Making Money Arguing Junior Doctors Out Of Whistleblowing Protection

by Dr Chris Day

Making Money Arguing Junior Doctors Out Of Whistleblowing Protection

by Dr Chris Day
Dr Chris Day
Case Owner
Locum A&E Doctor. I am 8 years into an NHS whistlleblowing case and want to make it count for my family, NHS staff and patients.
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Dr Chris Day
Case Owner
Locum A&E Doctor. I am 8 years into an NHS whistlleblowing case and want to make it count for my family, NHS staff and patients.
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Latest: Dec. 5, 2022

Link to Observe Wasted Cost Hearing on 5 and 6 December 2022


Click here to observe the hearing and read the papers.

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1. Should a law firm be allowed to profit from arguing junior doctors out of whistleblowing protection?


2. Should that law firm be allowed to do this by hiding key contracts from courts (drafted by the same law firm) governing doctors' employment in order to mislead Judges on the way junior doctors are employed?


3. Should that law firm and the NHS be allowed to do all the above (funded by the taxpayer) just to prevent a whistleblowing case being heard by a Tribunal?


4. When asked to account for their actions should the NHS and that law firm be allowed to refuse an explanation and instead rely on a clause in a settlement agreement that they forced a doctor to sign using cost threats?



The answer to these questions are clearly no but we are going to ask them in the London South Employment Tribunal on the 5-6 December 2022 and see what a Judge makes of them.


My Campaign Video from 2020 takes you through how I arrived at this incredible situation. It all started 8 years ago, as an Intensive Care Unit doctor, when I raised serious patient safety issues linked to 2 deaths (please ignore the court dates in the video which changed due to Covid).


Arguing the Nation's Doctors Out of Whistleblowing Protection on the Taxpayer


In February 2015, weeks after the Francis report into Mid Staffs, doctors below consultant grade (known as 'junior doctors') were argued out of statutory whistleblowing protection by undermining their already weak employment status. This was in order to prevent my whistleblowing case ever being heard by a court. This attempt took me 4 years to reverse in the Court of Appeal (with the generous help of my crowdfunders and the charity Protect who intervened in the case). It cost the public hundreds of thousands of pounds to lose this self-destructive 4 year fight but no one has been held to account for it. 

NHS Health Education England are the NHS body that funds, commissions and governs the employment and training of doctors in England on their career path to consultant or GP. However, in my case, they came to court and argued the opposite was true. This quote from the EAT Judgment of Judge Mr Justice Langstaff illustrates how misled the courts were by HEE and their lawyers;




“HEE was little different from any third party who might have acted detrimentally towards him as a whistleblower”

HEE was indeed very different from any other third party. It had a budget of 2 billion pounds and was the only NHS organisation with power and contracts (each worth tens of millions of pounds) to govern and commission the training and employment of junior doctors including my career path to consultant. There was no other NHS organisation that had the power to delete mine and other doctors National Training Number and path to consultant.  Had Mr Justice Langstaff known any of this, one would hope, that his judgment would have been very different. 

In order to undermine doctors' whistleblowing protection, Health Education England and their law firm Hill Dickinson misled Judges on HEE's power and influence over doctors' employment. This was in order to prevent UK whistleblowing law protecting my career and the careers of other English junior doctors. Whistleblowing law is supposed to protect staff from retaliation and career damage caused by raising issues in the public interest.

HEE and their lawyers accomplished this by hiding from the Tribunal disclosure, commissioning contracts proving HEE's power and influence over a doctor's employment. They then argued in Tribunal that the opposite was true to what is clearly apparent on the face of the contracts. These contracts were hidden from disclosure by Hill Dickinson, the very law firm that were paid public money to draft them. In 2019, Tommy Greene, the freelance journalist that covered my story in the Telegraph and more recently Computer Weekly, obtained one of these hidden HEE contracts by way of a Freedom of Information Request against Lewisham and Greenwich NHS Trust. Mr Greene then sent the contract that he had obtained, that had been hidden from Tribunal disclosure, to us.

Over 8 years on, it is time to hold the right people to account for what they have done to NHS whistleblowing protection. I am doing this on behalf of junior doctors and their patients but we need your help.


