David E Ward, a distinguished retired cardiologist, formerly at St George’s Hospital, South London, responds to the judgement by Tony Hyams-Parish on the case of Dr Usha Prasad

The treatment of NHS whistleblowers is a national scandal of the same iniquitous order of magnitude as the miscarriages of justice meted out to the sub-postmasters. This latter saga began 20 years ago after the installation of faulty software called Horizon from Fujitsu. Incredibly it was not picked up for years because the victims were not believed or they were accused of lying. The evidence was not properly collated or scrutinised. Or was it, but no-one said anything. “No other post office has had this problem” they were told. Perhaps the current Judge led inquiry will find out. Many were incarcerated. Some sold their homes to pay thousands of pounds of fictitious till deficits. Sadly, some committed suicide.

The sequence of events for NHS whistleblowers is different but the outcomes are strikingly similar. The NHS whistleblowers’ stories are largely unknown to the wider public apart from the occasional one featured in a national newspaper.

The WB raises a concern, which by the way is their duty under law, (Duty of Candour, https://www.legislation.gov.uk/ukdsi/2014/9780111117613)

but instead of welcoming the exposure of the defect of a system (e.g. number of beds in a limited space), faulty equipment (e.g. a diagnostic machine) or a process (e.g. errors in admission procedures – wrong patient or wrong procedure) any of which may lead to patient harm or even death), the Trust fails to act but instead embarks upon a path of vicious and disproportionate reprisals against the WB.

The consequence of this chain of events is often catastrophic for the individual. The whistleblowing doctor may be subjected to repeated internal hearings, quasi-disciplinary proceedings, Maintaining High Professional Standards hearings etc. The latter may be chaired by lay persons with a legal qualification but posing as a barrister. Most doctors subject themselves (they raise an appeal) to an Employment Tribunal in the hope that justice will prevail. Sadly it does not. These proceedings are not formally recorded for later open scrutiny. The judge’s notes (such as they may exist) are private and not made available. It is also a criminal offence to make an electronic recording. The litigant can take notes but how do they manage to do that whilst giving evidence or listening intently to the evolution of their own fate? A preposterous suggestion.

Expensive lawyers who support the health trust

There is another major factor in these processes. They could not proceed without the complicity of the teams of expensive solicitors and barristers who support the Respondent. All this is paid for by the taxpayer. The claimant will of course have their own legal support if they can afford it but which is obviously limited by costs. This gross “inequality of arms” is a major factor in the final “justice” handed out. I don’t think many of us would call that fair and just. Doctors are threatened with enormous costs which in most cases could only be met by selling the family home. Why? Oh yes, it’s to force them to withdraw their claims and believe it or not it usually works!

At Employment Tribunals it appears that the sum total of evidence is not scrutinised. Some evidence appears to be selectively omitted at the discretion of the ET Judge. In the Dr Prasad case (see David Hencke’s last blog) the admission by the lead of cardiology (Dr Richard Bogle) that a death which should have been reported to the coroner was not reported but “covered-up” is not even mentioned in the final judgment! One could ask for the transcript to check that this observation is correct. (Oh, no I can’t because there is no transcript but I did attend the virtual ET hearing and can vouch that I heard it stated!) That worked out quite well then didn’t it? To an outside observer who has some vicarious experience of these Tribunals it is nothing short of gobsmackingly incredible in a western democracy (I don’t have the full panoply of words to describe it!).

The Post Office workers (Horizon scandal) did not commit any crimes neither did the NHS Whistleblowers. They have not broken any laws. Yet how is it that they have failed to present a case of sufficient strength to convince an ET Judge? Their punishment for exposing potentially harmful processes, which could save lives, is to be condemned, lose their careers, their livelihoods, their homes and in some cases their families or even their own lives. Put simply they are crushed by massive inequality of arms – expensive lawyers funded by the taxpayer. Swathes of evidence is ignored.

Is there some sort of collusion between the judiciary and the respondent or their legal representatives? Some MHPS hearings are seemingly very dodgy (some doctors/victims have observed this and can demonstrate it with evidence) up to and including the invention of spurious legal terms such as “fitness for purpose” which is unknown in British Employment law (see David Hencke’s blog on the Maintaining High Professional Standards Appeal).

Then there is always the possibility of undeclared conflicts of interest in the appointment of an ET officials. Just saying…..

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