Top retired Cardiologist calls for whistle blowing to be a “routine and acceptable practice” throughout the NHS

Dr David E Ward, retired cardiologist

This is a guest blog by David E Ward, a distinguished retired cardiologist, formerly at St George’s Hospital, South London, in response to my last blog on the case of Dr Chris Day and a series of blogs on the case of Dr Usha Prasad

The treatment of bona fide whistleblowers working in the British NHS is egregious and primitive. This is amply exemplified by many publicised WB cases over the last 2 decades: Dr Raj Mattu, Dr David Drew, Dr Kevin Beatt, Mr Peter Duffy, Dr Chris Day, Dr Usha Prasad and many others (see Google). Just think for a second or two – is it appropriate to threaten the career, the livelihood, the families of these honest doctors who were only doing the “right thing” by drawing attention to what they honestly perceived were remediable shortcomings? In fact, it is required of doctors to report any perceived shortcomings (Hippocratic Oath and all that and more recently with the “Duty of Candour”).

How is it possible – in the democratic UK – to threaten a doctor with such punitive costs that they are forced to withdraw their legitimate claims or risk potential bankruptcy? Isn’t this behaviour something we might associate with some autocracies toward the east? In the case of Dr Chris Day, the sum spent on pursuing (persecuting) him must now be more than £1,000,000! All to extinguish the career of an honest doctor who sought only to improve the care of patients in his unit. Wouldn’t it have been more sensible (litotes here) to spend that huge sum of money on improvements to the unit in question? (see CrowdJustice, http://54000doctors.org/blogs/timeline).

Successive health secretaries did ” little or nothing” to help whistleblowers

Jeremy Hunt, former health secretary now chair of the Commons health and social care committee

Successive Health Secretaries have done little or nothing to support whistleblowers. Jeremy Hunt (yes, he who did so much damage to the NHS; see Caroline Molloy, http://www.openDemocracy essay) asked Sir Robert Francis QC to report on the issue (see Google) but then ignored most of his recommendations or feebly implemented some (for example, the Freedom to Speak Up Guardian which doesn’t really work, to say the least). The last SoS for Health and SC did nothing at all to support WBs to my knowledge (OK, there is a pandemic). The present one has probably never heard of any of the names listed above or even what whistleblowing within the NHS means! What is more disturbing is that other powers-that-be, for example the NHS Medical Director, the Head of the NHS (whoever that will soon be), other Ministers etc, seem to take no interest in this problem, none whatever. The Health and Social Care Select Committee could take an interest but it is chaired by Jeremy Hunt – who is too occupied with his own self-importance and whose record as SoS speaks for itself – so I don’t expect any action there. Perhaps these grandees are too far removed from day-to-day whistleblowing in the NHS. It wouldn’t take much time to find out what is happening at grass roots.

Time to create a public register of whistleblowing cases

Some tentative suggestions:

1. Create a register of WB cases. Whistleblowing investigations are almost invariably secretive. Why? Apart from clinical details what else need to be anonymised? All reported and ongoing whistleblowing cases should be logged in an open and accessible register kept by an independent (is that possible?) body, preferably independent of the Trust and possibly the NHS and its Byzantine structures. Progress of a case should be openly documented and questions may be submitted. Resolved cases would be available, uncensored, for retrospective scrutiny. Openness might deter shady deals behind closed doors (yes, they do happen). Above all the external investigators should be accountable to the Trust and their own professional organisations.

2. Make cost threats unlawful. No Hospital Trust should be permitted to use the threat of costs against a “little person” (i.e., doctor) who cannot possibly equal the financial power of the taxpayer-funded persecution to defend themselves (yes, for it is us, the taxpayer, who pays the bill for the outrageous sums mentioned above to “thwart” the WB but we have no say whatever in the process). If money is to be spent in this process it should be wisely and fairly spent and shared equally between the participants, that is the victim (the doctor) and the aggressor (the Trust).

