Victory for John Watkinson

Who will be held accountable for the persecution of NHS whistleblower John Watkinson and the waste of £2 million?  (Eyes passim ad nausea )  Watkinson, the former Chief Executive of Royal Cornwall Hospitals NHS Trust (RCHT), was suspended in September 2008 and sacked in April 2009.  In March 2010, an Employment Tribunal (ET) presided over by a High Court judge concluded he was ‘got rid of’ because he blew the whistle on law-breaking by NHS organisations in the south west. This month, an Employment Appeal Tribunal (EAT) threw out the hospital’s appeal.

Watkinson raised concerns when NHS South West, led by Sir Ian Carruthers, decided to move key cancer services out of Cornwall without legally required public consultation. Although Watkinson was dismissed by RCHT, the tribunal heard that NHS South West was behind the move to get rid of Watkinson and that RCHT’s board had come under ‘clear and strong pressure from the SHA’. The tribunal repeatedly sought the attendance of Sir Ian Carruthers to give evidence, but despite his office being less than 100 metres from where the tribunal was held, he did not appear. The Tribunal said evidence presented by the trust’s witnesses was ‘unsatisfactory’ and the non-attendance of Carruthers a matter for ‘adverse comment’. The Employment Appeal Tribunal (EAT), in its conclusion, confirmed this finding: “We cannot leave this case without echoing the views of the Employment Tribunal first that ‘in many respects, we have found the evidence put forward by the respondent to be unsatisfactory’ and second that the failure of the respondent to call several important witnesses (including Carruthers) ‘is a matter of adverse comment’

As Watkinson put it: “The Public Interest Disclosure Act (PIDA) is supposed to safeguard the interests of whistle-blowers who come forward to expose wrong-doing. But the reality is that whistle-blowers are persecuted not protected. The odds are stacked against them. The NHS uses the vast resources of the public purse and all the levers of power they can wield to grind down whistle-blowers. You have to be ready to be vilified, professionally isolated, lose your job, career and reputation, as well as meeting huge legal bills if you stand up for what is right.’

Equally concerning is the waste of public money. The NHS in the south west has spent more unfairly dismissing Watkinson and then trying to defend that dismissal than was over-claimed in the MPs expense’s scandal. And this at a time when the hospital trust is making massive cuts in spending on health care services.  The RCHT board should resign because for its failure to stand up to pressure from SHA to break the law. They also oversaw, and were complicit in, a suspension and dismissal process that was clearly unfair.

Carruthers should also resign.  The evidence and findings of the ET and EAT demonstrate that he knew of the legal obligation to consult but ignored it. He also oversaw the abuse of the employment process and the SHA and RCHT both failed to afford the protection due in law to a whistle-blower under PIDA. The findings of the Verita report which exonerated the SHA (Eye 1279) have also been contradicted by the findings of the ET and EAT.  Andrew Lansley, who ordered the investigation must now review its findings, and particularly the role of NHS chief executive David Nicholson in supporting his good friend Carruthers (who chaired a panel recommending Nicholson’s knighthood). Nicholson also failed to ensure the protection of Watkinson under PIDA and is ultimately accountable for the waste of £2 million. The Public Accounts Committee should investigate, but it probably won’t. The NHS, with such power in the hands of so few, is truly unaccountable. Indeed, Carruthers has just been promoted to SHA cluster chief for the whole of the south of England. Watkinson is unemployed.

MD

Medicine Balls:           Criminalising Herpes

Last week, Northampton traffic officer David Golding pleaded guilty to a charge of Grievous Bodily Harm and was sentenced to 14 months imprisonment because his ex-partner had been diagnosed with genital herpes. Mr Golding previously had genital herpes, but was unaware that he was currently infectious and there was no evidence that transmission was deliberate or malicious. His ‘crime’ was failing to disclose his previous history of infection to his partner, who claimed she would never have had sex with him had she known – even with a condom. Golding went down for “reckless transmission of an incurable sexually transmitted infection (STI)” and the Crown Prosecution Service (CPS) went back to the dark ages.

The law on deliberate transmission dates back to 1861. When HIV became prevalent, the Home Office consulted experts to draw up a ‘shopping list’ of STIs to distinguish potentially life threatening infections from those it would be ridiculous to criminalise. It was never implemented because of allegations of discrimination by the HIV lobby. However CPS guidelines were drawn up:  “7. The courts have recognised that person-to-person transmission of a sexual infection that will have serious, perhaps life-threatening, consequences for the infected person’s health can amount to grievous bodily harm under the Offences against the Person Act 1861… Therefore, the transmission of that infection can constitute the offence of inflicting or causing grievous bodily harm, which when intentional can attract a sentence of life imprisonment.”

