£700K to Crush a Junior Doctor - Don't Let Them Get Away With It
£700K to Crush a Junior Doctor - Don't Let Them Get Away With It
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Latest: April 11, 2020
Signed and Sealed Order Granting Leave to Appeal (A 'Clerical Error Apparently)
I am Dr Chris Day – A junior doctor with a young family.
I exposed and successfully challenged a Government agency's astonishing attempt to argue the nation's junior doctors out of whistleblowing protection in order to prevent my whistleblowing case being heard.
In May 2016 I explained my case on ITV News at 10.
My whistleblowing case raises important issues that need to heard, but after nearly 5 years, 5 hearings and £240k of crowdfunding I still haven’t had an opportunity to cross examine a single one of the NHS's 14 witnesses. This has come as a result of the various tactics used by NHS lawyers at great expense to the taxpayer. These have included undermining whistleblowing law for doctors and agency workers, cost threats when as a witness I was under oath and not disclosing key evidence.
On 15 October 2018 I was forced into a settlement which I have been attempting to set aside so the facts of this situation can be properly heard in court. We are grateful to our 4,000 supporters that have got us this far but we need your help again to make sure the right people are held to account.
The Telegraph reported on 2 December 2018 on the settlement agreement;
"Norman Lamb MP who brought up the case with Jeremy Hunt, the former Health Secretary and current health secretary Matt Hancock has now called for a public inquiry saying Dr Day had not so much been ‘priced out of justice’ as ‘crushed.
“When you have serious allegations relating to patient safety raised – by a person, a whistleblower, who’s risking everything to get them heard – there should be a fair and full hearing.
“What appears to be the case is that Chris Day and his family were put into, in effect, an impossible position – they were faced with a threat of costs, an abdication for costs, which would’ve destroyed them financially.
“It’s an outrageous use of taxpayer money to crush and prevent the full facts of a whistleblower’s case being aired it completely goes against the Department’s talk of openness and transparency,” he said."
Details about how the settlement agreement came about was also covered in Private Eye. The Rt Hon Norman Lamb MP and the Labour Shadow Health Minister co-wrote a letter to the Secretary of State for Health challenging the circumstances of the settlement which was responded to here.
What is my whistleblowing case about?
My case dates back to 2013/14 and involves the NHS response to serious safety issues that I raised when working as an Intensive Care Unit doctor. Instead of dealing with the issues, senior NHS people that had never worked with me clinically made a series of false allegations to discredit me and confuse the safety issues. This caused a dispute that resulted in my training number being deleted and my path to consultant ended.
The picture at the top of the page was taken 4 years ago and is a reminder to us how long this case has been going on and what a waste of time and energy it has been - just because powerful people in the NHS have wanted to avoid accountability for their actions. A case timeline can be viewed here.
Over the last 4-5 years, £700k of public money has been allowed to be spent on attempts to shut down my case rather than a fair hearing of the facts. Even my opponent's lawyers describe my case as important.
The publicly funded actions to attempt to shut the case down have included;
- Arguing the nation’s junior doctors out of whistleblowing protection for 3 years in order to prevent my case being heard. (Reported in the Mirror)
- Failing to disclose a key contract to 3 separate courts that would have made it impossible to argue junior doctors out of whistleblowing protection. This would have meant my case could have been heard in back 2015.(Covered in Private Eye)
- Making cost and regulator threats against both my lawyers and myself whilst I was under oath and unable to discuss my evidence with anyone including my lawyers. (Covered in Telegraph and Private Eye)
- Using the cost threats to force a settlement and then later an agreed statement referring to me agreeing that I had been treated in good faith.
- Denying to the media and to an MP that the costs threats were made and making other false statements publicly about the case.
- Hiring private investigators that attempted to discredit me and the important safety issues that I raised about night time staffing on an Intensive Care Unit.
My opponents after 4 years have finally accepted that I acted in good faith raising important safety issues and that I performed a public service winning whistleblowing protection back for all junior doctors.
If what I have done is a public service it begs the question how we should describe the actions of those that have spent over 4 years and £700k of public money opposing me.
Where did all that public money go?
Most of the 5 hearings over the last 4 years have been about attempts to stop the case being heard with the focus of the hearings being on whether the law allows junior doctors to have statutory whistleblowing protection for their career from an NHS body known as Health Education England (HEE). HEE is the only NHS body with power over the careers and long term employment of 54,000 doctors below consultant grade.
Whistleblowing law only applies to employers and other organisations that have substantial influence over the engagement of workers such as employment agencies or training bodies. If an organisation can deny that above applies to them they can get out of being accountable to allegations of whistleblowing detriment and cover up.
HEE tried this strategy and kept it it up successfully for 3 years despite being a training body responsible for the long term employment of 54,000 doctors below consultant grade in English hospitals. Their position became unstuck in May 2018 when their true influence over doctors became obvious from a contract that they had failed to disclose for over 3 years plainly proving their substantial influence over junior doctors’ terms of engagement. In witness evidence in May 2018 a HEE manager conceded of the contract;
“Together these documents set out the terms on which Post Graduate trainees were trained and employed”
I wrote a letter to the HEE lawyers to challenge them on the contract and to ask when they first found out about the contract and why they didn't disclose it..
