed to be ‘low-risk,’ neither he nor the Obstetric team had been directly involved in their care, until the ‘crash-calls’ were put out.

He said: a ” supposedly entirely low-risk healthy baby, maintained under solely midwifery-led care, was born moribundly unwell from HIE and needed to be urgently transferred to Southampton Hospital for brain cooling. The Head of midwifery, my principal complainant, who had been in the guideline meeting would have come into work the following Monday, been informed of these 2 cases, that there were huge issue with the intrapartum monitoring of them both, realised that this put her in a challenged position and given my concerns and the practice changes that I had been recommending just the previous week. This appears to have prompted her to escalate her concerns about me into a formal complaint, rather than an issue that could and should have been addressed by mediation. The timeline of events, at this time, was very telling”

So where does leave the maternity services at Winchester and Basingstoke hospitals? The trust has been on a public relations drive inviting the local BBC TV station, BBC South, into the maternity wards BEFORE it published these worrying figures on babies delivered with HIE.  This was arranged and was broadcast less than a month before the concerning increased HIE rates were presented.

Here’s a video of the report:

BBC South Today broadcast on maternity services at Hampshire Hospitals NHS trust on 4th January this year chief executive Alex Whitfield tells viewers it is safe

Since then the trust has promised an internal , rather than , perhaps far more appropriate, independent external inquiry – rather the same philosophy as the Post Office used to say their Horizon computer project was sound when sub postmasters were being jailed for false accounting.

The most tragic outcome is that there are potentially parents in Hampshire who face a lifetime of worry worry and expense caring for children, who may have suffered avoidable labour-related hypoxic brain injuries. One also has to wonder what the level of medical negligence claims associated with these cases could, potentially, extend to? This could have been prevented if the trust was doing its job. Given the state of social care in this country this is a very serious state of affairs. You cannot say the trust were not warned by Dr Pitman. The then interim chief medical officer was Dr Nick Ward, a consultant paediatrician whose expertise is in paediatric nephrology.

So does the top management carry some blame? I put it to the communications department that Alex Whitfield, Lara Alloway ( now CMO at Hampshire and Isle of Wight Integrated Care Board), the midwifery management team, and Steve Erskine, chair of the trust board did. I got no comment on this but given what appears to be their complacent attitude to what is happening there I really wonder whether they do care about anything except the trust’s reputation.

On May 2nd one of the foremost experts on inquiries into maternity care Mr Bill Kirkup, has been invited to give a lecture at the trust. He has investigated baby deaths in the Morecambe Bay Trust and in the East Kent Trust. I wonder what my former colleague on the Gosport War Memorial Hospital independent panel will have to say about the Hampshire Hospitals NHS Foundation Trust.

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
£5.00
£15.00
£100.00
£5.00
£15.00
£100.00

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

Guest blog: Time to regulate the all too powerful NHS Trust managers

They act as ” judge, jury and executioner” when whistleblowers raise patient safety issues

By David Ward, a former consultant cardiologist at St George’s Hospital, Tooting, London

All staff working in the healthcare professions should be regulated for very obvious reasons. Most of them are but NHS Trust managers (non-medical) are not. Why? Given that managers have enormous and disproportionate powers to initiate investigation, (enlisting private investigators is not unknown) restrict activities, refer to disciplinary hearings and regulatory bodies such as the GMC [ General Medical Council ] and the CQC, [Care Quality Commission] suspend and dismiss healthcare staff – most notably well-meaning, hardworking doctors for raising concerns about patient safety – shouldn’t managers should be regulated just like other NHS workers?

Doctors are obliged to raise concerns if they see problems which may affect patient safety (Duty of Candour, Reg 20 HSC Act 2008 and 2014) pejoratively called “whistleblowing”. It is a matter of patient safety. We know that the reactions by Trust managements to doctors raising concerns can destroy careers and family lives. Suicides of staff under persecution are not unknown. A few courageous people may resort to the corrupt Employment Tribunal process after dismissal. Trusts spend £millions (yes, really!) to defend their untenable self-appointed positions as “judge, jury and executioner”. Where does this money come from? You and me, the taxpayer. Does the victim (whistleblower) have equal access to such resources? Of course not! In fact, they are often sent the bill (aka a cost threat, a merciless device not worthy of a civilised society and in this context used to force the claimant to concede the case) for the huge legal expenses of the Trust’s lawyers. (I’ve seen a well-known law firms’ cost sheet, it’s mind-blowing).

Who initiates the actions that can result in these disastrous consequences? Yes, the Trust managers; sorry, but it’s true. (OK, sometimes medical managers are complicit as we have seen in recent dismissals – shame on them). This process must be taken away from management and regulation could incorporate this. As many recent cases illustrate, PIDA (1998) forces a Trust to deny that “whistleblowing” had any part of a dismissal despite the prior narrative being clearly laden with raising patient safety concerns. It urgently requires updating.

