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
Funded
on 08th April 2018
£26,150
pledged by 638 people
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

Latest: July 25, 2018

New CrowdJustice page to support my appeal

Dear Supporters

Thank you for all of your support so far. We’re now looking for your support to appeal the recent decision in the Employment Appeal Tribunal. 

We've set up a NEW C...

Read more

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 8

Edwin Jesudason

July 25, 2018

New CrowdJustice page to support my appeal

Dear Supporters

Thank you for all of your support so far. We’re now looking for your support to appeal the recent decision in the Employment Appeal Tribunal. 

We've set up a NEW CROWD JUSTICE PAGE - please visit the new page and give what you can - and most importantly share on Twitter and Facebook to get the word out about the appeal.

The case raises a critical question for the NHS: should the managers behind unsafe systems float above the law, but doctors get smashed in court whether they speak up for patient safety or soldier on under unsafe conditions? Please contribute now and share this new page on social media. 

Thanks again, and please share with five friends of family, asking if they'll do the same.

Very best wishes

Dr Edwin Jesudason

Update 7

Edwin Jesudason

July 24, 2018

Damned either way: doctors speaking up or soldiering on

We’re looking for your support to appeal the recent decision in the Employment Appeal Tribunal. It raises a critical question for the NHS: should the managers behind unsafe systems float above the law, but doctors get smashed in court whether they speak up or soldier on?

In my case, I spoke up about an unsafe system that led to the deaths of Caitlyn Parry and others. The managers are evading scrutiny, by hiding adverse reports and misleading Parliament with false claims that the concerns are baseless.

Dr Bawa Garba took the other choice. She soldiered on in an unsafe system, but it was her and not her managers who faced police investigation and conviction for the manslaughter of Jack Adcock.

When it’s unsafe to soldier on, doctors need to be able to speak out. When managers untruthfully deny and deflect, doctors need to be able to speak out to the press as a last resort. The inquiries into Gosport War Memorial Hospital and into the Hyponatraemia deaths both highlighted the vital role of the press in bringing forward issues that NHS managers wanted to ignore. We now need the courts to recognise this - and start protecting whistleblowing doctors - by having the courage to hold their managers accountable.

Until this happens, NHS managers will remain free to turn patient harm into pay-offs, rather than learning - as described in the two speeches below. Please share and contribute.

Very best wishes

Dr Ed Jesudason

 


Update 6

Edwin Jesudason

July 18, 2018

An old joke

The good news first; or the bad?

Dear Supporters

Thank you for your kind support and your patience. In the style of a laboured medical joke, I have good news and bad.

First, the good news: I've recently passed the final assessment that's required to seek registration as a specialist in Rehabilitation Medicine. It’s a discipline devoted to working alongside people with disability - so each case is unique to the person and their context. Its ethos is seen in some of the writings by Dr Oliver Sacks. The clinical practice relies on teamwork, so I’d like to thank my colleagues for their feedback. I’d also like to thank my family for its support. It's been crucial in my achieving this goal - and withstanding the pressures of the whistleblowing cases against Alder Hey and the British Medical Association.

Now, the bad news: we’ve finally heard that the Employment Appeal Tribunal (EAT) rejected all our points, despite accepting the original Employment Tribunal (ET) made a number of errors. It’s a disappointing decision. We're considering an appeal so I won’t go into detail just yet. Briefly, the decision refuses to (a) protect me for taking concerns to the media as a last resort; (b) condemn the fact that Alder Hey falsely denied deaths and withheld evidence from investigations and legal challenges; (c) contrast the way Alder Hey treated me after reporting problems and the way it has shielded other surgeons. Two have sought to misuse the General Medical Council (GMC) as a weapon against me or the journalist, Dr Phil Hammond. One has altered evidence to the GMC and other investigations, then given serial false accounts when caught.

On these politically sensitive issues (e.g. Alder Hey misleading Parliament about the death of Caitlyn Parry; its shielding of a prominent surgeon who altered evidence to the GMC), the EAT props up the ET decision instead of scrutinizing it. Regrettably, the Alder Hey case fits a pattern illustrated by the words of one of the many relatives at Gosport hospital. They too have been disbelieved and discredited - as they campaigned against a series of inadequate investigations into their family members' untimely deaths. Bridget Reeves explains how the law failed the Gosport families at its highest levels (the Attorney General):

"It is very, very difficult because you have to stay so strong. We’re not talking about an argument with just a lay person. You’re talking about fighting the Government. I mean going to the point..I mean how many letters we’ve even written to the Attorney General. You’re taking about standing up at an inquest with no legal representation and trying to make sure that justice is done by your relative. And you’re not just being closed down by somebody on the street. These are the people you’ve gone to and you’ve trusted in to give you your answers and they’ve let you down. And not only have they let you down but they have manipulated evidence and they have chosen not to be honest. This is about hundreds of elderly people whose lives were shortened through the absolute abuse of medication and they died in the most horrific of circumstances – overdosed - some of them in front of their relatives".

This dangerous culture still thrives across parts of the National Health Service (NHS). The Gosport Inquiry reported how, even now, it has been obstructed by the medical profession. In contrast, the inquiry reported how whistleblowers and the press got to the safety issues long before the legal authorities. Please fund this campaign to have the law properly protect NHS whistleblowers who go to the press as a last resort.

Very best wishes

Dr Ed Jesudason

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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