The confusion must be cleared away and guidance established if these deals are to remain trusted and useful, writes Iain Miller
Gagging orders were back in the spotlight this week when the women and equalities committee reported on non-disclosure agreements. Once more the legal profession felt the heat as MPs criticised its approach so far and called for more action from regulators.
It is a peculiar feature of NDAs that responsibility for the issues raised is spread across a wide range of bodies.
The courts have not traditionally supervised what are essentially private contractual agreements. But various other interested groups are proving influential. No wonder lawyers are confused on where they stand on use of the agreements.
What is becoming increasingly apparent is a need for authoritative guidance and agreed standard form documents that can be relied on by those dealing with NDAs.
This was certainly the view at a recent meeting of employment law specialists, law firm risk managers and ethics experts.
Attendees agreed that clarity is required about the precise boundaries of acceptable terms in the drafting and negotiation of NDAs and that the recent warning notice from the Solicitors Regulation Authority did not do this sufficiently. Equally, some said that a practice note from the Law Society, the body that represents solicitors in England and Wales, was equivocal.
Others raised concerns about shifting public attitudes. Hence a default form of wording being developed for the front of every settlement agreement — akin to the way in which standard form court orders such as freezing injunctions are used — was thought to be a good way forward.
It could state in plain English what was not/could not be prevented by the agreement, such as reporting to the police, regulators, medical practitioners and others. It would give solicitors the confidence they are acting appropriately, but also clients the confidence their agreement is bona fide. There is a danger that NDAs are becoming unnecessarily feared and toxic by their very notoriety.
Some argued that the use of NDAS should be the subject of greater controls and oversight within law firms given they have become such a risk factor. Suggestions included that NDAs might require approval at a higher level or that clients could only be allowed to enter into NDAs in employment cases with board approval.
Another idea discussed was whether a higher form of regulation should apply in relation to the use of NDAs in an employment context. NDAs could be signed off by a lawyer, specifically qualified and authorised to advise on such matters.
There has been a stream of events over the past 18 months that has drawn focus back to the legal profession on how it deals with NDAs. There is every reason to expect this to continue until the various issues surrounding NDAs are resolved.
As a profession, lawyers need to grapple with these or we risk government regulation or a total ban on NDAs, which would be a pity given that their use is not intended to be pernicious but often in the best interests of both signing parties.
Iain Miller is a partner specialising in legal services regulation at Kingsley Napley, a London law firm
Jonathan Penny worked for the ambulance trust for 17 years(Image: Jonathan Penny)
A whistleblower who spoke out about a bullying culture by senior ambulance trust managers is claiming he was wrongly dismissed over allegations of gross misconduct, causing him to contemplate taking his own life.
Jonathan Penny, who worked at South Western Ambulance Foundation Trust (SWASFT) for 17 years, told an employment tribunal in Exeter how his mental health was also affected by his colleague and best friend ending their life while his disciplinary proceedings were ongoing.
The court heard how Mr Penny was an air ambulance paramedic and then for the hazardous area response team (HART) as a team leader, training manager and national interagency liaison officer.
Mr Penny told in a statement how his service with the trust had been ‘exemplary’ until a National Ambulance Resilience Unit (NARU) report in June 2017 into the Hazardous Area Response Team (HART) identified concerns about management and leadership, and highlighted a culture of bullying and sexual harassment among numerous management team employees.
An independent investigation was commissioned by the trust looking into the practices of the HART team which led to disciplinary processes for three employees, including Mr Penny.
A formal investigation into alleged bullying, sexual harassment, violence and aggression by Mr Penny was recommended. Due to seriousness of the allegations, a disciplinary investigation was deemed necessary by the trust.
Mr Penny alleged in his statement: “A senior officer of the trust, who wishes to remain anonymous for fear of repercussions, was present at the disclosure of the (NARU) report which was witnessed by the board of executives via video link.
“He said that chief executive Ken Wenman was ‘fuming’ and shortly after held a meeting stating that, ‘I want them gone. Get rid of them’, with reference to who he believed was responsible for disclosing this dysfunctional management.”
Two months later, Mr Penny says he was informed he was to be removed from his post and demoted with immediate effect. He was sent to work at Exeter ambulance station and says he was not given any reason for the decision.
When no explanation had still been given nine days later, he said he formally requested one.
“I would have expected to receive notification of allegations against me within seven days as per trust disciplinary policy,” he said. “My mental health began to seriously decline and I also informed the trust I would be reporting sick due to unmanageable levels of work related stress.”
Mr Penny says his stress was further compounded when he was told the following month his former role as a training manager was being covered by an employee who had just moved in with his wife.
Mr Penny told how he wrote to the trust perceiving it to be a conflict of interest, and says he was told it was ‘unfortunate’.
In September 2017, Mr Penny says he told the trust he was now suffering from severe mental health illness and had nearly taken his own life.
He said: “The trust still attempted to put additional pressure on me to attend a disciplinary hearing despite the severity of my condition, which became dangerously unstable when I learnt that my best friend, an operations manager in the trust, had committed suicide by hanging himself a week before my hearing was due.
“Despite this, the trust still insisted I attend a three-day hearing after the funeral of my best man. The trust also removed the wellbeing officer who had been assigned to support me through my illness.”
Mr Penny claims it wasn’t until October 2017 – two months after he was removed from post – that he was informed of the allegations being made against him which were three accounts of gross misconduct following the trust’s cultural review.
The first was he had displayed a pattern of inappropriate behaviour towards colleagues. The second was he had been complicit in the deployment of safe working at height practices within HART Exeter that fell outside of national specifications and did not have necessary governance in place, resulting in HART operatives being put at risk.
he final allegation was in his role as course director, he led HART operatives into unsafe water during a training course in Llangollen. All three were denied by Mr Penny.
He said: “I expressed my concerns that I had been removed from post prior to the report being compiled, and that I did not think the report was fair or unbiased as all staff had been made aware that three senior managers had been removed from post due to allegations of bullying and sexual harassment prior to the report being compiled.”
He added: “The allegations were the findings of the cultural review and the fact I had used the interoperability panel as a platform to report what I believed was bullying and harassment.”
At the disciplinary hearing, where it was decided to terminate his employment, Mr Penny claims the trust refused to allow him to bring any witnesses, which the trust disputes.
During the appeal process he was told the disciplinary officer had not received his initial evidence package due to a ‘clerical error’.
Mr Penny said: “The investigation on which the hearing relied was neither reasonable or fair as the investigating officer made no attempt to undertake an impartial investigation, and failed to take into account all relevant witnesses and evidence freely available to him.”
Regarding some of the allegations made against him, Mr Penny claims he was never named as the responsible officer for safe working at height practices, and no complaints or safety issues were raised at any point.
He said: “Staff and patient safety were paramount in every action I took and every training event I organised, every live deployment I was involved in and without ever receiving a single complaint about my conduct.
“I believed SWASFT failed to comply to their own policies and failed to follow the Advisory, Conciliation and Arbitration Service (ACAS) employment guidance as this was an intentional, single-minded and unreasonable act to ‘get rid of me’.
“As a result of SWASFT’s actions I have suffered with mental health issues, financial issues, depression, anxiety, exacerbation of PTSD symptoms, and for many months I was unable to work due to issues directly relating to the way I treated, humiliated and bullied by SWASFT.
“I believe the only reason I have been singled out and treated unfairly and differently to others that were investigated is partly direct discrimination because of my mental health issues and as a direct result of my whistle-blowing of the bullying culture by senior managers in SWASFT.”
He added: “Bringing this case before the court has been hardest thing I have ever done as it has taken an enormous amount of effort to do so. However, I have felt compelled to do so as I just cannot move on with my life or come to terms with the horrendous and unfair way in which the trust I gave so much to, for so many years, has treated me.
“I also feel a duty of responsibility to speak out for excellent staff of SWASFT who still suffer in silence, and I feel I owe it to my friend and others before him who have been overwhelmed and taken their own lies as a consequence of the proven and documented toxic culture.”
Among statements in support of Mr Penny, HART operations officer Ben McGachy said: “I have experienced similar persecution in HART after I raised concerns about the culture and experiences of bullying and harassment that my staff and I suffered in the unit.”
Evidence was heard from the trust who refute Mr Penny’s allegations and believe their investigation of him was fair, impartial and reasonable.
Amy Beet, executive director of people and culture told how following the independent report into HART, she concluded it was necessary to investigate the issues raised, and Mr Penny was temporarily deployed pending investigation.
Ms Beet said: “Having reviewed the investigation report I concluded there was sufficient evidence to warrant a disciplinary evidence.”
She told in a statement how it was rescheduled twice to suit Mr Penny, the latter being on compassionate grounds, and he was invited to bring witnesses and provide statements, but the large number he was proposing – 29 to give evidence and a further 19 to attend for questioning – was ‘not practicable’. The hearing was held in Mr Penny’s absence, having been told he would not attend.
It was conceded at an appeal hearing Mr Penny’s mitigation documents were not passed on to the hearing in January 2018 and was due to an ‘administration error’ within the HR department, but they were considered by the appeal panel in April 2018.
