The Sunday Mirror reports today of yet another potentially serious leak affecting worker safety at Sellafield which was not publicly released two years ago.
A whistleblower told the paper that an elevated level of nitrogen which can cause asphyxiation was released in the most dangerous building on the site – the Magnox nuclear storage facility which is also leaking contaminated water into the ground.
As I reported in Byline Times last month the 100 year clean up is already 13 years behind schedule and £20 billion over budget and its own nuclear safety experts say is becoming increasingly unsafe. The article is here.
What is disturbing is that the whistleblower told the newspaper. “It was most serious because it could have killed somebody. The whole point of having all these safety procedures is to stop people breathing in inert gas, so we can evacuate before there’s a chance of breathing it in.”
The source said the leak in May 2023 was raised as an incident report and “was of a level that needed to be escalated”. But it was not escalated, according to the whistleblower, who added that “no lessons were learned”.
The source said: “There is no confidence or trust in the senior management now. We are dealing with nuclear waste and people are afraid to speak up. The problem is that people are being victimised if they report safety issues.
“Or they are escalated to managers who then try to cover them up or sweep them under the carpet. And that is a really dangerous culture in a place like Sellafield.”
This new disclosure just comes after a report from the Commons Public Accounts Committee that was highly critical of the management at Sellafield and the oversight of the dangerous site by the Nuclear Decommissioning Authority. It was also highlighted safety issues as the buildings reach the end end of their life span and MPs were sceptical of claims by the senior management that relations with staff are improving and a toxic culture of bullying and harassment had been stopped.
Officially Sellafield told the paper:”This was reported and investigated swiftly and thoroughly. Our regulator was informed in line with established protocols,” they said. “Our Safecall system remains independent providing a safe and confidential reporting system for the whole of the NDA group.
“Whistleblowers are respected, protected, and valued and we actively encourage employees to report matters of concern. Without exception, issues raised are taken seriously, investigated appropriately, and treated confidentially. We strongly advise anyone with a concern about a safety event or investigation to report it so we can act on it.”
They added that during routine testing of a nitrogen delivery system in the Magnox Swarf Storage Silo in 2023, a control valve was opened causing a ‘brief increase in flow and pressure of nitrogen’.
The paper reports that Ex-Sellafield HR consultant Alison McDermott raised safety concerns in an employment tribunal in 2021. The management ended and her contract and spent hundreds of thousands of pounds of taxpayers’ money to undermine her concerns at employment tribunals.
Alison McDermott
Alison, who lives near Ilkley, West Yorks, said: “In my experience, leaders cover up problems and lash out at people who speak out. That’s a terrifying state of affairs at a nuclear site. In my 30 years in HR it’s the most secretive, punitive toxic culture I’ve ever experienced.”
To my mind it suggests that Sellafield still has a very long way to go to convince Parliament and the public that they are handling safety issues properly at this plant.
There was an unusual procedure in the courts in the long battle between the Department of Work and Pensions and WASPI last week.
The issue was whether WASPI’s legal costs would be capped in their application for a judicial review over the government’s decision not to award compensation for partial maladministration for 50s women who faced a six year delay in getting their pensions. It led to some pretty strong exchanges between Bindman’s solicitors and DWP lawyers, the latter were vehemently opposed to the cost cap, arguing it was not a public interest issue.
Instead of a hearing last Monday to decide the issue – it was suddenly ” vacated” by the parties concerned and a very senior judge in charge of the administrative court decided to grant the cost capping for WASPI in advance when they bring a case to the courts for permission to have a judicial review. CEDAWinLAW applied to be a friend of the court and submitted documents on the substantive issue on discrimination and maladministration.
CEDAWinLAW said: “As friends to the court, CEDAWinLAW’s Amicus Curaie Intervention and Cost Capping Order applications matter to 3.5million 1950s Women whom we uniquely represent: Thus followed, the submission of our legal documents out of relevant expertise and strong interest in the outcome of Case No AC-2025-LON-000811.
Our purpose is to assist the court by offering impartial information, legal arguments and broader public interest perspectives that are not fully represented by the parties in the case.”
They have had no reply from the court. They have put in a complaint and also written to the judge.
What is extraordinary is the CV of this senior judge. Mr Justice Swift who took the decision shows he is no friend of campaigners and has taken a consistently pro government stance over the years.
A large part of his career was spent as the First Treasury Counsel – known as the Treasury Devil – from 2007 to 2014. The current one is James Eadie who played a prominent and a successful role in defending the government in the judicial review against Backto60 , who fought the Department for Work and Pensions. to claim compensation for 3.5 million 50swomen lost pensions on the grounds of discrimination and maladministration. Their case was never looked at by the Supreme Court who claimed it was ” out of time”.
The whole point of the post is to defend the government from NOT paying out people who sought compensation or redress from government departments, hence him taking the prime role for the DWP. The Treasury is never keen to spend too much money.
More recently he took two the Government’s side on two high profile cases – the deportation of refugees to Rwanda – and the fate of Julian Assange, who is now a freeman. As Wikipedia said:
On 10 June 2022, Mr Justice Swift ruled in favour of the UK Government that the deportation flights of unsuccessful asylum seekers in the UK to Rwanda should be allowed to proceed, as there was material public interest in doing so.[5] He added in his ruling that the risk posed to refugees was “in the realms of speculation”.[6]
On 8 June 2023, Swift ruled in favour of the UK Government, and rejected the appeal of political prisoner Julian Assange‘s legal team, which had filed two appeals before the court against the then Home Secretary Priti Patel‘s decision to extradite Wikileaks founder being indicted by the United States under the Espionage Act. He was later released.
