As his tribunal case is finally heard, Chris Day discusses winning protection for other junior doctors – and why he feels betrayed
Blowing the whistle in the NHS is meant to be easy. Medical bodies such as the Department of Health and Social Care, the General Medical Council (GMC) and individual hospital trusts all encourage the practice – on paper. But when Chris Day, a junior intensive care doctor, raised numerous concerns about understaffing and safety at the intensive care unit of Queen Elizabeth hospital in Woolwich, he found out all too quickly the toll it would take on his career.
Day says he made a “protected disclosure” to hospital management and to Health Education England (HEE) – which oversees junior doctors’ training and career development – about the understaffing.But he says that far from being believed, he became the victim of a pernicious effort to discredit him and the issues he’d raised. A number of counter-allegations were made against him, and his HEE training number was deleted, effectively forcing him out of his career. “Looking back it was incredible that so much effort was going into discrediting me and my safety concerns,” he says.
Day went to an employment tribunal on the basis that his initial concerns hadn’t been taken seriously, and that he was suffering detriment, including loss of earnings, as a result of having raised them. The tribunal was set for February 2015, the same month, incidentally, that Robert Francis QC – author of a damning review into the now infamous Mid Staffordshire hospital scandal – published the long-awaited government-commissioned Freedom to Speak Up review, beseeching a “shared belief at all levels” of NHS organisations “that raising concerns is a positive, not a troublesome activity, and a shared commitment to support and encourage all those who raise honestly held concerns about safety”.
Yet during the initial hearing, HEE successfully argued that it didn’t have a duty to protect whistleblowing junior doctors suffering any kind of detriment because it wasn’t legally their employer. Day’s case was thrown out by the tribunal before it started.
This raised serious questions: if HEE didn’t have a duty to protect junior doctor whistleblowers, who did? And how long had this gap existed? What had started out as one doctor’s employment dispute had revealed a major gap in whistleblowing law which Day says points to a systematic lack of accountability at the top of the NHS. “Sir Robert Francis QC, in his report about Mid Staffs hospital, vividly highlights the NHS whistleblowing problem and the resultant effects on patient care. The fact that junior doctor whistleblowing protection was undermined in this way, weeks after his February 2015 report, is beyond belief,” he says.
Sir Robert Francis QC, in his report about Mid Staffs hospital, vividly highlights the NHS whistleblowing problem and the resultant effects on patient care.’ Photograph: Martin Godwin for the Guardian
“It’s a question of access to justice,” says Bob Matheson, head of advice and advocacy at the whistleblowing charity Protect. “There’s something about whistleblowing, that sense that you’re doing what’s right in a healthcare situation; and then suddenly, everyone turns on you and you’re the bad guy.”
Three-and-a-half years, £200,000 of crowdfunded support, four grinding employment appeals tribunals, two hearings at the court of appeal – with the intervention of Protect – and one last employment tribunal later, HEE’s argument has been roundly rejected. And an employment tribunal ruled in May that junior doctors are covered by whistleblowing protections under the Employment Rights Act.
This week the hearing over his original tribunal case has finally begun. In a statement, HEE says: “Our position is that Dr Day resigned from his training programme despite HEE staff supporting him and encouraging him to remain on his training programme. We have been very clear all along that we strongly deny that HEE staff caused Dr Day detriment and in fact did what they could to help him which is what we will argue in the tribunal.”
“After four years I’m just relieved the important issues in this case are finally going to be heard and scrutinised by a specialist employment tribunal,” says Day. It’s been a bruising experience, but, Day says, one worth enduring. Not least because in 2017 a major peer review was published into the ICU ward around which Day’s disclosures were based, revealing grave concerns over staffing levels, incident reporting procedures and safety standards.
“It felt like the medical establishment was ganging up on me,” says Day. “Me and my young family feel betrayed by people who claimed to lead the medical profession. We’ve been left to fight alone for whistleblowing protection for all junior doctors and their patients. It’s all been on our shoulders.”
For now, Day is less optimistic. “What I’m worried about is that this sends the message that public bodies can gang up to stop a whistleblowing case being heard, and that politicians and regulators will turn a blind eye,” says Day. “If they can get away with this, what message does that send to someone who is considering speaking up or someone who is considering supporting or listening to someone who speaks up to them?”
In an age where information is tightly controlled by image-makers, spin doctors and gatekeepers, real scandal can often only be revealed with the help of whistleblowers.
To mark the 25th anniversary of the whistleblowing charity Protect (formerly known as Public Concern at Work) – we focus on 12 people who have taken great personal risk to expose everything from warmongers to tax dodgers and sexual and physical abuse.
“I could have been fined a million euros,” the Luxleaks whistleblower Antoine Deltour says when reflecting on his ordeal. Since passing information about controversial tax agreements to the French journalist Edouard Perrin, the former PricewaterhouseCoopers employee has faced global media attention and two trials. By 2016, more than 215,000 people had signed a petition pledging support for Deltour.
It was in 2011 that Deltour first passed documents to Perrin, detailing how companies such as Amazon and Dyson struck (perfectly legal) deals with Luxembourg to avoid cross-border tax. The International Consortium of Journalists used this leaked data to unveil the extent of the tax avoidance in 2014. Many of the multinational companies involved had managed to reduce their tax to near zero by developing complex strategies with the Grand Duchy.
The data leak was denounced by Pierre Gramegna, Luxembourg’s finance minister, as “the worst attack” ever experienced by his country. Indeed, Deltour grimly acknowledges the immense courage needed on his part. In 2016, he was convicted of theft, receiving a 12-month suspended sentence and a fine of €1,500. Even so, he still insists he would whistleblow again.
“Democracy demands information,” Deltour says. “I still believe I acted in the public interest.”
In early 2018, Deltour was finally acknowledged as a whistleblower, and his conviction was quashed. But in what Deltour describes as a “smart move”, a €1,000 fine against Raphael Halet, who also passed Luxleaks information on, was upheld. “There’s a message there,” Deltour notes. “By recognising me, they’re making out that they’re open. But by condemning Raphael, they’re making sure people think twice before speaking to a journalist.”
Katharine Gun was 28 when she tried to prevent one of the deadliest wars of the 21st century.
Whilst working as a mandarin translator at GCHQ, Gun and her colleagues received a request from America’s National Security Agency. The email requested an intelligence “surge’ of diplomats attached to the UN security council, to secure crucial information on the voting intentions of member states in the run-up to the Iraq war.
Gun, horrified at these “dirty-tricks”, leaked the email to the Observer, and was subsequently sacked and arrested, an ordeal which she describes as “isolating”. “I felt very much alone,” she says. “I didn’t know whether I would be charged.”
Although her leak did not deter the war, it did cause worldwide outrage, and a second UN resolution to authorise the war never occurred. Gun’s trial collapsed due to insufficient evidence, and her whistleblowing is now being immortalised in upcoming film Official Secrets. Would she blow the whistle again? “Yeah, I would,” she says. “There is always a need for whistleblowers – we don’t live in a society which is transparent, fair and just. Whistleblowers hold people to account.”
As a nurse with decades of experience, Terry Bryan was appalled by the abuse he witnessed at Winterbourne View, a hospital for people with learning difficulties. After his concerns were ignored by management, he raised his claims with the Care Quality Commission. In what the CQC described as an “unforgivable error of judgement”, no action was taken.
Bryan then turned to BBC Panorama, whose show Undercover Care: The Abuse Exposed cast Winterbourne’s conditions into the limelight. Bryan’s whistleblowing led to six care workers being given prison sentences, and NHS England developing its 2011 “transforming care” agenda. The agenda aimed to reduce patient admissions to hospitals like Winterbourne.
Bryan now works for Care Inspectorate Wales, using his experience to inspect care homes and nursing homes around South Wales. When asked if he would be prepared to blow the whistle again, it was an unequivocal yes. “It’s about following your conscience,” he says. “How would you live with yourself if you didn’t do it?”
Awarded whistleblower of the year by Middlesex University in 2014, Osita Mba’s actions have been highly commended. In March 2011, the former HMRC solicitor contacted the National Audit Office, revealing a “sweetheart deal” between HMRC and the investment banking firm Goldman Sachs. Mba alleged that HMRC’s most senior tax official had let Goldman Sachs off paying at least £20m in interest. “I considered it my duty as a public servant to report it,” Mba reflects. After feeling unsatisfied with the NAO’s report in the matter, Mba then took the claims to the public accounts committee of the House of Commons. “Fortunately, my claims were taken seriously and investigated,” he says.
