Tag Archives: Health Education England

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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Chris Day: Lewisham and Greenwich NHS Trust and Health Education England “destroyed my medical career”, tribunal told

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Dr Chris Day

Dr Chris Day, the whistleblower junior doctor, has told the tribunal that the eight year battle with the trust and Health Education England, had “destroyed my medical career” and had been at a ” huge cost to me and my family.”

In a long and detailed witness statement to the tribunal he laid out the effect of the trust’s actions ever since he had made his protected disclosures in 2013 and 2014 about staff shortages and serious threats to patient safety at the intensive care unit at Queen Elizabeth Hospital, Woolwich.

He said: “The respondents’ actions over the last 8 years have destroyed my medical career.
“Throughout this litigation, I have worked ad hoc shifts as a locum junior doctor in Emergency Medicine. This often, if not always, involves a 10 hour shift starting early afternoon and ending at midnight. It is these times in which locum cover is needed.
“Had I progressed on my career path with the Second Respondent, I would have been a hospital consultant by 2019. My current arrangement offers me no career path, job security or employment rights. For example, when working during the pandemic in A&E, I caught Covid-19 and, as I fully accept, I had no right to sick pay from either my locum agency or the NHS for the time that I could not work.”

This case is about preventing disclosures being understood by the public

“This present case is therefore not about justice for me and my family for the loss of my career. It is about attempts to undermine my reputation by preventing the disclosures I had raised being understood by the public, press and MPs.
“The actions of the Respondents in their reactions to the issues that I had raised had meant the destruction of my career; and then for them to further undermine my professional and personal reputation to such an extent, could make it likely that many will not listen to a word I say about anything ever again.”

He concluded: “This Tribunal will be fully aware of what happens time after time to claimants that bring
whistleblowing cases against senior and established interests. To some extent this Tribunal may also be aware of the speak up culture in the NHS. The toxic speak up culture in the NHS has been documented in scandal after scandal with the latest being the maternity scandal at Shrewsbury and Telford. This Tribunal will therefore be more than able to understand the pressure that me and my family have been under over the last 8 years. I hope it is clear from what I have set out, that I have raised serious issues that deserve proper consideration.”

Queen Elizabeth Hospital, Woolwich By Paul W – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=79830700

His evidence covered the history of his case from 2013 covering serial misrepresentation of his disclosures at the intensive care unit at Woolwich Hospital, a bitter dispute over cost threats against him and his solicitors by the trust and Health Education England, which led him to settle the case to protect his home and family and the aftermath including a hostile press release issued by the trust and letters sent to 18 MPs and local stakeholders putting their case. He has had two days of robust cross examination by Dan Tatton Brown, the barrister acting for the trust, which has gone into every detail of his case and demanded straight ” yes or no ” answers to complicated points. These included the legal procedures surrounding the move to impose and then withdraw cost threats against him and his solicitors which was later denied had ever happened by the trust.

His witness statement points out that it took six years from 2013 for the trust and Health Education England, who are no longer a party to the case, to recognise that his disclosures as a whistleblowing issue.

Trust misrepresented findings on patient safety

He also found misrepresentations by the trust over a visit by the people from HEE and by commissioning an external investigation by Roddis Associates, which ignored two deaths at the ICU, claimed staffing was adequate and wrongly said a consultant became immediately available when he wanted one. These issues have been dealt with in earlier evidence from two anaesthetists.

He says: “The Respondent has chosen to represent the serious content of my protected disclosures as a one-off situation outside of the ICU about junior doctor cover of medical wards. Such an occurrence, although not trivial, is all too common in the NHS.
“It is clearly not the main thrust of my protected disclosures. The fact the Respondent has wholly misrepresented to the press and MPs my disclosures as not being about the Intensive Care Unit/critical care, but being limited to junior doctor cover on the medical wards paints a picture that my protected disclosures were making a fuss about nothing.”

“It seems to me that this is a clear attempt to smear me; to make me out to have been a vexatious Claimant with a hopeless case that I chose to freely withdraw; and to diminish my standing in the eyes of those who supported me, including the MPs and journalists that were engaged with the issues that I had raised.”