Ms Beet said: “I deny that the decision to allow Mr Penny to call witnesses to attend the hearing or postpone the hearing was unfair. There were cogent reasons including practicability, the large number of witnesses and lack of clarity as to relevance.
“To allow all of the witnesses to attend the hearing was not proportionate, feasible or necessary. Although this decision was communicated to Mr Penny shortly before the hearing, I do not believe this prevented him from putting forward his case or having a fair hearing.
“I deny that including the sexual harassment allegations in the investigation was unfair.”
Paul Birkett-Wendes, who chaired Jon’s disciplinary hearing at the time he was head of operations in the north division, said: “My disciplinary outcome concluded that Jon had placed trust paramedics at significant risk, both in respect of their working at height and in respect of open water training.
“As such I consider there has been a complete breakdown in trust and confidence between the parties. In addition to the above health and safety concerns, there is evidence Jon has demonstrated a pattern of inappropriate behaviour towards his colleagues.”
Jennifer Winslade, executive director of quality and clinical care, who chaired the appeal hearing, said to ensure his appeal process was ‘absolutely fair’, Mr Penny was offered a further opportunity to gather witness statements but says she received no statements for her review and consideration.
She said: “After hearing all of the evidence, I concluded that Jon’s conduct was so serious it warranted a finding of gross misconduct by the disciplinary hearing.
“After a review of the findings of the disciplinary panel I found their conclusions to be fair and reasonable.”
Whorlton Hall was taken over by Cygnet Health Care this yearBBC/PA
An inspector whose report highlighting failings at a scandal-hit hospital was never published resigned from the regulator, protesting that some of its staff were too close to the private company that ran the hospital.
Barry Stanley-Wilkinson also complained of a “toxic” culture at the Care Quality Commission and said many of its inspectors felt that they worked in a “bullying, hostile environment”.
Mr Stanley-Wilkinson resigned six months after he led an inspection in 2015 of Whorlton Hall, a private hospital in Co Durham for adults with learning disabilities or autism. Police arrested ten carers at the hospital last month after Panorama on the BBC broadcast footage of staff appearing to mock and intimidate patients.
The inspector reported in 2015 that some patients had accused staff of bullying and inappropriate behaviour. He said patients did not know how to protect themselves from abuse and recommended that the hospital should be given a rating of “requires improvement”.
His report was never published and a new CQC team that inspected Whorlton Hall in 2016 gave it a “good” rating. Mr Stanley-Wilkinson’s resignation email, sent to the CQC in January 2016, was published yesterday by parliament’s joint committee on human rights, which took evidence from two CQC executives. He expressed frustration that his report on Whorlton Hall had not been published “despite significant findings that compromised the safety, care and welfare of patients”.
He referred to a complaint about his report by the hospital, which was then run by the healthcare company Danshell, and pointed out that it had previously been run by Castlebeck, which ran Winterbourne View, a care home where there had been an abuse scandal in 2011. Whorlton Hall was taken over by Cygnet Health Care this year.
“I am concerned about the relationship managers have had with the service,” Mr Stanley-Wilkinson wrote. “Discussions had taken place without my involvement despite me being the inspector.”
Paul Lelliott, deputy chief executive of the CQC, said the 2015 report had had inconsistencies and lacked evidence. Ian Trenholm, its chief executive, said the CQC planned to develop a new way to monitor institutions.
Joseph England, a Barrister, has recently published a handbook entitled NHS Whistleblowing and the Law.
The book is intended to be accessible to those pursuing their own claims, as well as lawyers, and to try and demystify some of the legal complexities.
Whistleblowing claims are some of the most complex and technical cases that can be pursued. This book provides a comprehensive and practical guide to the law in this field. The topic has received increased attention in recent years as a result of several high profile cases and incidents across a wide range of areas. Such claims are increasingly common, can be brought by workers and employees and do not require a specific length of service. A thorough understanding of the legal framework, as provided in this new publication, is essential.
This publication explains the various legislative requirements to whistleblowing, covering topics including:
who can be a whistleblower within the legal definition;
when raising a concern is elevated to be a protected disclosure;
the law relating to detriments and dismissal if caused by a protected disclosure;
what remedies are available
practical points about the procedure of claims.
The book provides an in-depth practical guide to the law and a very useful reference tool for practitioners on both sides of a dispute, as well as assisting litigants acting without a lawyer to comprehend the law in this complex area.
Foreword by Francesca West, Chief Executive of Protect (formerly Public Concern at Work).
ABOUT THE AUTHOR
Joseph England is a Barrister at 3 Paper Buildings and a specialist Employment practitioner. His busy practice has ensured he has in-depth experience of a wide variety of areas and types of claim, including significant expertise in whistleblowing cases both within and outside of the NHS. Of note, he acted as junior for the successful Claimant who was awarded £1.22mil in Mattu v University Hospitals Coventry & Warwickshire NHS Trust (ET, 1302226/11, 1303494/12) and in the successful appeal in McTigue v University Hospital Bristol NHS Foundation Trust ( IRLR 742), which considered the scope of protection for whistleblowers, leading to a wider definition of those who could claim protection. He has also acted for various respondents in whistleblowing cases, including NHS Trusts and Health Boards, Education Institutions and a wide variety of businesses. Further details and examples of cases can be found on his chambers’ website.
His success and evident abilities have led clients to trust Joseph with very complex cases. Joseph’s practice benefits from representing and advising both sides of employment disputes and he has been instructed in cases at the Court of Appeal, EAT and at a wide range of final and preliminary hearings in tribunal and court. He regularly delivers training covering areas from nuanced and niche points of law to basics of the Tribunal procedure and mock tribunals. He has been published in the ELA Briefing, on Westlaw and provides updates through Chambers and on Twitter @JEnglandCounsel.
Chapter One – Points of Procedure
Types of Claim
Freedom to Speak Up: Raising Concerns (Whistleblowing) Policy for the NHS
A Claim in the Employment Tribunal
The Start of a Tribunal Claim
Chapter Two – Who Can Be a Whistleblower?
NHS Job Applicants
Chapter Three – Has the Whistle Been Blown?
Does the Disclosure Contain the Required Content?
Reasonable Belief of the Worker
Made in the Public Interest
‘Tends to Show’
Has the Protected Disclosure Been Made in the Required Manner?
Chapter Four – Liability
Who to Claim Against?
‘On the Ground That’
Dismissal Under S.103A Era 1996
Chapter Five – Remedy
Reinstatement and Re-Engagement
Compensation for Unfair Dismissal and Financial Loss
Injury to Feelings
Chapter Six – Contemporary and Future Issues
Freedom to Speak Up and Whistleblowing Guardians
Sources of Advice
AN NHS whistle-blower who says she was demoted after raising concerns about her team’s treatment by management has called for senior decision-makers to consider their position in the wake of the Sturrock review into bullying.
Carolyn Dow (52) was a divisional nurse manager for surgery at Raigmore Hospital but now works in a GP practice in Tayside.
Her grievance had centred around management wrongly trying to blame nurses for failure to contain an outbreak of C-difficile.
Talking to the Inverness Courier last year she said she was vindicated following an investigation – only to subsequently be told she could not remain in post because other managers felt they could not trust her.
Following the publication of QC John Sturrock’s 176-page report into bullying and harassment in NHS Highland last week she called it “honest and fair”.
Hoping it will prove a catalyst for decisive action she said: “I do feel that all the whistle-blowers who came forward last year and those who were whistle-blowers a few years ago have been proven to be right.
“It is just such a shame that some of the perpetrators have left the organisation and will not be held accountable.
“Not only the board who were in place at the time of the bullying but also the regional senior managers should be held to account.
“They should be considering their position and their ethical and moral responsibility to resign.”
NHS managers in Ayrshire and Arran have been accused of bullying and harassment by almost 90 radiographers.
The Society of Radiographers (SoR) has revealed that 85 staff working for NHS Ayrshire and Arran have submitted official complaints about the behaviour of managers, with a further 16 considering adding their names to the grievance.
Staff claim that there have been “years of allegations of bullying and harassment by line managers” which has led to more than half of all SoR members at the health board making complaints.
Last week, the professional body’s annual conference voted to support colleagues to take action, after the claims of “aggressive behaviour and lack of empathy and support for staff who are upset or distressed”.
Deborah Shepherd, the SoR national officer for Scotland, said: “We have been trying to have the issues about the behaviour of certain line managers resolved without having to take formal action.
“A meeting with the chief executive of NHS Ayrshire and Arran, John Burns, failed to happen and members feel that the health board isn’t listening and doesn’t care about how they are being treated.”
Responding to the allegations, Mr Burns said the health board takes the concerns seriously and has offered to work with SoR members through an independent review.
Mr Burns added: “I personally offered to meet with staff to assure them that this co-produced process would be a formal process with clear outcomes. This would not remove the right for a grievance to be heard at a later date should that be a conclusion of the review.
“Having been advised by the Society of Radiographers that their members did not wish to take forward the proposal, we confirmed to the Society that the grievance will proceed in accordance with board policy. Arrangements are under way to hear the grievance.
“We recognise that this is a difficult time for all staff who are affected by this grievance.”