The Next Steps


On the 13 November 2020, as a litigant in person (without lawyers), I attempted to progress an application for wasted costs against HEE's lawyers using the following arguments.  After a delay of two years, the Tribunal has helpfully responded to my written and verbal arguments and a hearing has been ordered for 5th and 6th December 2022. The documents that I relied on for November 2020 can be read here.

Although I could attempt to do the December 2022 hearing on my own, it is much more likely to succeed if it is progressed by a top KC which is why I am asking for support on Crowdjustice. 

It has taken until 2022 for the legal system to show any interest in exploring the scandalous way public money was used to undermine whistleblowing protection for English doctors. There will now be a hearing on 5-6 December 2022 at the London South Employment Tribunal devoted to the wasted costs and alleged misconduct associated with the actions of HEE and their law firm Hill Dickinson. The Judges' comments can be read here.

The former health minister, lawyer and MP Sir Norman Lamb and the Journalist Tommy Greene wrote a complaint to the legal regulator about the methods used to undermine junior doctor  whistleblowing protection from 2014 to 2018.  You can read their letters here.

(Legal Futures piece)

In his letter, Mr Greene sets out, from an instructed legal opinion, how the offence of fraud could apply to Hill Dickinson for making vast sums of public money from not disclosing contracts they were paid to draft themselves (that they had a duty to disclose). 

This was explored in Parliament by 2 MPs but no action was taken by the authorities;



Heath Education England and Hill Dickinson are not prepared to explain their actions either to me or MPs. They cling to the settlement agreement of my 2018 case (which I say was induced by cost threats and misrepresentation). Private Eye explored the settlement in more detail here.

(Telegraph Piece)

The settlement agreement in my case has a specific clause that was inserted by my former legal team that protects all lawyers on all sides from wasted cost applications stemming from any legal misconduct in my case.

The December hearing will decide whether the settlement agreement is enough to prevent the Tribunal processing my wasted cost application and scrutinising the actions of the NHS' lawyers. The December hearing will also decide (on my request) whether the Tribunal has the power to act of its own accord even if the settlement prevents me making my own application for wasted costs.

The legal regulator has taken no regulatory action. The investigation that was performed only occurred after pressure from an MP. The SRA Director of Legal conceded that the investigation did not interview or take a statement from a single lawyer involved. It is anyone's guess how they made their decisions. Sir Norman Lamb has challenged the SRA's CEO in this letter as did a member of BMA Council. Several other MPs have challenged the SRA on my case including the Cabinet Minister Nadhim Zahawi in this letter. Somehow, the SRA feel able to just ignore these challenges even when they were covered in the Times.

Why is Challenging HEE/Hill Dickinson Important? 

The law firm Hill Dickinson is trusted by the NHS as one of its go-to law firms for employment, coroner cases and negligence cases so it is problem for everyone if there is no accountability for this kind of conduct as it will happen again.

Health Education England is charged with governing and commissioning the training and employment of doctors and other healthcare staff. It has huge power over the futures of NHS staff. It is important that the top of HEE cannot be allowed to just avoid accounting for their actions (which they seem to expect to be able to do). The Employment Tribunal seems very reluctant to hold a Government agency like HEE to account hence HEE's two exits from this litigation.

The settlement agreement in my case gives the employment tribunal an easy way out from dealing with this third attempt to hold HEE and their lawyers to account in this case. 


What is My Whistleblowing Case About


My whistleblowing case is about NHS leaders using vast sums of public money to cover up the serious safety issues that I first raised in 2014 about an intensive care unit in South London. Instead of acting on serious issues affecting people in 2 London boroughs, NHS leaders opted to damage me and destroy my career. Empowered by the use of 2 law firms and a total of 6 different KCs, they engaged in a menu of tactics to prevent the courts, MPs and the press scrutinising the situation. 

This excellent blog by the campaigner and consultant haematologist Dr Moosa Qureshi explores the issues in my case that have evolved over 8 years. Read it here

My previous Crowdjustice page has even more details on the 8 years of litigation that I have been subject to.

£700K to Crush a Junior Doctor - Don't Let Them Get Away With It (crowdjustice.com)


The Recent June 2022 Hearing


In 2022, 8 years after I raised the patient safety issues and after a million pounds of public money had been spent on the case, the actions of my opponents finally started to be exposed in rather dramatic fashion when the NHS Respondent witnesses were finally cross-examined. 