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Sir Norman Lamb blows the whistle on “deceitful” NHS attempts to discredit Dr Chris Day in tribunal hearing evidence

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Sir Norman Lamb

Sir Norman Lamb, the former health minister, gave evidence on the first full day of the tribunal hearing between whistleblower junior doctor Chris Day and Lewisham and Greenwich NHS Trust. The tribunal is the latest hearing in a nine year battle between Dr Day and the trust over safety standards and staff shortages at the intensive care unit and accident and emergency unit at Woolwich Hospital in 2013-14.

Sir Norman, now chair of the neighbouring South London and Maudsley NHS Foundation Trust, had been summoned by Dr Day’s legal team to appear. His evidence which largely was not challenged by the trust revealed the various correspondence he had with both the trust and Dr Andrew Frankel, a former postgraduate dean at the now merged Health Education England.

Health Education England succeeded at an earlier tribunal hearing this year in removing themselves from the case after Dr Frankel admitted he had acted deceitfully without HEE’s knowledge in trying to change Sir Norman’s mind over Dr Day’s case. I wrote two blogs about this earlier this year. They are here and here.

Dr Chris Day

Sir Norman told the hearing he had probably had around 9 or 10 meetings with Dr Day since 2017. This included one with Jeremy Hunt, the health secretary, others with Dr Frankel and Ben Travis, then chief executive of the trust.

At the meeting with Jeremy Hunt on 23 May 2018 “Dr Day set out details of his case and in particular the reality of the night time staffing at the relevant hospital’s lntensive Care Unit, the fact that it departed
significantly from national standards of safe levels of staffing, and that there were two deaths associated with the working conditions. The investigations at the time described clearly unacceptable staffing as acceptable.”

At the next one on 1 November 2018 came after Dr Day had settled the case after being threatened by the trust for costs and his legal team was also threatened for wasted costs. 

Sir Norman said: “I remember being very surprised that Chris had settled the claim before the end of the tribunal hearing given the fact that he had spent years working to get the chance to put his case to the tribunal. Chris told me that he had been faced by an impossible dilemma. He told me that he feared losing his family home if costs were ordered against him. He said he had consulted his wife on the decision, and they had agreed that as parents, he could not carry on. Chris told me that Mel, his wife, had urged him to settle “

“ln preparation for this hearing, I have seen an email dated 30 November 2018 from
Dr Day’s then Barrister, Mr Chris Milsom, to Dr Day. Mr Milsom confirms what he was told by the NHS’s barristers about the consequences of Dr Day continuing the case. Mr Milsom further states that ‘this was a “sophisticated discussion” that was in “no way invited by [Mr Milsom].” 1 can also see reference to wasted cost consequences directed against Dr Day’s former legal team by the NHS Counsel.”

This bit of evidence led to lengthy cross questioning by the trust’s barrister, Dan Tatton Brown, who tried to get Sir Norman to agree that Dr Day had settled because he felt he might lose the case and face costs which were not meant as a threat. Sir Norman disagreed.

Dr Andrew Frankel

Sir Norman’s later evidence shed even more light on the behaviour of Dr Frankel who arranged a meeting with him in 2019.. Evidently he claimed that an inquiry he set up into Dr Day’s allegations had said there was no suggestion any point (sic) that the panel had been briefed negatively about Dr Day.”

The report claimed wrongly “Dr Day had variously been described as ‘tenaciously going on and
on’ about it,’ gripped by angst’ and ‘shaking as he recalled events’ and ‘locked in.

One of the report panel members, Dr Madhurie Chakravarti-Chattopadhyay states in her statement to the Employment Tribunal for the 2018 hearing that:’ l did not feel that the report portrayed the situation as accurately from my perspective as I would have wanted.’
She states that she was: – ‘very surprised to find that various phrases in inverted comma ‘seemingly quoting me, when I could not recall saying fhose phrases”

.ln another statement to the Employment Tribunal, Dr Hans Sauer, who was Dr Day’s clinical supervisor at the time of the ARCP Panel meeting on 3d June 2014, stated of Dr Day; ‘He is a competent and confident trainee with a skill set which exceeds the expectations of someone of his level of training. He is aware of his limitation and not afraid to ask for help and advice.’

He states that ‘l find these allegations extremely surprising as during the whole period of my engagement with the Claimant I never noticed any basis for such allegations”.