In an action widely condemned by MPs, HMRC then used the Regulation of Investigatory Powers Act to search through the phone records and emails of both Mba and his wife. “I expected them to do it, so I wasn’t surprised when I found out that they had,” says Mba, who was also suspended from his job. Despite his ordeal, he is able to see the positives: “I have paid dearly in terms of my career so far, but the peace of mind I have enjoyed is priceless.”
In 2013, Mba received the equivalent of three years’ salary and pension contribution in a compromise agreement. Looking back, he describes whistleblowing as a “battle of conscience”. “Only the truth will set you free,” he says. “If I find myself in a situation where my conscience tells me that speaking out is the right thing to do, I will do it.”
Claire Gilham was a district judge at Warrington county court when she first raised her complaints. Working in family courts, she witnessed hostage-taking and violence, and was even alerted by the police that someone was threatening to kill her. Initially, she was encouraged to speak out, but gradually support for her waned. Isolated and excluded, she recalls telling her human resources team: “I can’t stand this, I’m going to break down.”
Gilham’s case remains unique among the other whistleblowers. Judges are not classed as workers, and so aren’t entitled to the legal protections usually given to whistleblowers. “I think it’s dangerous to exclude people from statutory protection,” Gilham says, when asked about her determination to take her case to the supreme court. It was previously dismissed by an employment tribunal and the appeals court, which upheld the ruling that judges are not workers.
Working with Protect (formerly Public Concern at Work) throughout her case, Gilham remembers their ability to reflect critically on her case. “It was reassuring to find that whistleblowers aren’t crazy, resentful people,” Gilham adds. Rather, they are simply people unwilling to assist in the concealment of mistakes.
“If judges, the most privileged people in the country, can’t speak out, then who can?” says Gilham, who feels a sense of responsibility for those less able to speak out. She is adamant that she would be prepared to blow the whistle again. “You have to reflect on what you’re doing and walk forward. You have to be ethical.”
In a 2016 speech in the Lords discussing his whistleblowing experience, the Conservative peer Kevin Shinkwin described it as the saddest moment of his career. Does he still view it this way? “Yes, it still is the saddest moment,” he says. “It completely shattered my trust.”
The incident in question happened in 2010, before Shinkwin entered the Lords and when he was working as the head of public affairs at the Royal British Legion. He was asked to sign an invoice of almost £10,000 for work done by an MP’s researcher, who was using his privileged access as a passholder to moonlight as a public affairs consultant. Shinkwin and his then boss both refused to sign it and recommended it should not be paid. They were over-ruled by the then Director General who only informed them he had personally approved payment retrospectively.“The issue of trust was paramount,” he says. “People give money to charities in the good faith that it will be spent properly.”
Although Shinkwin notes that there is no evidence the money was ever paid, he emphasises that the way he was treated for raising concerns is what matters. He was bullied by a senior director, who demanded that he approve the invoice. The then director general even led Shinkwin to believe a payment had been made. He says he was eventually eased out of his role at the Legion. “I knew that by speaking up, I was sacrificing my career,” he says.
Now, he is adamant that more protection for whistleblowers is needed, especially in the charity sector. “When charities suffer [as a result of whistleblowing], it is the people who depend on them who suffer more,” he says, before insisting he would be prepared to blow the whistle again. “My conscience wouldn’t let me not. I would not be able to sleep.”
Shinkwin is keen to emphasise that the Royal British Legion is a different place today. “I don’t believe what happened to me would happen at the Legion now,” he says, noting that the Legion has a completely new senior management team.
The past few months have been rough for Shahmir Sanni. Since March, he’s been alienated by those he trusted, fired from his job at the TaxPayers’ Alliance and outed as gay by Downing Street. All this stems from an interview published in the Observer – an interview in which Sanni alleged that the leave campaign broken campaign rules to win the Brexit vote..
“I was traumatised,” says Sanni of the moment that a rival revealed his sexuality. “I thought, you know what, screw these guys. I realised I had a moral duty to bring light on each and every individual. It was about justice for the British electorate, but also justice for LGBTQ+ people and people of colour, bigger than Brexit.”
Sanni’s interview revealed that Vote Leave were close to exceeding their £7m spending budget. They received a donation of £1m a couple of weeks before the referendum that would have tipped them over. They decided to “donate” £625,000 to BeLeave, a youth group founded by Darren Grimes. Initially ecstatic, Sanni quickly realised they would never see any of the money. Instead, it was ploughed back into Vote Leave’s campaign.
“What’s the point of democracy if you’re going to cheat?” asks Sanni, who still remains a committed Eurosceptic. “Justice comes when people are being investigated and fined.”
When asked if he would blow the whistle again, Sanni is unsure. “Short answer: yes. But I do often say probably not.” Sanni advises those who have had any minor or major mental illness, particularly people of colour, to think twice before whistleblowing.
“When you whistleblow as a minority, there are massive implications,” says Sanni, who recalls both Brexiters and remainers doubting his integrity. Despite this, he remains upbeat. When asked for a final statement, he jokes: “Follow me on Instagram.”
Quickly becoming serious again, he is keen to emphasise the gravity of the situation. “It was a huge electoral scandal. It’s about more than Brexit now. It’s about ensuring that our democracy is retained.”
When the media mogul Robert Maxwell died in 1991, he was mourned as the Daily Mirror’s “saviour”. Yet, in the wake of his death, a vast pension fraud was revealed. In all, some £400m was found to have been taken from the Mirror’s pension fund, leaving employees facing a bleak future. For Harry Templeton, who initially blew the whistle on this in 1988, the revelations came “too late”.
Templeton, a printer for the Mirror Group newspapers, sat on the board of trustees for the Mirror’s pension scheme. A union-approved trustee, he challenged Maxwell about the way he planned to use the pension funds. In a vote about the scheme, Templeton found himself outnumbered 13-1. The seven management-approved trustees on the board wouldn’t dare vote against Maxwell, Templeton recalls. The six other union-approved trustees were simply “very naive”.
“I had to bring my problems home to my family,” says Templeton, remembering his experience as demoralising. “It was like banging your head against a brick wall.”
Shortly after, he was fired from the company under the pretext of threatening another worker. “You have to remember, companies don’t sack someone for blowing the whistle,” Templeton says. “They find other reasons to, and they offer people incentives to keep their mouths shut.”
Templeton recognises the challenges that whistleblowers and their supporters face. “You have to try to do something about it, but the other side doesn’t stick to the rules, they find every method they can.”
Howard Shaw, a former detective sergeant at the Metropolitan Police, describes his experience as a whistleblower as a “lonely two years”. Now chief compliance officer at Joules Africa, Shaw blew the whistle after alleging that a former colleague cheated in a job interview that led to his promotion.
Shaw raised concerns with his superiors that the colleague had seen interview questions in advance. His claims were ignored and the individual was then appointed as his line manager. Shaw was subsequently removed from his unit.
“I was under the care of my doctor and on medication, I had counselling,” Shaw remembers. Unprepared to leave the unit quietly, Shaw brought the case to an employment tribunal, which awarded him £37,000 damages and £1,000 costs after finding that he did have legal protection as a whistleblower.
Despite his success, Shaw says regrettably that he would not blow the whistle again, but instead calls for reform of whistleblowing laws. “The law needs to be more user-friendly, more accessible and less judicial.”
Chris Day was a junior doctor on the way to becoming a consultant when his career progress was cut short. While working on a south London hospital’s intensive care unit, Day became increasingly concerned regarding staffing levels. “One of my principal disclosures was made in real time at the beginning of the night shift,” he remembers. “I had no choice – the consequences of not making the disclosure might have been even more scary.”
Yet Day’s allegations had lifechanging consequences for him. His whistleblowing cost him his consultancy career and he has been working as a locum doctor in A&E departments, while he fights his case. Instead of acting on his safety concerns, Health Education England attempted to argue they were not his employer.
“I don’t know why there is such resistance to culture change and meaningful legal protection for whistleblowers,” says Day, whose case has since succeeded, granting 54,000 junior doctors whistleblowing protection. “Maybe they think the public cannot cope with the truth about what is happening in the NHS.”
Day remains a vocal supporter of the NHS, and he has since mounted campaigns to keep it public. Reflecting on his experience, he says: “I would only whistleblow again if a person’s life was in immediate danger. Politicians want healthcare staff to keep quiet and get on with the job.”
