Daniel Barnett’s Employment Law Bulletin:
‘A qualifying disclosure will normally be protected, for whistleblowing purposes, if made to the employer. It will also be protected if made to a ‘prescribed person’ and is within their remit, and if the information disclosed within it is substantially true.’
The Government has updated its list of prescribed persons, to whom a protected disclosure can be made.
Sharmila Chowdhury is an NHS whistleblower who reported consultant fraud in an NHS hospital and was dismissed as a result. The case is about as shocking as any I’ve come across.
Ms Chowdhury reported fraudulent professional claims (amounting to £280,000) to her senior management in an NHS Trust. The report was fully evidenced, but in a pernicious cover-up, false counterclaims were used to frame her. She was marched out of the hospital in full view of her colleagues by a senior HR manager – and then dismissed.
She quickly took the claim to a Tribunal, and won easily: the judge instructed the Trust to reinstate her, but its management refused…offering the convenient excuse that ‘new technology’ had rendered her post redundant. Short of funds and unemployed, Sharmila Chowdhury settled for a sum which barely covered her legal fees.
At Richmond House in June 2014, Chowdhury and six other similarly bullied…
View original post 1,047 more words
An NHS whistleblower has joined patients’ relatives to call on the boss of Walsall Manor Hospital to resign after inspectors said it should be placed into special measures.
Dr David Drew, who raised concerns over standards of care and was later sacked from the hospital, said Walsall Healthcare NHS Trust chairman Ben Reid had failed to address problems.
Dr Drew said: “Concerns the Care Quality Commission highlights are a heavy-handed management style, poor leadership, and not taking note of staff concerns.
“These are exactly the issues I was raising with the trust more than five years ago and nothing has changed. Serious questions have to be asked why the chairman has made no impression in this time.
“The last trust board meeting I attended in 2014 left me believing this was a board that could never make things work. There needs to be new blood to deal with the heavy-handed middle managers.”
The trust is set to be placed into special measures after it was rated as ‘inadequate’. The CQC report published yesterday said bosses had no plan how to recover from its £12 million deficit and there was a heavy-handed approach bordering on a bullying culture from senior management and, in some cases, at board management level. It also said hospital bosses failed to appreciate the level of risk patients were put at.
Calls for Mr Reid, who is chief executive of The Mid Counties Co-operative, to resign have also been backed by Chirs Humpage, whose mother Audrey died aged 70 after being misdiagnosed with cancer.
Mr Humpage said: “I am not surprised it has gone into special measures, but I am surprised to see this sort of action from the CQC.
“I think it is justified having experienced what we did and the number of other cases we have heard of. It is now time for Ben Reid to resign – we as a family found his approach completely inappropriate. Something needs to be done. There are many things going wrong at the hospital. Parts of it are very bad.”
Tracey Ankrett, whose son Mark died at the hospital in 2013, repeatedly raised concerns about his care.
She said: “I am relieved it has been put into special measures because it is about time. But I am also angry it has taken this long. A previous report found problems with note taking – something that was a concern I raised with my son.
“Had something been done then, it may have saved a lot of suffering.”
Mr Reid said: “The CQC rating affects all of us associated with the trust and our task is now to step up the progress made so far so that the significant changes that are needed happen as quickly as possible.”
New Statesman 15 January 2016
There’s a bigger story than just pay and conditions, warns Benedict Cooper.
BY
BENEDICT COOPER
On a bitterly cold afternoon in Nottingham’s Old Market Square, a group of junior doctors stood shivering together, banners in hand, pleading with the people hurrying by in thick winter coats and scarves to listen to their reasons for why they and colleagues throughout England are on strike. A few stopped, tapping their feet in the chill air; some even signed their petition.
On the surface it’s about pay. But there’s something more serious going on – a lesson we ignore at our peril. Doctors are deeply concerned about safety on the wards. Why do they feel they have to take to the streets to tell people, rather than going through the official channels? Because that’s a dangerous game as well.
Take the case of Dr Chris Day. When Day qualified in 2009, the idea that he was destined to cross swords with the Secretary of State for Health would have seemed ludicrous. Now he is embroiled in a dispute with the highest levels that has implications for the future of the controversial, and often misunderstood practice of ‘whistleblowing’.
It all started one night back in January 2014. Day was working through the night on ICU at Queen Elizabeth Hospital, part of Lewisham & Greenwich NHS Trust. When two locum doctors failed to turn up to work on another ward, Day found himself dangerously stretched having to treat critically ill patients outside of ICU. Under what’s known as ‘protected disclosure’, he raised the matter and urged his manager to find locums ready to come in. It sounds innocuous enough – it’s been anything but since. Why? Because his case has revealed a major flaw in the system; a flaw that has cost him dearly. Unlike almost every other branch of the medical profession, junior doctors aren’t protected when they blow the whistle in the way Day did that night.
As they progress through their post-medical school training on the way to consultant level, junior doctors find themselves in the invidious position of being on a series of temporary contracts with whichever trust they are working for, usually only for a year at a time, with Health Education England (HEE) – formerly the Post Graduate Deanery – overseeing the whole postgraduate programme. The problem comes when they encounter an issue, the type Day raised the alarm over. If the trust in question doesn’t like what it’s being told it can make life very hard for a whistleblowing doctor – 17.3 per cent of NHS staff that speak out are victimised, according to Sir Robert Francis’ Freedom to Speak Up Review.
Then if they want to defend themselves they fall between two stools. As employees on a temporary contract with the trust they are not covered by the sort of protections that a formal employment arrangement would give, while HEE, technically an education body but with ultimate power over long term employment, is not bound by the so-called ‘catch-all’ 43K employment laws which protect nurses and agency workers, but not doctors. This is what makes Day’s case so pivotal. If it fails, it will set a precedent that any unfair dismissal claims are impossible for the majority of doctors below consultant grade.
Two years of legal battles have led Day to launch an appeal to the public for support in the next, and hopefully final clash with HEE and Lewisham & Greenwich trust over this crucial gap that is preventing his case being heard. This, he says, doesn’t just affect his own career path, but the whole future of the notion of transparency in the NHS. Day is arguing that HEE and the Department for Health are leaving 54,000 junior doctors out in the cold, refusing to provide protections for whistleblowers, effectively intimidating them into silence.
“It’s about so much more than just my career,” he tells me. “I’m thinking about the big picture. They are using taxpayer money to stop part of a court case being heard, and they will do the same to other doctors as my appeal will be binding on all other junior doctors bringing whistleblowing claims. If I can secure 43K status for deanery doctors they will be free to act in their patients’ best interest.
“My protected disclosure isn’t about someone writing a letter after the event, it’s more fundamental than that, it’s about a doctor being able to speak freely and openly in real time.”
His case has gained traction online, with the Crowd Justice campaign alone gaining 5,000 supporters in one week over Christmas. And despite the pressure – at one point he was up against four separate law firms appointed by the NHS, HEE and Jeremy Hunt – he has taken it to the highest levels. If there was ever any question over what the government’s quiet removal in 2012 of the ‘duty of care’ from the Health Secretary’s remit was going to mean in practice, that has now been answered.
“Hunt has used the Care Act and the Health and Social Care Act to run a mile from this,” says Day. “He has denied legal responsibility over something that he has power over, but he’s always talking about patient safety. I think he and the HEE thought they would never be taken to court over this.”
One of Day’s supporters is litigator Peter Stefanovic, a prominent voice against the government’s handling of the junior doctor contract dispute. He says that the way Day and other doctors are being handled when they raise concerns is “nothing less than bullying”.
He tells me: “Chris and his family have been through hell because he had the courage one night to stand up and say ‘this is not safe’. Everyone should be getting behind him. He’s being fought with taxpayer money; we are all paying out of our own pockets to create a culture of fear among doctors.”
And Day’s solicitor, employment specialist Tim Johnson of Tim Johnson Law, argues that the case raises an even more fundamental issue, about the ways in which the government has changed its relationship with doctors.
“It’s a classic case of power without responsibility”, he says. “The government talks about its contract with junior doctors. The reality is that it has made sure it doesn’t have a contract with junior doctors. It puts them on a series of one-year placements with the hospital trusts. As a result junior doctors lose basic statutory rights, for instance the right to claim unfair dismissal. The relevant government agency is arguing in Chris’s case that they also lose whistleblowing protection. “
“In short, the government wants to treat junior doctors like agency workers – tell them how many hours they work and how much they are paid, but it doesn’t want to hear from them about what’s going on in the wards.”
With the removal of the duty of care from the Secretary of State, and the lack of a proper contract for junior doctors, it’s not just people like Day that have been left out in the dark: the health system itself has been left in a no man’s land. Junior doctors feel betrayed, insecure and stretched beyond what’s safe for them or their patients. The few that do have the courage to speak out about safety very quickly find themselves in hot water, with insidious threats about their future career being made.
When Day’s case comes before the Employment Appeal Tribunal (EAT) on February 10, it will be a key moment, potentially affecting the future safety of all NHS whistleblowers. If HEE can argue that it doesn’t have responsibility to protect him, then the current limbo-status of junior doctors will remain; if he wins, it could set a precedent that the organisation is bound to support them better.
Ostensibly the current dispute is over terms and conditions of pay. But as one junior doctor tells me, it is part of a culture of fear and intense pressure, of which the lack of whistleblowing protection is one element. She says: “This strike is about patient safety; I have had two colleagues break down in tears at work in the last two weeks, and I have often worked through migraines.
“That’s just not safe, but we can’t speak out. This strike isn’t just about pay; this is us blowing the whistle.”
ON Wednesday, a new group set up to protect patients will be launched at the Scottish Parliament.
ASAP-NHS (Action for a Safe and Accountable People’s NHS) is calling for wholly independent regulation of the Scottish health service, protection and proper treatment for those who raise concerns, and accountability of health boards.
Here, top doctor Jane Hamilton, who says her whistle-blowing left her exemplary career in tatters, talks frankly about her reasons for helping to launch the group and her devotion to colleagues, patients and families who are left with nowhere to turn when the NHS fails them.
JANE HAMILTON welcomes me with her gentle Mancunian lilt.
She is about to open her heart on an eight-year nightmare she says cost her her job and reputation, robbed her of precious moments with her dying mother and took a harrowing toll on her own health.
The whistle-blowing consultant perinatal psychiatrist – a once-respected leader in her field – has the time to talk. She has retired at 55 after deciding her career in Scotland is over.