So while WASPI did have a friend at the head of the administrative court it is by no means certain that they will get an easy ride when it comes to getting permission for a judicial review which will require a public hearing. If he had refused the organisation would have been set back as the department could try to get all its costs against them if it won.
In the end the ruling means that the case is being regraded in the “public interest” much as the case for a judicial review the Backto60 case was regarded as a public interest case.
What is staring everyone in the face is why not go for mediation rather than have a long drawn out judicial review which could take years if there are appeals and still needs judicial permission to go ahead.
WASPI set its face against this and not only refused but actively opposed CEDAWinLAW’s attempt to do this through the courts, siding with the DWP’s opposition to this.
Looking at the present situation Angela Madden, who runs the WASPI campaign, appears to be accepting, unlike her bold claims of getting £10,000 for everybody at the Labour Party Conference a few years ago, a token payment so the government acknowledge the maladministration found in the Parliamentary Ombudsman’s report. She in her last message suggested she was not looking for compensation for lost pensions but for the government to accept it needed to pay the women after the Parliamentary Ombudsman’s report.
Yet her members have already raised over £227,000 for a legal case and the organisation wants another £43,000 for what they admit will be a complex hearing. At this rate the legal costs may exceed the award.
In the meantime CEDAWinLAW is applying for observer status in the proceedings.
From L to R: Alex Whitfield, Hampshire Ben Travis, Lewisham Daniel Elkeles London Ambulance
Three of the top 50 NHS chief executives chosen by a panel set up by the Health Services Journal in 2024 as the best people to run the NHS have been involved in attempting to cover up patient deaths and persecuting doctors and nurses who raised the issues.
One of the top three NHS awards went to Daniel Elkeles, as chief executive of London Ambulance Service Trust and is now chief executive of NHS Providers. He was chief executive of the Epsom and St Helier Trust when Usha Prasad, a cardiologist, reported the ” avoidable death ” of a heart patient. He told her to drop her case at an employment tribunal or face an internal disciplinary hearing which led to her being sacked.
I have since been told that Mr Elkeles was involved in an alleged cover up at the London Ambulance Service when a paramedic was suspended during the stressful period of the pandemic. He had alleged bullying, Elkeles said he would investigate but got the person to sign a non disclosure agreement. When it was signed it is said any investigation was dropped.
The second chief executive is Alex Whitfield who heads Hampshire Hospitals Foundation Trust, was involved in the sacking of Dr Martyn Pitman, a well respected obstetrician and gynaecologist, who raised patient safety issues in the already nationally stressed maternity services. The former oil executive is rated the 15th best chief executive.
The lack of care at the hospital in Winchester led to one mother and a baby dying, but Alex Whitfield used the tribunal to claim that Dr Pitman was ” putting patients at risk” rather than supporting the doctor and midwives who were helping patients. Lawyers for the trust monstered Dr Pitman claiming he was a bully for raising these issues.
Julie Dawes, the chief nursing officer at the trust, who also pursued Dr Pitman ,has just been awarded an MBE for services to nursing in the King’s Birthday Honours List.
The third award winner is Ben Travis, chief executive of Lewisham and Greenwich NHS Trust, which the Care Quality Commission, say ” requires improvement.”
Ben Travis was heavily involved in the 2022 tribunal hearings brought by Dr Chris Day, who has fought the trust for 10 years after he raised important patient safety concerns that became associated with two avoidable deaths in the intensive care unit of Woolwich Hospital, run by the trust. The 2022 tribunal ruled against him despite evidence given by Ben Travis which shown to be untrue, the destruction of 90,000 emails during the hearing and the discovery of fresh documents .which should have been released by the trust to him to help his case.
The results of the last hearing is up for appeal on six grounds next week. He won the right to appeal that some of the findings of the judgment were perverse, that the judgment failed to draw any inferences from the destruction of 90,000 emails and the failure to provide documents that would have helped Dr Day’s case. This in particular followed the disclosure in documents that under oath the chief executive, Ben Travis gave an untrue account about a board meeting and had hidden he had contacted other trust chief executives about Dr Day.
Chris DayUsha PrasadMartyn Pitman
Yet Mr Travis won the award on his personal performance over the last year; the performance of the organisation he led, given the circumstances it is in; and the contribution made to the wider health and social care system.
Award for Diversity
At the same time the trust has won a second award for its equality, diversity and inclusiveness despite its NHS staff report showing that it has a below average rating for the fair promotion of ethnic minority staff and for racial discrimination inside the trust and from members of the public.
The panel who decided the awards for the best chief executives included Dr Rosie Benneyworth, chief executive, Health Service Safety Investigations Body:Steve Brine, former Tory MP for Winchester and former chair, Commons Health and Social Care Committee,; Matthew Taylor, head of the NHS Confederation;Sir Julian Hartley, former chief executive of NHS Providers; Patricia Marquis, executive director for England, Royal College of Nursing and Dr Vish Sharma, chair, BMA’s consultant committee.
