Jonathan Gray, the employment judge hearing the case brought by whistleblower obstetrician Martyn Pitman against Hampshire Hospitals NHS Foundation Trust used last Friday to issue his judgement dismissing all the doctor’s detriment claims against the trust. The judgement, despite widespread and national interest, has still at the time of writing, not been published by the HM Tribunals and Court Service.

The judge, who previously worked for the law firm BDB Pitman in Southampton, managed both to accept virtually all his whistleblowing claims but throw out any claims that he had been persecuted by the trust for exposing them.

In short he believed every word given by Alex Whitfield, the former oil refinery executive turned trust chief executive; Lara Alloway, the former chief medical officer and Steve Erskine, the former businessman now chair of the trust and other leading figures who gave evidence for them. He didn’t believe a word of the case brought by Martyn Pitman of his bad treatment despite being ably defended by Jack Mitchell, funded by the BMA from Old Square Chambers.

What the judge did was turn Martyn Pitman against himself. His ruling at the end was :“Having considered each of the alleged detriments, there is in our view an overarching reason for what has happened to the Claimant that is not on the grounds of any of the alleged or proven protected qualifying disclosures. In short, it is the Claimant’s communication style and not the message he was trying to convey.”

To seal the deal the judge turned one of Martyn Pitman’s witnesses against him. He used the evidence of Dr Michael Heard, a fellow consultant, who backed up Dr Pitman’s whistleblowing claims to turn against Dr Pitman.

Dr Heard had made similar claims to Dr Pitman to the management at the trust and no action was taken against him. The judge used this to say it proved the trust management was keen to take whistleblowing seriously but not keen if it was presented in a forthright manner which affected the ” health and well being ” of the managers.

What was also strange in this hearing was that the person who made the most dramatic claims against Dr Pitman, Janice McKenzie, the divisional chief nurse and midwife, saying she had to leave the unminuted meeting dealing with patient safety with him, in tears to cry in the toilet, never gave evidence. But like ” Banqou’s Ghost” in Macbeth her claims hung over the hearing. I would have liked to see her testify given there is no written evidence of what happened there.

There was also a dispute – again unminuted – over the claim that towards the end of this long saga Dr Pitman was verbally told by Alex Whitfield, that he couldn’t continue working at the hospital because he was a risk to patient safety. She denied this and the judge believed her and not Dr Pitman.

Now there is a much wider issue in this judgement which goes well beyond this being a local hospital dispute. It arose because of a merger of two trusts which brought a clash of cultures between midwives who worked at the North Hampshire Hospital and those who worked at the Royal Hampshire Hospital in Winchester. Midwife managers from Basingstoke tried to impose their system on midwives in Winchester. This led to unrest and unhappiness in Winchester and Dr Pitman intervened because he was worried about patient safety and took it up with the midwifery managers who seemed unable to cope with criticism.

The management of this became a national issue when the Care Quality Commission inspected the maternity services at the trust and downgraded the trust (see here). Again I am surprised this was not mentioned in the tribunal.

But why I really think this ruling is bad is another event which coincidently emerged while this case was on. The Care Quality Commission published its annual report on maternity services and it makes grim reading. The number of inadequate trusts has doubled from 9 to 18, the number of trusts that require improvement has increased from 46 to 67 and only six are in the outstanding quality category. The CQC is obviously worried about this since they have only inspected 73 per cent of trusts and are planning to inspect the rest as a matter of urgency. The issues raised include poor management, lack of staffing, bad communication with patients, patient safety being inadequate and also racial inequalities.

Now judge Gray won’t know about this and probably say it was irrelevant to his hearing but his ruling will be a solace to managers worried about whistleblowers raising inconvenient claims of patient safety in maternity wards. By putting down such an eminent obstetrician ( even the judge and the health trust couldn’t find fault with his clinical judgement) he is potentially putting at risk the safety of millions of mothers giving birth in England. Who is going to raise their voice in the NHS about patient safety in the maternity ward if they see a doctor put down and not believed in a tribunal like that? Yes he may be forthright and strong minded but we need people to have high standards to improve the health service for everyone. Judge Gray has a lot to answer.

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