This Computer Weekly piece documents the astonishing events of the recent June 2022 hearing that occurred when the NHS’ witnesses finally had to attend court to have their position tested. 


The Journalist David Hencke observed the 16 day June hearing and did a daily Westminster Confidential blog which can be read here.


To read all the legal papers and statements for the June hearing click here.

We are awaiting the Judgement of this hearing. It is expected early/mid November.


The February 2022 Hearing


Earlier in the year HEE escaped from the June 2022 hearing. In February 2022, the Medical Director of Health Education England Professor Reid, and the relevant HEE Post Graduate Dean were cross examined. Despite incredibly uncomfortable truths being unearthed, HEE escaped on a technical legal argument which allowed them to successfully deny responsibility for the actions of the former Post Graduate Dean in my case. This resulted in HEE avoiding accountability for their actions. Click here to understand how HEE managed to break free yet again from the litigation.

(HEE Westminster Confidential Piece)


I am hugely grateful to my trade union the British Medical Association for funding a top solicitor and barrister for my 16 day hearing in June 2022 and for the hearing in February 2022. I was also hugely encouraged by this BMA press release.


Why I think This December Case Is Important


Lawyers that act for the NHS and other public services benefit from large sums of public money and often have huge power and influence over serious matters of public interest. You only have to read the statements of consultant anaesthetists Dr Smith and Dr Hormaeche for my June 2022 hearing to understand how badly let down the public and NHS staff have been by the decisions and actions taken by people in this case.


Below is a video of a local South London, GP Dr Bob Gill, challenging  the Board of Lewisham and Greenwich NHS Trust with what he witnessed at the June 2022 hearing of my whistleblowing case. It speaks volumes about what this case means to patients and NHS staff locally in South London;



Why Support Me?


Something needs to be done about how the world of employment law and NHS management handles whistleblowing cases. The message that my case sends about what the system will allow when NHS staff raise serious patient safety issues is toxic. In particular, it sends a dangerous message to NHS staff that might be grappling with raising serious issues. It gives them a sense of their chances of being treated fairly and properly by the legal system. It also sends a similar message to NHS leaders that might be considering doing the right thing and standing by a whistleblower. I explore this and more in this conference video;



I am keen to use the facts of my case to influence MPs to review the way the current whistleblowing law serves NHS staff and patients. I attempted this in this Protect whistleblowing event with MPs. I am grateful to Protect for supporting and walking with me through the 8 years of my case.

 


I am also keen to assist the legal profession in their understanding of how the current practise of employment law impacts on NHS patient safety and speak up culture in the NHS. I attempted to do this at an employment law conference.




Please help me hold the right people to account, bring about much needed change  and get my family justice for what we have been through. My impact statement for the June hearing can be read here.




Update 3

Dr Chris Day

Dec. 5, 2022

Link to Observe Wasted Cost Hearing on 5 and 6 December 2022


Click here to observe the hearing and read the papers.

Update 2

Dr Chris Day

Nov. 24, 2022

Press Coverage on Judgement of June Hearing

Update 1

Dr Chris Day

Nov. 18, 2022

June 2022 Judgment

So even when you rock up to the Employment Tribunal with the former Health Secretary (now Chancellor) on your side as your witness and your opponent destroys a load of evidence mid-hearing, then admits to it - you still lose;

Welcome to being a junior doctor in a whistleblowing case.

It is very disappointing that an Employment Tribunal can effectively just explain away an NHS Trust Director destroying an entire email archive before giving evidence in a whistleblowing case and another NHS Director (who happens to be the instructing legal client for 4 years of a whistleblowing case) having her email account deleted. Added to the mix was the concealment from court disclosure of a key board meeting that approved the settlement of my case, 18 letters to MPs and further emails from the senior doctor recipients of my protected disclosures. I also believe the public were again hugely let down when the tribunal statements of 2 consultant anaesthetists, that set out how serious patient safety issues in my case were concealed and misrepresented to MPs and the press, had their evidence disregarded.

Read the Judgment here and my Crowdjuctice update

https://lnkd.in/gU9nrzkP 


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