From humble beginnings in Liverpool, Michael Woodford quickly rose through the ranks at digital camera company Olympus, before becoming the company’s first non-Japanese president in 2011. Just weeks later he became suspicious of several acquisitions the company had made in what turned out to be a £1bn fraud scandal. “I could look away, but if I did that I would become part of it. Once you’ve crossed that bridge, there’s no going back.”
However, the meeting Woodford called to address the claims quickly backfired. The board turned on him and he was fired. But when the fraud was linked to the Japanese mafia, Woodford realised his problems were only just beginning.
“I thought I was going to be assassinated,” recalls Woodford, who was forced by the company to give up his apartment and return to the UK. “At times I felt I was in Alice in Wonderland and I questioned my sanity. I was completely isolated.”
Fearing for the lives of both himself and his family, Woodford decided to seek safety through publicity. His actions led to two senior Olympus board members being sentenced to three years in prison. In 2012, Woodford won a £10m out-of-court settlement after suing Olympus.
Now a patron of the whistleblowing charity Protect, Woodford recommends that whistleblowers act with caution. “If you are going to take on a large company, make sure you seek advice, talk to people you trust and seek legal advice,” he says. He admits that whistleblowing isn’t easy, but is adamant he would be prepared to do it again.
Maggie Oliver remembers her experience as a whistleblower as one defined by stress, sleepless nights and fear. “They were the worst two years of my life,” says the former detective constable. “I truly believed I may be prosecuted for simply telling the truth and trying to expose the neglect of the authorities.”
While working with Greater Manchester police (GMP), Oliver had been central to uncovering a Rochdale paedophile ring. By interacting with the group’s victims nearly every day for six months, Oliver gradually gained the trust of the vulnerable girls. The girls eventually agreed to come forward, which led to nine members of the gang being sentenced in 2012.
For Oliver, though, the actions of the police were not sufficient to safeguard the victims. One of the girls, who had been abused since the age of 14, was named in court as someone who had helped the groomers. Disgusted, Oliver took her complaints to various departments of GMP, and even the Home Office, before resigning in 2012.
“All public organisations like the police … are interested in is protecting the organisation [rather] than listening to what a troublesome member of staff says, even if they are telling the truth,” Oliver says, who still feels protective of the girls she helped free from abuse.
“I have no regrets about the action I took,” she claims. “I feel proud to know I was strong enough to stand up for what I believed in, and fight to give these kids a voice.”
Louise O’Neill at Protect helped secure these interviews. An exhibition of these and other cases will run at Guardian Gallery, Kings Place, 90 York Way, London N19GU from Monday 15 to Friday 26 October. Open each day from 10.00 to 18.00, admission free.
Produced by Joanna Ruck and Matt Fidler
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Three NHS managers cost Powys Teaching Health Board £1.4 million by using the names of U2 members to award contracts to a bogus construction firm, a court has heard.
Mark Evill, 42, Robert Howells, 65, and Michael Cope, 44, helped secure payments to a company set up by Evill himself, who then used the cash to buy properties, jewellery, cars and luxury holidays to Dubai.
A court was told project manager Evill set up a construction firm George Morgan Limited to secretly award contracts to himself from the health board.
He also created fictional employees using the real names of U2 band members Bono and The Edge to correspond with health board colleagues and wrote up fake invoices from legitimate firms to make sure his crimes were not uncovered by auditors.
Merthyr Tydfil Crown Court heard yesterday the construction work carried out was later considered to have “major deficiencies”, with remedial works bringing the total cost of the fraud to £1,420,604.66.
Work was carried out at Welshpool Hospital, Brecon War Memorial Hospital, and the health board’s headquarters at Bronllys Mansion House during 2014 and 2015.
Fellow project manager Howells and estate manager Cope were allegedly bribed with cash to endorse bids by George Morgan Ltd, knowing the firm was in fact owned by Evill.
Prosecutor Christopher Rees said: “Expenditure from the George Morgan bank account showed Mark Evill was living high on the hog at the expense of the National Health Service.”
Mr Rees said a total of £707,946.24 was paid by Powys Local Health Board to the George Morgan Ltd account.
Cash withdrawn from the account was allegedly used to buy a Land Rover Defender, an Audi A4, a Husqvarna motorcycle, holidays to Dubai, a Chanel watch and properties in South Wales.
Evill was interviewed by police in 2016, when he admitted creating two fictional employees, Paul Hewson and David Evans, who signed off on quotes and corresponded with the health board over email and phone.
Mr Rees told the court Paul Hewson is the real name of U2 singer Bono and David Evans the name of its lead guitarist, The Edge.
Mr Rees said: “It is a mark of the blatant, brazen and provocative dishonesty of Mark Evill that he chose to use the names of members of U2 to further this fraud.”
Howells was allegedly given a £10,000 Ford Focus and £1,000 by Evill as an award to enable the award of contracts and payments to George Morgan Ltd, despite knowing his fellow project manager was its sole director.
Cope was also allegedly given a £500 cheque to “endorse” the use of Evill’s firm to the health board.
Evill, from Earlswood Road, Shire Newton, denies three counts of transferring criminal property, fraud and perverting the course of justice.
Howells, from Sedbury, Chepstow, and Cope, from Garden City, Merthyr Tydfil, both deny one count of fraud. The trial continues.
Patient claims accounted for the loss of £341.7 million worth of public money ALAMY
Fraud costs the NHS £1.29 billion every year, according to the health service’s anti-corruption watchdog.
The money would be enough to pay for more than 40,000 staff nurses or buy more than 5,000 frontline ambulances, the NHS Counter Fraud Authority said in its annual report.
The organisation was established on November 1 last year. The new figure is higher than the £1.25 billion identified at its launch. The estimated total loss includes £341.7 million from fraud by patients and £94.2 million by staff.
Fraud by dentists adds up to about £126.1 million, the watchdog said, and opticians £79 million. Fraud in community pharmacies is estimated at about £111 million and in GP surgeries it is worth £88 million. People accessing NHS care in England to which they are not entitled is thought to cost the health service £35 million. The rest included fraud involving NHS pensions, bursaries and legal claims.
Simon Hughes, the authority’s interim chairman, said: “Ensuring public money pays for services the public needs and doesn’t line the pockets of criminals means we all benefit from securing NHS resources.”
Sue Frith, its interim chief executive, said: “Fraud always undermines the NHS, with every penny lost to fraud impacting on the delivery of vital patient services. If fraud is left unchecked, we believe losses will increase.”
The report said there was “no such thing as a ‘typical’ NHS fraudster”. It noted that there were barriers to tackling the issue, including a lack of understanding of the problem in many NHS services. It added: “There is also sometimes a mistaken assumption that reporting fraud casts the organisation involved in an unfavourable light.”
At the end of March there were 45 criminal investigations in progress, the report said. In July a neurology nurse from London was jailed for 16 months for fraud by false representation. Vivian Coker, 53, from Camberwell, took sick leave from August 2014 to May 2016. During this time she received pay of £32,000 from St George’s University Hospitals NHS Foundation Trust, but had also registered with two agencies and worked shifts. Coker initially denied the charges but changed her plea at Kingston crown court.
In March the authority helped to jail Andrew Taylor, a locksmith employed by Guy’s and St Thomas’ NHS Foundation Trust. He was sentenced to six years for defrauding his employer of £598,000. He had charged the NHS mark-ups of up to 1,200 per cent.
Taylor, 55, from Dulwich, was found guilty at Inner London crown court of fraud by abuse of position. Financial investigators “established that Taylor was leading a cash-rich lifestyle beyond his legitimate means, which included paying for his son to attend a private school whose fees were £1,340 a month and purchasing a brand new Mitsubishi L200 vehicle at a cost of £27,400”, the report said.
It also described the case of Paula Vasco-Knight, 53, chief executive of South Devon NHS Trust, who made fraudulent payments of more than £11,000 to her husband, Stephen. She admitted fraud by abuse of position in March 2017 and was given a 16-month prison sentence, suspended for two years, and ordered to do 250 hours of unpaid work by Exeter crown court.
The couple said that they did not have sufficient assets to repay the money but investigators found that they had access to personal pensions that could be surrendered.
Individuals who speak out and campaigners are driving change, but some who raise concerns are still not safe
As whistleblower Dr Chris Day finally gets his case fully heard, it is clear the health service and the rest of the public sector is still far from establishing the open culture that has repeatedly been promised.
Day is the latest in a long line of NHS staff forced to fight in an employment tribunal after making what he asserts was a “protected disclosure”.