Dr Hamilton lost precious time with her mum who had been diagnosed with breast cancer, but she says she has no regrets. (Colin Mearns)
She says she took stress-induced sick leave and eventually lost her job at the Mother and Baby Unit at St John’s Hospital in Livingston after telling bosses the unit was badly run and patients were at risk – warnings she claims went unheeded. Two women and a baby were later reported to have died.
“My mum was ill in Manchester with breast cancer while this was going on and I wasn’t able to see her for several weeks – the longest we had been apart,” the doctor reveals.
“She was so worried for me and so supportive. I felt that I couldn’t ask for compassionate leave because I had to watch my back all the time.
“She died in 2010. It shouldn’t have been that way. I regret the time we lost.”
There is a poignant silence.
It is broken by one final question. “Would you do it again?” I ask. And if I’d expected to find her bitter, I’m wrong.
Brightening, she gives an emphatic: “Yes. Definitely. It was a nightmare, but I’d go through it all again. How could I not? Fortunately, throughout all of this, I have never lost my moral compass.”
The woman whose vocation made her delay having her two children until she was in her late 30s, is relaxed as she relives her ordeal.
“It was a horrific time but I’m not bitter,” she smiles. “I may not have been able to end my career in the way I wished, but I am alive and now well. I have a family life that I love.”
Her smile fading, the doctor says the most important of all are the patients who died or suffered.“That will forever be on my conscience,” she says.
The health board insists Dr Hamilton’s concerns were thoroughly investigated by independent experts who found they were “unsubstantiated”. They say the service at St John’s is safe and that Dr
Hamilton could have raised concerns as part of a review in 2008 and chose not to.
But the doctor is sticking to her guns. Dr Hamilton – the lead clinician in the unit – claims: “This was a new service, the people in it didn’t have the level of experience and training necessary and this led to risks in patient care. They were well-intentioned but needed help.
“Staffing levels and the experience of the team were not comparable to other UK units. Clinical decisions were undermined with some nurses failing to give medication I prescribed or failing to
follow patient treatment plans. Note-taking was inadequate, there were disagreements about who should be referred, when and why. And there was no formal cover for my leave periods.”
Jane moved north from Sheffield with her family in 2007 after she was appointed to the unit which has six in-patient beds and a community service for pregnant women and new mums with mental health problems.
Her reputation in the care of mothers with severe psychiatric problems had already been recognised when she was asked to help draw up the UK guidelines before her appointment in Scotland.
By the end of 2007, she had told local managers she was worried about how the unit was being run. Shortly afterwards she warned in writing that patients could die.
She claims: “I knew what the risks were and knew what we should be doing about them but the feeling I had was that no one wanted to hear what I had to say.
“It was like they were pretending I wasn’t there.
“I could not care for my patients safely and it was at that point that I implemented the whistle-blower procedure.”
Two women patients were reported to have subsequently taken their own lives. The family of one is now suing the health board for medical negligence.
Late last year, there were further reports of a vulnerable mother leaving her baby in the unit, before getting out and being knocked down on the road, in what some believe was a suicide attempt.
NHS Lothian said that there had been fewer than five serious incidents which could result in the harm or death of a patient since the unit was established.
By Christmas of 2008 – before those tragedies unfolded – Jane went off sick.
She claims: “I knew something terrible could happen. I felt like I was the only one who could keep the service going safely but I was in the position that if something went wrong, I could be blamed.
“Some of our patients were extremely ill and could kill themselves. The stress made me physically ill. I was depressed, suffered migraines and anxiety and was grinding my teeth so badly my fillings came out.
“A week after I went off sick, a formal complaint about my clinical work came in from a team leader and I had to go through a complaint procedure.”
According to Dr Hamilton, a preliminary hearing held about a year later found nothing wrong with her clinical work, but she was told she could not go back to her post.
A more recent investigation by NHS Lothian, which is not to be published, is understood to have found no fault with Dr Hamilton’s professional abilities or actions.
And it later emerged in a Freedom of Information request that the cost of covering her post with locum doctors between January 2009 and the end of March 2014 came to more than £1 million.
She then worked for two years in Edinburgh before taking on a role in perinatal psychiatry in Yorkshire for seven months, while continuing to fight for a return to her MBU post.
Mediation between her employers and unions followed and she claims she was offered a settlement to leave which came with a gagging clause – an allegation staunchly denied by NHS Lothian.
She refused and sought the services of an employment lawyer at a personal cost of £80,000.
“It was very worrying,” says Dr Hamilton, who in 2014 was elected to the Royal College Executive Committee for Perinatal Psychiatry.
“We didn’t have that kind of money put aside. We had two children to fund and a mortgage to pay so we had to borrow.”
The doctor says she finally accepted a settlement of £180,000 before tax which did not prevent her from speaking publicly. But she claims it came with a warning that refusal would result in her dismissal. She officially left last April.
In her fight to have her concerns heeded, she “exhausted every avenue”, approaching Lothian’s medical director and its health board chairman, the Public Concerns at Work whistle-blowing charity, the then-Government health secretary Alex Neil and NHS Scotland chief executive Paul Gray.
And, although Mr Gray did commission a review of her employment position, on each occasion she was referred back to her own health board, she claims.
Dr Hamilton believes the new service, ASAP-NHS – a group of patients, families, clinicians, health and safety professionals, politicians and academics – could be the catalyst for change in the NHS.
She says: “It is calling for a truly regulatory body akin to the Care Quality Commission in England, which can affect real change.
“It brings new hope to patients and whistle-blowers who want to protect them.”
Dr David Farquharson, medical director of NHS Lothian, said: “We are extremely disappointed Dr Hamilton is continuing to make unfounded allegations. NHS Lothian has robust policies and procedures to ensure all staff are supported and feel able to raise concerns and we encourage staff to highlight issues relating to patient safety.
“Concerns raised by Dr Hamilton a number of years ago were fully investigated by NHS Lothian and a panel of independent experts and found to be unsubstantiated. Dr Hamilton had been given the opportunity to raise concerns directly and chose not to.
“The review found the unit was staffed by clinicians with the expected level of specialist knowledge and skills, that the team functioned well and that the quality of care given to mothers and babies, including safety, was of a standard to be expected.”
08:58 22 January 2016 Emma Bartholomew
GV of Homerton University Hospital, of Homerton Row.
Healthcare campaigners have called for more transparency from Homerton Hospital, after a Freedom of Information (FOI) request revealed there have been 12 deaths with links to its maternity unit since 2006 but did not disclose the dates.
Christine Papalabropoulos, who has been campaigning for healthcare rights since her 23-year old daughter died due to blunders at Basildon Hopsital, and former midwife at the hospital in Homerton Row, Pamela Linton, attended Hackney Council’s health scrutiny committee meeting last Thursday night, to quiz the hospitals’ directors on the figures they obtained through the FOI.
It asked how many maternal deaths occurred between 2006 until October 2015 of mothers allocated midwives from Homerton throughout their pregnancy or until they were transferred to another hospital, and whether the mother died at Homerton, at home or another hospital.
But the hospital refused to state the dates and places of death.
Ms Linton said: “In view of the 12 maternal deaths that the FOI disclosed I detect a lack of openness and transparency. How can the public be reassured that this policy has been strictly and successfully implemented, given that these deaths have not been fully acknowledged?”
Medical director Martin Kuper told her they were restricted by the duty of confidentiality which extends after death.
“Clearly the answer should have been put out and broken down with more detail,” he said.
“The question of how you respond without going into any detail is very difficult, if you go to hospital you have the right not to have that discussed just as there is a legal right and duty not to have details of patient’s care discussed in public.
“It’s also not appropriate for us to discuss the details of people who died at other hospitals.”
Ms Papalabropoulos asked whether there had been any deaths related to the Homerton apart from the one in January 2015.
Mr Kuper replied: “I think we need to be a little bit careful here, you are talking about a particular case about a particular patient, and we need to be careful.”
Anonymous whistleblower midwives – who persistently warned about the ‘avoidable’ deaths of mothers and babies at Homerton University Hospital since 2012 – said they felt vindicated last August when health inspectors deemed “safety was not a sufficient priority” at the maternity unit following an unannounced inspection.
In October Professor David Ferry revealed that at least 55 patients were given extra chemotherapy treatment they did not need between 2005 and 2010.
Following his revelations Professor Ferry – who has asked the Express & Star to name him in this article – had his integrity called into question by trust bosses.
They issued a press release stating he was under investigation for ‘serious misconduct’, referenced his alleged ‘poor practice’ and accused him of ‘pursuing his own agenda’.
The General Medical Council (GMC) placed restrictions on Prof Ferry in March 2015 in light of concerns regarding his clinical practice and alleged resistance to ‘working effectively’ with colleagues at New Cross Hospital.
Now the council’s Medical Practitioners Tribunal Service (MPTS) has removed the conditions and cleared him to return to practice should he wish to do so.
A letter to Professor Ferry seen by the Express & Star, read: “The panel is satisfied that there is no basis for the interim order to remain and has determined to revoke the interim order of conditions.”
Prof Ferry was the subject of four separate investigations launched by bosses at New Cross Hospital spanning a four-year period and involving more than 100 allegations.
In 2009 he had told bosses of concerns about the extra chemotherapy, which was administered by Dr Margaret King and Dr Mark Churn.
The trust audited the treatment given to 32 men and 11 women at New Cross Hospital and his fears were confirmed.
He was subsequently accused of bullying and harassment by Dr King and subjected to a two-year investigation. He was suspended by the trust in October 2013 and resigned the following January. Prof Ferry has accused the trust of pursuing a vendetta against him. Speaking exclusively to the Express & Star, Prof Ferry said: “After four years of continuous unfounded allegations being raised, accusing me of harassment and bullying or conducting audits and raising concerns, I have no sense of victory.”
The Royal Wolverhampton NHS Trust declined to comment on the GMC’s findings.
Professor David Ferry raised concerns that unnecessary prolonged and harmful chemotherapy had been administered to patients at the Royal Wolverhampton NHS Trust.He found that 55 patients had been given chemotherapy they did not need, and their families were not informed until years after the treatment had been given.
When the scandal came to light in October last year trust bosses apologised, blaming a ‘departmental failure’ for using the unproven treatment methods that had no medical use.
They also attempted to discredit Professor Ferry. They took the extraordinary step of naming him – a move that flies in the face of NHS promises to respect the anonymity of whistleblowers.
He had restrictions placed on his rights to practice, was subjected to four separate investigations and faced more than 100 allegations.
He was eventually suspended after being accused of bullying by one of the doctors who administered the extra cancer treatment. Now, after a lengthy battle to clear his name, Professor Ferry has been told by the General Medical Council he is able to return to practice.
