Will the BMA stand up for whistleblowers or shut them up?

IN JULY consultant paediatric surgeon Edwin Jesudason won a high court injunction with costs against Alder Hey Children’s Hospital (AHCH), which is seeking his “no fault” dismissal after certain surgical colleagues refused to work with him and surgeon Shiban Ahmed after they blew the whistle on malpractice and mistreatment of staff (Eye 1315). Next week, Jesudason hopes to make the injunction permanent. If successful, he may improve on the woeful statutory protections for whistleblowers by forcing trusts to follow their whistleblowing policies, or risk similar actions for breach of contract.

Jesudason, an award-winning surgeon who has never received a patient complaint or malpractice suit, has worked at AHCH since 1998 but since 2010 has been in the US on a Medical Research Council study. In 2009 he protested when Ahmed, who worked in AHCH and the University Hospital of North Staffordshire (UHNS), was suspended by UHNS after AHCH colleagues made the unsubstantiated claim that he was suicidal. The Eye has seen a 5.9.10 letter from surgeon Colin Baillie to AHCH which reads: “Shiban mentioned he had considered suicide. I have no doubt this was what was said because I asked him to repeat himself. I shared this with the clinical director Matthew Jones.” Ahmed knew nothing of this. The claim was made behind his back when a proper response to a genuinely suicidal colleague would have been to arrange an urgent mental health assessment. He was however suspended for 14 months pending an investigation which cleared him of being any risk to himself or his patients. He is still not back at work. This is a huge loss to AHCH as a Royal College of Surgeons (RCS) report found that “many members of the departments spontaneously described Jesudason and Ahmed as exceptionally skilled and talented surgeons”. Their crime has been to raise concerns about substandard care as the GMC obliges them to.

Jesudason led the petition to reinstate Ahmed and in 2009 made a confidential protected disclosure to AHCH which was circulated to his consultant colleagues, some of whom now refuse to work with him. Baillie’s 2010 letter is very revealing. ‘It is imperative that our legal position is solid should trust wish to terminate the employment of Jesudason… The allegations of patient harm go beyond the cases mentioned in this document, so we can expect more damaging revelations.  There are only two possible outcomes; major departmental restructuring (on the quiet) with Jesudason returning… or a very dirty fight, fully in the public eye, with the organisation’s chief weapon being to bring Jesudason (who remains a talented surgeon and researcher) before the GMC for sanction.’

The public interest disclosure act offers no real protection to whistleblowers against trusts with vast legal resources, and the CQC has shown no interest in policing trusts who break their own whistleblowing codes with impunity.  Represented by the BMA, Jesudason is arguing that AHCH is in breach of contract by failing to enforce the provisions in its whistleblowing policy. The trust now accepts Jesudason is a whistleblower, but argues that concerns regarding his working relationships with other surgeons have nothing to do with his protected disclosure in 2009, but ‘date back to 2004’, when he was a trainee. Odd then that colleagues now seeking his removal interviewed and appointed him to a consultant post in 2006.

Ahmed and Jesudason’s concerns have not been fully investigated, despite visits to AHCH from the CQC and RCS, who’s report has been redacted. In 2010, Dr Alan Phillips, head of psychological services, interviewed over 50 members of theatre staff and found “a significant number of highly de-motivated and demoralised members of the theatre team across all professional disciplines, and some very serious health and safety concerns”. The full report remains a trust secret and Phillips refused to sign a 2-page summary. He took retirement, with the customary gagging clause. The Eye has gone to the Information Tribunal to ask for the full report. Alder Hey still has skeletons in its cupboard and is fighting hard to keep them there.

M.D.