Tag Archives: employment tribunal

Dr Usha Prasad whistleblower case: Judge cancels hearing from trust again at eleventh hour

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Consultant cardiologist convinces judge she is too ill to attend and case cannot be listed until next spring

Dr Usha Prasad

Dr Usha Prasad, the whistleblower consultant cardiologist, yesterday won her argument that she was too ill, because of mental stress, to defend herself at another employment tribunal brought by Epsom and St Helier University NHS Trust without even having to attend the hearing.

The trust which originally wanted her to pay £180,000 costs- reduced in August to £24,000 – sought this week to strike out all her claims, including her whistleblowing case that an elderly man who died at the hospital was ” an avoidable death” which was never reported to the coroner.

The hearing was also set to go ahead tomorrow with remote links already sent out to people observing the case this afternoon when acting regional employment judge Katharine Andrews suddenly cancelled the hearing. This is the second time in two months hearings brought by the trust have been cancelled by a judge.

The costs hearing in August was cancelled when the tribunal met because according to judge Mrs E J R McLaren one of the panel members to hear the case could not attend. Dr Prasad had sent a letter from her GP saying she was under severe stress but another regional judge had rejected this.

This time Dr Prasad sent a fresh letter from her GP saying she was still under severe stress as a result of this long running case involving the trust.

Epsom Hospital

In her letter the judge says: “This hearing was first listed for 6 April 2023. The claimant’s application to postpone that hearing was refused although it did not in any event proceed as there was insufficient judicial resource available. Accordingly it was relisted to be heard on 6 June 2023. That hearing was then postponed at the claimant’s request as she was unavailable due to a professional commitment and also at the request of the respondent who considered that a one day hearing was required. The matter was then listed for one day to be heard tomorrow, 18 October 2023.

On 29 September 2023 the claimant applied to postpone tomorrow’s hearing due to her ill-health. That application was refused as the medical evidence enclosed within her application was insufficient.
The claimant has today repeated her application and enclosed a medical note (apparently from her GP) that does confirm that she is unfit to attend and that a delay of 3 to 4 months would enable her health to improve sufficiently.
The respondent has objected to the request referring to previous postponement requests by the claimants and costs they have incurred that will be wasted.
In all the circumstances the claimant’s application to postpone is granted and the hearing will be re-listed not before 1 March 2024. Any further applications by the claimant for a postponement are extremely unlikely to be granted. It is open to the respondent to make an application for wasted costs in due course if they believe that to be appropriate’ .”

Epsom and St Helier University Health trust have been fighting Dr Prasad for years and strongly objected to the hearing being postponed.

The regional judge who took the decision last heard one of her original tribunal cases in December 2020 when a tribunal was asked to rule again about the action of a fellow Indian doctor Dr Aran Kumar Perikala who wrote anonymous letters to the trust’s chief executive, the CQC, the GMC and Jeremy Hunt then health secretary, saying she was a danger to patient safety. He was unmasked but the trust did not take any action against him. Dr Prasad claimed he was sexist. The judge rejected this but ruled that he had behaved “unprofessionally ” by his actions. You can read my account of this bizarre hearing here. The whistleblowing allegations emerged at another hearing later.

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How Hampshire NHS Trust’s chief executive thwarted an independent inquiry into Obstetrician Martyn Pitman’s grievances

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Alex Whitfield, chief executive of Hampshire Hospitals NHS Foundation Trust

Alex Whitfield denies ever saying ” Martyn Pitman was a ” direct threat to patient safety”

Whistle blower consultant obstetrician Martyn Pitman made numerous attempts to get Hampshire Hospitals NHS Foundation Trust to independently investigate the allegations against him but was met with silence until he complained to the board , the tribunal was told yesterday.

The disclosures came out during the cross -examination of Alex Whitfield, the chief executive of the trust, by Jack Mitchell, the junior barrister from Old Square Chambers. Dr Pitman was dismissed by the trust for allegedly not being able to work with colleagues after he raised concerns about patient safety in the maternity wards at Royal Hampshire Hospital. The trust is arguing he is not a whistleblower in this case.

Alex Whitfield, a former oil refinery operating manager has been employed in managerial roles in the NHS since 2007. She was cross questioned in detail about how the terms of an independent inquiry were changed from one solely concentrating on his treatment by the trust after he had raised patient safety issues to much broader issues covering staff treatment.

Dr Pitman won the inquiry after complaining directly to a board member because no one else in management would take it up. It was passed to the chair of the board, Steve Erskine, a highly experienced Whitehall player and business development director who was keen for it to go ahead.

Steve Erskine, chair of Hampshire Hospitals NHS Trust on X as @ErskineSteve

At the same time the trust was grappling with new guidance later turned into a directive from Baroness Harding, on how NHS staff should be treated by trusts in the aftermath of the suicide of nurse Amin Abdullah who burnt himself to death outside Kensington Palace after being unfairly treated and dismissed by his trust. Baroness Harding was then chair of NHS Improvement before her more infamous role in charge of test and trace during the Covid pandemic.