It is inconceivable that many of them did not know about the whistleblower cases. Dr Chris Day’s case is high profile; Dr Martyn Pitman’s case was in the national press and Steve Brine was his local MP. Usha Prasad’s case was a long running one.
There is another issue which is worth pursuing in a later blog – how ethnic minorities are treated in the NHS and the level of racial discrimination and whether black and Asian people have fair promotion prospects. Lewisham and Greenwich NHS Trust is not alone
The logo of the JCIO Pic Credit: Ministry of Justice
The 13 claimants who allege bullying and misogyny by judge Philip Lancaster, most of them women, took their complaints against the JCIO to a new level last week when their all women team of lawyers issued what is known as a ” letter before action” to the investigatory body.
Their lawyers, DFG, standing for Deighton, Pierce and Glynn, have given the JCIO until Monday to reply or face action for a judicial review.
The statement in their letter reads in bold type: “By this Group Complaint, we are therefore requesting the JCIO to open a proper investigation into the cases of all these complainants on the grounds that it is now clear that Judge Lancaster has repeatedly engaged in misconduct in his judicial role over many years.
“The misconduct consists of regular bullying of litigants-in-person and legal representatives, including shouting, harsh and inappropriate personal criticisms, intimidation and interruption of evidence. We make clear that if this longstanding pattern of Judge Lancaster’s misconduct is not properly investigated by the JCIO we intend to challenge that decision by way of judicial review.
As I reported in Byline Times earlier this year ( see the article here) the Good Law Project first announced it was backing the then ten women who had faced bullying and misogynist comments from the elderly judge. Since then they have been joined by men who say they faced the same bullying tone from the judge who sits on the Leeds employment tribunal.
Judge Lancaster
The campaign began after the treatment of Alison McDermott, the now famous whistleblower, who exposed bullying and harassment at Sellafield nuclear waste facility, only to be bullied and rudely treated herself by judge Lancaster and lawyers representing Sellafield and the Nuclear Decommissioning Authority.
Judge Barry Clarke
Barry Clarke, President of the Employment Tribunal system, claimed she was fit to lodge a complaint — despite having no medical qualifications and ignoring a GP’s note saying she was suffering from severe clinical depression. He used this self-made “diagnosis” to deny her an extension, effectively blocking any investigation into Judge Lancaster, even as serious complaints from others were piling up.
The ramifications of what has happened since are causing serious problems for the nuclear waste plant and the judiciary. MPs on the Public Accounts Committee are now sceptical of claims by the top executives at the plant that there is no bullying or harassment and one MP, Anna Dixon, the new Labour MP for Shipley, and a member of the PAC, demanded in public that the chief executive of Sellafield apologise to her for the way Sellafield has behaved to her.
Harriet Harman Pic Credit:BBC
Meanwhile, Baroness Harriet Harman is conducting a separate investigation, with the support of the Bar Standards Board, into sexual harassment at the bar and in the judiciary — and has reportedly taken a direct interest in the Lancaster complaints.
Lawyers have demanded the JCIO does a complete and thorough investigation into Judge Lancaster.
1 A comprehensive review of all complaints submitted against Judge Lancaster, including those previously dismissed without investigation. 2 Statements from each complainant to ensure their full accounts are properly recorded and considered. 3.Interviews with relevant witnesses — including legal professionals, medical experts, accredited journalists, and public observers who attended the hearings and submitted complaints or documentation. 4 Consideration of the Employment Appeal Tribunal’s formal criticisms of Judge Lancaster’s conduct as part of the evidentiary record. 5 An analysis of Judge Lancaster’s written judgments to identify recurring patterns of reasoning, tone, and language indicating systemic bias. We have found consistent indicators of gender bias in descriptions of female claimants versus male respondents, including demeaning language, unsupported character judgments, and disparate procedural treatment.
Alison McDermott
The JCIO originally said it did not comment on individual cases but now says it considers complaints carefully.
This is not the view of the complainants, their lawyers, and soon I expect if this gets more coverage, the general public.
President Putin Pic credit: President’s office Russia
Case came as a result of action taken after Russia launched Ukrainian war
An extraordinary ground breaking judgment last week which has received little publicity outside the insurance and legal world has cost the insurance industry, including Lloyds of London, billions of pounds in claims as a direct result of the current Ukraine war.
At the time Russia invaded Ukraine in 2022 Russian civil aviation firms, mainly Aeroflot and S7, a private Siberian airline, were leasing 147 aircraft and 16 spare engines from companies across the world. As soon as this happened the companies wanted their planes back as they came under sanctions against Russia issued by the EU, US, and the UK.
But the move was thwarted by PresIdent Putin who passed a law banning the export of all the planes and the spare engines from leaving Russia and they are still there today.
The decision led to an extraordinary legal case coming before the Commercial Court in London when six of the companies came together to claim against their insurers to get their money back in a joint action that could cost the insurers over £3.4 billion.
Mr Justice Butcher; Pic Credit: Judiciary website
The case which has been quietly rumbling on for five months was a lawyers’ bonanza with more than 50 barristers employed on both sides-. It was heard by Mr Justice Butcher who has issued a 230 page ground breaking judgment covering 100 years of case law.
The six leasing companies were Aercap Ireland: Dubai Aerospace Enterprise, Falcon 2019-1;KDAC Aircraft Trading; Merx Aviation Servicing and Gasl Ireland Leasing A-I. Aercap Ireland, based in Dublin, is the world’s largest aircraft leasing company.