No winners in this egregious process

There are no winners during these egregious processes. Trusts are deprived of money that would be better spent on care. Doctors and nurses who have families to support but may be left without employment even in times of severe need such as the recent pandemic, their careers and family lives in ruins. Mental problems are not uncommon, why wouldn’t they be? Doctors who are required to cover for suspended and dismissed colleagues have to put in more hours. Dismissed doctors often find it difficult to get work in other Trusts. I know of cases where the management at the index Trust interferes with (including preventing) the appointment of a whistleblowing doctor elsewhere.

Managers (and their acolytes) should be banned from acting as “judge, jury and executioner”*. That’s not in keeping with open and fair justice, is it? (Human Rights Act,1998, Article 6). Stop disciplinaries just initiate prompt investigation (thereby reducing risk of further harms) of the concerns, analogous to the inquisitorial French system of discovering the facts – not the damaging adversarial approach prevalent at present in these situations.

Stop trusts wasting £millions on law firms

No wasting £millions on law firms and costly (very costly) barristers, no claimants (victims) forced to sell the family house, move abroad, give up the profession, no months of waiting for court hearings (often many, recurring over years – I know of at least 2 cases of dismissed doctors whose cases in the Employment Tribunal system have dragged on for a decade or more), less mental illness.

Pastoral care for staff who raise concerns? That would be a constructive, cost effective and beneficial alternative approach, wouldn’t it?

Just one last thing: in any given Trust does anyone remember the patient safety concerns that triggered all the iniquitous nonsensical sequence of particular events, what they were about and whether steps have been taken to rectify the deficiencies which led to the concerns in the first place (which may have included avoidable deaths)? Have they been documented other than by the person who initially raised the concerns? Were they formally registered? I doubt it. They are usually buried in a fog of emails and shrouded by a cloud of managerial vengeance directed toward the whistleblower. Perhaps some of the simple and inexpensive ideas mentioned here could be explored.

Does anyone really think that NHS managers should be exempt from regulation?

There is of course one simple solution: ban the suspension and dismissal by Trusts of medical staff who raise patient safety concerns in good faith. They are doing society a favour. *The Political State of Great Britain, for October 1717, Vol.XIV:398]

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
£5.00
£15.00
£100.00
£5.00
£15.00
£100.00

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

Whistleblower Dr Chris Day’s appeal: Has Judge Andrew Burns KC ruling made it impossible for him to get open justice?

Andrew Burns KC

UPDATE: In a further twist in this long saga, High Court judge Dame Jennifer Eady, President of the Employment Appeal Tribunal initially took a decision not to read Dr Day’s letter complaining about the injustices in the procedure of his tribunal case against Lewisham and Greenwich NHS Health Trust . Now it has been decided that another judge will rule whether she should read the letter. Such a move has been opposed by the trust, who are represented by Old Square Chambers.

Superficially the ruling by Deputy High Court judge Andrew Burns looked like a victory for the long campaigning whistleblower Dr Chris Day to get a fair hearing at his forthcoming Employment Appeal Tribunal. He was granted an appeal on six of the ten grounds presented to the hearing and he was publicly commended by the judge for restoring the employment rights of 54,000 doctors which had been taken away in a sleight of hand by the now merged Health Education England.

But a closer look at the judgement gives a rather different picture. Instead of allowing a full appeal of employment judge Ann Martin’s flawed hearing he introduced caveats and blocked the re-examining of crucial issues. These include examining whether MPs and the press have been misled by the NHS and their lawyers, whether deliberate concealment has occurred and such startling behaviour as a Lewisham and Greenwich health trust communications director destroying mid hearing 90,000 emails that could have helped Dr Day’s defence and subsequently declining to appear as a witness.. It also allowed the health trust’s lawyers to to traduce Dr Day’s public reputation and misrepresent his motives without fear of being dragged before the libel courts or even being properly cross examined about this at the tribunal.

Three Wise Monkeys – a rather good print by Swedish musician and artist Andreas Magnusson see https://printler.com/en/poster/167372/

In short Andrew Burns judgement is a ruling equivalent to the infamous “three wise monkeys” carving at a Japanese shrine. He ” sees no evil, he hears no evil and speaks no evil” at that flawed tribunal. And he has been given by Dr Day a chance to review his findings to take account of these omissions.

Dr Day’s points requesting a review are here.

To put it simply he is blind to Ann Martin’s mishandling of that tribunal, he is deaf to Dr Day’s arguments to put this right, and he is silent about the outrageous behaviour of the trust’s employees and their lawyers, particularly Ben Cooper, KC on traducing Dr Day’s reputation and it being broadcast to MPs, the public and other trusts.

As Dr Day puts in an email accompanying his crowd justice website ” which goes into all the legal details “The Judge has allowed me to have an appeal but taken all my weapons and has blocked key issues being explored.”