It is true there has been progress. Following the 2015 review of health service whistleblowing by Robert Francis QC, there is now a network of “freedom to speak up guardians” across NHS trusts, supported by a national guardian for the health service, a post energetically filled by Dr Henrietta Hughes.
Her first report, published in September, reveals that more than 7,000 cases were raised with freedom to speak up guardians over the previous year. A third involved patient safety and service quality, and 361 people alleged they had suffered at the hands of their employer as a result of raising concerns.
That thousands of people feel able to approach the guardians – albeit a fifth of them anonymously – is promising, and Hughes pushing for action at the trusts that failed to record any cases is a good sign.
In research published this week, the charity Action Against Medical Accidents similarly reports improvements, with regulator the Care Quality Commission (CQC) using its statutory enforcement powers 108 times in 2017 against providers that were not complying with duty of candour rules.
But CQC inspections are still patchy in enforcing compliance and the national guardian lacks statutory clout over the way trusts respond to staff concerns.
In trying to gauge the state of raising concerns in the NHS, it is instructive to look at the data from the whistleblowing charity Protect about calls to its confidential legal advice line (full disclosure: I am a trustee of the charity, formerly called Public Concern at Work).
Last year health was the biggest source of its calls, as it has been since 2015, accounting for around a fifth of the total. For the last three years, half the health calls have related to patient safety, followed by ethical worries, working practices, financial malpractice and abuse of a vulnerable person. Calls about working practices jumped 82% last year in the face of NHS workforce shortages.
The number of health workers alleging to Protect they have been dismissed after raising concerns edged up from 27 in 2016 to 34 in 2017.
Education and social care are not far behind health in calls to the charity, with local government and financial services providing other major sources. There are strikingly few calls from either central government or the police. This, coupled with the Independent Office for Police Conduct recently launching an investigation after whistleblowers complained about the Metropolitan police’s own directorate of professional standards, shows how far the force may have to go in developing an open culture.
An ongoing review of ethical standards in local government by the Committee on Standards in Public Life is examining whistleblowing. This is long overdue; procedures are patchy and there is too little debate about the importance of whistleblowing to good local government.
The courage of individual whistleblowers and relentless pressure from campaigners is driving a more open culture in public services. But many managers still feel they can bully staff with impunity, employment rights are trampled on, the whistleblowing legislation itself needs strengthening and enforcement is weak. Whistleblowers are still not safe.
•Richard Vize is a public policy commentator and analyst
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Professor Marjan Jahangiri was suspended from St George’s Hospital in London
It was claimed she prioritised private patients and shouted at a nurse
The surgeon claimed she was sent a dead animal and decapitated doll in post
But today High Court judges lifted the suspension from hospital in Tooting
Professor Marjan Jahangiri outside the High Court
A failing NHS Trust that suspended one of the world’s top cardiologists has been ordered to reinstate her by a High Court judge.
Professor Marjan Jahangiri, 56, was excluded from St George’s hospital, Tooting, South London, after it was claimed she prioritised private patients over those from the NHS and had shouted at a nurse.
The surgeon, the first female professor of cardiac surgery in Europe, claimed she was subjected to a ‘campaign of bullying and harassment’, and was sent a dead animal and a decapitated doll in the post.
The St George’s Healthcare Trust was described as ‘toxic’ and in the grip of ‘dark forces’ in a report earlier this year.
As a result of that report, the hospital commissioned a second review into the revelations surrounding the Trust.
Employees were warned not to speak to any witnesses involved in that investigation but the Trust claimed that Jahangiri indirectly contacted one of the witnesses through her secretary.
But today the surgeon was vindicated by Judge Matthew Nicklin, who said: ‘Overall, the decision to exclude was irrational, in the public law sense.’
He said of the surgeon: ‘She has been successful, she had been required to come to court to obtain the relief that she has obtained.
‘Whist the impact of exclusion on an individual doctor is always likely to be severe, when a skilled and respected surgeon, about whom there are no concerns as to her ability, is excluded the consequences reach far beyond the individual.’
Professor Jahangiri was excluded from St George’s hospital after it was claimed she prioritised private patients over those from the NHS and had shouted at a nurse
Speaking outside the High Court, Prof Jahangiri said: ‘I am delighted with today’s judgement and very much look forward to returning to my patients, their families, my colleagues and my trainees.
‘My priority, as it has always been, is combining excellent patient care with research and training.
‘I am devoted to the NHS.’
The professor’s barrister Iain Quirke said the decision to exclude the professor meant that patients were missing operations that could save their lives.
‘This present application is urgent because with each day that goes by, patients booked for heart surgery with the claimant are cancelled,’ he said.
He went on to say that Jahangiri’s skills were so specialised that she was sometimes the only surgeon able to carry out specific kinds of complex operations.
‘In some cases, the claimant is only person at the trust who is able to carry out those operations.’
Mr Quirke told the court how the average heart surgeon in the UK has a mortality rate of 7-15%. Professor Jahangiri’s rate is 1.2%.
‘Despite that, she has been treated in the most outrageous way,’ he added, ‘She is the envy of the unit.
‘I really do believe that this hospital is in deep trouble and that’s partly because the management want to get rid of the professor.’
Mr Quirke went on to say that 14 different complaints had been made against Jahangiri because she had acted as a whistleblower in the past.
‘The basis that the claimant has been excluded on is the thinnest of grounds. The defence case it totally, totally hopeless and outrageous.
‘The unit is dismantling her research by reallocating it to others in the department – that is a drastic measure.
‘The continued exclusion is in breach of the defendants own policy. There must be a reasonable and proper reason to exclude – my Lord, there is not.
‘The trust is in special measures. She is an exceptional surgeon and in internationally recognised.’
He told the court that Jahangiri is the only female professor in cardiac surgery in Europe.
Mr Quirke went on to claim that her students at the hospital have threatened to leave if she doesn’t return to work.
He said that of the accusations levied against his client, ‘they are outrageous, they are scurrilous and they are made for malicious reasons,’ calling them a, ‘character assassination.’
Mr Quirke said that the delicacy involved in heart surgery required constant use of her skills and that her exclusion meant that she would be unable to practice the extremely complex operations needed to save lives.
The trust’s lawyer, Simon Cheetham QC said: ‘There is no suggestion that anyone is saying she is the source of [the trust’s] problems.
‘These are decisions that, whether they are right or wrong, were made in good faith.
‘It was necessary to suspend her because if that was the claimant’s behaviour, then it would have been bound to have had an impact on the report.’
Professor Marjan Jahangiri denied that she prioritised a private client over NHS patients as well as shouting at a nurse.
She also denied that her indirect interaction with the report witness required her suspension.
Judge Nicklin ordered that the suspension of Professor Jahangiri by the St George’s NHS Trust be overturned.
Speaking outside the court Jahangiri’s solicitor Katy Colton said the professor’s legal fight would continue.
‘Ultimately we are looking for a statement from the court saying this was a breach of contract,’ she said
The professor now wants a full judgement from the court stating that the professor had been treated unfairly by the hospital trust.
Jacqueline Totterdell, chief executive at St George’s University Hospitals NHS Foundation Trust, said she was disappointed by the outcome.
She added: ‘We are disappointed by the judgment issued today, but understand and respect it. We welcome that this ruling is not about guilt or exoneration, and the judge made no finding on the facts being investigated.
‘He has said that the exclusion process was not appropriate, but has allowed the trust to continue its investigation into very serious issues raised.’
Marjan Jahangiri was the first female professor of cardiac surgery in Europe
Jahangiri was one of two surgeons excluded after a report found a ‘toxic feud’
In April a dead animal and a decapitated doll was sent anonymously to her home
A leading heart surgeon was sent a dead animal and a decapitated doll in the post as part of a ‘toxic feud’ after she blew the whistle over unsafe care.
Marjan Jahangiri, the first female professor of cardiac surgery in Europe, claimed she had been targeted because of ‘envy at her success’.
The surgeon, who operates on more than 250 cases a year at St George’s Hospital in Tooting, South London, said a ‘witch hunt’ had led to her suspension from her post.
Professor Marjan Jahangiri was the first female professor of cardiac surgery in Europe
Professor Jahangiri was one of two surgeons excluded earlier this month after an internal report found a ‘toxic feud’ between two rival camps of surgeons had resulted in patient deaths.
The professor claimed the hospital was ‘an environment that appeared to be more interested in cover-ups and petty vendettas than patient welfare’.