The insurance companies involved included Lloyds,AIG Europe; Chubb European Group and the underwriting group Kiln Syndicate 510. KDAC settled with Chubb before the end of the case. To add to complications under Russian law they had also to have insurance from Russian companies.
S7 – the Siberian Airline which leased many of the jets
The dispute centred round whether the aircraft were covered by ” all risks” policies or ” war risks” polices. The judge ruled that they were covered by “war risks” policies because of the action of Putin in banning them leaving Russia. This will mean the companies will not get all the money they claimed but it will still run to billions of pounds The judge also rejected an argument from the insurers that sanctions against Russia prevented them paying out any money.
The ruling is also significant as it would spark off other claims against insurers and there were 400 leased aircraft in Russia at the time. The insurers have until the end of this week to appeal.
Guest blog from Dr David Ward on the appalling treatment of whistleblowers in the NHS
Patient safety and the judiciary
What business has the judiciary with patient safety matters you may ask? I am referring primarily to the processes which may unwind when a doctor, having raised patient safety concerns is sacked by the Hospital Trust where they worked and seeks recourse via the corrupt Employment Tribunal system. (NB not sacked “for having raised the alarm” as that is expressly forbidden by the Public Interest Disclosure Act (PIDA 1998[1]). For example, if a piece of equipment is malfunctioning in such a way as to cause harm to a patient; if a process such as preparing a patient for a procedure is flawed in such a way as to put the patient at risk; an inadequate consent process; understaffing in, say, a post-operative ward; inadequately qualified personnel. Each of these deficiencies may put a patient at risk of harm and all have at some time been reported by doctors or nurses. There are many others. A responsible doctor witnessing any of these will be concerned and has a duty to raise an alarm. This is set out in Good Medical Practice, a guide produced by the GMC[2]. It is also part of the Duty of Candour regulations [3][4] and for traditionalists, in “The Hippocratic Oath”[5] the central tenet of which is “primum non nocere” or “do no harm”.
A problem may arise when a doctor (or healthcare worker) reports a “patient safety event” and the Trust reacts adversely (the psychology of such reactions is discussed elsewhere) which is a very common. It may trigger a series of defensive responses by the Trust which almost always ends badly for the doctor. This is seen time and again with “whistleblowers” who have had the “temerity” to raise a concern. The “playbook” is almost set in stone. In several recent cases where a dismissed doctor (Claimant) has sought recourse at an Employment Tribunal, the Respondent (the Trust or Hospital) has reacted vengefully rather than responsibly and promptly to look into the concerns.
The following is a brief account of the saga of a colleague who was referred to the GMC (after she reported safety concerns) in what can only be described as an act of vengeance by the Trust and the CEO who, having taken offence at the temerity of the doctor to report some shortcomings to the Trust, decided to “punish” her culminating with dismissal. Furthermore, the Trust prioritised this vengeful reaction over and above an urgent investigation into the problems she raised. It’s the same “playbook” with many other NHS whistleblowers (see Westminster Confidential 6 7).
Patient safety concerns.
If a doctor “raises a concern”, the most common of which is about something which may jeopardise “patient safety”, the obvious and reasonable response is to investigate it and correct any problems as soon as possible. Astonishingly, this is rarely what happens. The Trust not uncommonly reacts vengefully to the report, for example, by restricting the activities of the doctor who reported it. They may be “hauled over the coals”, have their duties limited, suspended for a period, referred to the GMC or even the CQC. The GMC may commission an external assessment of the doctor in question by an independent party usually another doctor in the same specialty. The Trust is not obliged to take any notice of this report. For example (I could cite many), a colleague who was referred to the GMC by her employing Trust was completely exonerated but she was dismissed all the same.[6] The CEO of the hospital, St Helier Hospital, Daniel Elkeles, made a veiled threat in a letter if she did not cooperate with his dismissal proposals:
4) ESTH agree to cease the MHPS process which means we can find a way to
ensure you are re-validated (not my area of expertise but i am sure there will be a
way)
5) You need to drop all the actions you are taking against ESTH.
If we can agree this then I would hope that everyone can move forward positively.
(This letter is in the Tribunal bundle in the public domain)
Another whistleblowing case where there are ongoing grave concerns about the propriety of the Employment Tribunal decisions (and others) in support of the dismissing Hospital Trust is that of Dr Chris Day whose case features extensively in columns of Westminster Confidential.[7]
Unregulated “Maintaining High Professional Standards”[8]
This code of practice was introduced in 2003 to update and clarify how concerns about a doctor and the associated “disciplinary” procedures are managed.
This entire process is unregulated and no independent body is statutorily involved. In fact, there is not even a statutory register of these processes or the events they purport to investigate. There is no register of NHS whistleblowers or the safety concerns they have raised. Trusts do not keep records, the regulators (BMA, CQC) don’t keep records. The NHS does not keep records (I confirmed this by asking the now defunct NHSE). HM Government does not keep records despite HM Treasury giving £millions (directly or via various organisations) to Trusts to pay inscrutable legal firms to defend the Trust against claims made by doctors who have raised safety concerns. This means a Trust can hire anyone they choose to conduct the investigation. There may even be an “informal agreement” or they may just be a ”pal” of the CEO. The investigator is not required to have any special qualifications and there is no register of such people. The St Helier Hospital case referred to above is a particularly egregious example of how this chumminess may operate. The “investigator”, a retired nurse[9], in her report invoked a fictitious “regulation” not previously seen in this context. The doctor in question was eventually dismissed on the grounds that she was not “fit-for-purpose”[10]. This is entirely confabulated by the investigator (who describes herself as a “non-practising barrister” but is not on any English register of barristers[11]) as no such “reason” for dismissal (or anything relating to humans) exists in English Employment law and the term is not applicable to a “human being” but rather to goods or services. How this has not, so far, been challenged in the Courts eludes me. Could this case even be cited as a “precedent” (pro or anti) in future similar cases?
