David Cocke – the trust official who destroyed ” potentially relevant” emails – instructs top lawyer and pulls out of cross examination in Chris Day tribunal

Dr Chris Day

Judge Anne Martin says she doesn’t accept Communications Director quit tribunal hearing for medical reasons as the trust provided no medical evidence

Revealed: note of the Board Meeting that approved settlement of Dr Day’s case hidden for 4 years and its existence denied to a judge

The Chris Day tribunal took yet another unexpected dramatic turn today when David Cocke, the director of communications, for the Lewisham and Greenwich NHS Trust pulled out of today’s hearing – he was due to be cross examined this morning.

Instead of defending his two witness statements in support of the Trust, Mr Cocke has instructed Kingsley Napley, ” well-established as one of the world’s leading criminal law firms, largely because of its role in several high-profile cases”.

The implication is that he intends to defend himself from allegations that he deliberately destroyed evidence that were placed in an unsigned statement on his behalf and relied on by the NHS and its law firm Capsticks – maybe Mr Cocke will now be taking on his employer, the Lewisham and Greenwich NHS Trust.

IMr Cocke was due to be cross examined by Andrew Allen, QC for three hours over the preparation of what another witness Sir Norman Lamb, the former health minister described as ” inaccurate, damaging and defamatory” public statements to the press, MPs and other stakeholders attacking Dr Chris Day in 2018. The former minister said the trust owed Dr Day an apology for what they had done.

Dr Day has been fighting the trust for nearly nine years after he made protected disclosures about patient safety and inadequate staffing at the intensive care unit at Queen Elizabeth Hospital in Woolwich. Two people died there including one who had a chest drain inserted by mistake into his liver.

Events at the hearing already took a dramatic turn earlier this week when Mr Cocke volunteered a cache of emails that should have been disclosed to Dr Day four years ago. This was followed by the disclosure of a 2018 board report which discussed how to handle Dr Day’s case among emails held by Ben Travis, the trust’s chief executive, which the trust denied to a judge had ever existed in 2018.

David Cocke then went into the trust’s headquarters at 5.30 am and destroyed 100 emails and an archive which contained ” potentially relevant ” information which should have been disclosed to the tribunal. He claimed the emails had been permanently destroyed.

Last week he cancelled his planned appearance before the tribunal claiming, without providing a medical certificate, that he was ill.

He then abruptly reversed his decision and informed the court at the time the tribunal were deliberating on whether to strike out the trust’s entire response because of Cocke’s ” egregious behaviour ” which could amount to perverting the course of justice.

The tribunal decided to continue and Mr Cocke said he would appear today.

Then last night the tribunal was told he was going to pull out for the second time having instructed Kingsley Napley to fight his corner.

Before that he sent a doctor’s note saying though he was unfit to go to work he was fit enough to be cross examined at the tribunal.

The tribunal was presented with a confusing picture about his health and mental state. Originally the trust had said on July 5 he could stay off work for two weeks because he was ill but he appears to have kept changing his mind about appearing before the tribunal.

Andrew Allen QC

Mr Allen alluded that he was seeking further medical help and may have an appointment with a psychiatrist.

Judge Anne Martin’s statement

In a statement after proceedings had been stopped again Judge Anne Martin said I just wanted to make it clear, that without further medical evidence, the Tribunal can not accept the reason for him [Mr Cocke] not being called to give evidence is medical. It is a decision made by the Respondent.” Or in other words a deliberate step from the Trust to avoid Mr Cocke being cross examined. There is a full statement on Chris Day’s whistleblowing site here and in his crowdjustice newsletter.

IAs a result of Mr Cocke ‘s behaviour Mr Allen concluded that he could not trust whether a revised witness statement from Mr Cocke to the tribunal could be considered to be accurate. His first statement had already been decided not to be an accurate account of the events.

Dr Day, who now is suffering from Covid, did swear two further statements following his reading of Mr Cocke’s statement but Dan Tatton Brown QC told the tribunal he did not plan to cross examine him about them.

Dr Day’s statement, which is unchallenged by Mr Tatton Brown, reveals details of a telephone discussion in October 2018 which the board originally claimed had no record.

He said “It appears that this note recording the Board meeting was included in emails to the former legal client of the Respondent, Janet Lynch; the person who I believe to be the current legal client Kate Anderson (who also wrote the note); the Chief Executive Ben Travis; and perhaps most significantly, David Cocke. It is of concern whether this was one of the documents and emails David Cocke decided to deliberately delete on the morning of 1 July 2022 before the hearing re-commenced.
He goes on ” Someone with the initials LA “confirmed all four Trust Medical witnesses felt strongly that we should agree the proposed settlement. It would be difficult to control media presentation of evidence that may emerge in the second half of the Tribunal” and “JB confirmed agreement to settle, noted potential exposure to the Trust if we didn’t.”.

“This shows to me that a key motivating factor of the Trust Medical witnesses, Janet Lynch, and the Board in their actions in this claim are fears about how the live evidence of the October 2018 hearing of the protected disclosures and the Trust’s response would be viewed by the public, doctors and
journalists in the public gallery.”
“Contrary to what Ben Travis has stated in his witness statement in this case about his preference for the case to run its course, the record does not show that he expressed any doubts to the Board, and it records that: “BT confirmed a view that we should settle”.

Ben Travis wanted to settle but his tribunal statement said the opposite

The Board member AJ stated the Board should attempt to control communications “beyond Chris Day himself”. They are clearly referring to those present in the public gallery observing the evidence and those reading the case papers and how they may disseminate such information. This also confirms my
pleaded case as to the evidence of the Trust’s response to my protected disclosures being the main driving force the Respondents actions.

The tribunal will reconvene on Thursday afternoon to hear final submissions from Mr Allen and Mr Tatton Brown without calling any more witnesses.

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

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

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

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

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

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

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

Chief executive never read the Roddis report in full

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

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

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

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

Kate Anderson never produced a written report but absolved the trust

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

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

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

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

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

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

Sir Norman Lamb

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

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

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

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

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