Yesterday she asked the High Court for an order to lift her exclusion from St George’s University Hospitals NHS Foundation Trust with immediate effect.
Her counsel, Iain Quirk, said that despite being an extremely skilled surgeon, Professor Jahangiri had been treated in the ‘most outrageous’ way and targeted because of the ‘envy at her success’.
He told Mr Justice Nicklin she was excluded earlier this month on ‘the thinnest of grounds’ against the background of the Bewick report, an investigation into patient safety at the hospital.
There were claims of a ‘dark force’ in the troubled heart unit, the court heard. But Mr Quirk cited 14 complaints which had all been dismissed and alleged they were ‘motivated by those who are seeking to harm her reputation and standing, not least because she made whistleblowing disclosures’.
Jahangiri operates around 250 cases a year at St George’s Hospital in Tooting, South London
In April a package containing a dead animal and a decapitated doll was sent anonymously to Professor Jahangiri’s home address, The Times reported. ‘This was incredibly distressing for me and my family and I still feel traumatised whenever I receive a package,’ the professor said.
It came after she had expressed concern over the competence of her colleagues and added that the ‘vicious behaviour towards me was in retaliation for my actions’.
Mr Quirk said: ‘The inescapable conclusion is that this is a witch hunt – an attempt to pin the blame for the department on her.’
He added that Professor Jahangiri’s trainees – who said they would leave if she was not reinstated – were not being trained properly, the unit was dismantling her research and operations had been cancelled without patients being given a reason. Professor Jahangiri’s practice and reputation had been seriously harmed, the court was told.
‘Exclusion is the worst thing that can happen to a doctor, and for one of the country’s leading professors in cardiac surgery it is disastrous,’ added Mr Quirk.
Professor Marjan Jahangiri’s trainees said they would leave if she was not reinstated
Just two weeks away is enough to allow those complex skills to lapse, which is why she has never had more than two weeks off. Her practice has been decimated.’
Simon Cheetham QC, for the NHS Trust, acknowledged Professor Jahangiri’s clinical skills and what she had contributed in the way of research and training, and said there was no ‘vendetta’ against her. The much bigger issue was the state of the cardiac unit which had a knock-on effect on the Trust’s future as a major trauma centre.
The Bewick report had identified a unit ‘in crisis’ at St George’s but no-one was saying Professor Jahangiri was the source of the problems, he told the judge.
Her exclusion arose from an allegation that she impeded the conduct of a Trust-commissioned review by contacting a witness.
‘We say it was necessary because, if that was the claimant’s behaviour, it was bound to have an impact on the review being carried out,’ said Mr Cheetham.
It was necessary, he added, that the review was completed quickly and efficiently and maintained its integrity. The judge is to give his decision on Tuesday.
THE UK’S leading hospital safety expert has written to the head of NHS England demanding better protection for whistleblowers amid the Gosport scandal.
Solent News & Photo Agency
Dr Jane Barton is believed to be on holiday in Mallorca
Professor Sir Brian Jarman, director of the Dr Foster Unit at Imperial College, London, which analyses excess patient deaths, said whistleblowers’ concerns must be overseen by an independent body as part of “radical changes” to improve patient safety.
He composed his letter in the wake of a government report into Gosport War Memorial Hospital, which found 456 elderly people died there in a 12-year period after being given lifeshortening opioid drugs.
The families of those who died campaigned for years to lift the lid on the scandal, for which both the Government and the NHS have apologised.
The report found GP Dr Jane Barton, who worked at the Hampshire hospital as a clinical assistant, routinely over-prescribed drugs during the 1990s, but nothing was done despite warnings by hospital staff.
And Prof Jarman’s call was echoed by a former head of the trust which investigated the Gosport deaths, who claimed parts of the NHS were operating as a “totalitarian state”.
Prof Jarman, a former president of the British Medical Association, said new powers were needed to “guarantee whistleblowers are not penalised for reporting problems or abuses” and “any NHS manager who disadvantaged a whistleblower’s career should be fired on the spot”.
He said all whistleblowers – currently overseen by the NHS-run Care Quality Commission – should instead report to a separate independent body, adding: “The NHS should not be in charge of investigating its own problems because of the risk of bias. It must be seen to be independent.”
Prof Jarman, whose group uses NHS data to make the health service safer, said the scandal surrounding Gosport could be mirrored elsewhere in the country because whistleblowers are still blacklisted for raising the alarm.
The families of those who died campaigned for years to lift the lid on the scandal
‘At the moment whistleblowers are fired, gagged and blacklisted’
He said: “At the moment whistleblowers are fired, gagged and blacklisted. I fear similar abuses could be going on elsewhere and at the moment we cannot be sure they are not.”
His letter, which has been passed to the Sunday Express, states: “In the light of the Gosport Memorial Hospital report, I am writing to you regarding the large numbers of deaths in that hospital and the need to exclude the possibility that a similar situation is not occurring in other English hospitals. Many patients, bereaved relatives and whistleblowers are deeply frustrated that disclosures to the CQC have not resulted in change.
“On the contrary, if NHS staff whistleblow they may still be fired, gagged and blacklisted. A truly independent of the NHS investigation facility for learning from serious failures is needed. Radical changes are needed if NHS safety is to improve.”
His comments have been echoed by a former governor of the trust which investigated the Gosport death scandal, who said last night the NHS was operating as a “totalitarian state”, with whistleblowers routinely suppressed amid a climate of fear.
John Green told the Sunday Express patients would continue to die needlessly under defective systems and a “form of anarchy” over consultants’ clinical practice and responsibility.
He said: “The NHS is like a Stalinist dictatorship where families, relatives and clinicians have no say in an institution motivated by a drive to save money under incompetent management.
Relatives of Gosport patients demonstrate outside the General Medical Council in London
“The system is seriously broken and people are dying like faulty products off a production line.”
Mr Green, an ex-public governor of Southern Health NHS Foundation Trust, which took over responsibility for Gosport War Memorial Hospital, added: “Most people who work in the NHS are dedicated and caring, but because they work in such a dysfunctional management system, it is a shambles.”
Mr Green, who joined the board of Southern Health in 2012, long after the deaths but before the inquiry, resigned “in disgust” in 2016, angry at how the NHS was being run.
He is now part of a new drive to improve the reconstituted Southern’s performance and has sent a list of 17 potential NHS reforms to Health Secretary Jeremy Hunt and all MPs.
“We have to get this right,” Mr Green said.
“But the only people who are going to be able to create change are the public by demanding better standards and breaking up this totalitarian state.
“Southern are now involving customers at board level and in the design of services and that is the only way unnecessary deaths can be eliminated.”
Mr Hunt says tougher checks mean a repeat of Gosport is unlikely and Dr Henrietta Hughes, the NHS national guardian – a post that promotes a more open culture – said more than 6,700 cases were raised to keep patients safe and support staff over the last year.
Sir David Nicholson blamed for an NHS scandal which saw 1,400 patients die
The scandal took place while he was head of West Midlands Health Authority
In his new role he is the part-time chair of the failing Worcestershire NHS Trust
A controversial former head of the NHS has returned to a health service job just four years after quitting in disgrace.
Sir David Nicholson, 63, was held responsible for not taking action over the Mid Staffordshire hospital scandal where 1,400 patients died – while he was head of the West Midlands Health Authority.
Sir Nicholson was dubbed the ‘man with no shame’ by protesters, over his refusal to take responsibility for various NHS scandals, especially the neglect of patients at Mid Staffordshire NHS trust.
Sir David Nicholson, pictured, was the head of the West Midlands Health Authority during the Mid Staffordshire hospital scandal
He reportedly ignored warnings that patients were dying due to poor care at his former trust.
Nicholson, who earned £290,000 a year and left with a £2 million pension pot, has been advising private sector companies since retiring.
In his new role, he will get £40,000 a year as part-time chair of the failing Worcestershire NHS Trust, which has been placed in special measures by the Care Quality Commission.
His second wife, 20 years his junior, was one of his former trainees and is now chief executive at Birmingham Children’s Hospital.
Before retiring, Nicholson was also criticised over a £50,000-a-year expenses bill that included first class travel and the use of luxury hotels.
His new appointment has been slammed by those who called for him to quit as an NHS chief executive.
Julie Bailey, who lost her mum at Mid Staffs and exposed the scandal, said last night that she was ‘appalled’ by Nicholson’s appointment.
‘This man ignored the concerns that were raised about Mid Staffs and refused to meet the families of those who had died or been harmed by dreadful care. He will be good at balancing the books but will do nothing for patient safety.