It doesn’t take a leap of the imagination to conclude that if a Trust wishes to be rid of a doctor it will choose a compliant “investigator” with a reputation for such behaviour. This service costs money (provided, of course, by the taxpayer) and investigators can be very expensive. But hand-picked unregulated quasi-independent “investigators” are very compliant, aren’t they? Money talks… but conveniently no formal or open register is kept of money used to silence whistleblowers (pay the lawyers, investigators, payoffs, seal a Non-Disclosure Agreement etc). I wonder why?
A doctor threatened with dismissal (or who has been dismissed) may just move on, get another job (if possible having been “slandered” by the previous employer), leave the profession altogether, move abroad or any of these choices. Unfortunately, many will seek recourse via the arcane and grossly biased Employment Tribunal system. This may come about because the embattled doctor has received, shall we say, less than impartial advice, possibly from a law firm, recommending this route. Less than 3% of claimants at an Employment Tribunal emerge victorious (whatever that means)[12]. In other words over 95% of Claimants who brave this course will lose their case. Fair and open justice? I think not.
Who bears responsibility for all this?
Is it the doctor who “blew the whistle”? No, it is their duty to raise safety concerns.
Is it the Trust which dismissed the doctor? The Trust will deny dismissing the doctor (for raising concerns) and invoke PIDA 1998 47B in their support (1):
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.
The Trust will say “oh no, it wasn’t because he raised a concern…it was because his manner was inappropriate/rude and …” (see story of Martyn Pitman, below). However, it is quite a different matter when it comes to dismissing a doctor “who has raised concerns”. This is not “unlawful” because it is consistent with PIDA. This is why the law needs to be changed; to ban the dismissal of “doctors who have raised safety concerns”. It’s a “no brainer” isn’t it?
Is it the lawyers who advised (and assisted) the dismissed whistleblower to seek recourse via the biased ET system? Yes, they are complicit once dismissed the employees submit themselves to the process. Millions of taxpayers’ money is spent on lawyers defending Trusts against claims made by whistleblowers yet almost nothing (no data are collected so we can’t be sure about this but we can infer it) on investigating and correcting the problems that gave rise to the claims. Sheer madness or what?
Is it the Trust managers who confabulate the case against the whistleblower? They have one aim in mind; to get rid of the “nuisance” doctor and by so doing avoid the “inconvenience” of looking into the safety “issues” raised in detail which could be very embarrassing if gross incompetence or negligence by the Trust or its employees is exposed.
And patient safety? Oh, that’s where the proverbial “carpet and brush” come in, as wielded by Trust managers (with legal advice) who themselves are unregulated[13]. If you want evidence for these claims read the newspapers (or search a major news website).
Inadequate regulations and deficient laws.
The regulations drawn up by regulators (and equally the inadequate laws passed by legislators) have contributed to this unsatisfactory situation where doctors are terrified of speaking up about patient safety because they fear for their careers and the livelihoods. If the regulations were tighter, we wouldn’t be here, would we?
A simple and almost cost-free solution to all these inappropriate behaviours is available without too much hassle and only minor changes to regulations and it based on the supremacy of maintaining patient safety: ban Trusts from dismissing doctors who have raised patient safety concerns and compel the Trust (by statute) to investigate those concerns. Just think of the benefits: no lawyers, no Tribunals, no money filling the coffers of law firms but instead expended on, inter alia, investigating and rectifying the concerns raised, improving care and communication. More openness and less retribution will encourage doctors to ‘’raise a hand” without fear of reprisals. Furthermore, is it not preferable to retain the services of an expensively trained, competent and dedicated doctor who had the courage to speak-up and has committed no offence, rather than destroying their careers and depriving patients of their skills? (This is the “playbook” in the cases of so many NHS whistleblowers I could list here). At present the judiciary (and the regulations they invoke), whether they agree or not, are complicit in covering-up patient safety issues and the adverse consequences of so doing.
Isn’t it time for a change of attitude and changes in the law related to raising concerns about patient safety – also known as “whistleblowing”? Why are the ”powers that be” not listening to the many supporters of whistleblowers who are raising the same issues time and time again?
Just one more thing: there are seven reasons which can be invoked in British Employment law to dismiss an employee[14]. None of them is especially relevant in this context except one.
“Some other Substantial Reason”, a most convenient clause for all the reasons one might imagine: if it isn’t covered by the other 6 this one should satisfy the Trust’s requirement to get rid of the doctor. Furthermore, it may obviate detailed scrutiny of evidence (isn’t that the reason it’s called SOSR?). Other reasons which are commonly exploited include: ”it’s impossible to carry on employing you” and “not being able to do your job properly”. The vagueness, highly subjective and unquantifiable nature of these clauses suggests they have a less-than-straightforward purpose.