At the time the trust was not fully compliant with the directive but the chief executive insisted at the tribunal that the trust was compliant with part of directive that covered Dr Pitman’s case. She also vehemently denied Mr Mitchell’s claim that she hid the non compliance ” to save her own skin” from questions by the chair.

The tribunal was told however that she was behind the change in terms of the inquiry to make it much broader than Mr Pitman’s case. If it had remained solely with him, it would have put her close colleague, Dr Lara Alloway, at the centre of the investigation, who, as reported yesterday as Dr Pitman’s case worker, faced questions of conflict of interest and not minuting meetings.

Dr Martyn Pitman Pic credit: Adele Bouchard, Hampshire Chronicle

The chief executive told the chairman that Dr Pitman would be able to appeal against any findings against him so would not lose out with a wider inquiry. But questioning from Jack Mitchell revealed this was not true. He would have been able to appeal if he had been found guilty of misconduct or lack of capability but because he went down the mediation route instead he had no right of appeal.

Mr Mitchell repeatedly argued that the trust had ” mapped out” a strategy to get rid of him at meetings – and also cited how the people director of the trust thought the best solution was to pay him off with a settlement. But Alex Whitfield insisted that they all wanted him to stay because he was such a good clinician and only wanted him to moderate his behaviour.

At the end of her cross examination she very strongly denied she had ever said that he had been sacked because he was a present danger to patients and the public. She insisted that she had never said that in discussions with Dr Lara Alloway.

Her denial sits oddly with Dr Lara Alloway’s evidence yesterday about the need for an extraordinary advisory meeting to discuss his future and complaints against him because they were worried about the risk to patient safety because of the toxic atmosphere with his relationship with some other staff.

And also the reason why Dr Pitman took ” special leave ” after he had a letter raising clinical issues does not fit with that. The hearing continues tomorrow.

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How Hampshire Trust’s former chief medical officer Lara Alloway turned Martyn Pitman from a well respected clinician to” a present danger to patient safety”

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Dr Lara Alloway: former chief medical officer. Pic credit: Hampshire NHS Trust

For the last day and a half Dr Lara Alloway, the case manager promoted to chief medical officer midway through his investigation, has been giving evidence for the Hampshire NHS Foundation Trust against whistleblower obstetrician Dr Martyn Pitman at his tribunal hearing.

She is a respondent in her own right alongside the trust and faced a forensic cross examination from Jack Mitchell, junior barrister from Old Square Chambers, paid by the British Medical Association which is backing Dr Martyn Pitman, who was dismissed from the trust for being” a danger to patient safety and the public” because of a breakdown in relations in his ward.

He traced the whole history of the case and challenged Dr Alloway over issues of conflicts of interest, failure to minute meetings, not following national NHS guidelines in investigating his case and sending a letter to Alex Whitfield, the trust’s chief executive, containing an untrue claim that he was involved in a clinical negligence case.

Dr Alloway presented herself to the tribunal as a person concerned with Dr Pitman’s welfare who wanted him to return to the trust and praising his clinical ability and reputation with some communication problems only to turn against him at the eleventh hour and secure his dismissal and the end of his career. The documents which sealed his fate were withheld from him, as earlier evidence has already been given, until he obtained them through Freedom of information and subject access requests.

Mr Mitchell cited a parallel with the Amin Abdullah case, the male nurse who burnt himself to death in 2016 outside Kensington Palace after being sacked and treated unfairly by Charing Cross Hospital An independent inquiry found the trust’s disciplinary procedures ” weak and unfair ” and the NHS sent new guidance for trusts in handling disciplinary procedures which have been sent to the Hampshire trust. The trust do not see a parallel.

Mr Mitchell also questioned whether she had followed the proper procedures for an investigation into him under the Maintaining High Professional Standards process since it was never referred to the national case review body.

Dr Martyn Pitman
Iack Mitchell

He also asked her about the screening group of managers contained a conflict of interest since one of the participants Janice MacKenzie, a midwifery manager, took part the decision to go ahead with an investigation was one of the principal complainants against him. Dr Alloway replied it had been referred to her predecessor chief medical officer, Andrew Bishop. It turned out there were no minutes of the meeting and Dr Galloway admitted it was just “a conversation” not a meeting.

It was put to her that there had been a long standing concern by consultants at the Winchester hospital about lack of staffing and the failure of midwifery managers to help out when it was short staffed and the trust had a meeting with them to discuss their concerns. Mr Mitchell contrasted that with the attitude of the trust that when Dr Pitman raised the very same issue as a whistleblowing concern the trust said ” it was not in the public interest.”

It also emerged that about half a dozen consultants had sent evidence about having good relations with Dr Pitman in contrast to the four midwifery managers who had complained about their ” well being harmed” by his treatment of them. She admitted that she had received them but dismissed them because she thought Dr Pitman had encouraged them to write to her. Mr Mitchell described her attitude as ” perjorative” against him.