We are pleased to hear Professor Ferry has since embarked on a new chapter of his career in the United States. But his situation once again raises the wider question about the shoddy treatment of whistleblowers by the NHS.
He asked us to name him in today’s Express & Star because he rightly wants the world to know he has been cleared. We can only assume the NHS had very different motives when they put his name into the public eye.
Sadly, his case is one of many.
In recent years health bosses have been criticised on numerous occasions for the way the NHS deals with those that dare to point out poor care and inadequate patient safety.
The cases include Dr Raj Mattu, who was sacked by a trust in 2010 after 200 allegations were levelled against him, all of which proved to be false.
He had raised concerns about overcrowding in a cardiac ward, a situation which led to the death of a patient.
Whistleblowers provide a vital service in terms of holding the NHS to account. Their bravery can save lives.
But health bosses have created an environment where coming forward can have terrible consequences for the careers of those brave enough to do so.
If only someone had been bold enough to raise the alarm at Stafford Hospital at an earlier stage.
| Posted: January 20, 2016
A tribunal found Dr Kevin Beatt was sacked for whistleblowing but a judge says the matter should be considered again
Dr Beatt is now considering taking the matter to the Court of Appeal.
He told the Advertiser: “The judge accepted I made protected disclosures but is not sure that’s why I was dismissed. It’s beyond me how anyone could read the tribunal’s report and possibly say that.
“To put me through the expense [of another tribunal] is just not justice. The original judgment makes it clear why they dismissed me. They didn’t believe a word the trust said. If we have to re-hear it again the outcome will be the same.”
Gerald Storey, 63, suffered a heart attack during a routine angioplasty on June 9, 2011. Dr Beatt told his bosses he believed Mr Storey had died because a nurse had been suspended without his knowledge, meaning she was unable to help him with the procedure.
Dr Beatt also informed a coroner and a senior GP of his concerns. In September 2012 he was sacked for gross misconduct following a six day disciplinary hearing led by then CHS chairman Richard Parker. His appeal against the dismissal was rejected by a panel led by John Goulston, the trust’s current chief executive.
After a 12-day hearing in 2014, an employment tribunal spent ten days deliberating in chambers before issuing a 201 page report which concluded his dismissal had been unfair.
The trust said it was “very disappointed” by the ruling and, last year, hired a £5,000 a day QC to work on an appeal.
It argued the tribunal had failed to explain why it had decided Dr Beatt had been sacked for whistleblowing rather than misconduct.
In his judgment, Mr Clark said there had been “a degree of internal inconsistency” in the tribunal’s ruling, in that it had decided whistleblowing had led to Dr Beatt’s dismissal but had not ruled the disciplinary or appeal process had been unfair.
He referenced a paragraph of the tribunal’s judgment in which the panel said that, after “extensive findings of fact” the trust’s investigation into Dr Beatt’s conduct “appeared to be balanced” and that “the conduct of the disciplinary hearing itself appeared to be ‘quasi judicial in nature’.”
It later concluded, however, that “on all the evidence before us” the trust “has not shown the reason for dismissal was misconduct”.
Of Mr Goulston the tribunal said it was “struck by how little understanding he had of the facts, the issues before him and of the evidence that had been presented by [Dr Beatt] or his role as appeals manager”.
But Mr Clark said the “flaw” in the tribunal’s reasoning was that, instead of determining the facts known to Mr Parker and Mr Goulston it had “embarked on its own assessment” of the charges Dr Beatt faced and “found them less than compelling”.
He added: “What is signally missing from these extensive reasons is an analysis leading to the conclusion that the evidence of both Mr Parker and Mr Goulston was false and a deliberate attempt to mislead the employment tribunal as to the true reason for dismissal”.
He concluded: “I can discern no clear reasoning leading to the expressed conclusion that Mr Goulston and his panel members determined the appeal on the basis of the protected disclosures found by the employment tribunal, as opposed to the conduct grounds put forward.”
Mr Clark ordered a new tribunal but rejected the trust’s submission that the “perverse” original ruling be reversed.
CHS said the appeal tribunal’s decision had been made following “careful consideration” but offered no further comment.
This is the judgement:
http://www.employmentcasesupdate.co.uk/site.aspx?i=ed30501
Keywords • discrimination • protected disclosure • unfair dismissal • victimisation
Appeal by the Respondent against a finding that the Claimant’s dismissal was principally by reason of whistle-blowing and not by reason of conduct. Appeal upheld and case remitted for rehearing before a freshly constituted Tribunal.
The Claimant was employed by the Respondent as a Consultant Cardiologist from 2005 until 2012, when he was summarily dismissed for gross misconduct following a 6 day disciplinary hearing. The Claimant appealed to an internal appeal panel but was unsuccessful. He subsequently issued proceedings before the Employment Tribunal, claiming that his dismissal was automatically unfair, in that the principal reason for his dismissal was that he had made various protected disclosures, that he had been subjected to detrimental treatment on the ground that he had made protected disclosures, and further that he had been unlawfully victimised post-termination. The Tribunal upheld his claims. The Respondent appealed, broadly on the grounds that the Tribunal had failed to make a sustainable finding as to the reason for the dismissal and in its approach to the internal appeal.
The EAT allowed the Respondent’s appeal. In its approach to determining the real reason for dismissal, the Tribunal embarked on its own assessment of the conduct allegations upheld by the disciplinary and appeal hearings, found them less than compelling, and then moved to the conclusion that conduct was not the real reason for dismissal, but the protected disclosures. The Tribunal failed adequately to address or analyse the evidence of the disciplinary and appeal chairs, who both maintained that conduct was the true reason which caused them to dismiss. Appeal allowed and case remitted to a fresh Tribunal.
Tim Crane, Employment Law Solicitor
_________________
Appeal No. UKEAT/0136/15/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 17 & 18 September 2015
Judgment handed down on 19 January 2016
Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)
CROYDON HEALTH SERVICES NHS TRUST (APPELLANT)
BEATT (RESPONDENT)
Transcript of Proceedings
JUDGMENT
APPEARANCES
For the Appellant
MS JANE McNEILL
(One of Her Majesty’s Counsel)
and MR IAN SCOTT (of Counsel)
Instructed by:
Capsticks Solicitors LLP
1 St Georges Road
Wimbledon
London
SW19 4DR
For the Respondent
MS HARINI IYENGAR (of Counsel)
Instructed by:
Linklaters LLP
One Silk Street
London
EC2Y 8HQ
SUMMARY
UNFAIR DISMISSAL – Automatically unfair reasons
VICTIMISATION DISCRIMINATION – Whistleblowing
The Employment Tribunal finding that dismissal was by reason of the Claimant’s whistle blowing and not conduct, as the Respondent employer asserted, was not properly reasoned. Accordingly, the Respondent’s appeal was upheld and the case remitted to a fresh Employment Tribunal for rehearing.
HIS HONOUR JUDGE PETER CLARK
1. In this case, between Dr Beatt, Claimant, and Croydon Health Services NHS Trust, Respondent, a final hearing took place before the London (South) Employment Tribunal (Employment Judge Sage and members) from 19 May to 2 June and on 7 July 2014. The Employment Tribunal then spent 10 days deliberating in Chambers before delivering themselves of their Reserved Judgment with Reasons extending to 201 pages, promulgated on 24 October 2014.
Summary
2. The Claimant was employed by the Respondent as a Consultant Cardiologist from 1 November 2005 until his dismissal on 14 September 2012 following a 6 day disciplinary hearing, at which he was represented by counsel, before a panel including Mr Richard Parker, Director of Operations, and Professor Beedham, a retired Consultant and former Clinical Director at Barts Hospital. Professor Beedham was brought into the process following a request by the Claimant for the panel to contain an independent medically qualified member. The panel concluded that the Claimant should be summarily dismissed for gross misconduct.
3. An internal appeal against dismissal was heard by a panel consisting of Mr Goulston, Chief Executive of the Trust; Mr Bailey, Consultant Urologist and former Medical Director of St George’s Hospital; and Ms Clarke CBE (Associate Non-Executive Director of the Trust with nursing experience at a high level).
4. The original disciplinary panel’s reasons for misconduct dismissal are set out in Mr Parker’s letter of 14 September 2012. The Claimant faced nine disciplinary charges; the panel upheld charges two, four, six, seven, eight and nine. Charges one, three and five were not upheld.
5. However, it was the Claimant’s case before the Employment Tribunal that the reason or principal reason for dismissal was not misconduct, but the fact that he had made protected disclosures and the disciplinary process prior to dismissal, the dismissal itself, the internal appeal process and acts of post-termination ‘victimisation’ were unlawful, either as being detrimental treatment on the grounds of his having made protected disclosures and/or, in the case of the dismissal, that the reason was as stated above.
6. As appears from the Employment Tribunal Reasons (page 8) the Claimant relied on 16 communications said to amount to protected disclosures. The first and second relate to 18 June 2008 and 8 February 2010 respectively. Those numbered three to seven, ranging from 23 February 2010 to 28 March 2011, were found by the Employment Tribunal not to amount to protected disclosures.
7. On 9 June 2011 a patient (GS) on whom the Claimant was operating, died during the course of that operation. There then followed protected disclosures by the Claimant, numbered 8 to 11 and 13 to 16, so the Employment Tribunal found. The Respondent challenges only the finding in relation to disclosure number 14. Those disclosures are summarised at page 9 of the Reasons. Numbers 8 to 11 and 13 to 15 cover a period 10 June to 3 August 2011 and thus pre-date the Claimant’s dismissal on 14 September 2012. The last disclosure, number 16, was made at the coroner’s inquest into the death of GS on 2 and 3 July 2013. Chronologically, those disclosures were followed by the post-termination victimisation complaints, listed at paragraphs 3, 4 and 5 of the detriments relied upon at page 9 of the Reasons, those taking place on 4, 5 and 30 July 2013.
The Issue
8. The formal list of issues, identified at a Case Management Discussion held on 3 May 2013, is set out at pages 6 to 9 of the Reasons. I use page numbers because the Tribunal do not use a sequential numbering system throughout their 200 page Reasons. Rather, one topic is covered in numbered paragraphs, then the next returning to paragraph 1 and then the next and so forth. If this method of organising a decision is to be used in future, and I hope that it will not, an opening contents page would greatly assist the reader in navigating the document.
9. The issues cover unfair dismissal, protected disclosures, a now irrelevant wages claim, the alleged ‘protected acts’; i.e. the protected disclosures and the detrimental treatment relied upon.
