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

Posted on April 16, 2024 by davidhencke

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.

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.

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How the St Georges, St Helier and Epsom Hospital Group fixed the dismissal of whistleblower cardiologist Dr Usha Prasad

Posted on January 22, 2024 by davidhencke

After my blog on the double standards of the Epsom and St Helier University Hospital Trust over its treatment of whistleblowers which included references to Dr Usha Prasad, I received an email from the communications team of the hospital group.

According to the team I had got everything wrong. The whistleblowing case had absolutely nothing to do with her dismissal. They said: ” It is not correct to say Ms Usha Prasad was dismissed for raising patient safety concerns. A disciplinary panel concluded that she should be dismissed for competency grounds, concerns around her practice/conduct and because relationships with key colleagues had broken down. This decision was upheld on appeal.”

Technically they are correct. But if you delve deeper it shows that this disciplinary panel was a completely flawed process – ignoring vital information and chaired by a person whose integrity had already been called into question and falls into a management playbook used by other trusts to get rid of troublesome doctors who raise unwelcome concerns about patient safety.

Even the conclusion of this disciplinary panel used a fake term. The chair concluded that she was ” unfit for purpose”. There is no such term in English employment law – a system can be ” unfit for purpose” but an individual cannot. And this has been raised at the highest level in NHS England by colleagues of her when they met Professor Stephen Powis, the national medical director, who could not explain such a term applying to an individual doctor.

Then there is the issue of competency. The big flaw in this is that after she raised her protected disclosure on patient safety the trust sent 43 complaints about her practice to the General Medical Council .These were organised by Dr James Marsh, then medical director of the Epsom and St Helier University Trust now Deputy Group Chief Executive Officer of the St George’s Group.

Dr Marsh chose close colleague Dr Peter Andrews, a fellow renal physician who worked on the same ward, to investigate the claims, and Dr Ian Beeton, a cardiologist in private practice at nearby St Peter’s Hospital as an “independent” expert. Dr Beeton works with Dr Marsh’s wife, a radiologist at the same hospital. They asked Dr Richard Bogle, the head of the cardiology at the Epsom and St Helier Trust, to file the complaints who also works closely with private cardiologist Dr David Fluck at St Peter’s Hospital.

When it came to the disciplinary hearing the trust brought in Dr David Fluck to sit on the tribunal to judge Dr Usha Prasad. He also worked on joint projects with Dr Marsh.

I leave you to judge whether this was a genuinely independent investigation without any conflict of interest. But when the complaint went to the General Medical Council and was seen by a genuine independent cardiologist in Teesside and formerly at the world famous Papworth Hospital every complaint was thrown out. In fact I am told the GMC looked at the eight most serious complaints and decided there was nothing to see. And not only was it thrown out by the GMC , it decided to validate Dr Prasad as competent to work in any hospital in the UK for the next five years.

This GMC ruling was brushed aside by the disciplinary hearing and ignored by the judge when it came to an employment tribunal hearing later. The only clue came at the tribunal hearing when Dr James Marsh claimed that the trust had higher standards than the GMC. Frankly this was insulting to both the GMC and the eminent cardiologist who thought differently.

The second charge against her is that she couldn’t work with colleagues. Certainly relations with Dr James Marsh did deteriorate over her decision to say an elderly patient who died because the trust did not act on a serious heart condition was an ” avoidable death” and should have been notified to the coroner and the Care Quality Commission. Dr Marsh wanted this conclusion struck out and she refused to do it.

But if this is correct this would apply elsewhere and it doesn’t. Her work at Pinderfields Hospital in Yorkshire and at St George’s is praised by the hospitals and there have been no complaints about her relations with colleagues.

Dr David Ward, a close colleague of hers at St George’s, said this: ” I am pleased to say that I worked alongside Dr Usha Prasad when she was a visiting Consultant Cardiologist at St George’s Hospital (now part of the united Trust with Georges-Epsom- St-Helier or GESH). I found her to be collegiate, knowledgeable in general cardiology, skilled in her specialised areas (echo, heart failure etc). She was well-liked by all staff with whom she worked (catheter lab, echo). I (or anyone in the cardiology department at St George’s) never had any concerns about Dr Prasad’s clinical skills or competence and I find it most surprising that St Helier have retrospectively (for that it what it amounts to) found reason to question her abilities, coincidentally or not, after she had raised concerns about patient safety. I suspect this, also known as whistleblowing, is the underlying motive for the profoundly vengeful and unjustified response by the Trust.”

Finally there is the question of the disciplinary hearing itself. It was chaired by Claire McLaughlan – a profile of her is here – who ran into trouble with a judge at a hearing with cardiologist Dr Mattu, who won his case, for omitting evidence and over an interview for Lewisham and Greenwich NHS Health Trust with whistleblower Dr Chris Day, whose case is still continuing. He found the record of the interview with him had been altered, missing key points. As he had a secret recording of it, she had no alternative but to apologise and change back the record.

One final point. Dr Usha Prasad told me the former CEO of the Epsom and St Helier Trust, Daniel Elkeles ( now chief executive of the London Ambulance Trust) was prepared to “stop” the disciplinary hearing if I was prepared to drop “all you have against the trust; an ET case of whistleblowing detriment and harassment, discrimination”. One wonders how many back door deals take place over patient safety.