The Mid Staffordshire hospital scandal saw 1,400 patients die with protesters blaming Nicholson for the disaster
Miss Bailey, who headed up the campaign Cure the NHS, added: ‘He left the NHS because of the shocking state it was in and now they are bringing him back
‘The chairman of NHS improvement recently talked about having a ‘morale compass’ over appointments and investigating managers who have done wrong. Now her organisation is bringing back the man who failed hundreds of patients.’
NHS safety campaigner Fiona Bell, who met Nicholson and challenged him over patient deaths at other trusts said: ‘Sir David was at the heart of the culture at Mid Staffs. As usual, the NHS recycle leaders that have failed patients and staff in hope that the public has forgotten past mistakes.
‘It beggars belief that some with such a disastrous track record is brought in turn around a trust that faces so many challenges.’
Gary Walker, former chief executive of United Lincolnshire NHS Trust, warned Nicholson that lives had been put at risk by unreasonable demands to meet targets, and said his concerns had been ignored by Nicholson.
NHS Improvement chief executive Ian Dalton – who gave Nicholson the job- acknowledged the Worcester trust ‘still faces many challenges’.
Julie Bailey (pictured) lost her mother in the scandal and has slammed Nicholson’s new appointment
Defending the appointment he said: ‘David brings huge expertise at both national and regional level. I know he is absolutely focused on improving patient care, and looking forward to getting underneath some of the difficult issues to see what positive changes can be brought about.
‘Making sustainable quality improvements and getting the trust on to a stronger financial footing will be priorities, working closely with the chief executive and wider leadership team.’
While there were some signs of improvement in accident and emergency performance this winter, the trust was still among the worst performers for ambulance delays.
Trust chief executive Michelle McKay said Nicholson’s ‘knowledge and understanding of the challenges we face in this trust and across the wider health and care system will, I am sure, be enormously helpful to our efforts to secure safe, high quality hospital services for the people of Worcestershire, as well as the work we are doing to move to a position of sustainable financial balance’.
Dr Peter Duffy outside his industrial tribunal in Manchester CREDIT: CAVENDISH PRESS/RICKY CHAMPAGNE
An NHS surgeon voted Doctor of the Year was forced to resign after being accused of racism for raising concerns about the abilities of three Asian colleagues, a tribunal has heard.
Peter Duffy, 56, reported one Indian doctor for missing “several” cancers, playing a round of golf when he had been called to treat a patient and being unable to use an ultra sound machine.
The married father-of-three also claimed that two other doctors, from India and Pakistan, had bungled operations, tried to “suppress discussion” over the avoidable death of a man who had had sepsis and were involved in possible overtime fraud.
But Mr Duffy, a consultant urologist, said he was subjected to “malicious, toxic and utterly false” allegations over a ten year period working at Royal Lancaster Infirmary (RLI) and was warned to “watch his back” over his whistleblowing.
It was claimed that one of the doctors vowed he would be “taught a lesson,” while another was said to be “spitting blood” after being suspended.
He claims he was “brutally driven out” by colleagues intent on revenge.
Peter Duffy claims he was forced to quit his job at the RLI CREDIT: CAVENDISH PRESS/MIKE SWARBRICK
In 2015, Mr Duffy transferred to Furness General Hospital, Barrow, where he was voted “Doctor of the Year by patients and colleagues at Morecambe Bay Hospitals NHS Trust.
He was said to have streamlined the care of urology patients and reduced waiting lists to a level that had “not been seen for a considerable time prior to his arrival”.
He was also praised for treating all members of the team equally, “getting stuck in, even mopping the floor between theatre cases.”
But that year, consultant Saleem Nassem, one of the RLI doctors he had complained about, was appointed co-clinical lead for the trust’s urology department.
He claimed that one colleague told him: “You’ve made enemies here. They’ve got the means, the motive and now the opportunity to finally get shot of you.”
Mr Duffy resigned in 2016 complaining that his pay had been cut amid unproven allegations about his own overtime hours.
He is claiming constructive dismissal, alleging he was the victim of a “witch hunt.” He said on his last day senior managers “treated him like he’d got the Ebola virus.”
In a statement given to the Manchester industrial tribunal, Mr Duffy, from Lancaster, said he had been the victim of a “sustained campaign of victimisation, vilification and disinformation.”
“I firmly believe and was warned by colleagues that the campaign waged against me was one of retaliation for my protected disclosures,” he added.
“I was clearly threatened, abused, victimised and briefed against by those individuals who did not share my belief in a high quality clinical service in the best traditions of the NHS and who clearly felt threatened by my protected disclosures.”
Peter Duffy receives his Doctor of the Year’ awardCREDIT: CAVENDISH PRESS
Mr Duffy said that since his “forced resignation” he had discovered that anonymous allegations were made to police suggesting he was a racist bully and that all ethnic minority doctors at the hospital were “in fear of him,” it was said.
A secret meeting was also allegedly held without Mr Duffy’s knowledge in which he was accused of racism by the three consultants, Kavinda Madhra, Ashutush Jain and Saleem Nassem. None of the claims were substantiated.
He added in his statement: “It is difficult to overstate the sheer toxicity of these utterly false allegations. I was warned in my first few months in the Trust that I must at all costs avoid an allegation of racism against me.
“I was told that such allegations, even if entirely unwarranted can destroy careers and that the NHS tended to regard racism allegations as “guilty until proven guilty”.
The urologist, who now works for a hospital on the Isle of Mann, said he had been left “extremely traumatised” by his treatment and felt unable to work for the NHS again.
First time in history, a play was performed covering stories of whistleblowers with audience participation in order to educate and raise awareness.
They were represented from UK, Italy and Romania
The play covered stories of 7 whistleblowers:
Ciro Rinaldi, Ornella Piredda – from Italy
Eileen Chubb, Sharmila Chowdhury and Ian Foxley – from England
Liviu Costache, Alin Goga and Glaudiu Tutulan – from Romania
The play was held at National Radu Stanca theatre in Sibiu, titled, ‘Oameni Obisnuiti’, which translated means ‘common people’, because the play was about ordinary people who had decided to speak up and as a result faced detriment.
May Hendry, a dentist based in Troon, won her employment tribunal against NHS Ayrshire and Arran (Pic: Colin Mearns)
A RESPECTED dentist who successfully sued her health board after she was victimised for exposing misconduct has revealed that her legal costs outweigh her compensation despite a damning judgement against the NHS.
Dr May Hendry and her solicitor, Stephen Miller, said the case underlines how difficult it is for ordinary members of the public to pursue legal action against the “unlimited budgets” of the NHS.
Dr Hendry, 57, was vindicated at an employment tribunal against NHS Ayrshire and Arran in 2017 in a determination that condemned senior executives for trying to cover up wrongdoing.
Dr Hendry was awarded £80,000 damages for constructive dismissal but this will be slashed after tax, and she also incurred £85,000 in legal costs and expenses.
Whereas successful claimants in negligence cases are entitled to have their legal costs reimbursed this does not apply to employment tribunals, posing a major obstacle to staff who may wish to raise grievances for workplace bullying or harassment.
Although Dr Hendry, a part-time dentist in Troon, will have some her legal fees covered by insurance, she is still liable for much of it personally. Many NHS staff will have no insurance at all.
Mr Miller, a specialist employment lawyer at Clyde & Co, said NHS A&A had also wasted around £90,000 of taxpayers’ money on a case they were certain to lose.
He said: “The evidence against them was overwhelming, but the board were able to pursue a case knowing that the worst they could lose was £70-80,000 and even if the case took twice as long they wouldn’t have to pay May’s costs.
“So there is a definite point that goes well beyond May’s situation, which is that one of the dangers is that even if you win hands down you could end up having to nurse your own legal expenses.
“There was astonishing misbehaviour at the heart of the board and this is the thing that infuriates me about it, because they obviously thought they could get away with this.
“I’m not going to say I’ve never seen that kind of thing before, but I would say it’s one of the worst examples I’ve seen.”
In addition to working as a dentist, Dr Hendry had been a Dental Practice Adviser (DPA) for the health board since 2001. In this role, she was responsible for ensuring practices delivered dental services properly.
However, she resigned in 2016 when bosses – including chief executive John Burns and medical director Alison Graham – failed to support her against false allegations about her behaviour, which they knew to be untrue, from dentists Michael Morrow and Donald Morrison.