Today Mr Mitchell concentrated on the run up to his dismissal. Dr Pitman wanted to challenge the findings of the MHPS findings – and she suggested he should file a grievance procedure while taking part in mediation and psychological coaching so he could return to the wards.

Then there was a tragic incident which caused ructions in the maternity ward- a 32 year old mother, Lucy Howell, died giving childbirth to Pippa who survived . She previously had a Caesarian which has caused her damage but the hospital had lost the notes of the case which recommended another Caesarian. Instead she had an induced birth with hormones that were inappropriate and died from a rupture. All this added to Dr Pitman’s concerns about patient safety and it coincided with his grievance procedure. And it made relations worse.

Dr Alloway decided to call an extraordinary meeting of a trust advisory committee following this incident. But it turned out to be a meeting concentrating on bad relations in the ward putting safety at risk with Dr Pitman as the principal problem.

Mr Mitchell pointed out that his grievances about patient safety appeared to arrive on the same day – but Dr Alloway denied it had any impact on the meeting. Mr Mitchell raised the point as she had a ” conflict of interest” since she was both chairing the meeting and acting as his case manager.

The trust rushed in extra evidence to show revised NHS guidelines mean any top official can act as case manager and there is no conflict of interest and does not have to recuse him or herself.. It also emerged that two other managers did not declare they had dealings with Dr Pitman while coming to a decision on what to advise Dr Alloway. It was also confirmed by her that no documents or reports were given to the meeting, it was solely her verbal report.

She then wrote to the chief executive, Alex Whitfield, saying she needed to take action against him. It turned out she had consulted the human relations department and the trust’s legal counsel, but kept no minutes of the meetings. She admitted to the tribunal that was a mistake and she had learned from it. She also admitted she had wrongly included a reference to clinical negligence involving him.

Mark Sutton, the Old Square KC for the trust yesterday withdrew a statement calling Dr Pitman a ” freelance agitator” saying it was not the trust’s view of him. The case continues.

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Martyn Pitman tribunal: How top NHS trust managers fixed his dismissal in secret and didn’t reveal why

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Dr Lara Alloway: pic credit: Hampshire Hospitals Trust
Dr Martyn Pitman: pic credit Hampshire Chronicle

The fourth day of the Dr Martyn Pitman tribunal provided extraordinary revelations of how top managers at the Hampshire Hospitals NHS Foundation Trust secretly got rid of the popular whistleblower obstetrician and gynaecologist who raised patient safety issues in the midwifery and maternity services.

Two very different witnesses, Daniel Pebody, a senior employment adviser to the British Medical Association, and Ben Cresswell, Divisional Medical Director for the Surgical Department  at the trust, gave evidence on what happened to Dr Pitman from different sides of the managerial fence.

Mr Pebody was strongly questioned by the trust’s lawyer Mark Sutton, KC, the former head of chambers at Old Square Chambers. He had been called in by the BMA as a health employment expert, to examine the investigation report into Dr Pitman by the trust and the procedures used to dismiss him form his job.

He quietly clashed with Mr Sutton when the lawyer put to him that the “well being of midwifery managers” had been adversely affected by Dr Pitman ” bullying “attitude which Mr Sutton said led to one resignation. Mr Pebody said this was an issue of the “perception by the managers of their well being” and not an intentional attitude by the consultant “. Mr Sutton then brought up a guideline by ACAS ( the  Advisory, Conciliation and Arbitration Service) that would allow a person to be sacked for ” unconsciously bullying people” to justify the trust’s decision.

Mr Pebody was also critical of the short time the investigator spent preparing her report – only one month – and pointed out it was one sided if not just short of biased, as nowhere in there were any views expressed from people supporting him. He hinted that perhaps the young person may have wanted to impress the trust as it was one of her first reports.

Biggest clash

The biggest clash came over when Dr Pitman learnt from the chief executive of the trust, Alex Whitfield, when he was about to be taken back by the trust that he couldn’t be because he could put patients ” at risk” and his clinical work would have to be monitored ( without any specification of what was wrong). The tribunal was told then he had no choice but to take “special leave”

Mr Pebody said this was ” appalling ” and ” this should never be allowed to happen again anywhere.”

The tribunal was then told by Mr Pebody of the battle Dr Pitman had to find out the reasons and get hold of the minutes of an advisory meeting of top managers who had met in private to advise Dr Lara Alloway, then chief medical officer of the trust, what action she could take against him.

He had to put in both a freedom of information request to his own employer and a subject access request before managers would part with the information. Mr Pebody was highly critical of the lack of transparency in the trust.

Later the trust’s Ben Cresswell gave evidence and was cross questioned by Martyn Pitman’s lawyer, Jack Mitchell, a junior barrister from Old Square Chambers. He had attended this key advisory meeting though he did not have any dealings with Dr Pitman.