If a Trust wants to dismiss a doctor it will find a way to do so. In the case of Martyn Pitman, Consultant Obstetrician and Gynaecologist, the Royal Hampshire Hospital strenuously denied that he had been dismissed for raising concerns. No, of course he wasn’t. The astonishing inanity of it was reported in the Guardian thus[15]:
“The judgment found the “overarching reason” for what has happened to Pitman was down to his communication style and not the message he was trying to convey”. (I couldn’t find this sentence in the 75 pages of the “unsearchable” official judgment).[16] So here is a senior and respected gynaecologist – who has done no wrong – being dismissed for his unacceptable “communication style”. You could not make it up!
It is a truism to state that the health of the nation is the single most important asset it has. (This is why “privatisation” of the NHS which would put “shareholders” ahead of patients would be a disaster). If the workforce is not healthy everything else will decline (I don’t need to explain this assertion but judging by what is happening in Westminster, politicians don’t seem to have grasped this concept. (Neither has the judiciary for that matter but I wouldn’t expect this self-serving body to opine on such “trivial” issues).
“If they [the judiciary and the JCIO] continue to do this, they are acting as a party to suppressing patient safety in the National Health Service and in the case of Sellafield, because it is such a contaminated and dangerous place, putting the general public at risk.
Is anyone listening to critics of the judiciary and its arcane processes in judging NHS doctors, nurses and other healthcare workers who raise patient safety concerns? Is anyone taking notice of the sufferings of the doctors who are doing their best (especially during the recent pandemic) for their patients? Is anyone calling out the absurdly illogical Employment Tribunal judgments which heap suffering on the Claimant (Doctor) and indirectly on patients? I know of one journalist who is – David Hencke. 17
The EHRC has refused to release the findings of an investigation into the huge breach of the Covid lockdown rules during the pandemic by Rebecca Hilsenrath, now chief executive of the Parliamentary Ombudsman’s Office.
The decision is in contravention of a ruling by John Edwards, the Information Commissioner, who ruled that Mark Benney , who put in the request to his office ,was entitled to answers about the finding of the report but not allowed to see it himself.
The EHRC has confirmed that a report was completed at the time Rebecca Hilsenrath, then its chief exceutive, was suspended by the EHRC as a precautionary measure. She then suddenly resigned only to get a senior job at the Parliamentary Ombudsman’s office almost immediately.
Her breach of Covid rules involved her traveling from her North London home to her country cottage in North Wales where her children also joined her -presumably also in breach of the rules – to spend their Christmas holiday together. She has four children. It was exposed in The Times newspaper.
Her holiday cottage in North Wales
Baroness Falkner, a crossbench peer and the chair of the EHRC, has used the same argument it deployed unsuccessfully to say that it would not answer questions about the report to protect Rebecca Hilsenrath’s privacy to refuse to publish the finding of the report.
Official Portrait of Baroness Falkner
She has decided not to appeal the decision but Mark Benney has put in his own appeal. It includes the words;” the Commissioner has erred in failing to consider whether the report and supporting documentation are capable of appropriate redaction in order to remove any special category data. Finally, it also follows that material within the report and supporting documentation that is neither personal data nor special category data is properly disclosable according to the overarching logic of the inDecision Notice.”
In my opinion this decision to hide the finding of a report about Rebecca Hilsenrath’s breach of the Covid rules is totally wrong. It may be five years ago but the lockdown meant tens of thousands of people could not move around the country, make trips like hers to celebrate Christmas and were not even able to visit relatives dying in hospitals all over the country.
In my opinion there appears to be a certain class of people who are arrogant enough to think that they are above rules that everybody else in the country is expected to obey. These people are often protected by friends in powerful positions to avoid the consequences that other less privileged people have to suffer from breaking the rules. I am not saying in this particular case this is necessarily so but the failure of public organisations to come clean about the facts in this case can only add to further speculation.
Incidently the Parliamentary Ombudsman website is still silent on any new cases and no date has been fixed yet for the new Ombudsman, Paula Sussex, to join it.
Rebecca Hilsenrath has broken her silence from the Parliamentary Ombudsman’s Office in a YouTube video on mental health put out by the Ombudsman’s Association on Leadership, Listening and Making Mistakes dealing with mental health issues. She frankly discloses that she suffered four bouts of post natal depression when she had her children and members of her family have suffered mental health problems so she is sympathetic about mentally ill people who are being badly treated by the NHS and other organisations. See the interview below.
05/07/2024. London, United Kingdom. Rachel Reeves, Chancellor of the Exchequer poses for a photograph following her appointment to Cabinet by Prime Minister Sir Keir Starmer in 10 Downing Street. Picture by Lauren Hurley / No 10 Downing Street
Last year the biggest hit on this blog was when I condemned the decision by Sir Keir Starmer and Rachel Reeves to abolish the winter fuel allowance for all pensioners except the poorest on pension credit. The blog went viral and currently stands at 188,400 with 129 comments.
The decision – one of the first by an incoming Labour government – was inept, stupid, ill thought out, and rushed – and showed that the Labour government was completely out of touch with its base and its reputation for helping the poorest.
There was a decent case for restricting the payment to the wealthiest members of society who did not need help with their fuel bills. But by setting the figure so low as £11,300 to get it and trying to get people to claim pension credit – which has been a policy failure for years – this was a serious own goal.