Dr Hendry had been involved in investigating Dr Morrow over concerns about his clinical care and allegations he had restricted NHS work at a former practice, in breach of regulations, meaning patients had to pay for treatment. He was subsequently issued with a published warning by the General Dental Council.
Mr Morrison also raised false complaints against Dr Hendry after a probe by NHS Scotland Practitioner Services uncovered “widespread misclaiming” at his Quadrant Dental Practice in Ayr.
The investigation initially indicated as much as £300,000 had been misclaimed for gold crowns and other treatments never used on patients, although this was later revised down to £85,000, some of which is still being recovered.
The judgement criticised an “unseemly eagerness” by senior NHS executives to “dance to the tune of the complaining dentists”, while sidelining Dr Hendry.
For example, Ms Graham – who had previously worked with Mr Morrison’s father but failed to disclose this conflict of interest – instructed that “there was to be no criminal investigation” into misclaiming.
Dr Hendry said the case was not about money for her but doing “what is right for patients”.
She said: “I was delighted that justice was done and the judgment found so decidedly in my favour.
“Despite all the upset which the senior officers at NHS Ayrshire and Arran caused me, I am also pleased that they all made it very clear in their evidence that they had never doubted my honesty or integrity and that nothing in my employment could be called into question.
“I will however, always find it scandalous that I was treated in the way I was for simply doing my job diligently; a job that included protecting patients and the public purse.”
Patrician Leiser, HR director for the health board, said: “It is regrettable when a long-standing employment relationship breaks down and an employee chooses to submit a complaint to an Employment Tribunal.
“There were two parts to Mrs Hendry’s Employment Tribunal case against the Board – a whistleblowing case and a constructive dismissal case.
“Unfortunately, attempts to resolve the concerns raised by Mrs Hendry outwith the tribunal process proved unsuccessful.
“The legal costs incurred in defending the claim (£86,151.07) were in proportion to the length of the hearing, which defended both aspects of the claim and resulted in dismissal of the whistleblowing case.
“NHS Ayrshire & Arran was disappointed by the finding of unfair constructive dismissal, but accepts the decision of the Tribunal.”
Staff who blow the whistle will get more protection to ensure they are not victimised for disclosing bad practice CREDIT: PA
NHS whistleblowers will be entitled to compensation if they are stopped from getting new jobs in the health service because of their disclosures, the government will announce today.
Last year a Telegraph investigation found that those who won tribunals after blowing the whistle were being effectively blacklisted from future jobs in the NHS because staff records wrongly said they had been dismissed.
Whistleblowers also claim they have been barred from positions, despite being fully qualified, because they are viewed as troublemakers.
But under new proposals announced on Monday jobseekers who believe they are suffering such discrimination can take NHS bodies to tribunal, even before they have worked for trusts. If upheld, they will be entitled to compensation.
Jeremy Hunt will announce that whistleblowers can take the NHS to tribunal if they are denied workCREDIT: PA
Jeremy Hunt, the Health Secretary, said: “Today we move another step closer to creating a culture of openness in the NHS, where people who have the courage to speak up about patient safety concerns are listened to, not vilified.
“These welcome changes will prohibit whistleblowers being discriminated against when they seek re-employment in the NHS, ultimately ensuring staff feel they are protected with the law on their side.”.
Last year Sir Robert Francis published a review which found a number of people struggled to find employment in the NHS after making disclosures about patient safety.
Sir Robert warned of a culture of ‘fear, bullying and ostracisation’ within the NHS that punished doctors and nurses who exposed failings.
He said whistleblowers were derided as ‘snitches, troublemakers and backstabbers’.
Jennie Fecitt at home in CheshireCREDIT: JON SUPER, TELEGRAPH
Last year a former NHS human resources director told The Telegraph that staff records were being used to blacklist whistleblowers.
She said that anyone whose record states they have been dismissed from a previous role “would find it very hard to get work”.
Jennie Fecitt, who was dismissed from her post as a senior nurse at a walk-in centre in 2010, after raising concerns about a nurse who had lied about his qualifications.
Ms Fecitt went on to win an unfair dismissal case against NHS Manchester, which found she had been bullied and victimised by her colleagues.
But she later discovered that her employment record continued to state her reason for leaving as “Dismissal – Some Other Substantial Reason”.
Ms Fecitt, who went on to become the director of the whistleblowing organisation Patients First, said that many of her 200 members have reported problems with their staff records, and believe these are preventing them from finding work in the NHS.
The announcement comes ahead of a speech by Mr Hunt at the Learning from Deaths conference which is bringing together senior NHS leaders to find better ways to investigate complaints and learn from the death of patients.
A consultation on the new proposals is now open and will run for eight weeks, closing on 12th May 2017.
Quit profession: Caroline Hadley told the court that “teaching was my life” NEV AYLING
A former teacher who endured years of bullying by her headmistress is suing for £700,000 in damages
Caroline Hadley, 40, was the assistant headteacher of Gearies Primary School, Ilford, working under Anupe Hanch.
Ms Hadley’s barrister Andrew Buchan said she was “exposed to a hostile working environment” over a four-year period and bullied between June 2010 and July 2012. She became “a direct target” after successfully steering the school through an Ofsted inspection, Central London county court heard.
Mrs Hanch “undermined her career” by branding her a “rogue member of staff”, Mr Buchan claimed. She told the school finance officer that Ms Hadley “could not be trusted”, spread gossip about her and asked the caretaker to lie about her behaviour, the court heard.
Mrs Hanch was eventually suspended and in May 2015 was found guilty of unacceptable professional conduct by the National College for Teaching and Leadership, said Mr Buchan. The panel found she said she would like to “chop off” a colleague’s head and once locked a teacher in an office for three hours.
She was dismissed and, in June 2015, barred from teaching for life by the Government. Ms Hadley became head of a primary school in Camden but suffered depression and quit the profession, the court heard.
She returned to her native Lancashire, where she cares for her mother. She is now suing the borough of Redbridge, which runs Gearies Primary School, over the bullying and harassment. The council has admitted breach of duty but is disputing the amount of compensation due to her.
Visibly upset in court, Ms Hadley said: “Teaching was my life… I tried going back several times and fought so hard for my career. But desire doesn’t have anything to do with it — there’s no way I could ever go back to teaching now.”
However after hearing all the evidence over two days, Judge Heather Baucher highlighted problems in the preparation of the case and directed a re-hearing of the claim.
She told Miss Hadley: “It’s not a decision which a trial judge takes lightly. I know it’s very distressing for you, but it’s the right way forward.”
The case is expected to return to court in September.
Mrs Hanch, 53, had no part in the case and was neither present nor legally represented in court.
A healthcare company and its managing director have been found guilty of misleading The Pensions Regulator (TPR) about providing their staff with a workplace pension.
Birmingham-based Crest Healthcare and managing director Sheila Aluko admitted recklessly providing false or misleading information to the regulator and wilfully failing to comply with their automatic enrolment duties before Brighton Magistrates’ Court yesterday (7 March).
Ms Aluko had lied to The Pensions Regulator in March 2016 about informing and enrolling 25 staff into a workplace pension scheme.
But in reality, the court heard, the employer had not written to or enrolled any staff, it had not even fully set up a pension scheme and no pension contributions were paid.
What is more, Crest began deducting pension contributions from the wages of some workers but kept them in the company’s bank account and did not pay them into a pension scheme for more than eight months, the court heard.
It was only after a whistleblower raised the alarm that the pension scheme was set up and the contributions were paid in.
Darren Ryder, The Pensions Regulator’s director of automatic enrolment, said: “Sheila Aluko tried to conceal her company’s non-compliance by hiding behind false information and misleading her staff that their pensions were up and running.
“It was only after we intervened that the employer finally complied with its duties and provided its staff with the workplace pensions they were entitled to.”
He said the case should send a “clear message that it is unacceptable to dodge your pension responsibilities” and that further action would be taken against anyone failing in their duties.
Crest Healthcare and Aluko each pleaded guilty to one charge of knowingly or recklessly providing false or misleading information to the regulator and two charges of wilfully failing to comply with their automatic enrolment duties.
Both charges carry a maximum sentence in a magistrates’ court of an unlimited fine.
If tried in a Crown Court the maximum sentence for each offence would have been two years’ imprisonment.
The case was adjourned for sentencing until 15 May.
The independent review by Dr Bill Kirkup into events at the trust between 2010 and 2014 shows the root cause of the trust’s problems was an inexperienced and bullying leadership obsessed with achieving foundation trust status, irrespective of the effect on patients. This toxic culture seeped into every part of the organisation, breaking the morale of frontline staff and inflicting serious clinical harm.