Private Eye exposed this scandalous situation in their early May 2019 issue entitled Whistleblowing Wars which can be read here.
A Retired Solicitor wrote in with his view on the Private Eye article;
“Sir, I do not write for publication but to ask you to use this information as you feel necessary. In issue 1495, the column ‘Medicine Balls’ makes allegations that the above firm misled a tribunal. This is a serious professional offence and, if there is evidence to support it, I would urge that a complaint be lodged with the Solicitors Regulation Authority. Yours sincerely, (Retired solicitor who is dismayed at the lack of standards among his former profession)”
Following the reaction to Private Eye we were sent evidence from a journalist’s Freedom of Information request showing that the same law firm representing HEE against me, that had consumed vast sums of public money arguing junior doctors out of whistleblowing protection were paid £13,048 prior to my case to draft a model version of the contract referred to in the Private Eye article that had not been disclosed by HEE or their lawyers until 2018. The same contract that if disclosed in 2015 would have made the successful attempt to stop my case being heard by arguing junior doctors out of whistleblowing protection impossible.
As a result of the silence of the HEE lawyers, the Rt Hon Norman Lamb MP has written a letter to the HEE CEO requesting an explanation for the their methods in stopping my case being heard. Others have referred Hill Dickinson to the legal regulator.
Last year Justin Madders MP challenged HEE’s conduct in my case in Parliament in debate about whistleblowing law;
The arguments used in my case created a lacuna or gap in whistleblowing law for 3 years that swallowed up whistleblowing protection not only for all junior doctors but also 800,00 agency workers. We closed the HEE made gap with our victory in the Court of Appeal.
In June 2017 at the NHS Confederation Conference, I asked Jeremy Hunt, the then Secretary of State for Health about the games that have been played at huge expense to the taxpayer to stop my case being heard.
I went to meet Mr Hunt a year later with the Rt Hon Norman Lamb MP and Mr Hunt promised to look into how junior doctors were argued out of whistleblowing protection and in particular the contract that was not disclosed. This letter summarises the meeting. It seems Mr Hunt changed his mind about looking into these issues.
What were the Whistleblowing Disclosures About?
In August 2013, after discussions with other junior doctors and a locum ICU Consultant, I raised concerns in writing to the Trust and HEE about ICU night time staffing that departed significantly from national standards in respect to staffing numbers and immediate airway support (doctors skilled in breathing tubes and ventilators).
The substance of my protected disclosures were supported by the views of other junior doctors, a locum ICU Consultant, ICU Core Standards, a 2017 Peer Review and the reports of two Serious Untoward Incidents. Following two Serious Untoward Incidents, I repeated concerns I had about ICU night time staffing one night in January 2014 by telephoning a duty manager when two medical locum doctors did not show up for work on the wards. I also repeated the concerns at my ARCP/appraisal in June 2014..
In September 2014, before my trade union had made legal threats, a HEE Post Graduate Dean expressed clear agreement with my protected disclosure;
“The Trust know that we have concerns, we’ve raised concerns. They’re having to produce an action plan to all the red flags in the GMC survey. You clearly were not the only person who had concerns about it. It was raised in the ACCS GMC survey.”
“What you described to me is totally unacceptable for me to have trainees in a situation that you were in. In the ICU where you are non-- You are not trained for intubation and airway care and you're in charge of 19, never mind all the other issues. It's totally unacceptable. The whole thing, what you've described, is unsafe”
However at the Tribunal the position expressed by the Trust and HEE on my protected disclosure was very different for the purposes of discrediting me. Despite ICU Core Standards, clear concerns from other junior doctors and 2 Serious Untoward Incident Investigations HEE and the Trust adopted the following position in relation to my safety disclosures;
““Dr Day (as an ACCS CT2 in Emergency Medicine) was expected to cover the 18 bedded ICU, ward outliers, A&E and ward ICU assessments as a resident SHO in QEH a district general hospital. In my opinion this was acceptable in light of his experience and skills at the time. The Core Standards say that in general the consultant/patient ratio should not exceed between 1:8 and 1:15 and that anything in excess of 1:14 is deleterious to patient care and consultant well being. The core standards say that ICU the ICU Resident should not exceed 1;8. These ratios are therefore not absolute..
A recent Deanery [HEE] visit concluded that the staffing levels (unchanged since January 2014) were safe and there were no concerns about supervision highlighted by them.”
Because of the fire power of the 2 QC barristers acting for the NHS and their 14 witnesses it would have been quite possible that a non-medically trained employment tribunal would have wrongly believed there was no validity to the safety concerns that I raised. This was especially so as I was prevented by the Trust QC from speaking about the Serious Untoward Incidents.
At the Tribunal I was constantly prevented from accessing the bundle to provide my answers. For instance in 2017 a HSJ article summarises a Peer Review on the ICU in my case;
A “complete lack of medical leadership”, low consultant staffing levels, “inadequate clinical governance” and poor culture are among key findings in a damning peer review into a south London intensive care unit.