Questioned by Mr Mitchell he had to admit that the extraordinary meeting- which was chaired by Dr Lara Alloway, who was handling Dr Pitman’s official grievance – received no written evidence, did not see the investigation report and were only told that there were multiple people who had complained about Dr Pitman.

Mr Mitchell described the sacking procedure as ” appalling”

Two issues were strongly contested by Mr Mitchell. First he pressed Mr Creswell on why Dr Alloway was chairing a meeting which would advise her on what to do when she was handling directly Dr Pitman’s grievances. He described this as ” a conflict of interest”. Mr Cresswell insisted that there was NHS guidance dating from the 1990s that limited what was a” conflict of interest” and senior staff were entitled to chair meetings when directly challenged by a doctor.

The second issue was over the wording of the final paragraph of the minutes which Mr Mitchell insisted showed that in fact a decision had been made by this advisory committee, which compromised all the senior managers, to sack Dr Pitman ” to protect patients and the public ” because patient safety was at risk if Dr Pitman could not get on with his colleagues. Mr Cresswell said this was advice and Dr Alloway would decide ” as the responsible officer” what view she was going to take. Dr Alloway, now the former chief medical officer of the trust, will be giving evidence on Monday as the tribunal continues.

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Martyn Pitman tribunal: Hampshire Trust says it sacked whistleblower obstetrician to protect patients

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Trust lawyers try to turn his patient safety claims against them against him

Dr Martyn Pitman

Mark Sutton, the leading lawyer for Hampshire Hospitals NHS Foundation Trust, tried to turn Dr Pitman’s patient safety complaints against his employer in both the maternity wards and the midwifery service against him in the third day of the hearing.

The former Old Square head of chambers highlighted a letter from the trust’s chief executive when Dr Pitman was trying to rejoin the trust after being suspended for two years. This followed a meeting of senior managers that decided that he could not come back because he posed a ” risk to patient safety “. Dr Pitman again had not seen the full minutes of the meeting.

Previously the KC had highlighted a disputed serious treatment case in the maternity ward- where Dr Pitman challenged a colleague and blamed the person for not being competent to do the job which led to the death of a patient.

Mr Sutton claimed that this led to a row in a hospital corridor which Dr Pitman said did not happen and was sorted out at a meeting in his office.

The lawyer also said that patient safety was at risk in the ward he managed because his relationship with the consultant team was dysfunctional. This was categorically denied by Dr Pitman who said he had ” eight years of positive relationships with his colleagues”.

His lawyer, Jack Mitchell, a junior barrister from Old Square Chambers, then pointed out that Mark Sutton had missed out a passage in one of the documents that showed Dr Pitman, far from not being concerned about patient safety, had warned the then associate director of midwifery Ms Janice MacKenzie of changes needed in the maternity ward to avoid deaths. A week later one baby had died and another had serious problems and no action had been taken by her.

Dr Putman ended the cross examination feeling weepy . The Judge Jonathan Gray, asked him why he seemed to be blaming everyone in the health trust for his predicament. He said this because every time he took issues up with the hospital hoping it would be resolved at a higher level including at board level there had been no attempt to do so.

Later Dr Michael Heard a retired consultant who worked alongside Dr Pitman defended his stance at the hospital. He said Dr Pitman was ” direct not rude” and ” passionate about his job “. He said he had good relations with Janice Mackenzie – who has accused Dr Pitman of forcing her to leave a meeting to cry in the toilet – and could not comment on some of the accusations brought by her because he was not there.

He described him as ” direct to the point and put his main points in writing in bold ” but did not use expletives. He said his style was “challenging and well researched.”

He also confirmed Dr Pitman’s main point that the maternity and gynaecology wards had been short staffed and all the consultants had been frustrated about it for years because nothing was done about it by the trust.

The trust’s lawyer, Mark Sutton, also raised whether a letter he wrote to the trust about Dr Pitman had been prompted by him. Dr Heard said he had done without his knowledge in the hope that matters could be sorted out informally.

” By then matters had gone too far”, he said. The tribunal continues tomorrow.

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Martyn Pitman tribunal : Health trust never minuted meeting which led to the whistleblower consultant’s eventual sacking

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Dr Martyn Pitman Pic Credit: Adele Bouchard Hampshire Chronicle

The second day of the employment tribunal hearing brought by Dr Martyn Pitman, the whistleblower consultant obstetrician and gynaecologist, against Hampshire Hospitals NHS Foundation Trust, was entirely devoted to a character assassination by the trust’s lawyers to attempt to prove he could not work with anyone. This is the key point of the trust’s grounds for sacking him.

Yesterday the doctor had issued a statement – which I was unable to report because of the tribunal’s remote access tech crash – explaining why he had brought the case and why he thought patient safety was at risk under new management at the Royal Hampshire Hospital’s midwifery service.

