Improving protections for NHS whistleblowers who go to the media

by Edwin Jesudason

Improving protections for NHS whistleblowers who go to the media

by Edwin Jesudason
Edwin Jesudason
My case aims to protect NHS whistleblowers who as a last resort go to the media when NHS Trusts make false statements to cover up harm or danger to patients
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Edwin Jesudason
My case aims to protect NHS whistleblowers who as a last resort go to the media when NHS Trusts make false statements to cover up harm or danger to patients
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Latest: May 24, 2018

Waiting, still waiting

"The world is full of magical things patiently waiting for our wits to grow sharper" -Bertrand Russell


Dear Supporters

Thank you for all your support and kindness.

After more than a month, w...

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This case is about whether the public can trust hospitals when they make claims about safety. That means protecting medical professionals like me from retribution when, having exhausted all over avenues, they speak out to the media. 

I blew the whistle about safety of children at Alder Hey Hospital. The Trust retaliated by saying that all my concerns were unfounded and had been dealt with. They heavily redacted an investigative report into safety by the Royal College of Surgeons, and then misrepresented that report to defend their own reputation, when in fact failures of care at Alder Hey Hospital have led directly to the deaths of children. I then chose to speak out to the CQC, to Patients First, and to the media which was a very difficult decision, but such was the seriousness of my concerns I felt it necessary. The Trust then reiterated my concerns were without foundation – badly damaging my employment prospects. The Liverpool Employment Tribunal decided to exclude important evidence against the NHS Trust, and decided against me.  

I'm now challenging this decision in the Employment Appeal Tribunal because the Liverpool Employment Tribunal failed properly to apply the law that should have protected me from this kind of attack. 

My case has already helped widen protections for whistleblowing. In 2013 it was discussed in Parliament, as a Bill was passed giving workers protection for raising their concerns with MPs. My story has been extensively reported by Dr Phil Hammond in Private Eye. Please support me so that I can fight for the safety of children at Alder Hey Hospital.

Now I'm fighting to improve protections for those who, like me, have had to take their concerns to the media. But I can't do this alone and I need your help to raise funds to cover my legal costs. 

I spoke up publicly about my case at one of the BMA Annual Representatives Meetings:


Legal background

On 17-19 April, I have a hearing against Alder Hey Children’s Hospital, at the Employment Appeal Tribunal (EAT). The aim is to overturn decisions by the Liverpool Employment Tribunal (ET).

The Liverpool ET refused to look at half the safety investigation into my concerns, yet argued the investigation had dealt with all issues, so I no longer merited whistleblowing protection for raising unaddressed problems with the media.

The EAT is considering if the ET was right to (1) allow the hospital to protect its reputation by saying that all safety concerns were dealt with / without foundation, when in fact they weren’t; (2) refuse me protection in law for then raising the unaddressed safety concerns in the media.

The public need to know that their hospitals are truthful, when making claims about safety. In this case, the hospital’s senior managers claimed they were exonerated by a Royal College inquiry, when in fact the Royal College was highly critical of the department after children died. 

Other cases remain uninvestigated to this day.


Questions raised by this case

Two important questions raised by this case:

(1) the extent to which whistleblowers can rely on the ET to protect them if they go to the press with unaddressed concerns. This is known as Section 43G protection, under the Public Interest Disclosure Act. My case hopes to clarify this area, in an effort to ensure whistleblowers can approach the press with greater guarantee they’ll be protected from retribution; 

(2) the extent to which an employer, like the NHS, can redact half a report then disseminate untruthful statements about it, a whistleblower and their concerns, in order to protect their reputation in the face of media interest.


How much am I raising and why?

Separate to the EAT case against Alder Hey, I am also being sued for the best part of £1/4 million (inclusive of costs), by the BMA, my former union, who I’d hoped would have helped protect me from Alder Hey’s actions.

For cost reasons, I have represented myself so far. But the complexity of the case, as well as its general relevance to whistleblowing protections, means I’m now looking to crowdfund my legal challenge. It’s too important to be done without legal representation. 