10. However, the overarching question for this Tribunal was which narrative, in whole or in part, did they accept; the Respondent’s case that the Claimant had misconducted himself in circumstances where, following a fair and impartial process, he was dismissed for that reason or the Claimant’s case that the whole disciplinary process was a “sham exercise” (I take that expression from paragraph 7 of Ms Iyengar’s written skeleton argument in this appeal) designed to rid the Trust of a distinguished medical practitioner because he had blown the whistle?
The Employment Tribunal Decision
11. It is the Claimant’s case before me that effectively the Employment Tribunal accepted the Claimant’s narrative, as I have put the issue in a binary way above. Certainly, the Tribunal’s conclusion supports that thesis. Their Judgment, page 1, was (1) that the Claimant was unfairly dismissed and the sole or principal reason for the dismissal was because the Claimant made a protected disclosure. Pausing there, the Judgment itself does not spell out which disclosure or disclosures, as found, constituted the sole, or perhaps principal reason for dismissal, but plainly that is a finding of automatically unfair dismissal under section 103A Employment Rights Act 1996. It seems to follow that both the dismissal itself and subsequent appeal process was motivated not by the Claimant’s conduct, as the Respondent asserted, but his whistle blowing. (2) The Claimant was subjected to a detriment by the Respondent done on the ground that he had made a protected disclosure. By combing the Tribunal’s Reasons it seems that the three post-termination victimisation allegations were upheld; but not the first two, an unfair disciplinary and appeal process; see pages 188 to 189, paragraphs 31 to 34. Already, it seems to me, a degree of internal inconsistency is emerging in the Employment Tribunal’s Judgment.
The Employment Tribunal’s Reasoning
12. This, in my judgment, is the key to this appeal. Ms Iyengar, in her broad overview, submits that this appeal is no more than a “brazen and misconceived perversity challenge”. I disagree. It seems to me that at the heart of the appeal is the proposition that the Employment Tribunal failed to make a sustainable finding as to the reason for dismissal (ground 2) and in its approach to the internal appeal (ground 3). I propose to examine those two grounds before moving on to the remaining grounds.
13. At page 190, paragraph 36, under the heading “The Dismissal” the Employment Tribunal say this:
“36. The Respondent has shown a potentially fair reason to dismiss and Mr Parker [chairing the disciplinary panel] stated that he dismissed for conduct which is a potentially fair reason to dismiss. We have made extensive findings of fact in respect of Mr Hayward’s investigation [leading to the disciplinary hearing] and the resultant investigatory report. We felt that on the whole the investigation appeared to be balanced … The conduct of the disciplinary hearing itself appeared to be, as described by the Respondent, “quasi judicial in nature” which the Tribunal accept …”
14. The Employment Tribunal then go on to place their own view of the strength or weakness of the allegations upheld by the Parker panel, paragraphs 38 to 48, and then at paragraph 49 (page 196) say:
“49. The Tribunal therefore conclude on all the evidence before us that the Respondent has not shown that the reason for dismissal was misconduct. …”
15. They then turn to the appeal conducted by Mr Goulston’s panel (paragraph 50), noting their finding as to how little an understanding of the facts Mr Goulston had.
16. They then express the conclusion (paragraph 52), having referred themselves to the guidance of Mummery LJ inKuzel v Roche Products Ltd [2008] IRLR 530, that:
“52. … the Respondent’s evidence of conduct be rejected. The Tribunal also conclude that the reason put forward by the Claimant, that he was dismissed for making protected disclosures, was the principal factor operating on the decision maker’s mind. The Tribunal reach this conclusion on the basis of the consistency of the Claimant’s evidence in respect of the events of the 9 June and his concerns expressed about patient safety after that date. We conclude that the Claimant was dismissed for escalating his concerns about health and safety concerns …”
17. At paragraph 53 the Employment Tribunal link disclosures 10 and 14 to allegations 6 and 7 in the dismissal letter and disclosures 8, 9, 11, 13 and 15 to allegations 4, 8 and 9. Those disclosures found the reason for dismissal; those reasons operated on the minds of Mr Parker and Mr Goulston.
18. For completeness, at paragraph 54 (page 199) the Employment Tribunal would have found the dismissal ordinarily unfair had they not made the section 103A finding and would not have made any deduction for contributory conduct on the part of the Claimant nor under the Polkey principle. They then went on to deal with the post-termination detriments which they upheld.
Analysis
19. The flaw in the Employment Tribunal’s reasoning, in my judgment, is that instead of determining “the set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee”, to adopt the timeless definition of the reason for dismissal formulated by Cairns LJ in Abernethy v Mott, Hay and Anderson [1974] ICR 323, the Employment Tribunal has embarked on its own assessment of the conduct charges upheld, first by the Parker panel and then by the appeal panel chaired by Mr Goulston; found them less than compelling and then moved to the conclusion that conduct was not the reason for dismissal but the protected disclosures. What is signally missing from these extensive Reasons is an analysis leading to the conclusion that the evidence of both Mr Parker and Mr Goulston, representing their respective panels, was false and a deliberate attempt to mislead the Employment Tribunal as to the true reason for dismissal.
20. This error in approach was further compounded by the Employment Tribunal linking, factually, disclosures 8, 9, 11, 13 and 15 to allegations 4, 8 and 9 in the dismissal letter. I accept the submission of Ms McNeill QC, leading Mr Scott, that at paragraph 53, page 198, the Employment Tribunal wrongly thought that the fact that these disciplinary charges were “related to” the substance of the disclosures referred to was sufficient to decide the reason question. That is not the correct causation test.
21. Separately, I can discern no clear reasoning leading to the expressed conclusion that Mr Goulston and his panel members determined the appeal on the basis of the protected disclosures found by the Employment Tribunal, as opposed to the conduct grounds put forward.
Disposal
22. Having upheld the Respondent’s appeal (grounds 2 and 3) on the basis of the Employment Tribunal’s approach to the reason for dismissal certain consequences necessarily flow. First, the question of the inadmissible reason for dismissal must be retried. In my view that question must be determined by a fresh Employment Tribunal. I am not persuaded by Ms McNeill that the conclusion by the Sage Employment Tribunal is one that I can reverse on the basis that it is perverse. It also follows that the alternative finding of ‘ordinary’ unfair dismissal falls. It will arise again before the next Employment Tribunal if it is found that the reason was not automatically unfair under section 103AEmployment Rights Act 1996. Similarly, questions of Polkey and contribution must be left to the next Employment Tribunal. Also, the question of post-termination victimisation will depend upon the view taken by the next Tribunal as to the Respondent’s motivation in its actions. Finally, there is now no dispute as to which of the 16 disclosures are protected, save for number 14 which is the subject of ground 1 of the amended grounds of appeal. As to that, I agree with Ms Iyengar that the Employment Tribunal was entitled to find that this disclosure was substantially true and was made in good faith. Accordingly, I dismiss ground 1.
An under-fire NHS trust that failed to investigate hundreds of deaths knew about health and safety failings four years ago, the BBC can reveal.
Mike Holder, who was employed by Southern Health NHS Foundation Trust, said record keeping was “haphazard”.
He said senior staff at the mental health trust were told safety failings could be breaking the law.
Trust chief executive Katrina Percy said: “We are constantly striving to find ways to do things better.”
Mr Holder, a chartered health and safety practitioner, was employed as the interim head of health and safety at the trust in November 2011.
He said: “They didn’t see how health and safety would apply to caring for the people in their care.
“I think their record keeping in general was very, very haphazard.
“I think there are missed opportunities and as a result of those missed opportunities, someone has lost their life.”
In his resignation letter, seen by the BBC, Mr Holder wrote “existing safety management systems are dysfunctional” when he left in February 2012.
He was asked to set out his findings in more detail and sent a 13-page report.
He claimed some incidents were not reported, which was “a criminal offence which you are obliged to address” and safeguarding incidents that were reported were “often incorrectly graded, downgraded by administrators or closed down without the completion of action plans”.
Mr Holder said: “When I looked at some incidents I found they hadn’t been reported.
“Within a couple of months it was quite apparent they didn’t have robust systems.”
Image copyrightSara RyanAn independent report in December found the trust had failed to properly investigate hundreds of deaths of patients with mental health problems and learning disabilities over a four-year period.
Connor Sparrowhawk, an 18-year-old with learning difficulties, drowned in a bath at a Southern Health building in Oxford in 2013 and the inquest into his death prompted NHS England to commission the report.
His mother Sara Ryan has described the trust’s leadership as “rotten” and called for resignations.
Watch the interview with his mother:
Earlier in 2011 Ms Percy received an anonymous letter which said: “The trust is extremely under-resourced to deal with health and safety issues considering the size and complexity of the trust.”
In a response to the BBC Ms Percy said: “We are constantly striving to find ways to do things better and challenging ourselves to improve services across the whole organisation, as in any NHS Trust.
“All of the issues raised in the memorandum sent more than four years ago were looked into and addressed.
“Those issues in no way relate to the independent review of deaths of people with learning disabilities and mental health needs in contact with Southern Health at least once in the previous year.”
Southern Health is one of the country’s largest mental health trusts, covering Hampshire, Dorset, Oxfordshire and Buckinghamshire and providing services to about 45,000 people.
Whistleblower: Jonathan Brooks at Nottingham Tribunal Hearing Centre
A consultant who blew the whistle on under-staffing at a children’s burns unit has claimed some of his colleagues were focused on money-making private work and playing golf in their free time.
Plastic surgeon Jonathan Brooks, 51, is seeking more than £500,000 in compensation after claiming he was effectively suspended because of his complaints.
He spoke out after a ‘lack of adequate medical cover’ left him concerned about patient safety, claiming that other doctors ‘abandon burn victims for more lucrative areas of work’ such as cosmetic breast surgery or to set up skin cancer clinics.
One manager was said to have become a ‘very accomplished golfer’ after spending just 45 per cent of his time at the hospital.
In a witness statement to a tribunal, Mr Brooks also described his unease at child patients being treated alongside horrifically burned adults – including paedophiles in hospital after being attacked with boiling water in prison – which he described as ‘the stuff of visual nightmares’.
Mr Brooks, who earned £86,000 a year at City Hospital in Nottingham, also alleges there were ‘frequent clinical incidents due to the shortage of key staff’.
He said he was ‘persecuted to the ends of the earth’ by management, whose conduct flew in the face of the findings of the Francis Report into the Stafford Hospital scandal, which called for protection for whistleblowers after up to 1,200 patients died as a result of poor care.