As the Press Association, who were at the court ,reported: “Mr Pitman said the merger of Royal Hampshire County Hospital with Basingstoke and North Hampshire Hospital NHS Trust in 2012 “proved challenging due to significant differences in the philosophy of care and management style”.

“I was justifiably reluctant to follow the low-risk, senior midwifery-led, pro-normalisation model of care championed by our new partners. I believe that, in the 21st century, maternity care should be patient-focused.

“Unfortunately this stance, somewhat professionally unpopular at the time, but now fully supported following recent enforced changes in UK maternity practice, made me vulnerable to managerial challenge.”

Effectively it meant more home than hospital births raising issues of patient safety. It was this change that led to a revolt by midwives who threatened a ” vote of no confidence” that enraged the managers and which Dr Pitman, who had worked in the hospital for over 20 years supported them.

It was this that led to the clash. As he said in his statement:

“Instead of working with me and my fellow consultants to address the concerns that had been raised, senior managerial colleagues realised the individual and organisational damage that our disclosures could cause.

“They chose instead to recruit the willing assistance of their senior trust managerial colleagues to subject me to a formal Managing High Professional Standards Investigations (MHPSI).

“As a direct consequence of exerting my professional responsibility in whistleblowing concerns I was subjected to brutal retaliatory victimisation.”

Today it emerged that the initial meeting between management and the three senior midwifery managers that led to the decision to launch an internal investigation into Dr Pitman’s conduct in backing the dispute was never minuted. The three had already accused him of bullying and one claimed she had to rush to the toilet to cry after a meeting with him.

This decision is remarkably similar to the action taken by the managers at the Epsom and St Helier University NHS Trust – who set up an informal unminuted group – so they could pursue whistleblower cardiology consultant Usha Prasad and sack her for raising whistleblowing concerns and claims of racism and sexism.

Dr Pitman told the tribunal he was ” astonished ” there were no minutes of the meeting. ” This was the meeting that set in motion a process that led my eventual sacking and end of my career at the hospital.”

Day’s grilling by Mark Sutton, KC

His answer was part of a day’s grilling by Mark Sutton ,KC the former head of chambers and part time judge at Old Square Chambers, where he accused Dr Pitman, on behalf of the trust, of behaving in a rude and arrogant way, declining to meet people, neglecting patients, slamming a door at a meeting, causing one member of the senior midwifery managers, to hand in her resignation because of his bullying , planning revenge on the trust and raising issues that ” were not in the wider public interest” by bringing this case.

Dr Pitman refuted these allegations. He pointed out that the letter of resignation from the manager came at a time when he was not at the hospital so he could not have bullied her. The accusation of planning to take a holiday at Christmas when they needed a consultant and therefore neglecting patients was caused by the management not telling him they had changed the procedures for staff to book holidays.

He categorically denied planning revenge against the hospital management but told the tribunal that when he returned before he was dismissed he found the situation concerning the management of the midwifery service had not improved and was worse.

The hearing continues tomorrow.

The trust in a fresh statement said:

“The trust ensured that all issues raised by Mr Pitman were thoroughly and impartially investigated, including in some instances through external review. Every effort was made to repair his relationships with the maternity and clinical colleagues in question – efforts which were unfortunately unsuccessful.

“We are increasingly concerned that Mr Pitman’s representation of the reasons for his dismissal could discourage others from raising important issues.”

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Protest demos and tech chaos at the start of whistleblower obstetrician Martyn Pitman’s case at the employment tribunal

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Hearing reveals disjointed top management at Royal Hampshire hospital with midwives threatening ” vote of no confidence” in senior staff

Patients and NHS staff supporters of Dr Pitman stage demo outside the court

The long awaited three week hearing brought by Martyn Pitman, the popular whistleblower obstetrician and gynaecologist, against his dismissal by Hampshire Hospitals NHS Trust began yesterday.

Before even the court met in Southampton demonstrators turned up outside the building with placards expressing support for the doctor with some saying ” whistleblower or witch hunt”. Dr Pitman has a Facebook page ” Friends of Martyn Pitman, which has 1,700 followers – such is his support in Hampshire.

The trust does not consider he was sacked for whistleblowing

Then before the hearing could begin the tribunal’s remote access system crashed under the weight of journalists, including the BBC and the Press Association, and people wanting to report and observe the case. There had been doubt whether remote access would be granted by the judge – as it was said it had been ruled out. But with possibly up to 100 people from prominent medics and other whistleblowers the judge who is hearing the case relented.

As a result apart from a few journalists who managed to get into the small court nobody could hear the morning’s hearing as Dr Pitman started his evidence.

Remote access was restored about 2.15 pm but only 25 people were allowed to use it. Luckily I was one of the 25.