I am raising £12k to cover initial legal costs but will then need to raise a further £13k to cover all potential costs.


Please contribute and share this page. Your support will make all the difference. 



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Update 5

Edwin Jesudason

May 24, 2018

Waiting, still waiting

"The world is full of magical things patiently waiting for our wits to grow sharper" -Bertrand Russell


Dear Supporters

Thank you for all your support and kindness.

After more than a month, we still have no answer from the Employment Appeal Tribunal.

Normally such cases are decided on the day. The legal questions we’ve posed are important but potentially embarrassing to powerful interests.

First, we’ve asked whether Alder Hey is lawfully allowed to protect its reputation by misleading Parliament and others about me and my safety concerns, even when its confessed on oath to not even investigating some of the most serious issues.

Second, we’ve asked for legal protection for raising those uninvestigated matters - as a last resort - with the press; protection we say was wrongly refused because the Employment Tribunal deemed incorrectly that all safety concerns had been dealt with when patently they hadn’t been.

Please share this with friends and family to raise awareness of questions that have relevance for all NHS whistleblowers who raise serious concerns with the authorities, and finally the press. 

For further information on the Alder Hey case, and also my battle with my union, the British Medical Association (BMA) please also visit my other site:

https://jesudasonappeal.wordpress.com/

Very best wishes

Dr Ed Jesudason

Update 4

Edwin Jesudason

May 11, 2018

Another first: bankrupted by the BMA?

Dear Supporters

Thank you for your continued interest. We’re still waiting for the decision in the Employment Appeal Tribunal vs Alder Hey.

But publicity has started to shake things up.

After 18 long months, we’ve had a decision in the case vs the BMA. They’ve been suing me for five years - for blowing the whistle to Dr Phil Hammond of Private Eye. They’ve trawled back and picked on the fact I didn’t dare out myself as a potential source when challenged in May 2012. Their lawyers have turned this into a breach of contract and misrepresentation.

Elephants in the room

The BMA were embarrassed by the collapse of my 2012 case after my release of evidence to Dr Hammond, showing their members were behind the covert claims against Mr Ahmed’s mental health. As one of their lawyers put it, this “buggered” their plans for a deal where I’d have received between 15 and 36 months pay to walk away, but where the evidence of the Ahmed cover-up could, as I put it, be “gagged out of existence”. Publicly, the BMA says it opposes gagging, but privately one of the BMA's senior lawyers responded that it’s a “common part of any settlement, not just WB [whistleblowing]”.

I’ve had to represent myself against the BMA’s QC and team of lawyers - so the BMA have known all along I didn’t have the money. Eventually, after wasting more funds, the BMA has won. I owe them £200K plus the same again in costs – for following Dr Hammond’s advice to protect my anonymity when taking public interest concerns to him (the same advice given to Dr Steve Bolsin in Bristol).

The BMA decision is a concern for all of us. Going to the media is an essential democratic freedom. But doing so without persecution is increasingly hard to achieve. Law enshrines protections for journalists’ sources, so they’re not forced to identify them.

But the BMA has hit on a worrying way to get around that protection – by going after the sources directly, by suing for breach of contract and misrepresentation if, when under contract, the sources dare not come out when first challenged.

For more detail on the BMA case, and my response to the judgment, please visit my site: https://jesudasonappeal.wordpress.com/

It also contains more details of concerns I’ve reported and an overview of my career and legal challenges. I’ll put up the link to BMA judgment once there’s a finalized html version.

Thanks again for all your support.

Very best wishes

Dr Edwin Jesudason

Update 3

Edwin Jesudason

May 2, 2018

The Ahmed scandal - a modern day Dreyfus affair

Dear Supporters

I can't begin to say how grateful I am for your kindness and support. Over £25k from over 600 people in less than a month has made a difficult task much easier to bear.

It's been very touching to see support come in from family, friends and colleagues across my whole life course - and also from the wider public, including the parents of babies and children on whom I've operated. I'm hoping my concerns can be investigated before they're all adults...