Dr Frankel then accepted that Dr Day had raised serious and legitimate concerns about the respondent in his protected disclosures. Yet I have subsequently been informed that Dr Frankel had not stated any of this in his witness statement for the Employment Tribunal hearing in 2018″ and said his workload was acceptable.

Finally he met Mr Travis after the trust had put out a statement criticising Dr Day.

defamatory statements

Sir Norman wrote to Mr Travis saying;

” It is my belief that aspects of the Trust’s public statements (as referred to in Chris Day’s letter) are severely defamatory and should be withdrawn forthwith and that there should be a full apology. I should stress again that the inaccuracies in the public statements by the Trust are not only defamatory but are deeply distressing. They are damaging to Chris Day’s reputation.”

Mr Travis said he couldn’t comment after Dr Day won a case to bring a further hearing. The tribunal continues.

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Health Education England wins case against Dr Chris Day with the help of a “deceitful” former postgraduate student dean

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Dr Andrew Frankel

The long legal saga of junior doctor Dr Chris Day’s whistleblowing battle over patient safety at the intensive care unit at Woolwich Hospital took another twist and turn this week.

Health Education England successfully overturned a decision ordering it to appear at a tribunal in June alongside Lewisham and Greenwich NHS Trust. The body convinced a judge that an exercise to influence a former Liberal Democrat health minister to change his mind supporting Chris Day by Dr Andrew Frankel, a former postgraduate dean, had nothing to do with them.

Sir Norman Lamb

My last blog on this is here. It tells the bizarre story of Dr Andrew Frankel, who is also a distinguished consultant nephrologist at Imperial College Healthcare NHS Trust and expert on the management of diabetes and kidney disease. He basically debased himself by going round the back of his old employer, Health Education England, to try to influence Sir Norman Lamb, then an MP, to see another side to Chris Day’s account. The attempt would have been extremely helpful to Health Education England which has repeatedly tried to distance itself from the scandal of inadequate staffing at this intensive care unit.

Dr Frankel tried to get hold of Dr Day’s training record

Dr Frankel’s methods included trying to get details of Dr Day’s training record after leaving Health Education England which he was not entitled to see at the time. He then arranged a private meeting with Sir Norman to present a paper outlining HEE’s case and emphasising it was only there to help junior doctors and not criticise them. Sir Norman has been a strong supporter of Dr Day and publicly highly critical of the way the HEE and the trust have treated him.

The judge was presented with two alternative interpretations of the facts. One presented by the health body was that it knew nothing about Dr Frankel’s activities. Professor Wendy Reid, medical director of HEE, told the tribunal she had been ” flabbergasted and staggered” when she learnt he had visited Sir Norman without her knowledge. He had previously presented the paper to her as a private document and an aide memoire if she or anyone else wanted to talk to Sir Norman But later on when the body found out about his personal visit they remained silent -not wanting to disown the actions of a former employee.

Dr Chris Day – whistleblower

Dr Day’s lawyers argued that in effect Dr Frankel was acting as a de facto agent of HEE trying to present an alternative scenario to Dr Day’s case. They drew their evidence from some of the sloppy wording in e-mails -particularly Dr Frankel’s juxtaposition of the use of the word ” I” and then ” we” implying it was HEE’s view. He had insisted when he met Sir Norman that he emphasised he was doing it on his initiative. There are no notes of the meeting. The body also discussed ” behind the scenes” action to refute Dr Day’s case.

The Judge Katherine Andrews chose to believe HEE’s version rather than Dr Day’s.

Frankel ” fully acknowledged the foolhardiness if some actions “

She said: “My view is that the claimant genuinely believes that implication and accordingly his evidence is truthful in that it reflects his beliefs. I also find however that the evidence of Dr Frankel and Prof Reid was similarly truthful. They are both distinguished in their respective careers and appeared to give their evidence carefully and candidly. Indeed Dr Frankel readily acknowledged the foolhardiness of some of his actions, undoubtedly well-meaning though they were.”

…”I do recognise that Dr Frankel’s use of words in his emails and the briefing document is mixed. On some occasions he used the first person singular which was entirely in accordance with him acting privately.
On others he used the first person plural – sometimes clearly by reference to times when he had been seconded to the respondent but other times inappropriately using ‘we/our’ etc. I find that this was a combination of, on occasion, poor drafting by Dr Frankel and also a strong personal identification with the issues.”