3. Make Internal hearings demonstrably independent of both parties. All WB cases which are subject to “internal” hearings (for example Maintaining High Professional Standards panels) are vulnerable to potentially corrupt processes (as some of the above cases probably have been). They should be heard by independently appointed persons (this will require some checking because as we have seen not all so-called “independent” chair-persons are quite as independent as they may appear – see Dr Usha Prasad blogs here) and open to external scrutiny by independent authorities or suitably qualified persons. Minutes of internal hearings should be made accessible. (Employment Tribunal proceedings are already largely in the public domain).

Make falsified evidence a criminal offence

4. Make falsification of evidence by either party an offence (I think there is a name for this beginning with “P”). If defence of a whistleblowing claim by a Trust is found to be untrue or contain false or falsified “evidence”, or in some other way is dishonest (there may be some of that in some of the ongoing current cases mentioned above…) there should be appropriate retribution for the Trust and managers involved. Incidentally, it is usually managers who instigate the persecution and recruit the heavy (taxpayer-funded) lawyer-supported defence without accepting any personal responsibilities themselves. Also, the use of public money in this way could be regarded as fraudulent and a misuse of taxpayer funds.

5. Ensure the original WB claim is clearly stated. The original concern which prompted the WB to speak out should be clearly and concisely stated in language that the “man on the Clapham omnibus” (Lord Justice Greer, 1932) can understand. It should never lose its primal status. It defines the whistleblower in the first place. WB have, by definition, concerns about the environment in which they are working. They make what is termed a “protected disclosure” (Protected Disclosures Act 2014, Health Act 2004). It is remarkable that these concerns are not infrequently submerged (or completely forgotten) by the ensuing investigative process – which is often more about the Trust and its managers avenging a perceived insult by the WB than seeking solutions.

Health Trust managers use lawyers to “crush honest doctors”

Lastly, what is it that Trusts’ and their managers are so keen to defend seemingly at any cost? Very expensive lawyers are used to “crush” an honest doctor, the “little person”. A defence possibly costing much more than it would to correct the shortcomings exposed by the WB in the first place. Is it the Trusts’ or its managers’ reputations that are at stake? Would the CQC ratings be adversely affected if the Trust was found to be at fault? Are there hidden misdemeanours which might be revealed? Why do these proceedings always come across as a potential “cover-up” by the Trust? Shouldn’t the grossly disproportionate defensive stance itself raise serious questions worthy of further investigation?

It is high time the treatment of NHS whistleblowers is once again raised at the highest level (for example, in the House of Commons following the example of Sir Norman Lamb, see report above). Too many professional lives (not only doctors but nurses, physios etc) are being destroyed for no good reason. This is bad news at any time but in the middle of a pandemic it is nothing short of scandalous. Whistleblowing in the NHS is not taken seriously enough and may be a factor persuading some doctors to voluntarily leave the profession before time. In an open liberal society with everyone working for the good, “whistleblowing” should be a routine and acceptable practice. Sadly, it is cause of great distress and stigma.

BMA and ex health minister Norman Lamb back whistleblower doctor Chris Day in patient safety battle

Dr Chris Day now being backed and funded by the BMA Pic credit: Twitter

The tables are beginning to turn in a seven year battle which has cost £700,000 so far to the taxpayer between Chris Day, an anaesthetist in an intensive care unit ,employed by Lewisham and Greenwich Health Trust.

The case against the trust and Health Education England has been drawn out over seven years at employment tribunals and appeal tribunals. He was forced into a settlement in which he had to withdraw his allegations of patient safety being at risk at the ICU unit at Woolwich Hospital in return for the trust accepting he had genuine concerns as a whistleblower at Woolwich Hospital between 2013 and 2014. The trust , using expensive lawyers, threatened to land him with huge legal bills if he continued and started cross examining their witnesses. The allegations included poor staff ,patient ratios at the ICU and inadequate medical supervision. He also made the same allegations to Health England Education.

Trust forced him to settle by threatening him with huge legal bills

As he said: “After two and a half days of my six day cross examination I was contacted by my legal team and told that the NHS respondents had decided to inform me of their intention to seek costs for the entire four week hearing if I proceeded to cross examine any of the NHS’s14 witnesses and ended up losing the case,”

He had no option but to withdraw to protect his wife and family from bankruptcy should this threat be carried out.