Genital herpes affects 1 in 10 (around 6 million people in the UK) and is usually so trivial people don’t know they have it. Outbreaks can occasionally be very unpleasant, but never life-threatening, tend to get less severe in time and effective treatments are available. It’s also impossible to prove who transmitted the virus to who and when. 70% of the population carry at least one of the HSV viruses by the age of 25, often without noticing symptoms. In the vast majority of cases, herpes is transmitted – either facially or genitally – under the radar without either partner being aware. In no way can infection be considered deliberate or serious.  It’s a cold sore gone south.

Of those who know they have herpes, some don’t tell their partners about a previous infection, partly because of the ridiculous stigma that this court ruling has entrenched.  As Nigel Scott from the Herpes Viruses Association put it: ‘It is the existence of a stigma that gives this charity its raison d’etre.  We spend most of our time trying to calm people down and re-educate them.  Some people talk of suicide when they are diagnosed and we know of at least two cases where this has occurred.  This is why many people find disclosure difficult.’

If the six million people in the UK with genital herpes set about prosecuting for deliberate transmission, the courts would do nothing else. Herpes can lie dormant for years, so you’d need to track down all previous sexual partners, including those with cold sores who went ‘down below’. Criminalising herpes is as ludicrous as sending people to jail for passing on head lice, glandular fever, flu, threadworm, warts and chicken pox. Mr Golding is extremely unfortunate to be infected with the triad of incompetent legal representation, an ignorant judge comparing HSV to HIV and then misinterpreting the CPS guidelines, and a medical ‘expert’ who called herpes ‘incurable’. In nearly all cases, there’s nothing to cure. We all carry all sorts of viruses for life, and most we don’t even know about. The stigma surrounding herpes can be traced to publicity surrounding the discovery of the anti-viral drug acyclovir by Wellcome in 1974, and its launch in 1982. Profits need publicity, and Time magazine duly obliged by describing herpes as ‘the new sexual leprosy’ (1980) and ‘the new Scarlet Letter’ (1982). In fact, the main complication of herpes is how much a person wants to let the infection get to him or her psychologically. And if you live in Northampton, being sent to prison.

http://www.cps.gov.uk/legal/h_to_k/intentional_or_reckless_sexual_transmission_of_infection_guidance/

MD is a patron of the Herpes Viruses Association, 020 7607 9661, www.hva.org.uk, which offers excellent advice to patients and lawyers

What next for NHS Whistleblowers?

The Eye’s Special Report on NHS Whistleblowing  (Eye 1292) triggered an early day motion sponsored by Worthing West MP Peter Bottomley. ‘This House welcomes the Private Eye, Shoot the Messenger articles, on how NHS whistleblowers can be silenced and sacked; anticipates effective action by the Health Select Committee (HSC) and the NHS; and calls for an active central unit to which concerned clinicians can put areas and points that worry them, including details of inappropriate disciplinary action by health employers.’ http://www.parliament.uk/edm/2010-11/2031

The HSC has already considered whistleblowing in its Patient Safety report in June 2009, and found: ‘The NHS remains largely unsupportive of whistleblowing, with many staff fearful about the consequences of going outside official channels to bring unsafe care to light. We recommend that the DH bring forward proposals on how to improve this situation.’

Incoming health secretary Andrew Lansley’s proposal (currently shelved) was ‘to strengthen the NHS constitution’ to oblige staff to raise concerns and managers to act on them. But the constitution is legally toothless window-dressing. When the charity Action Against Medical Accidents asked the Department of Health (DH), under the Freedom of Information Act, for ‘information on any instance of action being taken with regard to an NHS body not “having due regard” to the NHS Constitution from its point of creation’ the reply was telling: ‘Officials responsible for this area of Departmental business are aware of no instance, recorded or otherwise, falling within the terms of your request.’

The Eye would like to see an end to all gagging clauses of any sort in the NHS and the protection of a clinician’s professional right to free speech, including the right to go external to the trust and raise concerns with an MP. Gagging is still widespread, so what will the DH do about it? Anne Milton, the Minister in charge of whistleblowing, gave a revealing interview to Radio 4 (July 7, The Report)

Milton ‘I would be very worried that any employer felt it was necessary to insert a gagging clause’ Simon Cox ‘Who’s policing that? Who says to trusts they shouldn’t be doing that?’ Milton ‘You’re stepping into the realms of employment law and I’m not an expert. There are laws in place but as I say I’m not the expert that you need to speak to….. I’m not absolutely sure what higher authority governs what rights an employee has.’