…”The way he went about it however was wholly inappropriate and in doing so he slipped into using language that confused his previous and current roles.”

I am curious about this. Dr Frankel is the author of some pretty important research papers in his other role as a consultant. I would have thought he would be very careful about the use of his language – at least I would hope so for the sake of his research.

She also absolved the health body from any involvement in backing Dr Frankel.

“Ratification can only apply where the person whose act is in question (Dr Frankel) professed or purported at the time of acting to do so as agent and to have authority to bind the principal (the respondent), it is plain that the claimant cannot successfully argue ratification as in fact the opposite was professed by Dr Frankel. He expressly and repeatedly said that he was acting entirely privately and not on behalf of the respondent.”
The decision is significant and absolves HEE from having to explain their actions in this murky case.

As Chris Day says on his supporters site:

“In late 2019 we won an important victory that guaranteed that HEE would have to account for everything at a final hearing on both their denial of cost threats and the false document sent to Sir Norman Lamb.

An order dated 3 October 2019 by Judge Sage rejected all arguments from HEE on why they should not attend a final hearing on the facts and ordered them to respond at a final hearing on their denial of cost threats and the allegedly false and detrimental document sent to Sir Norman Lamb

“Following my barrister’s illness with Covid-19 in March 2021, the London South Regional Judge Freer (who was the trial judge that signed off my obviously unfair settlement) allowed Judge Sage’s decision to be changed outside of any appeal process by a Judge Kelly in a new order that essentially replaced Judge Sage’s order. This gave HEE a second bite at the cherry at exiting the case on technical arguments. HEE have now succeeded at this and have been rescued from accounting for their actions on the cost threats and the misleading document sent to Sir Norman Lamb.

“The Regional Judge has also failed to progress my wasted cost application or dismiss it despite it being lodged in 2019. This application focuses on how the nation’s junior doctors were argued out of whistleblowing protection for 4 years. This video summarises the issues that the Regional Judge appears to be hoping will just go away.

“I have made a request for the Judge’s (Regional Judge Freer)  record of my 2018 hearing that settled.  This has not been responded to by the Tribunal. This is my only hope of an honest record of that hearing so this is difficult to understand. “

Dr Day is to talk to the BMA who paid for his legal representation to see if he can appeal this judgement.

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The curious tale of the NHS dean, the MP and the whistleblower doctor

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Dr Chris Day

This week a mundane employment tribunal hearing revealed an extraordinary tale of subterfuge, cover up and denial in the hidden bureaucracy of the National Health Service.

The hearing was yet another in the long run saga of the case of Dr Chris Day, a plucky young doctor who has taken on the NHS establishment over a very important issue of patient safety and is still in the middle of an eight year battle with the authorities. The legal bill to taxpayers from the NHS to pay for this long battle is now is likely to rise to close to a £1 million.

The story began in August 2013 when Chris Day, a junior doctor initially complained about inadequate staffing. It got worse in January 2014 when he was working overnight in the intensive care unit at Queen Elizabeth hospital in Woolwich when two locum doctors failed to show up. He had to cover other wards and A&E and reported his concerns to managers. He saw this as putting patients in such a sensitive area at serious risk.

What followed was not moves to put this right by the Lewisham and Greenwich NHS Trust and Health Education England, which has a responsibility for employing junior doctors, but a state of denial which ended up at the High Court and the Court of Appeal and a long delayed employment tribunal hearing. At one stage Mr Day,a married doctor with a young family, says he had to settle because the NHS threatened him with huge legal bills which could have bankrupted him. Both the HEE and the Trust have publicly denied doing this.

However at a new hearing it turned out that the NHS Trust had withheld crucial documents – which should have been declared in a previous hearing – and he won his case for a fresh hearing which is scheduled to take place next June.

Health Education England ” misled the public, press, MPs and officials”

The grounds for the new hearing is essentially as Dr Day says” that Lewisham and Greenwich NHS Trust and Health Education England have objectively misled the public, press, several MPs and public officials on my case and how it settled in 2018. I say this is in order to smear and discredit me and the patient safety issues that I raised.  The Trust have then failed to disclose 18 letters in their Tribunal standard disclosure that their CEO sent to local MPs and public officials with this misleading content in.”