Deborah Shepherd, National Official Scotland for the Society of Radiographers
NHS Ayrshire has become the latest health board to be rocked by claims of bullying after nearly 100 radiographers lodged a formal grievance against their managers.
The backlash by staff in NHS Ayrshire and Arran’s diagnostic imaging department was sparked after a radiographer and trade union rep was threatened with disciplinary action after challenging proposed changes to CT scanning, which staff feared put patient safety at risk.
The radiographer, Fiona Ferguson, had only recently returned to work following treatment for breast cancer, but has now being signed off for “work-related stress” by her GP.
The case was described by the Society of Radiographers’ (SoR) national officer for Scotland, Deborah Shepherd, as a “final straw after years of bullying, harassment and victimisation” which she said had driven at least two employees within the department to the brink of suicide.
She said she had been personally telephoned in the past two years by two individuals on the verge of ending their lives over work pressures – one who was on the Erskine Bridge, and another who was poised to overdose on pills.
The Herald has also been told that staffing shortages have seen radiographers “making themselves ill” amid pressure to take on extra shifts.
Ms Shepherd said: “Members have for years been very reluctant to put in formal grievances, because their impression is that when they do that they get targeted and it puts themselves and their careers at risk.
“Of course, the board says ‘there can’t be a bullying and harassment problem because nobody’s putting in grievances’. The reason for that of course is that if they did, they’d be victimised.
“So for years we’ve been telling the board there’s a culture of harassment and bullying in there, and it’s been getting progressively worse.”
The collective grievance letter, signed by 85 radiographers and radiology staff from both Crosshouse and Ayr hospitals, was sent to chief executive John Burns on April 3.
It describes staff at Crosshouse feeling “intimidated, scared to speak up for fear of retribution” and complains of “a lack of consistency in the application of NHS Ayrshire and Arran’s existing grievance process which serves only to marginalise and isolate individuals from colleagues”.
They say their staff meetings are “regularly cancelled when there are major issues to be discussed”, and that meetings are either not minuted at all or the minutes “are not a true reflection of discussions”.
Certain managers in the department are said to “adopt a passive aggressive approach in all dealings with staff” and “for a long time our concerns and views have been ignored by management”.
Radiography staff fromUniversity Hospital Ayr say they are “increasingly frustrated at the micromanagement that appears to happen on a daily basis”, and by the “persistent lack of consistency in treatment of staff and a lack of compassion, particularly when personal circumstances can impact on work”.
In 2015, a ‘seek-to-understand’ exercise was undertaken by external consultants after a staff survey flagged up a bullying problem within the imaging department.
However, the SoR says recommendations were never acted upon.
The latest crisis was sparked after Ms Ferguson, 55, attended a meeting with imaging department managers on March 15 – just three weeks after she had returned to work following nine months’ sick leave for breast cancer.
SoR members were concerned that proposed changes to CT head scanning, relating to radiography staff in the emergency department, could cause delays or disruption to the treatment of patients with conditions such as head trauma or stroke.
Ms Ferguson had been asked to collate and present comments from staff, but she says she was repeatedly “shut down” and left shell shocked when the meeting was aborted amid accusations from managers that she was being “aggressive and disrespectful” – something she denies.
On March 28, Ms Ferguson was told that a grievance had been lodged against her for “inappropriate behaviour in a meeting” and that she would be transferred with immediate effect from Crosshouse to Ayr Hospital while an investigation took place.
The Crosshouse ban meant that Ms Ferguson, a radiographer at the site for 18 years, required permission to accompany her 82-year-old mother into the hospital for X-rays and CT scans after she suffered a bad fall in March.
Although the transfer was subsequently reversed following an intervention by Mr Burns, Ms Ferguson says the stress left her feeling unable to cope with her work.
“I’m just scared of making a mistake,” she said, adding that she believes the meeting on March 15 was “set up” as an excuse to get rid of her.
She said: “That was five weeks ago and I still don’t know what I’m accused of, apart from ‘inappropriate behaviour’, and I still don’t know who’s accused me.
“Even if I hadn’t just come back from breast cancer, that’s just a horrific way to treat a human being.”
A colleague, who asked not to be named, added: “While all this has been going on in the background, we have been delivering patient care to the best of our ability and we want to work with the organisation to resolve these issues but we want them to be taken seriously.
“This undercurrent of bullying and poor management has to be removed. It’s terrible to work in an environment where you’re scared to speak up.”
Ms Shepherd added that staff are dismayed that the managers subject to the collective grievance have not yet been suspended.
She said: “Staff are not confident that these matters are being taken seriously because the managers are still in the building. They don’t believe that would happen with any other staff member.”
John Burns, chief executive at NHS Ayrshire, said the health board took “seriously” all concerns raised by staff. Mr Burns had offered to bring in independent consultants from Core Solutions, the Edinburgh-based mediation company led by John Sturrock QC, in a bid to “work collaboratively to agree the best way to understand the issues”.
This was rejected by SoR members, who considered it a delay tactic and waste of taxpayers’ money.
Mr Burns said: “This would have enabled a joint ownership, supporting NHS Ayrshire & Arran’s wish to work collaboratively with the Society.
“I personally offered to meet with staff to assure them that this co-produced process would be a formal process with clear outcomes.
“This would not remove the right for a grievance to be heard at a later date should that be a conclusion of the review.
“Having been advised by the Society of Radiographers that their members did not wish to take forward the proposal, we confirmed to the Society that the grievance will proceed in accordance with Board Policy.
“Arrangements are underway to hear the grievance.
“We recognise that this is a difficult time for all staff who are affected by this grievance.”
The coroner will examine claims that NHS bosses failed to listen to whistleblowers
NHS bosses ignored whistleblowers allowing a “maverick” doctor to use experimental treatments on 10 cancer patients who subsequently died, an inquest will hear.
A coroner is to investigate the deaths of the patients who died after they were treated by Paul Miller between 2007 and 2013, as well as claims that hospital bosses took five years to react to concerns from colleagues.
In one treatment – not recommended by the National Institute of Health and Care Excellence – he used high-intensity ultrasound in an attempt to burn away prostate cancer cells.
On Friday a pre-inquest review into the deaths heard “systemic failures” may have led to the deaths.
West Sussex coroner Penelope Schofield opened the pre-inquest review into the deaths of Frederick Le Vallois, 71, Keith Reynolds, 68, Alan Burgess,72, Leslie Owers, 75, Ian Spurgeon, 85, Lilian Cole, 82, Jose Cressy, 76, Graham Stoten, 57, Renfried Avery, 80 and Martin Turner, 86.
Miss Schofield said she would investigate claims of “systemic failure” as part of the inquests.
Dr Miller, 62, a consultant urologist, was working at East Surrey Hospital in Redhill and two private hospitals treating patients who were suffering from bladder and prostate cancer.
As early as 2008 fellow doctors and nurses blew the whistle on his unorthodox methods and pleaded with hospital bosses to stop him.
They allegedly told bosses patients were suffering lasting damage as a result of the treatment.
However bosses at East Surrey Hospital in Redhill took five years to act on the concerns of staff.
Dr Miller also referred patients to the private Spire Gatwick Park Hospital in Surrey for treatment on the high intensity ultrasound system.
Eventually Surrey and Sussex Healthcare NHS Trust (SASH) suspended the consultant and launched an investigation. On conclusion of the review in 2015 the Trust sacked the consultant from his £125,000 a year job.
The Trust then wrote a letter to more than 1,200 patients treated by the consultant asking if they had concerns about their care.
The Royal College of Surgeons launched its own investigation and found that 27 cancer patients – treated by Dr Miller between 2004 and 2013 – had suffered “serious harm” at the hands of the consultant.
The experimental treatment had left some patients in constant pain, while some suffered permanent impotence.
Ten of these patients subsequently died, however Dr Miller has never been charged with any criminal offence.
Neither has he been struck off by the General Medical Council, and he is allowed to work in urology with rigorous restrictions.
It is understood he is working in Los Angeles and has no plans to return to practice in the UK.
A later investigation by the Good Governance Institute (GGI) said health chiefs should have taken action against the consultant as early as 2008.
Patients told investigators the consultant was a “maverick” who pressurised them to go private and undergo his experimental treatments.
The 58-page report said bosses at SASH had failed to listen to whistleblowers and had therefore “missed crucial opportunities to act on concerns raised by a number of staff”. The 10 inquests are due to start later this year.
ACC Downing added: “When you spend time with the families, you hear the ordeal they’ve gone through… you can’t help but feel the pain and suffering. As you listen your heart potentially just breaks.
“I absolutely understand there is mistrust. I walk into that room and it’s palpable, that mistrust in my organisation and me.”
In a statement read on behalf of the families, Bridget Reeves, whose 88-year-old grandmother Elsie Devine died in the hospital in 1999, said there had a been a “cover-up culture” surrounding previous investigations.
She said: “We challenged and we challenged when we saw the corrupt evidence that so-called experts had submitted but the CPS slammed the door shut in our faces.
“This immoral disaster was perpetuated by a club culture … officials protected each other.
“Our loved ones were killed and our lives destroyed.”