Those brave enough to raise concerns risked bullying, harassment and suspension.
It was a dysfunctional organisation from the moment it was created in 2010 with an inexperienced and inadequate management team. Two clinical commissioning groups and NHS England pushed it to achieve significant savings, which had a serious cumulative impact, but the trust made matters far worse with self-imposed cost cuts in pursuit of its managers’ dream of foundation status.
Kirkup points out that achieving annual cost improvements of 4% is the outer limit of what can reasonably be achieved; Liverpool tried to deliver a 15% cut in one year, apparently oblivious to the risks.
Governance was a mess. At times the finance director was responsible for clinical quality and the nurse director was the chief operating officer, so no one was championing patient care.
Staff tried to keep services going but morale collapsed and sickness absence rose. Pressure sores, falls and extractions of the wrong teeth were among the consequences. Reporting of serious incidents was discouraged. Middle managers under pressure to do the impossible lashed out at junior staff. There was a climate of fear, intolerance, disbelief and insecurity.
HR records reveal appalling treatment of staff, including arbitrary disciplinary processes and prolonged suspensions without reason. It was not uncommon to see staff crying in the car park.
Among the most egregious examples of abuse were the so-called scoping meetings, supposedly convened to investigate safety incidents. In practice they were “an interrogation and a frightening experience”. Staff reported feeling physically sick beforehand and approached them with trepidation. Across the organisation shouting and finger-pointing became the norm.
In what appears to have been an attempt at empire building, the trust took on responsibility for health services at Liverpool prison – which was recently condemned by inspectors as having the worst conditions they had ever seen. The trust’s failures in the prison harmed more patients.
Liverpool’s board discussed severe cuts to its workforce – notably nursing – at the same meeting it considered the findings of the Francis inquiry into Mid Staffordshire, the lessons from it apparently eluding them.
The strategic health authority failed to spot the problems. Subsequently the NHS Trust Development Authority identified concerns, then inexplicably reversed its assessment. The Care Quality Commission also failed to identify the problems until it was alerted by local Labour MP Rosie Cooper after staff spoke to her.
The trust has been broken up, but the lessons from its collapse need to live on. It shows again how, controlled by an oppressive culture pursuing unrealistic financial goals, an organisation can quickly mutate into one that harms the very people it is there to serve.
Senior clinicians need to keep a clear focus on their professional responsibilities and not be swayed by board denial or groupthink.
Non-executives need to get out from behind their board papers and keep in close touch with staff and patients. They are there to offer constructive challenge to the trust leadership, not to assist them in pursuing impossible goals.
But above all, the Liverpool scandal demonstrates yet again that an open culture which listens to staff needs to be at the core of every NHS institution. Instead, dissent was crushed and a culture of denial allowed patient harm to proliferate. A cursory glance at the annual staff survey would have been enough to reveal that something was badly wrong.
If staff do not feel able to speak up, something is rotten at an organisation’s heart.
Cuts at Liverpool Community Health NHS Trust caused ‘unnecessary harm’
But its former chief executive and chairman were allowed new NHS jobs after
Health Minister Stephen Barclay has announced review in response to news
Health chiefs who cover up serious failings could be banned from taking another NHS job.
The move to end the ‘revolving door’ scandal comes after it emerged that two bosses who ran a failed trust where patients suffered ‘significant unnecessary harm’ have found new health service roles.
A damning independent report has said that the board of Liverpool Community Health NHS Trust was ‘out of its depth’ when it launched a misguided cost-cutting drive.
The cuts left pensioners suffering crippling bed sores and fractured hips from needless falls, while others had the wrong teeth taken out.
Despite these failings, the former chief executive and chairman of the trust are still working directly or indirectly for the NHS.
And it was reported last night that regulators even helped the chief executive find another six-figure NHS job.
In response, Health and Social Care Minister Stephen Barclay will announce a review of the ‘fit and proper person’ test.
It was brought in following the Mid Staffordshire scandal, in which hundreds of patients died needlessly amid appalling failings in care.
He wants to see it toughened up to end the ‘revolving door’ controversy – where failed executives are shifted into other parts of the NHS – once and for all.
Liverpool Community Health (LCH) runs elderly care, walk-in centres and dentistry services for about 750,000 people on Merseyside.
The report by Dr Bill Kirkup, which was commissioned by the NHS Improvement quango, found the board attempted to ‘conceal’ the problems.
And whistleblowers who attempted to expose the truth were bullied.
The report said standards at LCH deteriorated dramatically after managers attempted to cut costs by 15 per cent in a single year in an attempt to chase foundation trust status.
Chief helped into fresh post – by watchdog
Bernie Cuthel (pictured) stepped down as chief executive of Liverpool Community Health NHS Trust in 2014 over her failings, but she walked into a new NHS job soon after
Bernie Cuthel, the £130,000-a-year chief executive of Liverpool Community Health NHS Trust, stepped down in disgrace in 2014 after her failings were exposed.
But she walked into a new NHS job soon afterwards and regulators helped her to get the position.
Emails seen by the BBC show that the Trust Development Authority, an NHS regulator, found her a position at Manchester Mental Health and Social Care Trust on a 12-month secondment.
The TDA also provided her with ‘coaching support’, and said ‘the secondment would provide her with a period of rehabilitation, enabling her to reflect on learning from her experiences in Liverpool’.
Her salary at Liverpool was reduced by 10 per cent in Manchester because she was no longer in an executive position.
Now she works at the Betsi Cadwaladr NHS board in North Wales. She is also on the governing body of Nugent, a charity in Liverpool that offers a range of services to children and adults.
This makes a trust semi-independent of Department of Health control and gives boards greater power over their finances and the setting of executive salaries.
The report found that LCH was a ‘dysfunctional’ organisation.
In an echo of the Mid Staffs scandal, the report said LCH had acted ‘inappropriately’ in pursuit of foundation trust status – setting ‘infeasible financial targets that damaged patient services’.
Dentistry budgets were cut by 44 per cent and 50 district nurses were made redundant.
Dr Kirkup’s report said the senior leadership at the trust did not realise it was ‘out of its depth’.
It added: ‘Staff were overstretched, demoralised and – in some instances – bullied. Significant unnecessary harm occurred to patients.’
Dr Kirkup said the chief executive and chairman of the LCH board were in ‘denial’ about their role in the affair between 2010 and 2014 – and had refused to co-operate with the review.
Bernie Cuthel, the chief executive, resigned after the failings were exposed.
But emails seen by BBC News show that the Trust Delivery Authority, an NHS regulator, found her a position at Manchester Mental Health and Social Care Trust on a 12-month secondment.
Chairman Frances Molloy is now boss of the Liverpool-based Health and Work charity, which has contracts with the health service.
Every LCH board member bar one refused to co-operate with Dr Kirkup’s inquiry. Mr Barclay is set to refer all of them to the Care Quality Commission regulator to see whether they fill the ‘fit and proper person’ test.
Shamed exec got new health deal
Frances Molloy stepped down as chairman of Liverpool Community Health NHS Trust in 2015 – a year after failings at the trust were exposed.
She now runs a Liverpool-based charity that has contracts with the NHS.
Her Health at Work organisation provides experts in improving health in the workplace, reducing absence and staff turnover.
The charity describes her as its ‘inspirational and influential’ chief executive.
The organisation’s website says its delivers ‘public sector contracts for NHS commissioning groups and Public Health England’.
Mrs Molloy lost her son Michael, 18, in a coach crash in 2012. She campaigns for changes in the law to stop buses and coaches using old tyres.
Sources said he believes it is wrong that people who tried to cover up the scandal, continued to deny it was a problem and then refused to co-operate with the official review into the failings should be allowed to work in the NHS.
Mr Barclay will also ask Dr Kirkup to consider whether the test should be rewritten to make it clear that such people should not be able to work anywhere in NHS England – or for any companies which supply it.
Rosie Cooper, Labour MP for West Lancashire, was instrumental in forcing an investigation into the failing trust after nurses looking after her father complained about their managers.
Last night she agreed that ‘faceless NHS bureaucrats’ responsible for serious failings should not be allowed to walk straight into another NHS job.
‘It is time for the ‘fit and proper person’ test to be significantly strengthened to prevent this happening,’ she added.
LCH declined to comment. It is now in the process of being wound up, with most services passing to another NHS trust, MerseyCare, in April.