Nurse Francisca Holmes lost her case against Lewisham and Greenwich NHS Trust yesterday when Judge Eoin Fowell ruled that she did not suffer detriment or discrimination after she blew the whistle following finding a dead patient in a ward at Queen Elizabeth Hospital, Woolwich.

He did say that she had legally made a protective disclosure on patient safety and health and safety following the death of patient MS, a frail elderly lady, admitted with breathing difficulties during the Covid pandemic in May 2020.

But he did not agree that the events that followed where she said she suffered detriment and was ” set up to fail ” including being put on inconvenient shifts, left in charge of the ward without a matron, passed over for courses, had a pay cut just after a pay rise, and being accused by Mr Katandika [her ward matron] of leaving without handing over her patients to the next staff shift putting patient safety at risk contrary to the nurses’ code of conduct.

The judge accepted the trust’s case that because of the Covid pandemic not all procedures , particularly over shift working, could not be followed because of staff shortages caused by many of the nurses catching Covid.

He also decided that there was no evidence of age or race discrimination and thought that Ms Holmes had misinterpreted what had been said to her.

His verbal judgement ( it will not be published unless either of the parties requests the papers) went into considerable detail of each event, drawn from the papers submitted by the trust.

One of the key points he emphasised was the long delay before Ms Holmes made the protective disclosure – not until early in the following year- which he accepted that neither Mr Katandika or any other managers were aware that they were facing a whistleblower complaint. Ms Holmes, in her own statement to the tribunal, said she wasn’t quite sure how to do this and thought it was being investigated. In fact investigations stopped and the death was put down as a “patient incident”.

The other key point for him was that the trust’s competency book, compiled by Jean Firaza, a Filipino manager and one of the people she criticised as being hostile to her said she was a good nurse and could work independently. She had few meetings than normal with Mr Katandika or Jean Firaza, to discuss her progress because she was doing well, the judge concluded. Again he blamed the Covid situation.

He also said she could have applied for promotion but had chosen not to, which is why the post went to another nurse and her complaint about losing a place on a training course was on a course as a cardiac nurse, which was designed to help another nurse and she had not applied to do that course..

Grievance allegations took a long time to investigate

He agreed that the investigation into her grievances had taken time to complete which meant she did not know what was going on. Lucie Kabatesi, was both writing and investigating her grievances while she was matron in the hospital’s busy accident and emergency department. But he said that an assertion given by her solicitor, Winston Smith, that ” she had been “chasing, chasing and chasing” to get the verdict were not born out by the evidence as there no emails showing she had done this.

He also cited Thurdy Campbell, a former manager of her ward 22, as being sympathetic to her including reducing the number of patients she had been asked to look after when she seemed to have been given too many.

But Thurdy Campbell, despite being a key manager in her life, was never called to give evidence by the trust. If she had the judge would have had to at least consider a different aspect on this case. She has told me that she had raised patient safety issues about the reconfiguration of Ward 22 as a Covid ward just two days before the patient’s death, suggesting there may have been problems there.

She also has told me that when she decided to take up Ms Holmes’s case she had a warning from senior management not to do it. She has added now that she had witnessed Ms Holmes being bullied in the ward as well.

It seems to me that the trust, obviously advised by their lawyers, Capsticks, and Old Square Chambers, is selective about who it calls in whistleblowing cases. Even though Thurdy Campbell was no longer working for the trust she could have been contacted about this. Other witnesses called by the trust now have different jobs but still gave evidence.