Ian Sandford, whose mother also died in Gosport, added: “Frustration doesn’t even come near. They should have sorted this out a long time ago.
“All I want to hear is a good result.”
Peta Birmingham, whose grandmother Gladys Richards died, said her family were “as pleased as we can be” about the new investigation.
She said: “After all this time you can understand why the families are distrustful of the process, having already endured three police investigations. We hope it’ll be different and it will reach its rightful conclusion.”
Gosport MP and health minister Caroline Dinenage said she hoped families would “get access to the truth”.
She said: “I know that some families would prefer a much faster conclusion. I also have many constituents who’ve worked at the War Memorial Hospital past and present, with great professionalism and integrity.
“That’s why it’s important that the investigation is done with the utmost care and thoroughness.”
The Gosport Independent Review Panel report, published in June 2018, found there was a “disregard for human life” at the hospital.
It also found an “institutionalised regime” of prescribing and administering amounts of opiate medication that were not clinically justified.
The report said the quality of previous police investigations had been “consistently poor”.
It found whistleblowers and families were ignored as they attempted to raise concerns about the administration of medication on the wards, which was overseen by Dr Jane Barton.
Dr Barton retired after being found guilty by a medical panel of failings in her care of 12 patients at Gosport between 1996 and 1999.
In a statement last year, Dr Barton said she was a “hard-working doctor” who was “doing her best” for patients in a “very inadequately resourced” part of the NHS.
Assange had spent over six years holed up in the Ecuadorian Embassy in London avoiding such extradition, as U.S. authorities have long sought to prosecute him for his role in WikiLeaks obtaining and releasing classified military information in 2010.
Although the ethics and legality of WikiLeaks’ operations and its motives are contested, the organization has through the years revealed undeniably newsworthy information that authorities sought to keep from the public. These are some of the biggest stories that came from WikiLeaks.
The U.S. Military Killed Civilians And A Reuters Cameraman In Iraq
In 2010, a video shot on board an American helicopter operating in Iraq documented the U.S. killing a 22-year-old Reuters cameraman and his driver in an air attack in Baghdad. WikiLeaks released the footage of the strike, which killed at least a dozen people, in a 38-minute video called “Collateral Murder.” It shows the graphic killings along with audio of the aircrew laughing and referring to those killed as “dead bastards.” The U.S. military initially claimed the Reuters crew was killed in a firefight with insurgents, an explanation that the video contradicted.
The video and more than 700,000 leaked documents sparked a major scandal and outcry from human rights groups. It also led to the arrest of Chelsea Manning, a U.S. intelligence officer who had illegally downloaded the documents from a military base before providing the information to WikiLeaks.
Corruption, Killings And Abuse In Iraq And Afghanistan
After WikiLeaks released the “Collateral Murder” video, it continued with other document dumps from the Manning files. The documents revealed extensive corruption and human rights abuses in both Iraq and Afghanistan, as well as an apparent lack of action from U.S. officials to investigate or prevent such abuses. Some of the files detailedthat U.S. forces knew of Iraqi police abuse, including torture and rape, but often did nothing to punish those acts. Another release concerned U.S. Marines killing or woundingdozens of unarmed civilians near Jalalabad, Afghanistan, while they fled from an attack.
The U.S. Spied On Its Allies And Tapped Foreign Government Phone Calls
A 2015 release revealed the U.S. had been spying on a number of allies, using the National Security Agency to intercept the phone calls of top foreign officials, businesses and leaders. The revelations caused an international political uproar, forcing President Barack Obama to issue apologies to Germany, France, Brazil and Japan ― all of which were targeted in the spying. In the case of Germany, WikiLeaks alleged the files showed the NSA had tapped the German chancellery going backdecades.
Intelligence Reports On Guantanamo Bay Prisoners
Hundreds of reports on operations and inmates at Guantanamo Bay gave insight into operations at the secretive U.S. detention camp and the status of its prisoners. The 2011 release revealed that dozens of the inmates struggled with depression and mental illness, that the United States was obtaining information through torture, and that some prisoners were detained on slim evidence or because of mistaken identity. The files also showed that 172 of the prisoners there had been deemed high-risk prisoners who would pose a threat to the U.S. if released.
Australia’s Internet Blacklist
In one of its early leaks from 2009, WikiLeaks published a list of nearly 2,400 web pages that the Australian government was allegedly planning to permanently block access to in the country. The list, which the Australian government disputed, included sites that involved child pornography and extreme violence ― but also included several other pages that included YouTube videos, WikiLeaks entries and poker sites. The release intensified a public debate over internet censorship, while child rights advocates condemned WikiLeaks for publicizing the names of sites that abuse children.
Kenya’s Extrajudicial Killings
WikiLeaks published a suppressed report from Kenya’s National Commission on Human Rights in 2008 that contained allegations of extrajudicial police killings in the country. The publication received widespread support from human rights groups, and Amnesty International gave WikiLeaksa media award in 2009 as a result.
The CIA Targeted Smartphones And Computers
Not to be confused with Edward Snowden’s leak of documents detailing NSA surveillance measures, WikiLeaks released its own files in 2017 purporting to show the CIA’s extensive hacking capabilities. The files alleged the CIA can target individual computers and smartphones with malware that can allow the agency to view the contents of a device. In one especially creepy document, the CIA detailed how it could attack a Samsung smart television so that the device appeared to be in off mode when it was, in fact, turned on and recording conversations around it.
The Inner Workings Of Sony Pictures
A cyber attack exposed thousands of internal documents and emails from Sony Pictures in 2014 as part of a bizarre incident U.S. officials believed was linked to North Korea taking offense at a Seth Rogen comedy that mocked its leader Kim Jong Un. Although WikiLeaks wasn’t connected to the initial release of the documents, the site later collected and released all of the hacked files in a searchable database that gave an in-depth look at conversations between Hollywood’s top executives.
The Hillary Clinton Emails
During the 2016 U.S. presidential campaign, WikiLeaks released thousands of emails from Hillary Clinton’s campaign chief, John Podesta, which Russian hackers had stolen from his Gmail account. The emails were an embarrassing look into Clinton’s private circle and offered her critics an array of easy targets to attack her on, including an email that showed that CNN contributor and later Democratic National Committee Chair Donna Brazile had leaked a questionfrom a town hall-style Democratic primary debate to Clinton in advance.
The WikiLeaks emails damaged Clinton and her campaign, and the question of who knew about the documents ahead of their release and how the leak relates to Russia’s interference in the U.S. election was reportedly a major focus of special counsel Robert Mueller’s investigation. Mueller questioned many associates of political consultant Roger Stone, who worked for President Donald Trump’s campaign, to determine whether Stone or his associates were conduits between WikiLeaks and the Trump campaign.
Lancaster Guardian 03 April 2019 By GAYLE ROUNCIVELL
A radiographer who raised concerns about malpractice in the breast screening unit at the Royal Lancaster Infirmary this week won the first step in a landmark employment tribunal case after being subjected to years of bullying.
Sue Allison’s case was heard in Manchester on Tuesday to determine whether a non-disclosure agreement (NDA) she was asked to sign was legally binding.
And the judge ruled in the 57-year-old’s favour, meaning she can now proceed to a full tribunal next year.
Mrs Allison has worked at the unit, which treats patients across north Lancashire and south Cumbria, since 2006, and first raised concerns about bad practice in 2012.
She said although the full extent of the damage caused was unknown, it was proven in 2015 that two people died as a result of their cancer not being diagnosed.
But she says internal investigations were “whitewashed and covered up”.
She was later asked by Morecambe Bay Hospitals NHS Trust (UHMBT) to sign an NDA which she believes wasn’t legal.
“I was placed in a position with not a great deal of choice but to sign an agreement to silence me,” she said.
“Unfortunately the emphasis is on the protection of reputations of senior consultants, managers and directors, while the patients ultimately suffer as a result.”
Mrs Allison, a qualified radiographer for 34 years, says that as a result of her whistleblowing, she was ostracised and subjected to extensive bullying, which eventually caused her to file formal complaints against the trust.
She moved to work at Furness General Hospital in December 2014, after she claimed the bullying became so much that she was off work with stress,
“I just couldn’t stay in the department,” she said. “I felt I was being pushed towards the door but I didn’t want to give up on my career.”
Mrs Allison, who lives in Lupton, near Kirkby Lonsdale, said she had been working towards becoming a consultant radiographer at the time.
“I stuck with it for years but it got worse,” she said. “It’s been very unpleasant.
“My career has been completely destroyed. I was bullied and a smear campaign was started, it was horrible.
“I have tried to keep going and not let them get me down but it’s hard.”
Mrs Allison says that in 2015, she was pressured into signing an NDA without legal advice, preventing her from publicly airing her concerns or bringing future claims against the trust.
She has since returned to the RLI, but only works 12 hours a week which she said has been “very financially detrimental”.
She is currently on sick leave having undergone a hip replacement, but accepts she will not work in the NHS again, after finding out last year that she was essentially blacklisted.
Tuesday’s hearing challenged the NDA Mrs Allison was asked to sign, and was a test case which could have major implications for the future of gagging orders.