The decision to use regulations to do this was attacked by the House of Lords statutory instruments committee – when they examined the detail – and ministers by passed their own benefits advisory committee, the Social Security Advisory Committee, on the flimsiest excuse that they didn’t have time to do this to make sure it could be implemented as an emergency. The committee itself when it finally got to discuss the regulations pointed out it was perfectly capable to look at it at an emergency session. It did this when the last government introduced massive social security changes to cope with lockdown during the pandemic.
The optics also looked bad for any politician. Claiming they had found a huge black hole in government finances it looked as though the first people who would plug the gap were pensioners, many of them surviving on incomes less than £20,000 a year. Pensioners and the disabled also need warm homes in winter probably more than any other people and the government’s claim it was implementing the triple lock to raise pensions was no use in the winter. It would not be paid until the spring when temperatures begin to rise and some would be scrimping and saving to try and keep warm before receiving an extra penny.
The result came back to bite Labour in the spring council elections and Parliamentary by-election in Runcorn, when voters dumped Labour in droves turning to Reform, the Greens and the Liberal Democrats instead.
Labour MPs and activists found this was one of the most cited reasons why people turned against them during the election. As a result Reform could capitalise by gaining control of a swarth of county councils and some mayoralties. The Conservatives were still not trusted by people after their 14 years in government, but to be fair to them they never proposed to cut the winter fuel allowance in the first place.
Luckily for Labour it is four years to the next general election so there is a chance it might be forgotten how stupid they were after four winters. And the mechanism they have proposed to pay the allowance back to nine million pensioners is fair with those earning £35,000 or more having to pay back the money in their annual tax return. The big question is why they didn’t do this in the first place.
The overall policy will still save £450m versus the universal system. But £1.25bn of the £1.7bn projected saving when this policy was announced is gone. Rachel Reeves, the chancellor, was claiming she couldn’t have done this when the government came into power because of the state of the finances, but can now because the situation has improved. She will have to explain this big change in her statement to MPs this week.
In my view the government overall has lost a lot of support by targeting pensioners not only in this way but also in the way it has treated 50swomen who had to wait six years for their pension by completely rejecting any compensation for them and ruling out mediation. I am sceptical that the WASPI campaign will get anywhere by going to court to try and revive the now rejected Parliamentary Ombudsman’s report on partial maladministration.
The issue was always discrimination as well as maladministration and the Ombudsman’s report was a very tepid solution for those who lost tens of thousands of pounds.
And ministers are being dilatory in paying out money to HIV contaminated blood victims and those swindled by the Post Office computer scam. All these affect many in the same age group.
The government has got a lot to do to regain popularity to get a second term in office, but this U turn on the winter fuel allowance is only a start.
Judge Lancaster – the same judge who vilified the now vindicated Alison McDermott- a Sellafield whistleblower over bullying and nuclear safety issues
Judge Philip Lancaster – the controversial employment judge – already facing 16 complaints – nearly all from women – about his handling of their tribunal cases – has now been revealed as having helped a health trust to cover up patient deaths.
An investigation by Michael Buchanan, the BBC’s social affairs correspondent, released yesterday revealed that police are investigating heart patient deaths at Castle Hill Hospital near Hull. His full report which contains disturbing treatment of patients and a “cover up” of the circumstances of their deaths from relatives is here.
The employment tribunal case heard by Judge Lancaster centred around the safety of a procedure called Trans-Catheter-Aortic Valve Implantation (TAVI) – a keyhole surgery method to replace a defective aortic valve in the heart to predominately elderly patients,
The case had been bought against Hull University Teaching Hospitals Trust by consultant cardiologist Dr Thanjavur Bragadeesh, then clinical director of the hospital’s cardiology department, because he had raised safety concerns about the implementation of the procedure which had led to patients deaths.
Dr Bragadeesh
He had first raised the issue in 2020 to little effect and took the trust to the tribunal as a whistleblower in 2023. In fact he was demoted following raising the issues.
Ranged against him were the trust’s chief medical officer, Dr Makani Purva and three consultant colleagues, Dr.Joseph John, Dr Kumar Chelliah and Dr Manish Ramlall.
He brought 29 claims of detriment and 13 protective disclosures. All detriment claims were dismissed by Judge Lancaster as either being out of time or failed claims which were legally irrelevant.
As a result it was never publicly revealed until yesterday by the BBC that at least 11 patients died following procedural failures, with some death certificates failing to mention the surgery at all. Families were never told the truth. Independent reviews confirmed catastrophic decision-making and a mortality rate three times the national average.
Despite Dr. Bragadeesh’s concerns being validated by external reviews, including those by the Royal College of Physicians, the tribunal did not adequately engage with this substantive evidence. The failure to consider corroborative findings from reputable bodies suggests a potential bias in favour of the employer and a reluctance to hold the institution accountable.
Certainly the Judge Lancaster’s judgement reflects this highlighting similar omissions and gas lighting of whistleblowers as seen in other judgements – notably Judge Tony Hyams Parish ignoring the General Medical Council’s revalidation of whistleblower Dr Usha Prasad, then a cardiologist at Epsom and St Helier Trust and the avoidable death of a heart patient. And Dr Bragadeesh is described as having a ” bullying and undermining attitude” to other consultants – just as Dr Martyn Pitman, the obstetrician, who raised patient safety issues in the maternity services at Hampshire Hospitals NHS trust, was portrayed when he lost his tribunal case.