Mr Brooks claims he was undermined to the extent that he was forced to step down from his role as clinical lead for burns because his position became ‘untenable’.
Mr Brooks said his line manager, Graeme Perks, the head of the department of plastic, reconstructive and burns surgery at the hospital, negotiated a ‘job plan’ for himself which allowed him to work for 12 days and then take eight off, an opportunity to ‘maximise his private sector income’.
Suspended: Mr Brooks claims he was undermined to the extent that he was forced to step down from his role as clinical lead for burns because his position became ‘untenable’ (file photo)
The consultant added: ‘Effectively he was paid for a full-time role and worked 60 per cent of the time. During his eight days off, he disappeared.’
Mr Brooks said another manager worked only 45 per cent of the time, which enabled him to become a ‘very accomplished golfer on public funds’.
The consultant said he and a colleague effectively covered the workload of five surgeons, yet by 2011 resources appeared to be diverted away from burns treatment towards ‘highly lucrative’ cosmetic breast surgery.
He said: ‘My impression was that resources were being diverted from burns work to breast work under Mr Perks’ tenure. That was leaving the burns service short of resources.’
Mr Brooks claims he was subject to false allegations of bullying a locum and was referred to the NHS’s counter fraud agency after being wrongly accused of working in the private sector on NHS time.
He was finally ‘excluded’ from work in July last year after Nottingham University Hospitals NHS Trust said colleagues were unable to work with him.
Hobbyist: Mr Brooks said another manager worked only 45 per cent of the time, which enabled him to become a ‘very accomplished golfer on public funds’ (file photo)
He claims he was effectively suspended for blowing the whistle, adding: ‘If I see something illegal or patient safety being put at risk I will not hide that or be quiet about it.
‘The trust is the complete opposite of the Francis Report in that regard. That report encouraged staff to challenge illegality and for the trust to be transparent, fair and honest in its dealings with whistleblowers.
Here, however, they persecute you to the ends of the earth, even when child patient safety is compromised along the way.’
Mr Brooks is claiming to have suffered a detriment for being a whistleblower, injury to feeling, compensation for stress and £450,000 ‘pecuniary losses’ – covering the loss of anticipated private income from consultancy work over the past three years.
Compensation: Mr Brooks is claiming to have suffered a detriment for being a whistleblower, injury to feeling, compensation for stress and £450,000 ‘pecuniary losses’ – covering the loss of anticipated private income from consultancy work over the past three years (file photo)
In total he is seeking £502,000 in compensation, plus interest, and wants to resume working at City Hospital.
Lawrence Davies, of Equal Justice Solicitors, who is representing Mr Brooks, described the consultant’s suspension as ‘draconian’.
He told the Daily Mail: ‘The Government must do much more to protect NHS whistleblowers and much more to protect NHS monies and time being wasted in this way.’
A spokesman for Nottingham University Hospitals NHS Trust said: ‘We have robustly defended the claim made by Mr Brooks and it is now a matter for the tribunal to consider.’ The tribunal resumes next month.
a.dolan@dailymail.co.uk
Junior doctors on strike: the health secretary is under pressure (James Gourley)
JEREMY HUNT has been tipped for the sack by cabinet colleagues in David Cameron’s next reshuffle after failing to head off the junior doctors’ strike.
Senior Tories say George Osborne, the chancellor, wants Boris Johnson to take over as health secretary in what allies of the London mayor view as “literally a hospital pass” designed to dent his leadership hopes.
One cabinet minister said Hunt is vulnerable he “was sent to health to keep the NHS out of the headlines — and instead we’ve got the first doctors’ strike in a generation”.
A close ally of the prime minister has sounded out Tory MPs about Johnson taking over from Hunt later this year.
The mayor has been promised a “big job” by Cameron and has also been tipped as foreign secretary. Hunt would remain in the cabinet in another post.
Senior government sources have confirmed that the plan has been floated by people who are close to Osborne. However, one source said: “This is wishful thinking by a leadership rival.”
The plan emerged as up to 50,000 patients are set to have their treatment disrupted by the second planned strike later this month. Hospitals said there will be even more disruption than in last week’s 24-hour strike. More than 4,400 operations last week were cancelled and 17,500 outpatient appointments had to be abandoned.
The two-day walkout, set for January 26, will result in about 10,000 operations being cancelled and up to 40,000 outpatient appointments being postponed.
Health Education England, which helps to train NHS medical staff, revealed that it would have to cancel 3,000 interviews with junior doctors about their next posts if the second strike goes ahead.
Hunt came under fresh pressure last night amid claims that he has misused statistics about the quality of stroke care at weekends.
In a letter to The Sunday Times, dozens of leading stroke doctors criticise his claim on the day of the strike that “you are 20% more likely to die from a stroke at the weekend”, saying the data is “out of date” because of “recent rapid improvements in stroke services”. They add: “Misrepresentation of statistics on stroke care to justify the junior doctor contract proposals is completely inappropriate.”
The signatories include 12 medics from four London hospitals and doctors from Manchester, Salford, Exeter and Pennine Acute hospitals. They say Hunt’s statements “led patients to defer seeking medical help and come to harm”, concluding: “Timely presentation to hospital is particularly critical in stroke, as it improves outcomes and reduces mortality. [We] ask that you reassure the public about the level of weekend stroke services.”
A Department of Health spokesman said: “Anyone with urgent health concerns should seek advice as soon as possible. However, there is clear clinical evidence that standards of care are not uniform across the week. This government makes no apology for tackling the problem.”
Public Accounts Committee Monday 7 December 2015
Making a whistleblowing policy work: progress update, HC 602
Watch the meeting:
http://www.parliamentlive.tv/Event/Index/89198f1b-306b-40f1-a0fa-6e7a22ac129c
Members present: Mr Richard Bacon (Chair), Deirdre Brock, Caroline Flint, Kevin Foster, David Mowat, Stephen Phillips, Karin Smyth
In the absence of the Chair, Mr Bacon was called to the Chair.
Adrian Jenner, Director of Parliamentary Relations, National Audit Office, Paul Oliffe, Director, NAO, and Marius Gallaher, Alternate Treasury Officer of Accounts, HM Treasury, were in attendance.
Witnesses: John Manzoni, Chief Executive of the Civil Service and Permanent Secretary, Cabinet Office, and Alison Stanley, Head Of Civil Service Employee Policy, Cabinet Office, gave evidence.
Dear Mr Hunt,
Following article published in the HSJ this week:
http://linkis.com/www.hsj.co.uk/topics/ExXE6
I received two prompt responses to letters I had written asking for help some time back. Clearly, my open letter had focussed some minds.
I received the following from NHS England on behalf of Simon Stevens to letter written to him on 13 November 2015- nearly two months ago:
From: feedback@england.nhs.uk
To: sharmila.chowdhury
Subject: RE: NHS England CAS-100042
Date: Wed, 6 Jan 2016 09:36:06 +0000
Dear Sharmila,
Thank you for writing to NHS England and sharing your experiences. I am very sorry that you have faced such difficulties in securing an appropriate position within the NHS. Please also accept my apologies for the delay in our reply.
As you know, Sir Robert Francis recommended that Monitor, TDA and NHS England establish an employment support scheme to help whistleblowers whose performance is sound return to work in the NHS. Although you have had some help from the TDA, your experiences have highlighted the fact that there is no systematic approach at present to assisting whistleblowers who are having difficulty in securing employment.
We have been speaking to whistleblowers, employers and regulators about the design of a support scheme and will be sharing proposals shortly, as well as consulting the new National Freedom to Speak Up Guardian when they take up their appointment.. There are a number of elements to the scheme and some complexities we need to work through but our aim is for this to become operational early in the new financial year. You ask about NHS England’s role in relation to employment support. Beyond designing and commissioning the scheme with Monitor and TDA, I expect that NHS England will seek to help place whistleblowers from primary care and NHS Improvement will take on this role for whistleblowers from NHS Trusts. This reflects our roles in relation to the wider system.
I know that Neil Churchill has been in touch with you and I understand that your situation is urgent. Neil has raised your case with both TDA and Monitor and has kept me informed. Your experiences have certainly underlined the urgency with which we need to fill the gap in the system identified by Sir Robert.
I do hope you find work soon and that your health improves.
Yours sincerely,
Customer Contact Centre Case Officer
NHS England
I then received the following response today from Sarah Wollaston, who I had also written for help in September and in October:
Health Committee
House of Commons London SW1A 0AA
From Dr Sarah Wollaston MP, Chair
Letter by e-mail to Sharmila.chowdhury
8 January 2016
Dear Ms Chowdhury
Thank you for your further correspondence of 17 September and 11 October. I am sorry that it has taken some time to respond.
While I am sorry to hear that your situation remains very difficult, as I explained when I wrote to you in July, it is outside the Health Committee’s remit to take action on individual cases. I am pleased to learn that you are obtaining assistance from your constituency MP, Rupa Huq.
As you are aware, in a speech he gave in February last year the Secretary of State announced that the Government would legislate to protect whistleblowers applying for NHS jobs from discrimination from prospective employers and that Monitor, the TDA and NHS England would provide practical help to whistleblowers seeking future employment. Those three bodies are currently seeking views on a draft whistleblowing policy for the NHS and would like to hear from former and current NHS staff. Details of the consultation are available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/476850
/2_national_whistleblowing_policy_and_consultation_FINAL.pdf
In addition, the Care Quality Commission has just announced that it has appointed its first national guardian for the freedom to speak up within the NHS.
I hope that the steps being taken provide some reassurance to you that progress is being made in this area as the Government responds to issues raised both in Parliament and by Sir Robert Francis in his ‘Freedom to Speak Up’ review.
Yours sincerely
Dr Sarah Wollaston MP
Chair of the Committee
Rupa Huq when she brought up my case had been advised in Parliament to discuss my case with you Mr Hunt.
I am unclear how the National Guardian will be of help to me or any other suffering whistleblower.
I received the following from Department of Health in response to my letter to you:
P000000964925
Ms Sharmila Chowdhury By email
From Ben Gummer MP
Parliamentary Under Secretary of State fff Care Quality
Richmond House
79 Whitehall
London
SMA 2NS
1 2 NOV 2015
Thank you for your correspondence of 18 and 25 October to Jeremy 1–lunt about your employment situation at Imperial Healthcare NHS Trust.
I was sorry to read of your continuing concerns. I note that you have written directly to Dr Kathy McLean, Medical Director at the NI–IS Trust Development Authority (NHS TDA) to raise these matters.