In 2013, former Health Secretary Jeremy Hunt announced that he would ban the gagging of NHS staff in compromise agreements.
But a recent Freedom of Information request uncovered the widespread use of such agreements in the health service to silence staff who raise concerns about harassment and bullying.
“The NHS is a public service; there shouldn’t be anything that management needs to hide from the people who fund and use their service,” Mrs Allison said.
“There’s no reason to hide and cover up. They are supposed to be transparent and learn from mistakes.
“I just think it’s very sad for the patients and it’s also very sad for me. I loved my job but I will never do it again.
“My reputation is absolutely destroyed because people have made sure that everyone in the breast screening service thinks badly of me. It shows a culture where whistleblowers are seen as bad people, when in actual fact I cannot see anything more that shows integrity than standing up for other people.”
The tribunal result means Mrs Allison can now rely on evidence of what happened to her before the NDA was signed in any future hearing.
“They would be looking back at everything and taking it all into account,” she said.
“I am very pleased. This is a really important move, and it’s something that doesn’t happen with whistleblowers very often.
“I have to thank my barrister and solicitor, who were excellent. I couldn’t have done any of this without them.
“I have also had a lot of online support which I am grateful for.
“It’s now a case of onwards and upwards. It’s very nice to have won the first hurdle because it gives people faith in the justice system and helps them to realise that I am not making it up.
“The judge was very clear that she believed what I had told her.
“I am happy that this gives other people the chance to come forward and it also serves as a warning to trusts who may have been getting complacent that they could brush things under the carpet.
“They need to learn to be transparent because they should be answering to the public.”
Jahad Rahman, the solicitor acting for Mrs Allison, said: “This case is of considerable public interest as it challenges the lawfulness of gagging clauses in NHS settlement agreements.
“Gagging clauses should not be used to silence NHS workers that speak out about patient safety and care. Mrs Allison exposed matters of crucial public concern such as the failure to diagnose breast cancer.”
Last year we also reported on surgeon Peter Duffy, another RLI whistleblower who was forced out of his job after raising concerns and is now practicing on the Isle of Man.
UHMBT medical director David Walker said: “We are disappointed that the employment tribunal has decided that the case regarding the trust’s settlement agreement with Sue Allison should now go to the employment tribunal stage – the next step will be a telephone hearing, followed by a full hearing.
“The trust considers that the confidentiality clauses included in that agreement were in accordance with the appropriate guidance on such clauses. We will study the judgement in detail, and decide what our next steps could be.
“Mrs Allison confirmed in her witness evidence that the agreement she signed did not prevent her from raising any whistleblowing complaints or concerns about patient safety or care.
“I would like to register my personal thanks to Mrs Allison, as I would for any of our colleagues who raise concerns about standards of care in our trust – it is through their concerns that we can continue to improve and learn lessons.
“All the patient safety concerns raised by Mrs Allison were thoroughly investigated at the time with substantial input from the Care Quality Commission, NHS Improvement (Monitor at that time) and Public Health England. We are not aware of any concerns about the current service to our patients.
“Mrs Allison remains an important member of the trust and we recognise that this must have been a difficult and, at times, emotionally draining process for her – we will fully support her return to work.
“I would also like to take this opportunity to reassure the public that our breast screening service is safe and effective, but of course no screening programme can possibly detect every case of cancer. We will continue to do everything in our power to ensure it is the best it can be. We would encourage anyone invited for screening who has any concerns to contact the breast screening unit.
“It is, of course, a matter of deep regret that any colleague would feel unable to resolve matters with the Trust and despite our best efforts to resolve this case.
“The safety and care of our patients is our absolute priority. We strongly encourage staff to come forward if they think patients may be in any way at risk, so we can investigate and learn from any mistakes.
“This is a really important part of our culture as an organisation – and is evidenced by the fact that we were one of the first trusts to appoint a full-time Freedom to Speak Up Guardian – so that if anyone has any concerns they do not feel they can raise with their manger, there is someone they can speak to who will help to resolve the issue.
“We respect the confidentiality of all our employees and we continue to offer to support and work with Mrs Allison to try to resolve her concerns through the internal processes, which also are ongoing.”
Mrs Allison has set up a crowdfunding page to help pay the legal costs her case will incur.
The page, which can be found here, has so far raised more than £12,500.
NHS England aimed to stop hospital trust opposing local privatisation of cancer scans
NHS heads threatened to sue one of England’s most admired hospitals for libel, for raising concerns that privatising a key element of cancer treatment would endanger patients’ health.
In an extraordinary move NHS England tried to stop Oxford University hospitals (OUH) NHS trust opposing its controversial decision to let a private firm take charge of cancer scanning.
Lawyers for NHS England said the trust’s concerns, which were shared by doctors, MPs of all parties and cancer patients, amounted to defamation. The view was in a legal letter the NHS sent to OUH, which was seen by the Guardian.
NHS England’s solicitors, DAC Beachcroft, issued the warning last August. It came when relations between the body that runs England’s health service and the Oxford trust had become very strained over the former decision to take the contract for PET-CT scanning services away from OUH and hand it to InHealth.
That triggered a huge outcry. The weight of criticism forced NHS England into a U-turn last week and the two PET-CT scanners are now to stay in OUH’s Churchill hospital rather than be moved to a new facility. However, InHealth is still being given the contract to provide the service.
Anneliese Dodds, the Labour MP for Oxford East, whose constituency includes the Churchill, condemned NHS England’s threat to sue OUH, calling it scandalous. She had received the letter from an OUH whistleblower.
She said: “I am appalled that NHS England sought to prevent clinicians from offering an informed opinion about privatising Oxford’s PET-CT scan service.”
Dodds said it was absolutely unacceptable “that experts, who work directly in the provision of care for cancer patients, feel constrained from speaking out because of NHSe’s actions”.
Senior figures at OUH claim the veiled threat was part of a pattern of “bullying and intimidation” that NHS England used towards it to try to cajole it into keeping quiet over the PET-CT deal.
The Guardian can also reveal that OUH’s chief executive, Bruno Holthof, was left shaken after the NHS England chairman at the time, Sir Malcolm Grant, rang him to warn the trust not to mount a legal challenge to the switch to a contract with InHealth, despite the Churchill’s international reputation for providing cancer care.
Senior figures at OUH were left stunned at the heavy handed tactics when Holthof told them recently about his call with Grant.
OUH had planned to mount a legal challenge to InHealth winning the contract, but decided against doing so after the conversation.
DAC Beachcroft wrote to Gowling WLG, the trust’s lawyers, on 14 August, referencing OUH’s view that “NHS England will be aware that [because it had decided to award InHealth the contract], it has put patient safety at risk, and severely compromised the provision of cancer care and research in the health system, in both the short and long term”.
DAC Beachcroft responded to that view, saying: “NHS England does not accept that the result of this procurement puts patient safety at risk or compromises the provision of cancer care and research in the health system. We are bound to put you on notice that any statement in those or similar terms would be defamatory if repeated to any third party.”
This is thought to be the first time NHS bosses have threatened a trust with the law of libel.
Disclosure of NHS England’s behaviour towards OUH comes as Oxfordshire county council’s health oversight and scrutiny committee prepares to meet on Thursday to investigate how and why InHealth came to be awarded the contract.
NHS England defended its tactics. “Taxpayers would rightly take a dim view of an NHS hospital diverting funding on to lawyers’ fees for legal action against another part of the NHS, and Oxford University hospitals were right not to attempt to do so,” said a spokesperson.
Adrian Harris, professor of medical oncology at the University of Oxford, warned that cancer patients having a PET-CT scan in future, in either Swindon or Milton Keynes, in mobile units InHealth was setting up there as part of its new contract, would have poorer quality scans than those offered at the Churchill hospital.
“Patients … will have a two-tier system, one in hospital car parks with poor access machines – the Oxford patients [will get better scans] at the Churchill. The new scanners at Oxford are 10 times more sensitive than mobile ones,” Harris said in a letter to local MPs.
Sue Allison, 57, reported a string of missed cancer diagnosesCREDIT: GUZELIAN LTD
A radiographer who blew the whistle on NHS malpractice is to challenge the non-disclosure agreement (NDA) she was asked to sign, in a hearing which could have major implications for the future of gagging orders.
In 2012, Sue Allison, 57, reported a string of missed cancer diagnoses and wider concerns about standards of care in a breast screening unit at Morecambe Bay NHS Foundation Trust.
After raising concerns with a colleague, the pair claimed they were ostracised and subjected to extensive bullying, eventually leading them to file formal grievance complaints against the trust.
But in 2015, Mrs Allison claims she was pressured into signing two non-disclosure agreements (NDAs) without legal advice, preventing her from publicly airing her concerns or bringing future claims against the trust.
At a hearing at Manchester Employment Tribunal on April 2, her lawyer will now argue it was unlawful to ask her to sign an agreement without legal representation, and will press for it to be revoked.
Mrs Allison claims she did not fully understand what she was agreeing to, arguing she was “pretty much conned into signing” the NDAs.