Alison McDermott
Yesterday also saw the damning findings of the Commons Public Accounts committee on Sellafield which showed that Sellafield had paid out £377,000 to staff to end labour disputes and had issued 16 non disclosure agreements to staff to cover up complaints. This vindicated Alison McDermott’s portrayal of the place at risk over nuclear safety and a bullying culture.
Still Sellafield and the Nuclear Decommissioning Authority are using the findings of Judge Lancaster’s flawed judgements to gaslight her.
In a joint public statement they said: “This case has been thoroughly litigated through an Employment Tribunal, Employment Appeal Tribunal (EAT) and the Court of Appeal. It was found that the claims made against Sellafield Ltd in this case were entirely without substance, and there was no basis for claims against the NDA.”
Try telling that to the MPs who wrote the report on Sellafield who say they are not convinced by claims that everything is OK or to the Department for Energy who admonished both organisations and said they must crack down on bullying.
There is a much wider issue to all of this. It is the question of the public accountability. Judge Lancaster is being protected by the Judicial Conduct Investigations Office. Despite a growing pile of complaints from women and from Dr Bragadeesh about his behaviour at tribunal hearings, it refuses to act on any of them. It is also fighting the Information Commissioner to prevent the public and press being able to put in any freedom of information requests.
By doing so they risk bringing the judicial system into disrepute and in my view they lack a moral compass.
If they continue to do this, they are acting as a party to suppressing patient safety in the National Health Service and in the case of Sellafield, because it is such a contaminated and dangerous place, putting the general public at risk.
Baroness Sue Carr, the Lady Chief Justice, and Shabana Mahmood, the Lord Chancellor, who both receive advice from the JCIO, should be wary about ignoring these developments, because at some stage they are going to come back and bite them.
NEW: Since this post was published I have learned that Rebecca Hilsenrath has been awarded an honorary KC and been appointed a member of theCivil Justice Council, chaired by the Master of the Rolls,Sir Geoffrey Vos. She is responsible for advising the judiciary on the use of alternative dispute resolution, where disputes are settled outside the courts. Ironically this would include the demand from CEDAWinLAW to solve the dispute over compensation for 50swomen pensioners which ministers oppose. She was and still is chief executive of the Parliamentary Ombudsman’s Office when the former ombudsman ,Robert Behrens, recommended compensation forpartial maladministration by the DWP. It would be curious to know what her position will be on this ifthis ever came up.
John Edwards, the Information commissioner, has ruled that the Equality and Human Rights Commission must answer what action it took when it was revealed that its former chief executive, breached Covid rules at the height of the pandemic by driving from north London to her holiday cottage in Wales for a family Christmas in 2020.
The decision is a partial victory for Mark Benny, a dogged campaigner, who sought answers to what action it took when it became publicly known through an article in The Times that she had driven hundreds of miles when there was a ban on any long distance travel as part of the national lockdown.
But the information commissioner has decided not to release a report of an EHRC investigation or correspondence from her because it goes into her private life and might cause unwanted distress.
Rebecca Hilsenrath’s Welsh holiday cottage
However his ruling is significant for a number of reasons. He has had to weigh up public interest in this case versus a person’s right to privacy. And he has come down very firmly that there is a public interest case about how senior public figures conducted themselves during the pandemic. He also ruled that public bodies cannot, as the EHRC did, impose a blanket ban under the privacy section of the Freedom of Information Act, to refuse to confirm or deny anything because it involves personal data.
This could have wider implications since public bodies use this technique where there are controversial appointments or resignations to refuse to provide information because itinvolves personal data
John Edwards, Information Commissioner
Rebecca Hilsenrath’s case was particularly controversial because she resigned her chief executive’s job at EHRC only to be parachuted into a top position at the Parliamentary Ombudsman’s Office where since became Interim Ombudsman and chief executive, an equivalent or even better status than she had at the EHRC.
Extraordinarily when Mark Benny pressed the Parliamentary Ombudsman’s Office on what they knew or whether they took into account of her Covid breach during her appointment, the office said it had lost the papers on her appointment process.
So now the EHRC will have to answer his questions within 30 days or as the Commissioner says in his report “failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.” The questions he has asked include whether there was a proper investigation into the breach, whether it was completed and what was the outcome. He also wants to know whether she was suspended by the EHRC or put on gardening leave and whether she was dismissed or decided to resign.
All the public had at the time was a terse statement by the EHRC to the press. It said:
“The Equality and Human Rights Commission said they will consider whether further action against its chief executive is needed. “She has apologised for this error of judgement,” said EHRC chair Baroness Kishwer Falkner. “I will establish all the facts before deciding if any further action is required.”
Nothing has been heard of this since and it is now known whether it came up again when she was interviewed to be Interim Ombudsman last year.
What the ruling by the Information Commissioner does is say that Mark Benney’s request was legitimate and it was necessary for the information to be released. But he thought this could be done through his questions and it was not a legitimate interest to release the full report because it contained details of her private life.
Interestingly he thought it might throw some more light on what happened at the Parliamentary Ombudsman’s Office. He said “he considers that disclosure of the requested information would allow further scrutiny of that process.”
Westminster Confidential 