In that vein, it's vital to keep in mind the situation of Mr Ahmed, the whistleblowing consultant surgeon whose mistreatment I've reported from 2009 onward.

He's been stuck at home for years on full NHS pay (imagine the waste), unable to return to a department that would deride his mental health, hide evidence of this from him, and then breach its legal duty to disclose this evidence to his legal proceedings. 

Once such serious wrongdoing is normalised, safety and the NHS are lost.

After regulators failed to act, I disclosed the concealed evidence to Dr Phil Hammond of Private Eye, accidentally risking contempt of court. The disclosures frustrated a BMA-brokered pay off from the Trust in my own whistleblowing case in 2012. But even then, there was still no proper investigation.

In fact, despite repeated press exposure, it's taken until 2016 for the Trust CEO to admit on oath that she's never investigated those behind the Ahmed scandal, despite her repeated claims that all my concerns had been dealt with.

Instead, the Trust circulated my reports of Ahmed's mistreatment to those responsible. They responded by advocating reprisal using the GMC as a "weapon" and even surreptitiously altered documentary evidence against me to the GMC, giving multiple inconsistent accounts of this when caught.

Inexplicably, the Liverpool ET glossed over this, as setting "the record straight". I'll let you know if the EAT has the resolve to do better.

Kind regards

Dr Edwin Jesudason

Update 2

Edwin Jesudason

April 21, 2018

What happened at the hearing?

Dear Supporters

Thank you for your continued support and wishes. It’s made an incredible difference.

Due to your support, I was able to have a lawyer arguing my case, instead of trying to do it myself. That made the three day hearing more bearable.

I’m also grateful for the interest of other doctors and health professionals who took time to come to the EAT hearing. Their interview with me and their own take on the case can be watched here:

Briefly, day one was my lawyer arguing our points; day two the hospital’s QC arguing his (and vilifying me); day three, him then us, then close.

It’s very unusual for an EAT case to last three days (many are less than a day). But I think we showed the original ET had gone wrong on key points, to reach a flawed decision. 

We also laid out how the ET hadn't addressed key issues, failing to recognise e.g. 

(1) that key hospital evidence had been surreptitously altered;

(2) that the hospital has seriously and repeatedly misrepresented the findings of safety investigations to Parliament and regulators alike.

Usually the appeal decision is given out on the day, but the judge wants to take some time over this – so we wait…

Going to the media as a last resort was also a big feature in the hearing. The hospital went on and on about my going to Private Eye. So we saw more of Phil Hammond’s work than we were allowed to see of the report from the Royal College of Surgeons. 

That said, the judge was careful to say it wasn’t a trial of the media.

The hospital also tried to make UK whistleblowing law even more complex by trying to use a case arising from the East Caribbean Court of Appeal, apparently about share dealing(!)

Anyway, we couldn’t have done this without your kindness. So thank you again. Here’s hoping for a better decision this time…

Very best wishes

Dr Edwin Jesudason

 

Update 1

Edwin Jesudason

April 13, 2018

What are the BMA scared of?

Campaigning for justice against powerful interests is never easy. This update shows why.

Today we learnt that the BMA has claimed copyright over my speech at the annual conference, the video of which was widely viewed on my Crowd Justice page. 

By claiming my speech as their property, the BMA have asked Vimeo to take the video down- in effect, covering up a speech about cover up.

So it seems the BMA want to own not just my future - by suing for costs, but also my past - by taking my speech.

I have spoken up and simply seek lawful protection from reprisal. This cannot be achieved if hospitals and courts tolerate the use of the GMC as a weapon, if a major safety investigation remains half-hidden or if free speech is then copyrighted and removed.

If you believe we need to do better, here's how you can help. It will take two minutes. 

Share this update and my CrowdJustice page with five friends on email; share it regularly on Facebook and Twitter; and if you can, pledge again. 

Thanks again so much for your support, and very best wishes

Dr Edwin Jesudason

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