Back in 2009, the HSC recommended that: ‘All Government policy in respect of the NHS must be predicated on the principle that the first priority, always and without exception, is to ensure that patients do not suffer avoidable harm…. Managers and Boards in NHS bodies have a duty to heed whistleblowers and to afford them protection from victimisation for raising genuine matters of concern. Measures to encourage whistleblowing need to be accompanied by strong measures to protect whistleblowers from dismissal and blacklisting. We recommend that the DH bring forward proposals on how to improve this situation and that it give consideration to the model operated in New Zealand, where whistleblowers (and patients) can complain to an independent statutory body.’

None of the HSC’s recommendations were implemented, so this time it’s started by reminding NHS staff of their ethical duty to report poor care and to call on regulators to take action against doctors and nurses who remain silent. But the Eye special highlighted seven senior managers and consultants whose careers were ruined when they blew the whistle, while the concerns they raised were buried in gagging clauses and in secret reports never seen by the public. As MD argued at the Bristol Inquiry, the NHS cannot be trusted to regulate itself in secret. Peter Bottomley proposes a central NHS email address where whistleblowers can receive a date stamped acknowledgement of their concerns. This would make it impossible for an NHS employer to deny knowledge of a possible problem. MD would take it further. Copies of all clinical complaints from staff and the public, the response of the NHS and an indication of whether the complainant was satisfied should be published, with confidentiality protected. Before the NHS can do no harm it has to count the harm it causes and tell patients when they have been harmed by their care. Without absolute transparency, there can be no trust.

For more whistleblowers stories and campaigns, go to www.medicalharm.org

 Another whistleblower refuses to take the hush money

 Whistleblowing paediatrician Dr David Drew had an unblemished career for 37 years, the last 18 in Walsall, until he was sacked in December 2010 for “gross misconduct and insubordination.”  Dr Drew had been medical lead for the paediatric department at Walsall Healthcare NHS Trust (WHNT) for 7 years until April 2008.  From October 2008 to April 2009, he raised numerous concerns about child protection, heating failures, cold babies, understaffing and bullying. He was largely ignored.

In April 2009 following a verbal complaint by the Head Nurse, Drew was excluded for 6 weeks. A National Clinical Assessment Service (NCAS) report found that the Medical Director had reported Drew as obstructive, unmanageable, possibly psychotic and guilty of leaking details of a murdered child to the press. He said Drew was a danger to both staff and patients. He sent Drew an urgent psychiatric appointment and wrote that he was excluding Drew ‘on NCAS advice’. This was untrue. 6 weeks later, the MD asked Drew to go back to work.

An internal investigation concluded “no case to answer” and after a period of illness requiring high dose steroids for 4 weeks Drew returned. In October 2009 he wrote to the CEO registering further concerns about the department including bullying. He also registered a grievance against the MD for wrongful exclusion. He met the trust chair with the BMA and he agreed to an Independent Review of Drew’s grievance and of relationships in the department.

A Review Panel was commissioned by recommendation of the Royal College of Paediatrics and reported on 26 March 2010. It found that, from October 2008, the paediatric department had been run by three managers ‘lacking in paediatric knowledge, managerially aggressive and failing to engage front line clinical staff.’  The trust was instructed not to allow two of them to work in the department again. Drew was not allowed to see the trust’s statement.  Witnesses were interviewed but no statements were taken. Hand written notes of interviews were made but all records of these were subsequently destroyed. 

The CEO and Drew had the only 2 copies of the report. It described corporate failure to manage paediatrics at every level. The Board, Executive, Managers and clinicians, including Drew, were criticised. The Board (as of 8/4/11) was not allowed to see the unabridged version on the grounds of “confidentiality”. The Hospital Consultant body asked to see the report but were not allowed to.  The Medical Director (severely criticised in the report) resigned shortly afterwards but is alleged – in minutes of a Consultant meeting 30 September 2010 – to have given an inaccurate account of the Review to middle managers. 

In March 2011 the CEO wrote demanding that Drew accept the full report without reservation or clarification. Drew asked for a meeting but instead received an appointment for a disciplinary hearing. This was cancelled at BMA insistence as it was in breach of trust policy. In June 2010 Drew met the CEO with the BMA and was offered a package worth £242,000 to leave immediately. Drew was required to sign a gagging clause. He replied in writing that this was a bribe which he could not accept.

