Chris Day had an unblemished record as a junior doctor. Respected by his senior colleagues, he was used to working hard in often difficult circumstances, regularly putting in long night shifts in the intensive care unit at the Queen Elizabeth Hospital in Woolwich, South East London. It took him away from his wife Melissa, a nurse, and their two young children.
But such was his commitment that Chris, 32, believed it was a small price to pay to follow his dream of becoming a consultant in A&E medicine.
So when, during yet another night shift, Chris made a telephone call to report to the duty manager that he believed overnight staffing levels were unsafe, and that patients with life-threatening conditions may be left ‘dangerously’ at risk, he simply believed he had discharged his duty as a responsible doctor.
Chris believed the long night shifts were a small price to pay for his dream of becoming an consultant in A&E
During his time on the unit, two ICU patients had died at night, in circumstances formally recorded by Lewisham and Greenwich NHS Trust as serious untoward incidents – meaning the deaths were unexpected or preventable.
Yet unbelievably, that polite phone call left his career in tatters and sparked a two-year legal battle which is estimated to have cost the NHS hundreds of thousands of pounds in public funds.
Rather than support his claim, NHS agencies accused him of having ‘personal and professional conduct issues’, removed his right to continue training and used the full weight of the law against him – destroying his promising career.
But in a landmark legal victory last week, the Court of Appeal ruled that Chris is finally allowed to bring his case to an employment tribunal. Not only that, the decision granted all of the country’s 54,000 junior doctors reassurance that they too are protected by whistleblowing laws and should not be victimised for exposing NHS failings.
Yet the win has come at a huge personal cost. ‘This has robbed us, as a family,’ says Chris, speaking for the first time since the ruling. ‘In the time it has taken to change British law for everyone else, in a case which will hopefully improve patient safety by allowing junior doctors to come forward with concerns, my family has paid the price.
Last week the Court of Appeal ruled that Chris is allowed to bring his case to an employment tribunal
‘This has never been about my conduct and my competence – it’s about an understaffed ICU,’ he explains. ‘Yet I’ve stood here for nearly three years arguing the basic point that a junior doctor should be able to openly raise concerns about safety. I think most patients would agree with that principle. Yes, let’s celebrate that victory. But what really scares me is that I won’t be able to clear my name.’
Chris should be well on his way to a full-time consultant post by now. Instead, he has found himself working locum shifts at under-staffed A&E departments after failing to secure more permanent work.
He is also banned from appearing at a junior BMA conference taking place this weekend which focuses, ironically, on safeguarding the future of the NHS. ‘I’m losing my skills,’ he admits. ‘I could never work in an ICU now. I’ve gone backwards in my career. It feels as if the NHS doesn’t want people like me. Junior doctors have been let down by some very powerful people.’
Chris should be nearly a full-time consultant post, but as instead found himself working locum shifts at under-staffed A&E departments
It is a far cry from his promising start as a young doctor.
Growing up in Kent with two teachers as parents, he was determined to go into medicine and began studying at the prestigious Barts and the London Medical School, part of Queen Mary University of London, in 2003.
He married Melissa, 34, in 2007 and the couple live in a modern terrace house in Thamesmead, South-East London, with their six-year-old son and a daughter who is three.
After being allocated a one-year rotation as part of his training to become an A&E consultant at the Queen Elizabeth, he began having concerns over patient safety.
Almost immediately after starting a stint in intensive care in August 2013, he realised the unit was understaffed at night. Terrifyingly he found himself, with no previous intensive care experience, looking after up to 18 seriously ill patients overnight without on-site ICU supervision.
Chris found himself looking after 18 seriously ill patients when he started his stint in intensive care
Guidelines from the Intensive Care Society recommend a doctor-patient ratio of around one to eight.
After discussing his concerns with a consultant, Chris wrote an email to senior management, copying in Health Education England (HEE), the Government agency which oversees the training of junior doctors.
‘The expectations felt unreasonable. This wasn’t my opinion – I based it on the guidelines. There have been manslaughter cases brought against healthcare professionals who make mistakes under pressure.
‘It’s not difficult to see how a situation like that could develop in these circumstances.’
But no changes were made. So in January 2014, when Chris realised two locum doctors had not turned up for the overnight shift, he worried how the remaining staff could cope.
‘It made me think that this was a very dangerous situation indeed and a clear threat to safety.’ Also on his mind were the two deaths. None were directly linked to understaffing, or had happened during his shifts. But it was within this context that Chris decided to ring the duty manager.
The contents of this call will form part of his upcoming legal case, and he has been advised not to discuss it. Chris maintains it was polite, and witnessed by a nurse. He followed it up with an email, thanking the manager for his support.
He did not realise that what he was doing was technically classed as ‘whistleblowing’. While consultants are protected from victimisation as a result of taking such action, because they are employed by a hospital, the situation for junior doctors is legally dubious because they are on fixed-term contracts with hospitals, organised by HEE which, in effect, acts as a third party employment agency.