My officials have again contacted the NHS TDA for further information about your situation. I am informed that your contract of employment with Imperial Healthcare
has been extended until the end of November to enable you to complete work projects.
I understand that the NHS TDA intends to respond separately.
I am sure you are pleased at the extension of your contract and I would acknowledge the positive role of the NHS TDA and the Trust in supporting you during this period of uncertainty.
I am aware that you have applied for roles in other NHS organisations and you are of course free to apply for roles within Imperial Healthcare. I hope you secure a suitable role so n.
BEN GUMMER
I wonder which roles Ben Gunner from your office was referring to? Clearly he has some inside knowledge. I was advised by senior manager at The Imperial there were no suitable vacancies. The same information was given by The Imperial to the Trust development Authority.
Hence I faced redundancy once again – without of course any compensation. First time was when I whistle blew at Ealing Hospital which followed dismissal, then reinstatement and subsequent redundancy.
Sir Francis Freedom to Speak up Review was published on 11 February 2015, nearly a year ago. on page 153:
‘I believe that there is an urgent need for an employment support scheme for NHS staff and former staff who are having difficulty finding employment in the NHS who can demonstrate that this is related to having made protected disclosures and that there are no outstanding issues of justifiable and significant concern relating to their performance. This should be devised and run jointly by NHS England, the NHS Trust Development Authority and Monitor.’
I received the above response from NHS England. So, they are not in a position to help. The following response was sent to my MP by Trust Development Authority:
18th November 2015
Dr Rupa Huq MP
Member of Parliament for Ealing Central and Acton
Dear Dr Rupa Huq MP
Re: Ms Sharmila Chowdhury
Thank you for your letter of 23 October to Bob Alexander on behalf of your constituent Ms Sharmila Chowdhury about her employment situation within the NHS, I am responding on his behalf. I understand that you have also received correspondence from Ben Gummer MP, Parliamentary Under Secretary of State for Care Quality, regarding Ms Chowdhury’s employment situation.
By way of background, I met with Ms Chowdhury last year to discuss with her the issues she was facing and to support her, where I could, in seeking employment in the NHS. Following that, I facilitated a link between her and Professor Chris Harrison, Medical Director at Imperial College Healthcare NHS Trust, to consider if there were any opportunities within the Trust that could be suitable.
As a result of that Ms Chowdhury accepted an offer of employment at Imperial College Healthcare NHS Trust as a business manager for undergraduate medical education. This was a fixed term role for 12 months that was due to come to an end at the beginning of November this year.
The job has evolved during that time and her contract has since been extended to the end of November to allow her to complete some project work. Like many other Trusts the financial challenges at Imperial mean there are a limited number of new vacancies either fixed term or permanent and a high level of competition for those that do come up. Nevertheless the Trust continue to offer Ms Chowdhury support and advice with finding further employment as they would any other member of staff in the same situation.
Ms Chowdhury asks in her note to me, that you have enclosed, if her pension and income can be reinstated to the level that it was before her whistleblowing case. I have replied to Ms Chowdhury to explain that that is not in my power to do (I enclose my response to her with this letter).
I do recognise this is a difficult time for Ms Chowdhury and her health concerns will of course exacerbate that but feel as if I have, at this stage, taken things as far as I can in supporting her to improve her situation.
Yours sincerely
Dr. Kathy McLean
NHS TDA Medical Director
So TDA like NHS England are unable to help. That leaves Monitor. According to some twitter exchanges, Monitor is ‘thinking’ but nothing has been set up with regards to helping whistleblowers. So, they too are not in a position to help.
I also recently received the following letter on 18 December 2015 from TDA:
Dear Sharmila
Thank you for your email. I’m pleased to hear that you’ve found our previous discussions helpful.
I’m also pleased to hear about the positive impact you were able to have during your time at Imperial.
I recognise this remains an uncertain time for you and the constraints at Imperial are of course not unique in the system at this time. As I mentioned previously, I’m afraid there is nothing further I am able to do from here.
I do wonder whether in light of the type of role you say you are interested in, you might consider contacting the Care Quality Commission who have a statutory role in relation to whistleblowers.
I do wish you all the best in your efforts.
Kind regards
Kathy
Dr Kathy McLean
Medical Director
NHS Trust Development Authority
TDA have recommended I try CQC.
I am clearly the parcel from the game of ‘pass the parcel’. Unfortunately I am the parcel that no one wants.
There is indeed a pattern emerging with all of these correspondences. One of ‘circle’ and going round it.
I raised concerns with goodwill and with significant evidences. I have faced persecution. Where is the goodwill and kindness towards me?
Maybe it is hoped that I will go away quietly or maybe as I have cancer, they can bide their time. I am not going anywhere.
Whistleblowers need to be supported. They speak out because they care. Patients trust NHS staff to do their utmost to keep them safe. Public give up their hard earned money to the NHS also in trust which should also be kept safe.
Persecution as a result of speaking out is a basic breach of human rights.
So Mr Hunt, please could you tell me who is responsible for my desperate situation of facing homelessness with cancer as a result of whistleblowing, and who will provide me with urgent redress?
Yours sincerely
Sharmila Chowdhury
The Government’s new whistleblowing tsar only works two days a week and has kept her £174,000-a-year job at one of Britain’s busiest hospital trusts, it can be revealed.
Dame Eileen Sills was this week unveiled as the country’s first ever National Guardian to help “advise and support” whistleblowers across the NHS.
The post was a key recommendation of Sir Robert Francis, who chaired the Mid Staffs public inquiry into the worst scandal in the history of the NHS.
Yet the Daily Mirror can disclose that Dame Eileen will in fact be working just two days a week and still be doing her current £174,000-a-year NHS job.
Hailing her appointment on Thursday, Jeremy Hunt said he was “confident” Dame Eileen would “inspire the NHS to go even further in improving how staff can raise concerns without fear or discrimination.”
And the Care Quality Commission, the NHS watchdog providing Dame Eileen with an office, said she would be “highly visible” in her new role.
Her duties will include supporting whistleblower guardians based in NHS trusts, sharing “good practice”, advising trusts and staff raising concerns.
In a press release, the CQC said: “As the National Guardian for the freedom to speak up, Dame Eileen will help to lead a cultural change…so that healthcare staff always feel confident and supported to raise concerns about patient care.”
But controversially she has been allowed to keep her senior role as Chief Nurse and Director of Patient Experience and Infection Control at Guy’s and St Thomas’ NHS Foundation Trust, as well as continuing to serve as a member of its board.
The only role Dame Eileen has stepped down from at the London trust is as its executive lead for Speaking Up Safely. The CQC said this was in order “to prevent any conflict of interests”.
When approached by the Daily Mirror, the trust confirmed Dame Eileen’s £174,000 annual salary would remain “unchanged”.
The Health Secretary has repeatedly vowed to “help those who raise safety concerns” in the NHS in order to “protect patients”.
Last year an independent review was held into whistleblowing in the health service. It was led by Sir Robert following his inquiry into the Mid Staffs scandal.
The whistleblowing inquiry found NHS staff who raised the alarm about dangerous practices were being ignored, bullied or even intimidated in a “climate of fear”.
A significant proportion of health workers were afraid to blow the whistle about poor patient care and safety failures in the NHS, the review discovered, and “shocking” accounts of whistleblowers’ treatment were uncovered.
Following the inquiry, Mr Hunt personally backed the introduction of the role of a National Guardian and said whistleblowers would “have the government’s strong support”.
Dame Eileen is a highly experienced NHS professional. She has been a registered nurse for more than 30 years, has held several management and senior leadership posts, and was made a Dame in January last year.
But our revelation that she will maintain a separate £174,000-a-year NHS job, is likely to anger NHS staff, whistleblowers and campaigners.
Julie Bailey, who helped expose the horrific neglect at Mid Staffs which cost up to 1,400 lives, described the news as “disappointing”.
She also raised concerns that Dame Eileen, who has previously advised David Cameron and members of the cabinet on dementia, was an “insider”.
Ms Bailey, who set up campaign group Cure The NHS after her mother, Bella, 86, died at Stafford Hospital, said: “I suspect there will be very little change, appointing a part time insider, [it] hardly fills you with confidence.”
She added: “Someone independent who would challenge and expose NHS bullies, was what I had in mind.”
A spokesman for Guy’s and St Thomas’ told the Daily Mirror Dame Eileen had “made room” to add the National Guardian role to her current brief and “remains committed to fulfilling all her professional obligations”.
But our revelations are likely to raise concerns over whether the Chief Nurse and Director of Patient Experience and Infection Control at a major NHS trust should be working elsewhere two days a week.
The website of Guy’s and St Thomas’ describes itself as being “among the UK’s busiest” trusts.
It comprises two of London’s best known hospitals, St Thomas’ Hospital and Guy’s Hospital, as well as Evelina London Children’s Hospital. The trust also provides hospital services in Lambeth, Southwark and Lewisham.
It sees two millions patients every year.
The Care Quality Commission will reimburse Guy’s and St Thomas’ £56,800 a year for Dame Eileen’s part-time role.
Roy Lilley, a health policy analyst and former NHS trust chairman, said the fact that the National Guardian for NHS whistleblowers would only be working part-time was “an affront to anyone who has suffered merely because they wanted to tell the truth about where they work”.
He added: “It waves two fingers at anyone reduced to tears by a thug of a boss, a shift from hell or has the misfortune to witness malpractice.”
Writing on his blog, he said: “Such is the importance of whistleblowing in the mind of the CQC they have appointed a part time chief guardian. Part time.”
He added: “Quite what has persuaded the board at Guy’s that they suddenly need only a part time chief nurse, director of patient experience and infection control is quite beyond me?
“What has persuaded the CQC the NHS needs only a part time boss of one of the most toxic issues in the NHS defies all explanation.”
In a press release announcing her appointment this week, Dame Eileen said: “I fully appreciate that this is a very big and challenging role, but with the support of the staff who work in the NHS, I have no doubt that we can make the changes together that are needed to deliver a new culture of transparency and openness.”
She declined to comment further when approached by the Daily Mirror via Guy’s and St Thomas’ NHS Foundation Trust.
In a statement earlier this week, Mr Hunt said: “Dame Eileen has dedicated her career to improving the quality of care patients receive and I am confident as the National Guardian she will inspire the NHS to go even further in improving how staff can raise concerns without fear or discrimination.”
A spokesman for Guy’s and St Thomas’ NHS Foundation Trust said: “We have every confidence in Eileen’s ability to balance the various demands of these two important roles.
