An independent investigator appointed by the Hampshire Hospitals NHS Foundation Trust to review the treatment of whistleblower Dr Martyn Pitman, turned out be a former lawyer from Capsticks who specialised in exposing ” difficult doctors ” for NHS trusts, it was revealed at the employment tribunal hearing today.

The disclosure came during the questioning by Jack Mitchell, the junior barrister from Old Square Chambers, of the chairman of the trust, Steve Erskine, about how he and chief executive Alex Whitfield handled a request by Dr Pitman for an independent inquiry into the way the trust handled his grievances.

Dr Pitman, a well regarded consultant obstetrician and gynaecologist, was dismissed by the trust on the grounds that he couldn’t work with colleagues which could put patient safety at risk. This was the last day of evidence.

Capsticks are well known as the “go to ” lawyers for NHS trusts and have a big contract with the NHS which has just been renewed. They have a track record of denigrating and undermining whistleblowers in the NHS. The firm played a prominent role in the recent case against Dr Usha Prasad, the dismissed whistleblower cardiologist who revealed an ” avoidable death” of an elderly heart patient which the Epsom and St Helier University NHS trust never reported to the coroner.

Mr Erskine confirmed evidence by Alex Whitfield yesterday that his original decision to have an independent inquiry requested by Dr Pitman into his grievances was later change to include a much broader inquiry in which his grievances were subsumed. He insisted he did this on his own reflection.

Questioning by Mr Mitchell revealed that the trust knew it was not compliant with new guidance issued by 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.

The guidance that later became mandatory was not implemented by the trust until much later when it convened a sub committee, which meets in private, to draw up the changes. Mr Erskine argued that confidentiality was needed because of some of the information in the report. Initially he said the new rules had not been published by the board, but later when this was queried by the trust’s lawyer Mark Sutton and the judge because it breached a NHS directive, it was suggested there was some public reference which had not been given to the tribunal.

After the terms of the inquiry were changed, Dr Pitman wanted it dropped but was overruled by the chairman and chief executive. He then suggested that Verita, an independent investigation consultancy which found failings by Imperial College Healthcare NHS Trust in the way Amin Abdullah was treated, should be appointed to do the inquiry. Steve Erskine rejected this saying it would be ” a conflict of interest” if Dr Pitman suggested who should conduct the inquiry.

Instead the trust approached the law firm Bevan Brittan, who are representing the trust at the tribunal, to advise them.

The trust then settled on Gary Haye a lawyer and partner who had sat on the board of Capsticks and who Mr Mitchell said he had publicly said his specialism was ” dealing with difficult doctors” to be the independent investigator. He was also a member of Portsmouth Hospitals NHS Trust, the same board where Steve Erskine was a member. When challenged why he had not declared this, Mr Erskine said he did not need to, as they were members at different times.

Mr Mitchell disclosed that findings of Mr Hay’s report were part of Dr Pittman’s claim for detriment, as he found the report was “full of inaccuracies” and was “partial “. Mr Hay has no medical qualifications only degrees in law, English and business.

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