Dr Martyn Pitman Pic Credit: Adele Bouchard Hampshire Chronicle

From the afternoon’s session when Dr Pitman was cross questioned by Old Square Chambers lawyer, Mark Sutton for the trust, it became pretty clear that the trust was going for a character assassination of the doctor who had raised patient and staff safety issues and was critical of the way senior management were handling it.

The issue discussed during the afternoon centred around strong misgiving by midwives working at the Winchester Hospital who were calling for a ” vote of no confidence ” against the nursing and midwives management. The consultant took up their cause.

Mr Sutton cited memos from senior staff which portrayed the consultant as an intimidating bully of women blocking the door at one meeting to prevent a senior manager leaving and leaving one senior manager ” crying in the toilet ” after a meeting with him. He was also dubbed ” an agitator” by Mr Sutton for taking up the midwives cause rather than leaving senior managers to sort it out between them.

Dr Pitman pointed out that the allegation he was a blocking a door was completely false as the meeting was in a small room and there were no seats left when he got there , so all he could do was lean against the door.

As for the meeting with another senior manager she had claimed that she had rushed out and went to the toilet to cry after meeting him. His version was this was a ” connivance” and not true. He told the tribunal that ” if this was true I would have been sacked the next day.” Instead he had been invited to further meetings to resolve it. It turned out both complainants were close friends.

And as for the accusation that he was an agitator Dr Pitman said that all he did was to ask for the opinions of all staff from health assistants to senior consultants about what they thought about the midwives concerns.

” I didn’t say what my opinion about it was so as not to influence them. I just asked what he thought.”

He added he had been “humbled ” by the fact that staff trusted him to look into the case.

The hearing continues today.

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Martyn Pitman: Tribunal opens next week on a popular sacked obstetrician’s fight against a NHS trust on patient safety

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But it appears the employment tribunal is trying to block the public and press from attending the hearing

Martyn Pitman: Pic credit: Adele Bouchard Hampshire Chronicle

Next week in a cramped magistrates court in Southampton an employment tribunal judge will hear an extraordinary case about an extremely popular obstetrician and an exemplary clinician who was sacked by the Hampshire Hospitals NHS Foundation Trust after he raised issues of patient and staff safety in its maternity services.

The trust has denied that he was dismissed because of whistleblowing or raising patient safety issues -claiming that it wants people to speak up about these issues. In a statement last June it said : ” no member of staff has ever been dismissed for whistleblowing or raising concerns over patient safety; and they never will be.” But despite the dispute with Dr Pitman going on for four and a half years it has never said publicly why it dismissed him and will have to explain itself to the tribunal next week.

In the meantime the 57 year old obstetrician and gynaecologist has had unprecedented support from the people in Hampshire . A Facebook group called Friends of Martyn Pitman was set up by Lynda Emptage, a patient of Martyn’s for 20 years, who was so upset about news of his dismissal, that she wanted an inquiry. It now has 1,700 members.

Sarah Parish Pic credit: Somerset Live

He has also been publicly praised by  Broadchurch actress Sarah Parish who credits Martyn with saving not only her life but also her daughter Nell’s life. She had a late baby in her early 40s and without his intervention in an emergency she believes both of them would have died. He has also had an article about his concerns in The Times and appeared on breakfast TV.

The timing of the case is also embarrassing for the trust as it comes straight after the national scandal at the Countess of Chester hospital where Lucy Letby, a nurse, was convicted by a jury of murdering babies and the management of the trust emerged as threatening doctors and forcing them to write a letter of apology to her after they raised genuine concerns.

The trust appears to have been extremely reluctant to have any employment tribunal hearing at all. In April this year it attempted to strike out his defence and was largely unsuccessful.

Mark Sutton KC
jack Mitchell

Now the trust has decided to spend hundreds of thousands of pounds of taxpayer’s money employing the former head of Old Square Chambers and part time employment judge, Mark Sutton, for the three week hearing. Mr Sutton is more used to taking cases to the Supreme Court and Court of Appeal as well as representing trusts and doctors ” fitness to practice ” cases. His CV says he” is the sort of person who would inspire confidence in any judge” but also an expert lawyer on doctor’s disciplinary cases.

Dr Pitman, who is backed by the British Medical Association, is also represented by Old Square Chambers. His brief is Jack Mitchell. His CV on Old Square Chambers website says he is the ” go to junior counsel ” for whistleblowers and he has written two books on whistleblowing and an article on  whistleblowing in sport. He has represented Babcock, Eurotunnel, Paul Smith, Royal Mail, Thomson Reuters, The Ritz, Terrence Higgins Trust and the BBC in previous cases. He has represented clients with successful claims against companies including, Lloyds Bank, HSBC and HP.”

So whatever happens in this case Old Square Chambers are going to make a small fortune out of this hearing. Solicitors in the case are Bevan Brittan, for the trust and Capital Law for Dr Pitman.