“Her commitment to Guy’s and St Thomas’, our staff and our patients, remains as strong as ever and she will continue to perform her full duties as Chief Nurse of the Trust.
“We are proud that Eileen’s exceptional dedication to supporting patients and staff will now benefit other trusts around the country as National Guardian for the freedom to speak up.”
The spokesman added: “To make it possible to combine her roles, Eileen has stepped down from all other external NHS commitments, including as a senior nursing advisor at the Nursing and Midwifery Council and as Chair of the nurses group for the Shelford Group of leading NHS Foundation Trusts.”
Sharmila Chowdhury appeals to the health secretary to resolve the injustices faced by many people who have dared to speak out
Dear Secretary of State
I am Sharmila Chowdhury. You know who I am. We’ve met. You’ve listened to my story, that of an NHS whistleblower who reported consultant fraud in an NHS hospital and was dismissed as a result. You thanked me personally for my courage. That was at Richmond House in June 2014. Simon Stevens was there. He nodded sympathetically when you thanked me and six other senior NHS whistleblowers for doing the right thing.
As a result of that meeting you asked Sir Robert Francis to chair the Freedom to Speak Up Review. Sir Robert reported to you In February last year. You told the House of Commons that he had “heard, again and again, horrific stories of people’s lives being destroyed – people losing their jobs, being financially ruined, being brought to the brink of suicide and with family lives shattered – because they had tried to do the right thing for patients.”
Sir Robert, in his report, had informed you of our experience as whistleblowers. Experience of “Fear, bullying, ostracisation, marginalisation, psychological and physical harm”. Simply because we tried to do the right thing for patients.
In my case this involved reporting to senior management fraudulent claims amounting to £280,000. My report was fully evidenced. In response, completely false counterclaims were made against me and I was marched out of the hospital in view of my colleagues by a senior HR manager. I was later dismissed. This is the personal humiliation that lies behind Sir Robert’s generic descriptions.
“My story has been in the public domain for some years and has never been challenged, simply ignored”
I immediately took my claim to the Interim Relief Tribunal. I won hands down and the judge instructed the trust to reinstate me. The trust refused to allow me to return, claiming that due to ‘new technology’ my post was redundant. Eventually, to break the impasse, I was forced to settle. The financial settlement barely covered my legal fees. My story has been in the public domain for some years and has never been challenged, simply ignored.
In February you told the House of Commons that Sir Robert had reported whistleblowers “who were blacklisted from future employment in the NHS as the system closed ranks”. That has been my own experience. For six years, despite my qualifications and 35 years’ NHS experience, despite my previously unblemished service record, I have been unable to find work in radiography or management. I have failed to get interviews; had interview offers withdrawn; even had a job offer withdrawn.
The government’s proposed solution for this acknowledged blacklisting is contained in the Small Business, Enterprise and Employment Act in an as yet untested anti-discrimination measure. For someone in my position the urgency of the situation and the financial risk involved render it impractical. As in every other situation faced by whistleblowers, the employer has the advantage, with unlimited legal help at taxpayers’ expense. The kind of employer willing to blacklist an employer will sit the whistleblower out.
I have, in the last year, been found some administrative work after representations to your good office and the Care Quality Commission. I am grateful but this is not the work I was trained for or enjoy doing. It has resulted in a £25,000 per annum pay-cut and in any case the post has now been made redundant.
So, at 56 I am out of work. I have enough money to pay my mortgage for the next month. I have breast and lung cancer. I have no husband to help me; he died in a road accident. You may think I am feeling sorry for myself. I am not. I did the right thing in reporting fraud. I would do it again, even knowing the consequences.
“We hear praise for whistleblowers in public but there has been no help for those of us who have been ruined”
I am puzzled by the stance of NHS leaders, including the Department of Health, CQC etc. We hear praise for whistleblowers in public but there has been no help for those of us who have been ruined. This sets a bad example. NHS staff see that speaking up can amount to professional suicide.
They are further deterred from speaking up. The kind of manager who would silence those who do speak up is emboldened. This creates a major impediment to the culture change that you as health secretary have shown yourself so determined to change. It is patients that suffer as a result.
Sir Robert, in the Freedom to Speak Up report (10.7), advised you that our cases had “endured over such a long time, and the issues have become so complex” that they are beyond resolution. This was despite the recommendations of two earlier reports (Clwyd-Hart, October 2013, and health select committee, 2015) that the government should organise a programme for redress and apology for all NHS whistleblowers.
My own case is not so complex. The action covers a short space of time. My claim was upheld at the tribunal. I am convinced that a full airing of my case would be conclusive and in the public interest.
I understand that you have a very difficult job to do. Nevertheless I believe that it is in your power to act decisively in this matter. My own MP, Rupa Huq, is fully supportive, as are a growing number of other MPs.
I write to wish you a very happy new year but the main purpose of this open letter is to appeal to you to think again and address the unresolved injustices suffered by NHS whistleblowers. All ruined “because they tried to do the right thing for patients”. The NHS will be a better place to work and to be cared for as a result.
Yours sincerely,
Sharmila Chowdhury
DCvasanta
THE TALE of Erin Brockovich’s fight against the Pacific Gas and Electric Company of California was turned into a Hollywood movie starring Julia Roberts.
Brixham nurse Vasanta Suddock’s story of how she battled to clear her name following a series of false allegations against her would make an equally thrilling tale.
Ms Suddock (pictured), 48, won a four-and-a-half-year battle to clear her name after blowing the whistle on a Torquay nursing home.
In a ‘David and Goliath’ court case, 48-year-old Vasanta represented herself in the High Court and won her appeal against the Nursing and Midwifery Council.
Ms Suddock faced being struck off in July after charges of professional misconduct were found proved.
But she successfully appealed and the NMC panel’s decision to strike Ms Suddock off was thrown out.
She believes she is the first person to take on the NMC without proper legal representation and win.
Her story began in August 2011 when the Warberries Nursing Home where she was matron went into administration. She had worked there for 16 years.
Administrators Ernst and Young, took over the running of the home and appointed Health Care Management Solution (HMCS) consultants. The home was bought by Margaret Rose Care Limited in November 2011 — the company never had any dealings with Ms Suddock.
The administrators had halted maintenance work being undertaken under the recommendation of the Care Quality Commission, which concerned Ms Suddock who sent an email to the administrators. She was told the maintenance would continue, but it did not.
She decided to whistleblow to the Local Care Trust. On August 17, she emailed the regional manager of HMCS with additional concerns. Four hours later, she was suspended and subject to allegations of bullying and harassment.
After she was suspended, concerns grew about care at the home, which led to the Local Care Trust and family members removing patients.
After Ms Suddock was dismissed she immediately went to the Employment Tribunal on the grounds that she was being victimised as a whistleblower.
The Employment Tribunal confirmed that she was unfairly dismissed. The judgement said ‘the overwhelming majority of the workforce had a very high regard for the claimant — earned over many years’. She was also cleared by the Independent Safeguarding Authority and by Devon and Cornwall police.
The NMC took four years to investigate allegations including bullying against Ms Suddock before holding a hearing in 2015. On July 29, a number of the allegations against her were upheld by the NMC, who provisionally struck her off.
However, Ms Suddock appealed and working on her own and piling up a huge amount of evidence, she stuck to her belief in the truth that she knew she was innocent and that she was being framed.
Ms Suddock had alleged there was a serious deterioration in the level of care at the home. This, according to her, was because it was being run as a residential care home, not a nursing home, without regard to the complex nature of the patients.
She also alleged that following her suspension and dismissal, two other carers made up additional allegations against her because she had challenged them on the poor level of care they were providing.
Ms Suddock had taken the home to task for failing to provide appropriate care — and it was this that led her to believe that false accusations of bullying were made against her.
Having initially been struck off by the NMC, who believed that allegations that had been made against her, Ms Suddock spent months compiling papers, making sure that she knew the law, and preparing for her appeal.
On November 26 2015, she, on her own, went to the High Court in London and took on the NMC. She represented herself. The NMC had two lawyers present. Ms Suddock won.
Mrs Justice Geraldine Andrews DBE quashed all of the most serious charges against her and lifted her striking off order, ruling that the decision of the panel had been made against the weight of evidence, ignored contemporaneous documentary evidence, or were based on evidence that was demonstrably unreliable and/or untruthful.
Justice Andrews said: “It is that the panel failed to appreciate that there is evidence that strongly supports Ms Suddock’s assertion that someone, acting in bad faith, has set out to ruin her hitherto unquestioned professional reputation and her career. I have regrettably concluded that the panel’s approach to the question of credibility and reliability is so undermined in consequence that I cannot, in fairness, allow its adverse findings to stand.
“This was not a case in which Ms Suddock was raising a wholly fanciful conspiracy theory. On the contrary, there may have been a motive for HCMS to encourage the making of such allegations or the exaggeration of the conduct alleged. Alternatively, there may have been a reason for members of staff bearing a grudge against Ms Suddock to seize the opportunity of getting their own back by saying nasty things about her once she was out of the way to an interim ’employer’ who was only too eager to hear them,
“The more I examined the evidence, the more it became apparent that there was genuine cause for concern and Ms Suddock’s feeling that she had not been fairly dealt with became understandable.
“There is the clearest possible evidence, which the panel brushed aside, that someone was making a crude attempt to frame her. When one adds into the equation the attempt to frame Ms Suddock, it becomes obvious that justice dictates that none of the adverse decisions under challenge on this appeal that depended on assessments of credibility should be allowed to stand.
“The findings against Ms Suddock are not supported by the evidence. Not to put too fine a point on it, it is perverse.”
Speaking after her name was cleared, Ms Suddock said for the last four and half years life has been a nightmare for her.
She said: “This has affected my whole life. Life has been a nightmare for me and I have not been able to go out in public.
“I have had lots of support from friends and family and I have managed to keep my house, but it has been a struggle as I have been treated unfairly for the last four and a half years.
“I have had to represent myself all the way through the employment tribunal, the NMC tribunal and at the High Court in London because I couldn’t afford lawyers.
“The judge said it was a unique case and did not normally interfere with charges made by the lower courts of the NMC/ CCC because I had been subject to such horrendous treatment. That was why she quashed those very serious allegations.”
Herald Scotland Daniel Sanderson Monday 28 December 2015 / Home News
Rab Wilson, outside the Scottish Parliament
A CONFIDENTIAL phone line set up to allow NHS workers to report concerns about patient safety and bullying has been branded “useless” by one of the country’s most high-profile whistleblowers.