She told The Telegraph “When you’re a whistleblower and they’ve been trying to squash you for a couple of years, you find yourself in a very lonely place where you don’t have anyone to help or advise you.
“I’m not stupid, but I’m not a legally aware person having not dealt with the law in my life prior to all this”.
In 2013, the former Health Secretary Jeremy Hunt announced that he would ban the gagging of NHS staff in compromise agreements.
It adds to growing levels of scrutiny being applied to the use of NDAs across a number of industries in the wake of The Telegraph’s reporting on Philip Green who is accused of sexually harassing members of staff, accusations that he has denied.
Stephen Kerr MP, Chair of the All-Party Parliamentary Group on Whistleblowing, said: “The ongoing flouting of the ban on the use of NDAs in the NHS is unacceptable.
“I have yet to see an appropriately-used NDA in whistleblowing cases and remain convinced that they have no place in our NHS.”
Former Health Secretary Jeremy Hunt announced that he would ban the gagging of NHS staff in 2013CREDIT: FORMER HEALTH SECRETARY JEREMY HUNT ANNOUNCED THAT HE WOULD BAN THE GAGGING OF NHS STAFF IN 2013
Mrs Allison’s MP and former Liberal Democrat leader, Tim Farron, added: “Sue has made a considerable personal sacrifice by putting her head above the parapet to call out poor and dangerous standards of care.
“But she reports that she’s been rewarded by having her career destroyed.”
“If whistleblowers are to be encouraged, they need some form of protection and reassurance that they will face no recriminations or professional backlash, whilst those allegedly guilty of the mistakes suffer no similar consequences or repercussions from their actions”.
Mrs Allison believes she has been blacklisted in the NHS and says she has been asked about being a whistleblower in a number of subsequent job applications she’s made in places as far away as Kingston.
She worked at the same NHS Trust as the award-winning surgeon Peter Duffy, another high-profile whistleblower who was forced out of his job after raising concerns and is now practicing on the Isle of Man.
The Trust has faced a number of whistleblowing complaints in recent years including a maternity crisis at Furness General where a number of deaths emerged due to poor care standards.
Mrs Allison’s employment lawyer Jahad Rahman said the case could have wide implications for attempts to silence not just whistleblowers, but also victims of crime or abuse.
“Hopefully this case will significantly contribute to the debate about whether or not it’s right to silence individuals raising concerns about wrongdoing and misconduct in the workplace…the outcome is likely to give them confidence to speak out,” he said.
“We need people to come forward or else we are exposing the public to danger.
“This case goes beyond the remit of whistleblowers, in fact. NDAs should never be used to cover up criminal activity at work, as we’ve seen them being employed for cases of discrimination and sexual harassment at work. Sexual assault is a criminal offence”.
The Whistleblowing charity Protect is also pushing for clearer legislation surrounding NDAs, which would allow subjects to still make protected disclosures where public safety was an issue.
Andrew Pepper-Parsons, at the charity said: “The law is clear that public interest issues such as concerns involving patient safety cannot be part of an NDA, and a whistleblower would be able raise those concerns with someone like the CQC without fear of an employer pursuing the whistleblower for breaching the NDA.
“But the bullying or victimisation of a whistleblower, even if it shows a toxic environment in a workplace, is a grey area and may well be covered by the confidentiality agreement if it lacks a wider public interest point.”
Morecambe Bay Trust said all the concerns raised by Mrs Allison had already been fully investigated.
“As with every such investigation, opportunities for the Trust to improve its practice were identified and action was taken to address this,” said Medical Director David Walker.
“The Trust does not use ‘gagging clauses’ that prevent employees or ex-employees speaking out about patient safety and patient care.”
However Mrs Allison said the case has wrecked her career.
“To push out highly-qualified people who are really dedicated to their jobs at a time of such acute short-staffing is really bad practice on the part of NHS management,” she said. “I mean, I’ll never go back there now – I’m finished.”
In June 2017, we launched a 12-month trial of our case review process, a key recommendation from the Francis Freedom to Speak Up review. Case reviews listen hard to the experience of workers and look at the speaking up culture in NHS trusts, including how individuals’ cases have been handled.
In association with
Case reviews call out areas for improvement and also commend good practice. We publish reports and, working collaboratively with trusts and regulators, ensure the recommendations are implemented.
Scope for improvement
We have highlighted recurring areas for improvement, finding that the way the guardian role has been implemented does not always meet the needs of workers. Additionally, trusts are not routinely following national policy and guidance. Conflicts of interest are widespread.
For example, in one organisation a worker alleged a sexual assault, then discovered that the investigating officer was the partner of the alleged assailant. In the same trust, a manager was asked to investigate their own conduct. Elsewhere only one of 9,000 members of staff had signed the declaration of interests register.
We have also made recommendations about the excessive use of grievances and counter grievances, the use of settlement agreements, bullying cultures and the Fit and Proper Person Review.
Since we began the case reviews pilot we have completed 24 case reviews at five NHS trusts. The reports have included 87 recommendations made to trusts, Department of Health and Social Care, Care Quality Commission, and a law firm. By carrying out a “gap analysis”, guardians in trusts throughout England have been able to review their own practices, processes and policies and use the learning to make improvements.
Following the pilot, we commissioned an independent evaluation and sought feedback from our advisory groups and other stakeholders. We’re currently exploring options to refine our case review process to reflect that feedback. We will continue to carry out case reviews in the meantime – as we have since the pilot ended in June – and expect to be working to our new model in the summer.
Angela Hillery, chief executive of Northamptonshire Healthcare Foundation Trust, said: “Case review recommendations have helped us to address anything that is getting in the way of allowing people to speak up and affect change.
“They have helped us shape our organisation so that it is more willing to listen and more open to learning. It is vital to the culture of the trust that all workers are actively encouraged and empowered to speak up.
“I believe there are lessons that all organisations across the health sector can garner from the case review reports published by the National Guardian, and I would encourage them to use them to help identify how they can improve.”
A DOCTOR who claims she was bullied out of her job for whistleblowing has spoken of her despair that she “will never work again” in NHSScotland, despite winning her unfair dismissal case.
Dr Sheena Pinion, 60, said she believes she has been “blacklisted” since taking NHS Fife to an employment tribunal and has now abandoned hopes of returning to frontline hospital care.
Dr Pinion, who specialises in gynaecological cancers, said she wanted to speak out about her own experience ahead of a preliminary report by QC John Sturrock into claims of a “bullying culture” at NHS Highland, which is expected in mid-February.
Dr Pinion said: “I’ve been watching what’s happening in NHS Highland with great interest. The problem is no one dares speak out because what happens is they then get attacked more.”
She added: “I’m not the only one this has happened to. They keep you isolated. You’re not allowed to contact anyone. People were told not to contact me. My whole life was destroyed.
“I was a single female with no children, work was my whole life. And they took all that away from me. And that’s happening to people all over. I just hope the report into NHS Highland isn’t a whitewash – that’s my fear.
“I’m basically at the end of the road with everything and I know I can never work again. I’ve got nothing to lose.”
Dr Pinion, who lives in Kirkcaldy, qualified in Edinburgh in 1981 and began working as a senior consultant in NHS Fife in 1994.
For the first 10 years it was a “great place to work”, but she believes she became a target for senior managers after voicing concerns about patient safety following a reorganisation of surgical services.
In 2004, she was signed off sick with stress amid an investigation into claims – eventually quashed as false – that she was a bully.
Shortly afterwards, she put in an official complaint after her then line manager refused to engage with her to draw up a job plan, which was necessary for her to renew her contract, return from sick leave and receive back pay.
When she lodged an official complaint, she says she became the victim of a witch-hunt by senior directors who “made my life absolute hell”.
In 2005, she was forced out on gardening leave pending an investigation into allegations that she was putting patients at risk, but again these claims were dropped and a disciplinary panel also found that her manager had “mishandled” her return from sick leave.
Dr Pinion eventually returned to work at NHS Fife in June 2006, but her ordeal was to begin again in 2008 when a colleague – known only as Dr X – revealed that he had contracted a blood-borne virus, later found to be HIV.
NHS Fife subsequently recalled a number of patients Dr X had operated on to test them for the infection. Although the results were negative, Dr X was told to stop carrying out procedures which could put patients at risk of exposure.
In 2010, Dr Pinion made a formal ‘protected disclosure’ to NHS Fife that Dr X was still carrying out operations that potentially endangered patients to the virus. She said this was leaked to Dr X within 24 hours.
“The attacks started immediately,” she said. “Disciplinary actions were raised against me for absolutely anything. Dr X even kept a diary on me, and anytime he heard anyone say anything about me he would escalate it into a disciplinary procedure. Even the most trivial things.”
In January 2012, she also raised concerns over the safety implications of moving obstetrics and gynaecology to the new wing of the Victoria Hospital, without a colposcopy service – a diagnostic procedure to check the cervix for cancer. On January 20, she was suspended “without warning”.
She was just 53, but it was the last time she would work in the NHS.
The reasons for her suspension included claims she had spoken over a colleague during a video conference and breached the dress code by wearing a white coat for clinical care, as well as fresh allegations that she herself was a bully.