“real prospect of success” says judge

But he has won the right to get the enforced settlement out aside and take his case to the Court of Appeal. In giving judgement the Rt Hon Lady Justice Ingrid Simler DBE stated in the Order of the Court of Appeal that “I consider this appeal has a real prospect of success. Permission is granted”. Simler LJ is a highly experienced Judge and she was previously the President of the Employment Appeal Tribunal.

Until now he was left with trying to raise money so he could afford to pay the lawyers to fight the trust. In the last week in what amounts to a major change of heart, the British Medical Association has decided to fund his battle. Internal sources say this may be the first time the BMA has decided to fund a doctor in a whistleblowing case.

A BMA spokesperson said:

“Chris’ case has brought into sharp public focus the challenges and adverse experiences which doctors can face when they make public interest disclosures to blow the whistle on safety concerns they identify, in the course of carrying out their job.

“Doctors have a responsibility to raise concerns they have about the safety of their patients and yet too often they are put in the position of having to blow the whistle on organisational failures when the organisation in question fails to act. The BMA’s own research shows a majority of doctors work in a culture of fear and are worried about recrimination if they speak out about patient safety concerns. The BMA has been calling for an open culture, where speaking out is encouraged and supported and where our NHS learns from concerns and errors, to improve safety for patients.

“The BMA carried out a comprehensive external review of its member support services and we are now making significant improvements in how we support whistleblowing cases and indeed all members who raise concerns within the NHS. This includes offering more specialised legal support given the complexity of such cases. We are grateful to Chris and other BMA members for their input to this review. Different processes would have been followed if Chris’s case was to arise today and we are pleased to be able to offer Chris the support he needs in the next stage of litigation in his case as well as in the wider interests of the profession and patient care”.

Chris Day said:

“I am pleased to announce that I will be accepting support from the BMA in the next stage of litigation in my case.

“I have always remained a member of the BMA and it is clear to me that the new leadership at the BMA is committed to supporting me and my family where it is able to do so. The Association has spent considerable time and effort understanding my situation and provided me with expert legal advice as I considered the best way forward.

“I know the BMA has undertaken a great deal of work to consider how it supports whistle-blower cases and it has sought to learn from the past. They have established new arrangements to ensure better support for potential whistle-blowers, including guaranteeing a meeting with a specialist solicitor and case manager that now takes place before any case is considered too weak to proceed or on cases that are initially considered strong enough to proceed where this view subsequently changes.

Sir Norman Lamb. Pic credit: Twitter

“I look forward to working with the BMA. The BMA has a critical role in ensuring that no doctor should ever be forced to choose between their career and the safety of their patients and I would encourage every doctor and medical student to join the BMA and take an active role in shaping their trade union. Doctors need a trade union now more than ever.”

Chris Day has also got the support of Sir Norman Lamb, the former Liberal Democrat health minister, who backed him while he was in government. Sir Norman is now the chairman of the South London and Maudsley NHS Foundation Trust., the neighbouring trust to Lewisham and Greenwich. Despite some concern in the NHS establishment he is to continue to support Chris Day and will be a witness.

Given the dire findings in the Usha Prasad case with Epsom and St Helier University Health Trust, reported in this blog, this development is the best news a whistleblower doctor can get.

Hidden justice in the NHS: Profile of Claire McLaughlan – a doctors’ career terminator and rehabilitator

Claire McLaughlan. Pic credit: Linked In

The National Health Service has a largely hidden system of justice when a health trust is involved in a dispute with a doctor. It holds internal inquiries and appeals in private to decide whether a doctor should be dismissed.

The people who chair and sit on the inquiry are drawn from a list that a health trust can choose. The same people are also chosen and paid by trusts to build up a case against a doctor. The people who get onto the list normally have had a career in the NHS but are now running their private businesses in Claire McLaughlan’s case offering rehabilitation to doctors who have fallen foul of their own health trust.