To Chris, training had seemed a huge success and senior colleagues had reported that his work was ‘not just satisfactory, but excellent’.
Chris wrote an email to senior management about the dangerous under-staffing in wards
It was only much later that Chris discovered matters were very different behind the scenes. In one email to HEE, an assistant medical director at the Trust revealed he would prefer not to employ him.
Then in June 2014, Chris was called by HEE to his annual appraisal where he again mentioned the understaffing issues. Shockingly, three days later, Chris checked his appraisal document online which showed it had been ‘unsatisfactory’ – on account of ‘personal and professional conduct issues’.
He says: ‘These were career-defining allegations and they were completely false. Suddenly I began to put the pieces together.
‘Was this related to my ICU concerns, or that phone call? It really has been up to HEE to provide another explanation, which they so far haven’t been able to do.’
In another devastating blow, the HEE also deleted Chris’s doctor training number over the ongoing row, which meant he could no longer continue training. It means, although he can work for the NHS, he cannot progress to become a consultant.
‘I went from being very confident that it would all go away, to feeling like the whole system was corrupt and my career was about to go down the toilet.’
The NHS accused Chris of ‘personal and professional conduct issues’
Chris brought his concerns before an employment tribunal in February 2015. However, the case was thrown out when HEE successfully argued that whistleblowing laws did not apply to them.
But in fighting the treatment he received Chris had inadvertently exposed an even greater scandal: that no junior doctor was protected by whistleblowing laws. Perhaps even more troubling, the Government was effectively content for that to be the case. It was an outcome which raised concerns over the safety of all NHS patients.
Then in August 2015 an appeal was granted after a judge determined there was a ‘lacuna’ – a gap – in the whistleblowing laws for junior doctors.
At one point, four law firms for NHS agencies – including solicitors for Health Secretary Jeremy Hunt – were involved.
Chris says: ‘It became like a pathetic family feud. Ironically, this came weeks after Sir Robert Francis published his report on whistleblowing in the NHS, which found staff were deterred from speaking up and faced serious consequences for doing so.
‘Instead of defending themselves on the facts of my case, they used taxpayer money to essentially argue me and every other junior doctor out of statutory whistleblowing protection. How is that an effective use of public money if it makes the NHS less safe?’
So what began with a bid to resurrect his career turned into a mammoth legal battle. With a young family to support, Chris turned to crowdfunding, raising more than £140,000 from thousands of donors – including junior doctors – to fund a legal challenge, first in the Employment Appeals Tribunal, which failed, and then in the Court of Appeal. The case was also supported by the charity Public Concern At Work.
In February 2016, two days before one hearing, Chris claims HEE threatened his team with a costs application order for £24,084.50.
‘Imagine the effect that would have had on a young family’s financial security. They did it to try to get us to back down.’
But it was not a deterrent. On May 5, judges ruled the HEE’s arguments against junior doctors having whistleblowing protection were ‘legally flawed’ and concluded HEE could be considered an employer. It means his case in the employment tribunal can finally be heard in the next few weeks. Chris’s lawyer, Tim Johnson, from Tim Johnson Law, said: ‘The impact on Chris and his family shouldn’t be underestimated. He has had to work incredibly hard to achieve this result. What I hear from junior doctors is that many of them see Chris as fighting the management of the health service on their behalf – better than other institutions such as the BMA.’
At one point four law firms for NHS agencies – including solicitors for Health Secretary Jeremy Hunt – were involved with Chris’ case
Today he still wants to work for the NHS but he is not optimistic about the future. His cynicism seems well-grounded. No doctor sacked after exposing NHS failings has ever been given their job back at the same level, and many find themselves ‘blacklisted’ even after being cleared by tribunals.
Chris says: ‘I might look like some sort of activist but I’ve turned into this person for my family. I never had a Facebook or Twitter account before; now I have a huge number of followers. But it’s never who I wanted to be.’
Thanks to Chris, the Trust has now increased the number of doctors on ICU to national standards. It has also accepted he did, in fact, make a ‘protected disclosure’ – in other words, he blew the whistle in a way that was protected by law. In a further statement, it said it ‘could not comment further while legal proceedings are ongoing’.
HEE also said in a statement that it ‘welcomed’ the Court of Appeal decision and that it had ‘agreed changes with the BMA to extend rights to trainees in this area’.
It added: ‘We did not act to cause detriment to Dr Day as a result of him raising concerns.’
But the delay in resolving the issue has already had an impact on patient safety, according to the doctors’ regulator, the General Medical Council. It believes the case has discouraged other junior doctors from speaking out.
And there is still the real fear for Chris that his own career may already be over. ‘This case has often felt like it has been to everyone else’s benefit but mine,’ he says. ‘Despite everything, a full hearing still isn’t guaranteed and I might never get justice.
‘Whistleblowing comes at a huge personal cost. Fortunately, it hasn’t crippled us. And that’s because of the strength of my marriage. If Mel wasn’t a nurse and understood what we had to do, who knows what may have happened.
‘I’ve got the glory, but it’s as much her victory as mine.’