The internal probe and Dr Pinion’s subsequent appeal against its findings dragged on for four years, during when time she continued to be paid her full salary – amounting to a total of more than £500,000. In December 2015, she was dismissed.
A subsequent employment tribunal eventually ruled in 2017 that claims of “gross misconduct” were unfounded and that NHS Fife had unfairly dismissed her. NHS Fife spent £160,000 fighting the case.
However, while the tribunal recognised that she was a whistleblower, both in relation to the colposcopy service and Dr X, it rejected her claim that she had been sacked directly because of her whistleblowing.
The potential windfall for claimants who can prove a link between whistleblowing and unfair dismissal is uncapped, but for unfair dismissal alone the maximum is £90,000 before tax.
Dr Pinion received damages of £65,000, but was liable for well over £100,000 in legal fees: she was not covered by insurance, and successful claimants in employment tribunals are not entitled to claim for their legal costs.
As a result, she said she could not afford to appeal the findings in relation to whistleblowing.
Instead, she focused on returning to work – but more than 18 months on has given up.
Doctors require regular revalidation by the General Medical Council. To be revalidated, they have to have a ‘responsible officer’ to vouch for them and provide an appraisal, which means they also need to be employed.
Official guidance states that doctors should rarely be suspended more than four weeks, but that they should at least be provided with a mentor and allowed to keep up-to-date through meetings and training.
Dr Pinion said this did not happen.
“From the time I was suspended in 2012, I was not allowed onto hospital premises, I was not allowed to speak to anyone, I was not allowed to go to meetings, I was not allowed to do anything except online learning, which I did on my own.
“As soon as I was dismissed in 2015, I had no responsible officer to tell the GMC whether I was fit to revalidate or not.
“I came under a new system where basically I would have to do everything on my own: find a job, do the job, pay for an appraisal, pay to submit it to the GMC for revalidation.
“With an employment tribunal looming amid claims that I was basically a ‘nasty, horrible person’, who in their right minds would have given me a job?”
After winning her unfair dismissal case, Dr Pinion set her sights on revalidating by offering to work for free in colposcopy in another Scottish health board, outside of Fife. However, she said the health board’s HR team “dragged out” the process.
She said: “They delayed and delayed and made things really difficult. They were going to do all sorts of things like test me for blood-borne viruses, even though all I wanted to do was sit in on a clinic – not even touch a patient.
“The hoops I was having to go through with their HR was unbelievable. The professor who was trying to organise it for me couldn’t believe it.”
Dr Pinion said she believes her chances were wrecked in part because Dr X has “ influential friends”, including within Scottish Governmentranks, and because NHS HR departments “collude”.
Eventually, Dr Pinion paid to go to Northern Ireland instead where she did colposcopy for free and was finally revalidated by the GMC in March 2018.
Then, out of the blue, NHS Fife advertised vacancies within obstetrics and gynaecology – and Dr Pinion decided to apply. She said she wanted to “just to prove they’ve blacklisted me”.
She heard nothing and later discovered the appointments had been filled.
“They refused to tell me who was on the panel, but said I hadn’t been shortlisted because I didn’t have a licence to practise and I hadn’t worked since 2012.
“I have it in writing from the GMC that not having a licence to practise is not a valid reason not to appoint or shortlist someone, because you need to work to keep your licence.
“I watched that BBC documentary [on the Liverpool Women’s Hospital’s consultant shortage] recently and I spent the night awake, in tears, because if I had been allowed to keep up to date I could have gone there.
“I have an employment tribunal saying I have been wrongly kept from working since 2012. But because of what Fife have done to me I can’t apply for a job like that.”
A spokesman for the health board said: “NHS Fife does not comment on members of staff – past or present.”
A spokeswoman for the Scottish Government said it did not have exact figures for how many doctors in Scotland are currently suspended.
Former Health Secretary Shona Robison announced in 2017 that an Independent National Whistleblowing Officer (INWO) would be appointed to hold health boards to account, especially where a whistleblower claims to have been unfairly treated.
A spokeswoman for the Scottish Government said: “Health boards have an obligation to make sure the whistleblower is protected throughout the process and does not suffer any harm as a result of speaking up.
“We will announce the timetable for the legislation to establish the INWO in the coming weeks.”
Sir Robert Francis QC warned that victimisation of whistleblowers had led to patient deaths in the Mid-Staffs hospital scandal
IS there something rotten at the core of the NHS? The spectre of bullying was thrust into the spotlight in September when a group of clinicians from NHS Highland took the highly unusual step of writing to the Herald to complain of a “culture of fear and intimidation” emanating from the “very top” of the organisation.
A “practice of suppressing criticism” was having an adverse effect not only on staff morale, and by extension recruitment and retention, but also on patients, they said.
The letter opened the floodgates as around 200 more staff came forward to share their own experiences and Health Secretary Jeane Freeman ordered an independent review, chaired by John Sturrock QC.
Mr Sturrock, an experienced mediator, began gathering evidence in December and his preliminary findings are expected later this month.
Bullying can occur in any workplace, but the implications for health service are more serious.
That was emphasised by Sir Robert Francis QC – who chaired the inquiry into the Mid-Staffs scandal in England – when he told MSPs in 2017 how a negative culture had given rise to a situation where up to 1200 patients died through poor care.
He said: “There was evidence that over a number of years staff had repeatedly reported incidents which they attributed to inadequacies in staffing.
“Not only was there an impression that feedback – and therefore encouragement to raise concerns – was rare, there was also highly worrying evidence of a culture of fear promoted by some staff resulting in some of those who raised concerns being victimised.”
Nonetheless, stories persist of whistleblowers silenced and sidelined across the UK.
A recent independent report into Lewisham and Greenwich NHS Trust in England described a “menacing, threatening and heavy-handed culture”.
It is the same trust where Dr Chris Day, a junior intensive care doctor, claimed to have been unfairly dismissed for whistleblowing over unsafe staffing levels and went on to win landmark legal protection for junior doctors who whistle-blow.
After an acrimonious four-year legal battle, Dr Day dropped his claim in October – but in a fresh twist now says he only did so after lawyers for the trust warned midway through his employment tribunal that it would seek to recover its own legal costs from him, a sum in excess of £500,000, if he lost.
The trust denies it made a “significant costs threat”.
In June 2018, an independent review into NHS Lothian blamed a culture of “bullying and harassment” for a fudging of A&E waiting times performance. The report said staff felt under pressure to prioritise patients about to breach the four-hour target over those who had greater clinical need, but “often felt unable to challenge this for fear of the consequences”.
In 2015, retired NHS Grampian medical director Donnie Ross said doctors are “crushed and got rid of because they criticise the system”.
It followed the case of Malcolm Loudoun, a surgeon at Aberdeen Royal Infirmary who was cleared of bullying by the GMC in what he claimed was a vindictive attempt by NHS Grampian to silence him after he raised concerns about patient safety – something the health board denied.
Michelle Ackerley is set to present new five-part BBC1 series Fraud Squad NHS
The series uncovers the work of the NHS Counter Fraud Authority
Last year, three NHS managers were jailed for their £700,000 fraud
A GP from Liverpool who earned £50,000 a year was caught increasing his pay
Estimates suggest thieves steal around £1.25 billion from the NHS annually
After a cancer operation is cancelled at a hospital in Scotland and the patient complains, the reason turns out to be that the tray of equipment needed – the contents of which cost £10,000-£14,000 – has vanished.
Further investigation exposes a case of theft on a horrifying scale.
In total 134 trays are found to be missing – at a staggering cost of £1.3 million – triggering a massive fraud investigation.
The culprit was Daniel Dreghorn, who was responsible for cleaning and sterilising surgical equipment at Ayrshire Central Hospital in Irvine.
The painstaking investigation, involving first the NHS’s own investigators, then the police, found Dreghorn was selling many of the items online at an enormous profit.
Michelle Ackerley (pictured) follows the work of the NHS Counter Fraud Authority in new five-part BBC1 series Fraud Squad NHS
The astonishing case, which saw him jailed for four years in 2015, features in jaw-dropping new five-part BBC1 series Fraud Squad NHS.
Presented by consumers’ champion Michelle Ackerley, it follows the work of the NHS Counter Fraud Authority, which was set up specifically to investigate fraud within the NHS.
Each year, thieves steal an estimated £1.25 billion from the NHS – that would fund 40,000 nurses, or pay for 5,000 ambulances.
What motivates the criminals? ‘Greed, pure and simple,’ says investigator Scott Fraser, who spent two years working on the Dreghorn case.
Those whose wrongdoing is exposed in this series range from a student nurse who falsely claimed grants and allowances and spent the money on holidays and cosmetic surgery, to organised criminals whose audacious scam conned a series of hospitals out of more than £12 million.
It’s a sickening series to watch. Robbing the NHS is a particularly heinous crime, say those trying to catch the bad apples.
As the Counter Fraud Authority’s chief executive Sue Frith puts it, ‘Fraud against the NHS is despicable.
‘If criminals take money out of the system, it affects us all.’
In episode two, we meet the aptly named Mrs Money, aka NHS accounts worker Brenda Money, who was working at the Memorial Hospital in Woolwich, south-east London when she began diverting petty cash into her own account.