This week’s hearing was centred round the role of Health Education England. This body is reviving a claim – which it conceded last time at the last minute – that it has nothing to do with his case. Its first attempt was to claim it didn’t employ junior doctors. The new attempt at avoiding involvement is to claim that one of the principal figures involved in the case Dr Andrew Frankel is no longer employed by them so HEE now has nothing to do with it.

Dr Day said: “HEE are arguing because this person is now no longer in post as Post Graduate Dean they are no longer responsible for him. They are doing this even though he was clearly in communication with the top of HEE and assisting them with various functions, since leaving his Post Graduate Dean post in 2018. We say he was an agent of HEE and they are still responsible.”

Sir Norman Lamb ” postgraduate knowledge of Whitehall and NHS subterfuge”

What emerged at the hearing centred round an approach to one of Dr Day’s supporters, Sir Norman Lamb. Sir Norman is a former health minister in the coalition and was an MP at the time. He has not held back on his criticism of both the trust and HEE on the way they have treated Dr Day.

Sir Norman has postgrad level of knowledge about the way NHS and Whitehall officials use subterfuge to get their own way. He has hero status in my mind for making sure that an independent panel inquiry into suspicious deaths at Gosport War Memorial Hospital happened after civil servants used the time he was on a French camping holiday with his family to try and annul his decision by getting another minister to put up a written statement in Parliament saying there would be no inquiry.

He found out and blocked it. As a result a thorough investigation by the panel found that no fewer than 456 elderly people had their lives shortened by overprescribing drugs like diamorphine. and it had been covered up by the health trust. As a former member of that panel I am restricted in what I can say about this but this is now the subject of a big police investigation,

In Dr Day’s case Sir Norman had given an interview to the Sunday Telegraph where he accused the trust and HEE of trying to crush Dr Day for his disclosures.

What this week’s tribunal revealed is that the HEE were profoundly disturbed by his comments because it would damage their reputation with junior doctors.

A cache of emails revealed that HEE was discussing ” behind the scenes ” methods -including contacting the General Medical Council – to redress the balance rather than openly criticising Dr Day.

Professor Wendy Reid, medical director at Health Education England

Professor Wendy Reid, medical director of HEE, admitted this was the case but said no action was subsequently taken. But she did correspond with Dr Andrew Frankel suggesting if she was going to meet Sir Norman he ” could give her a tutorial”.

What happened instead was that Dr Andrew Frankel, now a former postgraduate dean at HEE, told the tribunal that he decided off his own bat to approach Sir Norman by asking to meet him and sent him an 11 page document to refute the criticism. Dr Frankel insisted that he had not told anybody that he was doing this, even though he obtained material for his document from the HEE. He admitted that he had acted stupidly in getting personal details about Dr Day from HEE for his report as he knew they would refuse him as an ex employee.

Instead he tried to make out that he was being helpful to Dr Day by discussing this with Sir Norman. When this was put to Dr Day in cross examination by Mr Dijen Basu, QC for HEE, Dr Day flatly denied it.

In extraordinary evidence Dr Frankel insisted he had no role to play that would bring him in contact with HEE though later it was disclosed that in his new job at Imperial College Hospital Health Trust some of his work would bring him into contact with them.

Professor Reid told the tribunal she had been ” flabbergasted and staggered” about what Dr Frankel had done, insisting she knew nothing about the meeting.

But when HEE did find out it remained silent about what happened knowing that the document was favourable to their case. As Andrew Allen, QC for Dr Day said in his summing up:. The document “is repeatedly expressed in a way that presents the report as an HEE position rather than an individual view from Dr Frankel.” Nor did HEE take any action to disavow Dr Frankel when Sir Norman informed them he had received a document from Dr Frankel three months later.

He also said Dr Frankel contradicted himself. He claimed “encyclopaedic knowledge on the case’ but on the other hand he repeatedly said in oral evidence that his knowledge was only about him and his team and the actions they took between June and December 2014.

Even the lawyer for HEE Mr Basu described Dr Frankel’s position as ” devious”.

The tribunal will decide next month. If HEE wins the organisation will no longer be part of Dr Day’s case. If it loses its role will be part of the June hearing.

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