Ben Cooper KC

The language used against Dr Day by Old Square chambers lawyer Ben Cooper would be defamatory outside a court room. He is described as ” having an obsessive belief in his victimhood”, accused of an “elaborate rewriting of history by him to fit in with his narrative” and condemned his evidence as ” dishonest and underhand.”

When pressed on this by Dr Day’s barrister Andrew Allen KC at the June 2022 Mr Cooper conceded he had no example of what he meant from Dr Day’s witness statement and Mr Allen was then prevented from cross examining Mr Cooper on Dr Day’s supplementary statement rebutting Mr Cooper’s insults and allegations.

My Statement on Ben Cooper KC – DrChrisDay

To make matters worse Ben Cooper’s attack on Dr Day’s character has been picked up by a lawyer defending lawyers Hill Dickinson against Dr Day in another case. Dijen Basu, KC from Sergeants Inn Chambers, in a skeleton argument in a case still to be heard said of Dr Day ” The diagnosis of whistleblowitis is a pithy way of describing a man who had developed an obsessive belief in his own victimhood to the point of being prepared to dishonest and underhand in pursuit of what he saw as the virtue of his cause as Mr Cooper described him.”

The irony of this attack is the case revolves around Hill Dickinson depriving 54,000 junior doctors of their whistleblowing rights whilst not revealing key commissioning contracts  in disclosure the firm were paid to draft. Now who was really being dishonest and underhand!

As Dr Day purchased the transcript of Ann Martin’s tribunal he has been able to point out that cross examination of Ben Cooper’s claims was halted by the judge but she went on to allude to Ben Cooper’s argument against Dr Day in her public judgement. Dr Day argued that this a breach of court procedure but the judge did not agree.

Judge Andrew Burns did agree he had made a mistake in describing Dr Day’s withdrawal in a previous hearing in this long dispute as being caused by duress rather than misrepresentation.. This was when his lawyer Chris Milson, without his instructions, tried to negotiate a settlement which included a confidentiality clause. Dr Day was able to get Judge Burns to accept that his case was not one of duress but one of serious allegations of misrepresentation from a number of lawyers whose accounts of the infamous settlement of the Day Case in 2018 do not add up.

Dr Day has now written to Judge Dame Jennifer Eady, President of the Employment Appeal Tribunals, asking her to intervene.

Dr Chris Day

Letter to Dame Eady President of the Employment Appeal Tribunal – DrChrisDay

He writes: “It may come as no surprise that I and large numbers of doctors feel deeply let down by the way the EAT has handled my case over the last 10 years. I believe its decisions have not been logical and have ignored evidence, pleadings and important appeal points. I believe the most likely explanation for
this is the EAT’s failure to manage properly the conflicts of interests and human factors that have come into play when Judges have dealt with certain issues in my case affecting their legal colleagues.”

He goes on: “The destruction, concealment and ignoring of large amounts of evidence at the June 2022 ET hearing of my case and the obstruction of 2 of our proposed cross examinations was widely reported and shocked people. Many were expecting these obvious issues to be dealt with decisively by the appeal tribunal. Instead, I have had to get into an argument with the EAT about whether such extraordinary conduct is enough for me to advance procedural unfairness as a ground of appeal”

He adds: “I am seriously considering whether I can proceed with an appeal in this court whilst the EAT refuses to answer” these points.

A check on social media of Judge Burns X account by 54,000 doctors, a group who campaign for the whistleblowing rights of junior doctors reveals how closely 3 of the lawyers involved on both sides of the Day settlement are connected socially.

Judge Andrew Burns, a former lawyer at Devereux follows and is followed by Chris Milsom – Dr Day’s lawyer in a previous 2018 case that settled ; he follows Old Square Chambers, which has a leading role in pursuing whistleblowers; Martin Hamilton, managing partner, Capsticks who Dr Day alleges misled MPs and the Board of Lewisham and Greenwich about his case and settlement. Other followers include Nadia Motraghi, KC, another Old Square Chambers that was against Dr Day, who also pursued Dr Usha Prasad, a whistleblower cardiologist at Georges and Epsom St Helier NHS trust.

Dame Jennifer Eady

Finally it turns out that judge Dame Jennifer Eady – whom Dr Day is relying on to adjudicate about this – is a former lawyer at Old Square Chambers from 1990 to 2013. During her time at Old Square Chambers, for 13 years from 2000, Ben Cooper KC, and from 2004 Nadia Motraghi were colleagues. It would be amazing if they don’t know each other very well as they practised in the same field.

So how will Dr Day get a fair hearing when three of the lawyers he is accusing of misleading on the settlement are so closely linked to the judge and the final arbiter is their former colleague now in an all powerful position to control the entire employment appeal tribunal system.

My final point from covering a number of whistleblower tribunals is that I am disgusted at the way very senior professional lawyers seem to enjoy denigrating, insulting, and belittling the careers of eminent doctors whose main concerns are to protect the public from bad medical practices which endanger lives.

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
£5.00
£15.00
£100.00
£5.00
£15.00
£100.00

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