Entrance to Southampton Magistrates Court. Pic Credit: Southampton Daily Echo

There is also some concern about whether the public and the press will be able to hear and report the case. For a start Southampton Magistrates Court is a very small one. Some people say it is pokey and will hardly hold many people once the teams of lawyers and staff from the trust have taken up the seats. The entrance as you can see above is hardly inviting. Given the huge interest among the public in the case with 1700 on one website supporting Dr Pitman it is rather surprising the court authorities chose such a pokey venue.

It is also not listed as a hybrid hearing – both in person and on line – even though Southampton can have hearings remotely. People, including myself, and a number of distinguished physicians and whistleblowers across the UK have applied for a remote link to hear the proceedings but have had no response from the employment tribunal service beyond a standardised letter of acknowledgement.

Frankly as the judiciary is supposed to be committed to ” open justice” I think a refusal to allow people to attend remotely will be seen as ” hole in a corner justice” particularly as employment tribunals do not keep a record of the proceedings themselves.

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A whistleblower consultant’s victory that exposes scandals at the Care Quality Commission and a hospital trust

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Whistleblower Dr Shyam Kumar; Pic Credit: BBC

The victory by whistleblower Dr Shyam Kumar, an orthopaedic surgeon, against his unfair dismissal as an part time inspector for the Care Quality Commission is just the tip of an iceberg scandal at both the CQC and the University Hospitals of Morecambe Bay NHS Foundation Trust.

His victory – I am glad to say reported by the BBC, the Guardian and the medical press- was only possible by his persistence in the face of obstruction by the body that is supposed to hold up standards of medical care to protect patients and the collusion of a trust to protect its own reputation.

He told the BBC: “”The whole energy of a few individuals in the CQC was spent on gunning me down, rather than focusing on improvement to patient safety and exerting the regulatory duties,”

“I was perceived as a troublemaker within the CQC, or as a thorn in their side. That’s what I believe. And they just ignored it. And finally, people got involved.” 

The ruling at Manchester Employment Tribunal by Employment judge Mark Butler said he had received detriment for speaking out and awarded him £23,000 for injury to this feelings. Dr Kumar had not sought any other compensation.

The judge said:” There is evidence throughout this case….that the decision to disengage the claimant in this case (and the placing him on hold) has had a serious impact on the claimant’s reputation causing him injury to feelings. There were suggestions of misconduct by the claimant … where no evidence of this existed, and vague assertions of a breach of undefined values of the respondent … used in an attempt to justify the decisions made in this case, after the event” Instead the judge described Mr Kumar as a man with an untarnished reputation and expertise.

Dr X left a hip replacement patient never able to use her limbs

The detail of the concerns Dr Kumar found are deeply disturbing for patients. One involved Dr X whose two hip replacements on an elderly lady which overlooked the dislocation of her pelvis and she had to come back to accident and emergency unable to walk and his colleagues thought she would never be able to use her limbs again. When he raised this with the CQC and said a back review of Dr X’s cases should take place he was told the trust did not want to do this for reputational reasons.

When the Royal College of Surgeons did their own review much later into Dr X they found 26 out of 46 operations were matters of concern.

The judgement said:

a. some surgeries undertaken by Dr X were not completed to an acceptable
standard
b. some of the surgery and quality of care provided by Dr X was unacceptable.
c. some clinical decision making to undertake surgery by Dr X was
inappropriate.
d. in some cases there was either no or a lack of evidence of a “Duty of
Candour”

Dr Kumar was thanked by the associate medical director of the trust , Mr Damian Riley in 2021 for his work.

But at the time of the CQC inspection Dr Kumar faced a barrage of criticism from CQC officials, was effectively suspended from his job, and subject to racist attacks including being accused of being ” a traitor to his community ” for raising issues about Dr X’s competence by another trust doctor, Dr Sinha.

At a CQC focus meeting Dr Kumar was even falsely accused of deliberately creating NHS waiting lists so people would have to go privately – making extra money for doctors.

The CQC’s response was to side more with the trust than the whistleblower. This led Dr Kumar to write to the Chief Inspector of Hospitals, Professor Sir Mike Richards. complaining that “patient safety is being
significantly compromised by the behaviour of some CQC staff.” He also complained he had been bullied and obstructed by CQC officials, his professional independence had been undermined and his whistleblowing concerns ignored.

The court upheld his protective disclosures. The judge also took a strong line in allowing the press access to all the documents in the case and also restricted an attempt by the CQC lawyers to restrict reporting of the Royal College of Surgeons report on the grounds that families had to be told first. The judge granted a very short restricted reporting period and was never challenged again.

The CQC in a statement said: “We accept the tribunal findings and have learnt from this case. We have already improved many of our processes and will continue to review these based on the findings to ensure we make any further necessary changes.”

Much wider issues than just this case

But there seems to me a much wider issue here about the behaviour of this particular trust and the role of regulation. This is not the first time this trust has been found wanting. There is the case of Peter Duffy, a consultant surgeon, working for the Morecambe Bay Foundation Trust. Faced with failures at the trust in the emergencies department he expressed concern for two patients who subsequently died from kidney sepsis.