Disciplinary proceedings were then started culminating in a 2 day hearing up against an aggressive WHNT solicitor.  The BMA would not provide legal representatives for internal hearings and Drew could not afford to pay one. Drew was sacked and his subsequent appeal, on April 8 2011, failed. He is taking the Trust to an employment tribunal but the BMA has declined to represent him. The Trust will have very expensive, publically funded, legal representation. WHNT was shown all these allegations but declined to comment prior to the tribunal.

Hearts and Minds again

The Safe and Sustainable programme to reorganise child heart surgery just 19 years after the Eye broke the story of the Bristol heart scandal is running in to difficulties. There are currently around 30 consultant heart surgeons who operate on children spread across 11 surgical centres in England.  All signed up to a process that was likely to recommend a reduction in the number of centres so specialist expertise and resources can be concentrated in fewer, safer centres better equipped for training and expansion. This process was made all the more urgent by the Oxford scandal (Eye 30.7.2010) and a report last year that found that 76 ‘excess deaths’ had occurred in just four centres between 2000 and 2008 (Oxford, Leeds, Guys and St Thomas’s and Leicester). This was the same methodology used to count the excess deaths at Bristol.

The Children’s Heart Federation, which exposed the Oxford scandal, has now written to the Care Quality Commission asking them to urgently investigate the high number of reoperations that appear to be occurring in the Leeds unit, and any damage associated with them. Meanwhile, Yorkshire MPs have this week secured a Commons’ debate to try to halt the reorganisation and save their local unit. Alas they appear to have been swayed by egos in the hospital rather than the safety of patients.

The Bristol Inquiry also recommended a decade ago that services for children with very rare heart conditions such as Truncus Arteriosus (TA), in which a single vessel comes out the ventricles rather than two, ‘should only be performed in a maximum of two units, validated as such on the advice of experts.’ The latest figures, for 2009, show that Birmingham performed 14 TA operations, Leicester and Newcastle 3 each, Leeds, Great Ormond Street and Alder Hey 2 and Oxford, the Brompton, Guys and Bristol just 1 each. Southampton didn’t do any but had done two the year before. MD wouldn’t let his dog go to a surgeon who does ‘1 a year’ of anything, especially if there’s another who does 14 a year just up the road. Despite the recommendations of a hugely expensive and very traumatic public inquiry, child heart surgeons are still being allowed to dabble in rare complex cases.

Lest we forget, disgraced heart surgeon James Wisheart told Jim and Bronwen Stewart in 1994 that their son Ian had a 67% chance of surviving his TA repair and that the chance of brain damage was very remote. BBC Newsnight later revealed that, prior to Ian’s operation, Mr Wisheart had performed 11 TA operations with nine ‘early’ deaths. Ian survived, suffered profound brain damage but appeared in the surgical audit as a ‘success’ because he was still alive after 30 days. The Stewarts had to fight for years for compensation, never got justice and publically derided the GMC hearing and Public Inquiry as hollow shams that would change nothing.

And they may have a point. Some of the centres are now having cold feet about merging. The Royal Brompton hospital (RBH) and Great Ormond Street hospital (GOSH) had even agreed, in April 2009, to merge cardiac services at GOSH in the report of ‘A Proposal to Establish A National & International Service for Children with Heart & Lung Disease’. Now RBH is taking the Safe and Sustainable Review to Judicial Review, which will cost the tax payer millions, delay implementation by many months and allow smaller, inadequately resourced units to keep struggling on and surgeons to keep dabbling in the rare stuff.

The needs of Isle of Wight’s 145,000 residents were not factored into the whittling down process; an omission which worked against the survival of Southampton’s unit, which is one of the best and safest in the country. Had the Isle of Wight been included – as it undoubtedly should have been – Southampton should have been safer for geographical reasons. The review says there should be a maximum of 3 hours’ (4 for remote areas) travel time to the nearest specialist centre, based upon the same methods used for deciding paediatric intensive care provision. If the Isle of Wight is factored in – and Southampton’s unit closed – the travel times from its main hospital St Mary’s to either Bristol or the two London units are over the four hour ‘remote’ deadline. The review panel has now ‘developed scenarios that show it is possible for an ambulance from London or Bristol to reach the island in under 4 hours by road and ferry – but not all the time.’ So that’s all right then.

MD