The safety issues in my case were covered in Private Eye shortly after the settlement.
Also not available to the Tribunal was an independent report into culture at Lewisham and Greenwich NHS Trust. A HSJ article covered the report in December 2018;
- “Menacing, threatening and heavy-handed' culture”
- “Overt bullying” spread downwards through organisation”
- “The presence of overt bullying, both witnessed and reported, particularly at the most senior levels, coupled not only with a lack of visible action to address it, but a laissez faire attitude which appears to condone it, can be interpreted as a lack of willingness to recognise and tackle bullying behaviour”
- “A lack of action to address the issue, which “damaged the reputation and credibility of the executive leadership”
My trade union, the BMA, initially supported my case and their law firm, Gateley, were preparing proceedings against the Trust and Deanery/HEE. The BMA insisted that the NHS and HEE carry out formal investigations. Suddenly, five working days before the claim had to be submitted and before the delayed Trust and Deanery formal investigations had reported, the BMA withdrew all legal help from my case. Around the same time my BMA Senior Industrial Relations Officer went on “special leave”. I have since learned from a transcript of a BMA Council meeting that Dr Mark Porter, the former BMA Chair, stated that he had been dismissed for gross misconduct. It is also the case that the record the same BMA representative prepared of a crucial meeting apparently no longer exists. The Legal Ombudsman made several criticisms of Gateley but stated that they did not have the power to investigate any action of the BMA and in particular the circumstances in which my BMA rep was removed from my case and the BMA itself.
Several months after pulling out from my individual case, the BMA made a separate decision not to support our now successful appeal process to safeguard junior doctor and agency worker whistleblowing protection. It is hard to believe that the BMA was not aware of the contract that was hidden from disclosure that proved HEE as an employer.
I find it difficult to comprehend why the NHS has spent taxpayers’ money to try to argue junior doctors out of whistleblowing protection and, secondly, why the main doctors' union decided not to oppose this and to actively undermine legal action to defend junior doctors.
There have been several brave BMA Committee members that have attempted to get answers from BMA leaders about my case as this blog explores. This BMA Council transcript exposes the former BMA chair, Dr Mark Porter providing false statements about my case to BMA Council. The statements are worth a read!
GP Dr Bob Gill has produced this video summarising the BMA’s actions in my case.
We are so grateful to all who have supported us over the years - the case has put a huge strain on us as a family but we think it is important to see it through. Nothing will change if cases like this get buried. We wouldn't be standing if it wasn't for our crowdfunders, friends and family that have encouraged us to keep going with this.
We are also very grateful to journalists for their diligent reporting of this case and the Rt Hon Norman Lamp MP for his support.
Don't let them get away with it. Please help us get some justice.
Our Legal Aims are as follows;
1. To set aside the settlement agreement on basis that the Trust and HEE have denied instructing or the existence of the various costs threats that forced me into a settlement. (more details)
2. A Tribunal claim to challenge the false and defamatory statements released about my case. (more details)
3. To hold the relevant organisations to account for this situation and in particular the failure to disclose the LDA contract that enabled junior doctors to be argued out of statutory whistleblowing protection for 3 years.
A Time line of my case can be viewed here
April 11, 2020
Signed and Sealed Order Granting Leave to Appeal (A 'Clerical Error Apparently)
April 3, 2020
Court of Appeal Grant Permission to Challenge Settlement Agreement
Lady Justice Simler has made an order granting us permission to challenge the settlement agreement that stopped my whistleblowing case in its tracks in October 2018. Our challenge is that I was operating under a misrepresentation when settling the case. Our grounds of appeal can be found below.
The Court has also granted us a cost limit order after the following application.
Oct. 16, 2019
Legal Regulator CEO Responds to Sir Norman Lamb
Read letter here.
Oct. 5, 2019
Legal Regulator Launch Investigation into Trust, HEE and BMA Lawyers
Solicitor Regulation Authority Begins Investigation into Trust, HEE and BMA Lawyers
Last month Sir Norman Lamb wrote to the CEO of the Solicitor Regulator Authority and asks them to investigate HEE’s lawyers.
The SRA have now confirmed they have appointed 3 separate Investigation Officers to look into the Day whistleblowing case. Their focus will be on HEE’s Solicitors Hill Dickinson, Lewisham and Greenwich NHS Trust’s Solicitors Capsticks and the British Medical Association’s Legal Department. The SRA have stated;
“The firm(s) may have been in breach of the SRA’s standards or requirements. The allegations appear serious enough to warrant further investigation”
July 31, 2019
Wasted Costs Application and Legal Update
July 5, 2019
Case Discussed in Parliament in Whistleblowing Law Debate -HEE Exposed
This week, Sir Norman Lamb lead a debate in Parliament on reforming whistleblowing laws. He described 4 scandalous cases across the health, financial and foster caring sectors. I was fortunate that my case was one of the 4 cases discussed.
You can watch the whole debate here;
Sections of the debate were particularly relevant and helpful to my case. In particular the discussion about HEE's failure to disclose a key contract drafted by the law firm acting for them in my case. Below are the relevant videos and sections of Hansard transcript.
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