Rab Wilson, a nurse who uncovered a catalogue of failings at NHS Ayrshire and Arran, said he had suggested the measure to Nicola Sturgeon but the initiative had “failed utterly” as it had proved toothless in holding health boards to account.
The Scottish Government hit back at the claims, saying its policies allowing health workers to raise concerns were already “robust” and would be strengthened further with the appointment of an independent national whistleblowing officer.
Mr Wilson spoke out after Dr Jane Hamilton, a consultant psychiatrist, revealed that she was retiring after believing that she had become known as a “troublemaker” within the Scottish NHS. She warned bosses that lives were being put at risk at a specialist Mother and Baby Unit at St John’s Hospital in Livingston before going public with her fears.
Dr Hamilton said that she had been unable to find work north of the Border and that a weekly commute to Yorkshire where she worked for the NHS in England had proved too demanding.
Mr Wilson said that Dr Hamilton had been “selflessly brave” in speaking out and accused the Scottish Government of not protecting whistleblowers, despite publicly claiming to value their input.
He said: “The National Confidential Alert Line, which I suggested to Nicola Sturgeon, has failed utterly to do the job that I envisaged it doing. It is useless. It has no powers to hold anyone to account.
“Both Jane Hamilton, myself and other whistleblowers I know, when they contacted the Scottish Government begging for support and help were categorically told that this was an ’employer/employee issue’ and they were sent back to the self-same NHS boards that stood idly by and allowed the bullying to happen.
“The Scottish Government washed their hands of these problems. We are in the illegal position in Scotland of having no independent health regulator for whistleblowers to turn to in their hour of need.”
The NHS whistleblower phone line was set up in 2013 with ministers stating that it would help staff highlight areas of concern, which would be investigated. It followed concerns over serious incidents at Scottish hospitals and the scandal at the Mid Staffordshire NHS Foundation Trust in England.
However, concerns have been raised by Mr Wilson and others who have claimed that many employees are simply referred back to the health boards that employ them.
He also hit out at the continued use of gagging clauses in the health service, despite a presumption against the confidentiality agreements in severance agreements being introduced. Dr Hamilton initially spoke out after refusing to sign one of the deals with NHS Lothian.
Mr Wilson said that Freedom of Information requests to the government had revealed that nationwide, more than 30 per cent of settlements included the confidentiality stipulation in 2014/15.
He added: “There is now a nationwide picture emerging with regard to the treatment of whistleblowers in our NHS.There needs to be a cross party response to the disintegration of our NHS and the bullying of staff before it’s too late.”
A government spokeswoman said it was clear that health boards must ensure it was “safe and acceptable” for staff to speak up and that genuine issues are treated “seriously and investigated properly.
She added: “The National Confidential Alert Line can provide advice and guidance to staff and, in some cases, refer cases to an appropriate regulator for investigation. To provide a further level of independent local scrutiny, non-executive Whistleblowing Champions are also being introduced in each NHS Scotland Board.”
She said it had made it “consistently clear” that it expected there to be a “presumption against the use of any confidentiality clauses in NHS Scotland settlement agreements unless there are clear and transparent reasons for inclusion.” She added: “NHS Scotland does not have any policies which would prevent staff from raising concerns about safety and quality, and any confidentiality clause which sought to prevent an individual from raising a protected whistleblowing disclosure would be illegal, under the Public Interest Disclosure Act (PIDA) 1998.”
Herald scotland 25 December 2015 David Ross
Dr Jane Hamilton, a consultant psychiatrist pictured in Glasgow… Dr Hamilton is a whistleblower who voiced fears over safety at NHS Lothian east of Scotland perinatal psychiatry service before a mother took her life in 2011 after she was allowed to leave
Dr Jane Hamilton, a consultant psychiatrist pictured in Glasgow… Dr Hamilton is a whistleblower who voiced fears over safety at NHS Lothian east of Scotland perinatal psychiatry service before a mother took her life in 2011 after she was allowed to lea
A whistle-blowing doctor who was at the centre of a gagging row, has retired after deciding her career in Scotland is beyond repair.
Dr Jane Hamilton now advises any doctor thinking of blowing the whistle in Scotland to think very hard before doing so as it has ruined her professional life.
The consultant perinatal psychiatrist has been working in Hull where her specialist expertise has been warmly welcomed. But her family is settled north of the border and she has finally found the weekly commute too demanding.
However she believes she is now seen as a trouble-maker within the NHS in Scotland. Jobs she has applied for have been re-advertised shortly afterwards.
“It would appear they would rather have nobody than have me,” she said.
She and her family had moved north in 2007 because Dr Hamilton had been appointed to the Mother and Baby Unit (MBU) at St John’s Hospital in Livingston. Her national reputation in the care of mothers with severe psychiatric problems had been recognised when she was asked to help draw up the UK guidelines before her appointment in Scotland.
By the end of 2007 she raised concerns over how the unit was being run and shortly afterwards warned in writing that patients could die. Two women patients subsequently took their own lives and the family of one is now suing the health board for medical negligence.
The unit continues to make headlines. Earlier this month there were reports of a vulnerable mother leaving her baby in the unit, before getting out and being hit by two different vehicles, in what some believe was a suicide attempt.
In June Erin Sutherland pled guilty to culpable homicide after she smothered her 10 month old baby Chloe.
Her doctor sought specialist help when Chloe was eight-months old, but support was not offered by the MBU. The suggestion made in court that post-natal depression was not deemed to be a problem after six months, was subsequently challenged by Dr Hamilton.
After raising concerns Dr Hamilton was off with stress related illness, then worked elsewhere but wasn’t allowed to return to the unit, officially leaving NHS Lothian earlier this year.
The health board and Scottish Government have always insisted her concerns were thoroughly and independently investigated and were unfounded. However sources suggested otherwise.
A more recent investigation by NHS Lothian, which is not to be published despite appeals, is understood to have found no fault with Dr Hamilton’s professional abilities nor did it criticise her actions.
In the aftermath of the controversy over an alleged attempt by NHS Lothian to gag her in a compromise agreement for her to leave, something the health board has always vehemently denied, ministers effectively outlawed the future use of any such clauses by public bodies.
Meanwhile Dr Hamilton has become an active member of the recently founded campaign group A Safe and Accountable People’s NHS in Scotland (ASAP- NHS) , which is calling for the setting up of a genuinely independent NHS regulatory body.
Dr Hamilton said: “I didn’t want my career to end like this, but it is clear to me my reputation has been irreparably damaged.”
She doesn’t believe her concerns were ever properly investigated, and added: “Of course health employees should blow the whistle, but should realise they may end up paying a very heavy price.”
Neil Findlay Labour MSP for Lothian, said:“Jane Hamilton’s case is shameful. Here we have a women with an unblemished career who has been victimised and effectively blacklisted from getting a job in Scotland for the ‘crime’ of raising concerns about patient safety and poor practices in what should be a national centre of excellence.”
He said people who want to make our health care better should not be treated this way.
But a Scottish Government spokeswoman said whistle-blowers were being protected. Health boards had to ensure it was safe for staff to speak about any concerns, particularly patient safety, which would be investigated.
She said there was the National Confidential Alert Line, and non-executive Whistleblowing Champions were being introduced in each health board
Ministers were also committed to establishing an Independent National Whistleblowing Officer, to provide an independent and external review on the handling of whistleblowing cases in NHS Scotland.
Andy Styles
Vasanta Suddock
A BRIXHAM nurse has won a four and a half year battle to clear her name after blowing the whistle on a Torquay nursing home.In a unique ‘David and Goliath’ court case, 48-year-old Vasanta Suddock represented herself in the High Court and won her appeal against the Nursing and Midwifery Council.
Ms Suddock faced being struck off in July this year after a number of charges of professional misconduct against her were proved.
But she has successfully appealed in London’s High Court and the NMC panel’s decision has been thrown out.
She was also cleared by the Independent Safeguarding Authority and by Devon and Cornwall Police.
Speaking after her name was cleared, Ms Suddock said for the last four and half years life has been a nightmare for her.
She said: “This has affected my whole life. Life has been a nightmare for me and I have not been able to go out in public.
“I have had lots of support from friends and family and I have managed to keep my house, but it has been a struggle as I have been treated unfairly for the last four and a half years.
“I have had to represent myself all the way through the employment tribunal, the NMC tribunal and at the High Court in London because I couldn’t afford lawyers.
“The judge said it was a unique case both in the fact I had represented myself and succeeded and because I had been subject to such horrendous treatment. That was why she quashed those very serious allegations.”
Ms Suddock, a qualified registered general nurse, worked as the matron and manager at the Warberries Nursing Home in Torquay for 16 years, until the home went into administration in August 2011.
She then become concerned about the level of care at the home. When the new administration’s managers ignored her concerns she acted as a whistleblower to the Torbay Care Trust. After that, false allegations of bullying were made against Ms Suddock.
She was suspended and unfairly dismissed by the administrators. An employment tribunal in April 2012 confirmed she had been unfairly dismissed.
Justice Geraldine Andrews has now quashed the majority of the allegations.
She said: “The panel failed to appreciate there is evidence which strongly supports Ms Suddock’s assertion that someone, acting in bad faith, has set out to ruin her hitherto unquestioned reputation and her career.”
In respect to the most serious charges of improper care and bullying, Justice Andrews quashed all the serious charges against her.
A statement from the current owners of the home confirmed they purchased the home after Ms Suddock had been initially dismissed by the previous owners.
Apology from The Mirror:
Vasanta Suddock
17:26, 22 DEC 2015 UPDATED 17:27, 22 DEC 2015
BY MIRROR.CO.UK
Regarding our article “‘Constipation-obsessed’ care home matron struck off for giving residents laxatives SIX times a day”, which reported a Nursing and Midwifery disciplinary hearing
In our article “‘Constipation-obsessed’ care home matron struck off for giving residents laxatives SIX times a day” when reporting a Nursing and Midwifery disciplinary hearing into Vasanta Suddock, we did not make clear that she was cleared by the tribunal of any improper conduct relating to a patient’s perforated bowel.
We apologise for this error.
Furthermore, we are happy to report that her appeal to the High Court was successful and she was cleared of the claims reported by mirror.co.uk, the striking off order was cancelled against her, and she will be given a further opportunity to defend the remaining claims, which she strongly denies, in a future hearing if the NMC decides to proceed, after a warning was issues by the Judge that all matters would be struck out if the NMC do not abide by her recommendations.
This heart warming message was from a patient who is now 21 years old.
Dr Drew had saved her life when she was prematurely born.
Daily Star 23 December 2015 Martyn Halle
SHARMILA CHOWDHURY 