One would have expected the Trust to have remedied the situation. Instead they turned on him rather than admit any failings. As he told Matthew Syed on Dispatches: ” I was on the receiving end of allegations of bullying, abuse and racism. And so what I hoped would be an attempt to raise standards became an investigation of myself”.

He was eventually proved right after an investigation disclosed multiple problems but not until after a five year toxic battle and now practices in the Isle of Man.

Inquiry chair Dr Bill Kirkup Pic credit: gov.uk

There is also the 2015 inquiry report by Dr Bill Kirkup into Furness Hospital, run by the trust over the deaths of babies and appalling maternity care.

As he says in his introduction: “The result was avoidable harm to mothers and babies, including tragic and unnecessary deaths. What followed was a pattern of failure to recognise the nature and severity of the problem, with, in some cases, denial that any problem existed, and a series of missed opportunities to intervene that involved almost every level of the NHS.”

There is a disturbing pattern that repeats itself. Whistleblowers, whether doctors or families, raise serious life and death issues, are ignored, denied justice, bullied and attacked, using the power of the state to buy expensive lawyers to try and crush them -only for them to be proved right in the end. With the Dr Chris Day case due to report this month following an extraordinary employment tribunal hearing where evidence was destroyed, it remains to see whether this pattern can start to be broken .

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Chris Day whistleblowing tribunal: His wife says family faced £500,000 costs if judge took a dim view of him using covert audio

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Dr Chris Day

Melissa Day , a registered nurse, gave evidence on behalf of her husband yesterday describing the dramatic moment when they were told by his lawyers that he could face £500,000 costs unless he settled the case with Lewisham and Greenwich NHS Trust and Health Education England in 2018.

” I understood if Chris were to lose the case, the respondents would as the conference note states claim for “the costs between now and the end of the hearing (£120,000 or more)” This was a significant amount of money which would have caused severe financial stress for our family.

She went on: “A further cost threat was linked to potential credibility findings relating to Chris’s use of covert audio. ln these circumstances, the potential total cost liability could be closer to £500,000 which was more than the value of our house and clearly would have put it at risk.

“At no point were any of the cost threats linked to the truthfulness of Chris’ evidence and I certainly had no concerns about this. I did have concerns about a potential reaction from the judge on the use of covert audio. This is despite what the audio showed about the way the patient safety issues were investigated and the validation it gave Chris’ claims that the Respondents’ made false accounts of his dialogue.”

“In the conference, when Mr Milsom [Chris Day’s lawyer at the time]was asked by Chris what the potential liability would be associated with the cost threats Mr Milsom listed wasted costs in relation to covert recordings with Chris’ potential cost threat liabilities as the conference note confirm”.

” At the time I did not properly understand how wasted costs differed from what I now know are ordinary costs. I had no previous experience of employment tribunals or the different types of cost threats. As they were listed together and reference was made to covert audio, I assumed that Chris would be liable for the costs Mr Milsom had listed.”

No choice but to settle

The couple went home and decided they had no choice but to settle the case even if Chris Day thought he had a chance of winning.

“Chris consulted me and wanted to discuss our options over dinner, I replied that there was no discussion to be had and I was not prepared to risk our family’s security. Chris decided very quickly in the conference that based on the costs threats and my opinion that he was not prepared to accept the risk to our family home and security that proceeding with the case would involve. Chris withdrew the case as a direct result of the costs threats.

“My stated reluctance for him to continue came also as a direct result of the cost threats. There was no doubt in my mind that proceeding with the case was not an option after hearing about the cost consequences despite the serious safety issues at the centre of the case, the unacceptable NHS response to them and the toll that getting this case heard had taken on Chris and our family over the preceding four years.”

She also described the day long negotiations that followed about an agreed statement to be made by the trust and Health Education England that was to follow settlement of the case.

Both HEE and the trust insisted that it had to say that they and their external investigators, Roddis Associates had acted in good faith – despite Roddis ignoring the two deaths at the Intensive Care Unit and that it was adequately staffed – contradicting Dr Day’s case. Both the trust and HEE diverted the issue on to the employment status of their advisers.

Trust insisted it must say it acted in good faith

She said: “Mr Milsom spent a large proportion of the morning walking up and down Croydon precinct outside Costa on the phone to counsel about the agreed statement. It is clear all these discussions about the agreed statement would not have happened without the cost threats as Chris would not have agreed to the wording that everyone acted in good faith or any similar wording.”

“This statement was particularly damaging to Chris because it gave the impression Chris’ protected disclosures were not about the intensive care unit, focusing only on one situation where there was a problem with medical ward cover on one night and claimed they had decided not to pursue Chris for costs.”

Melissa Day was cross-examined by Dan Tatton Brown, for the trust, over the statement and whether Dr Day’s real reason for settling was because he was going to lose. She completely denied this.

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