Quite what possessed her to start on the dangerous and criminal route she went down is unclear, but Brenda, who was 61 when she was jailed in 2015, stole nearly £300,000 from the NHS.
An estimated £1.25 billion is stolen by thieves from the NHS each year, last year three NHS managers were found guilty of a £7000,000 fraud (file image)
Her husband David, 64, then laundered and helped spend the loot.
The pair splashed out on holidays to Turkey, the Caribbean and Hawaii, as well as shopping sprees in John Lewis and Marks & Spencer.
How was she found out? By investigators who’d been alerted to a suspiciously high ‘float’ in the petty cash records.
Although the couple’s joint income – around £24,000 to £30,000 – barely covered their £2,000-a-month mortgage, cash being deposited into their joint account matched the large amounts leaving the NHS petty cash accounts.
Sometimes the deceptions are so outlandish they’re almost laughable.
Last year, three NHS managers were jailed after being found guilty of fraud to the tune of £700,000.
Mark Evill, 47, awarded contracts to his own construction firm George Morgan Ltd – named after his dog – while his colleagues Robert Howells and Michael Cope facilitated the scam.
Evill, who was given a seven-year prison sentence at Merthyr Tydfil crown court, invented fictitious characters in an effort to hide the crime, including employees called Paul Hewson and David Evans – the real names of Bono and The Edge from rock band U2.
Investigator Scott Fraser (pictured) who spent two years working on the Dreghorn case believes thieves are motivated by greed
The saddest stories in this series are those involving once-dedicated staff going ‘rogue’, such as the one in the final episode.
Michael Germaine, business director of a busy GP practice near Blackpool, had, despite already earning £50,000 a year plus bonuses, fraudulently awarded himself a pay rise by doctoring an email claiming he was entitled to a greater salary increase than the one already agreed.
His deception led to further scrutiny of both the practice’s and his own finances.
The result? In January last year at Preston magistrates court he received a 50-week prison term, suspended for a year.
Why would such people risk their career to boost an already generous salary? Greed seems to be the answer every time.
Some 356 whistleblowers in 2017-18 said they had experienced repercussions, ranging from “subtle” persecution by closing off career opportunities through to being fired unjustly.
Patient safety experts and whistleblowers said that deaths like those at Gosport War Memorial Hospital were likely to be happening in other hospitals as staff still could not raise concerns freely.
On Thursday healthcare safety academic Professor Brian Jarman told BBC News the reality for whistleblowers in the NHS was “they’re fired, gagged and blacklisted”, and a third of staff say they would be concerned about speaking out.
Dr Minh Alexander, a consultant psychiatrist who blew the whistle on serious mental health homicides and suicides at her Cambridgeshire mental health trust, said there were countless ways managers could retaliate.
“There’s a huge range of ways in which employers can persecute whistleblowers,” she told The Independent. “They’re too numerous to list exhaustively, but they can be subtle and beyond contractual redress through to gross criminal acts of harassment.”
Dr Alexander added that the National Guardian’s Office (NGO) – set up to ensure whistleblowing champions were in every trust in the wake unheeded staff concerns at Mid Staffordshire NHS Foundation Trust – was a “huge disappointment”.
In 2016-17 more than 7,000 concerns were reported to NGO representatives at hospital and ambulance trusts. A third of these related to patient safety concerns while half related to issues of bullying and harassment.
Dr Henrietta Hughes, head of the NGO, said many of these now get resolved but one person in 20 say they faced recriminations as a result of blowing the whistle.
“The NHS has a very poor record in the past of supporting staff who have spoken up. I totally acknowledge that, but I’m looking at the current situation,” Dr Hughes said.
“We collect data on whether staff feel they’ve had detriment [after raising concerns], 5 per cent of people who have spoken up have had detriment – we’re talking 360 people”.
All 230 NHS trusts are required to ensure that anyone who victimises staff who speak up “will be subject to the full disciplinary processes of the organisation” and the NGO monitors whether this is taking place.
“I’ve been going around asking ‘can anybody give me an example of where you have acted on that detriment?’ I’ve heard one example so far,” Dr Hughes said.
While the 7,000 concerns raised in its first year was a good start, she said it was the “tip of the iceberg” and a lot of issues still needed to be flushed out.
“The more people who are aware this route exists and that it worked for them – that gives people confidence,” she said.
It came as the daughter of a nurse who tried to expose the Gosport scandal claimed her mother had been hounded out of her job and driven to depression.
Sylvia Giffin was among those who first raised concerns about the poor prescribing and administration of opioids at the Hampshire hospital nearly 30 years ago.
Her daughter Penny Wilson told the Daily Mirror: “After my mum spoke up, they were at her for every single thing.
“It made her very unwell. They forced her out but tried to blame it on ill health.”
Professor Jarman heads the Dr Foster unit at Imperial College London which uses health data to identify safety and quality issues emerging in NHS trusts and reports them to ministers and hospital chiefs to address.
He said these reports were not taken seriously by ministers and he would not be at all surprised to learn of more deaths, like those that took place at Gosport War Memorial Hospital.
“I’ve said I think there’s a culture of denial, even a denial machine,” he told the BBC.
“I hope the health secretary is not denying now. He will probably say they have set up the guardians in hospital to deal with people who are trying to whistleblow.
“But the whistleblowers that I have dealt with are not in the slightest bit encouraged by the guardian system.”
The health secretary Jeremy Hunt said on Thursday that the NHS needed to be to end recriminations against staff with concerns.
“We make it much too hard for doctors and nurses to do that – they are worried that there will be litigation, they will go up in front of the GMC or NMC, the reputation of their unit – in some places they are worried they might get fired, so we do have to tackle that blame culture and turn that into a learning culture,” he said.
Whistleblowing laws have been criticised as wholly inadequate for protecting those who speak out by MPs ( Getty )
An NHS boss who landed another senior role despite a fraud conviction and a suspension for “victimising whistleblowers” has prompted calls for a review of systems to prevent unfit appointments.
Paula Vasco-Knight was given a suspended sentence in 2017 after admitting abusing her position as chief executive of South Devon NHS Foundation Trust in 2013 to pay her husband out of NHS funds.
Vasco-Knight resigned her post in 2014 after an unrelated employment tribunal suspended her over her treatment of whistleblowers who raised misconduct concerns over the hiring of her daughter’s boyfriend to a job at Torbay hospital.
She was later employed at St George’s University Hospitals NHS Foundation Trust in London and had been promoted to acting chief executive before the fraud investigation came to light in 2016.
These rules apply to director level appointments across the NHS and are intended in part to prevent those with prior record of misconduct getting another job in the NHS.
Clare Sardari, a former nurse who, along with Penny Gates, lost her job after raising concerns over Vasco-Knight’s conduct said it was “shocking” she was found fit and proper.
“I was concerned that Paula’s past conduct was not given adequate weight in the recruitment process and that the CQC, when they received complaints, diminished the seriousness of her conduct,” she told The Independent.
Clare Sardari lost her job after raising misconduct concerns (Clare Sardari)
“By passing her as fit and proper, the CQC have given a public message that those who victimise whistleblowers can escape proper accountability and can be recycled.”
Ms Sardari, 61, was the main breadwinner in her family when she lost her job. Though she received a settlement in 2015 of £230,000 for legal costs, back pay and damages for the bullying and intimidation she faced, it did not cover lost future earnings and she has been unable to work since.
“The amount I was left with won’t last until I’m 65 and get my NHS pension,” she added.
“I’ve been blacklisted, I’ve lost my career, I’ve lost my identity, I lost a lot of my work friends, who were told not to communicate with me. I have depression and I’ve had to sit by and watch helplessly as the person who put me in this situation was feted by NHS and the CQC.”
Vasco-Knight pleaded guilty and was given a suspended prison sentence in 2017, along with her husband Stephen Vasco-Knight, after paying his firm £11,000 for a leadership improvements document that never existed.
The ombudsman found the CQC’s handling of the FPPR “was not transparent, fair or proportionate and it amounted to maladministration”.
The regulator was criticised for its poor record-keeping, and was found to have dismissed tribunal criticisms of Vasco-Knight, while giving her apology and references undue prominence.
Rob Behrens, the Parliamentary and Health Service Ombudsman, said: “This case shows that CQC’s approach to making sure NHS trusts are employing the right people at director-level needs reviewing.
“The public and NHS staff must have confidence that NHS leaders are fit and proper to do the job and that whistleblowers will not be penalised for raising concerns.
The ombudsman partly upheld Ms Sardari’s complaint, recommending that the CQC apologise and offer her £500 “in recognition of the injustice caused to her”.
It must also report improvements it has made within eight weeks.
Ian Trenholm, Chief Executive at the CQC said it recognised its handling of the case “did not meet Ms Sardari’s expectations” and said it was committed to whistleblower protections.
However he said this was a challenging case where the tribunal verdict was one of a number of contradictory pieces of evidence for the trust to assess.
“We do have concerns about the approach adopted by the Parliamentary and Health Service ombudsman (PHSO) which led to some of the findings of maladministration,” he added.