I have chosen Claire McLaughlan as an example because she has been and is involved in three high profile cases where doctors have challenged decisions by health trusts to dismiss them. They are Dr Raj Mattu, who won a spectacular £1.2 million settlement after being unfairly dismissed for warning about patient safety in a cardiology department; Dr Chris Day, who is still fighting his dismissal for warning about patient safety at an intensive care unit at Woolwich Hospital, and as readers of this blog will be familiar, Dr Usha Prasad, a consultant cardiologist at the Epsom and St Helier University Health Trust, who is currently awaiting an internal inquiry appeal over her dismissal from the trust.

I did offer Claire McLaughlan an opportunity to comment but have received no reply to my request.

From Royal Navy nurse to clinical assessment services

Claire McLaughan’s nursing career started in the Royal Navy before she became Head of Fitness to Practise at the Nursing and Midwifery Council and then moved to the now renamed National Clinical Assessment Service (NCAS) becoming, an Associate Director. There she developed the NCAS Back on Track Services for doctors, dentists and pharmacists between 2008 and 2014. 

She also did obtain a law degree and was called to the Bar but as far as I could ascertain never practised as a barrister despite calling herself a non practising barrister. Certainly the Law Society do not appear to have any records of her working for chambers.

She left NCAS and set up her own business which offers a huge list of services which are listed on her Linked In page. It begins “Claire provides bespoke, holistic services and access to resources relating to performance management, revalidation, remediation, reskilling and rehabilitation for health professionals and the organisations they work in.”

Her company CC McLaughlin Services ( website here) which appears to be run according to the website from their home in Stockbridge, Hampshire, ( though it has a registered office in Winchester), which they purchased according to the land registry for £600,000 in 2010.

The latest Companies House accounts for the firm show that she and her husband, fellow director, Charlie ,have a thriving business. Latest company returns show it made a profit of £137,000. Both directors pay themselves in dividends rather than salaries which is more tax efficient.

While working in the private sector she holds a number of NHS posts including Chair for NHS England’s Performers List Decision making panels( they decide the internal inquiries) She is also an Invited Review panellist for the Royal College of Paediatrics and Child Health and an appointed lay member of the Royal College of Veterinary Surgeons.

Given this stellar series of appointments it is rather surprising that in two cases she has been subject to criticism- and in one case had to apologise.

The first case involved Raj Mattu, a cardiologist with the University Hospitals Coventry and Warwickshire NHS Trust. He was dismissed after he warned of serious patient safety problems at Walsgrave Hospital. He lost his court battle but won an employment tribunal and was awarded over £1m damages in 2016.( see here).

Claire McLoughlan, who appeared for the trust, was criticised by employment judge Pauline Hughes for an important omission in her evidence. The extract in her judgement says:

Her second case was highlighted by Chris Day. She was paid by Greenwich and Lewisham NHS Trust to investigate his claims of patient safety concerns at and was working with M J Rhoddis Associates. They were paid over £40,000 for the work.

Dr Chris Day; Pic credit: Twitter

In a recent letter to the Care Quality Commission Mr Day said that he came to a meeting with them to explain the circumstances of his concerns – only to find afterwards that the record of what happened had been completely altered, important points were left out, his views were distorted and comments attributed to him which he never said.

He got an apology from Mrs Mclaughlan and the record was altered.

Now at the moment Mrs McLaughlan is about to issue her verdict as chair of an internal inquiry on the fate of Dr Usha Prasad, who has already been exonerated by the GMC, so there can no question of patient safety being at risk. There is the question why this appeal is being heard while we still have a pandemic and St Helier hospital has been hit badly by it. It goes against NHS guidance to have it now and Mrs Mclaughlan as chair of the NHS England Performers List should know. Obviously she has not followed NHS guidance in this instance.

Is it a chumocracy?

These internal NHS hearing are areas where journalists rarely investigate but to my mind raise a lot of questions which need answering. Is this rather closed system open to chumocracy? How curious that people can glide between the public and private sector running a successful business on the proceeds? How independent are these people if they are paid by the trust which obviously in all three cases wants to get rid of the doctor concerned?

And most importantly whatever findings come out – they can ruin the professional careers of doctors – and should that be left to a secretive system to decide their fate? And why is all this taxpayers’ money going on these long and drawn out proceedings which are money making troughs for all the lawyers concerned?