Chris Day, Round 3

In 2014, Dr Chris Day was a junior doctor working on the Intensive Care Unit at Queen Elizabeth hospital in Woolwich, which at night routinely did not adhere to national staffing levels, putting patients at risk and placing huge stresses on the competent and dedicated staff. Day made a protected disclosure detailing these concerns on the night of 10 January 2014, but the Trust and Health Education (HEE) decided not to act on them, terminating his contract with what Day believes were false allegations and stalling his progress to consultant. HEE is an executive non-departmental public body, sponsored by the Department of Health, which – with local Deaneries – recruits doctors in training, supplying them to various Trusts, monitoring and appraising them. Like many whistleblowers, Day was forced down an employment tribunal route. His legal team argued that HEE should be held accountable for any detriment he has suffered under employment and whistleblowing law. HEE contended that “even if the facts alleged by Dr Day were true, HEE could not be liable in law for any acts causing him detriment.” In taking the case to court in 2015, Day discovered that the government was arguing 54,000 junior doctors out of whistleblowing protection. Day lost round 1

Seasoned whistleblowers argue that the existing protection is barely worth having anyway. As Dr Minh Alexander explains ‘The current UK whistleblowing law, the Public Interest Disclosure Act (PIDA), pays little attention to whistleblowers’ disclosures and does not compel employers to investigate them.  In a safety critical sector like the NHS, this puts lives at risk. NHS policy does not provide any failsafe for investigation of individual whistleblowers’ concerns where employers fail to conduct or commission local investigations properly, or at all. NHS regulators rarely use their discretionary powers to conduct wider investigations even when there are clusters of whistleblowers. And the law provides only a post detriment right to claim compensation. What is needed is pre-detriment protection from the point of disclosure.’

Health Secretary Jeremy Hunt claims to have made progress in appointing ‘freedom to speak up guardians’ to every trust and a national guardian to oversee them, but Dr Alexander is scathing. ‘These guardians have no defined responsibilities under the Act other than to receive disclosures and to publish relatively superficial data about them. Many are under the line management of the trust or government departments and there is a conflict of interest if whistleblowers raise concerns that relate to failure of government policy or performance, such as the consequences of the current cuts in the NHS. Whistleblowers frequently perceive that regulators close ranks to suppress their concerns. The National Freedom To Speak Up Guardian’s office has been established without any of the necessary powers to properly protect whistleblowers and is subordinate to the CQC.  It will not review cases until all processes are concluded, including Employment Tribunal claims. By the time the National Guardian may deign to review a case, the whistleblower would likely be hung out to dry, in poor health, broke, de-skilled, unemployable and blacklisted.’

Whistleblowers also rarely succeed in the courts (Eyes passim), but Dr Day is to be commended for his persistence. In May 2017, the Court of Appeal found that Hunt and the HEE’s arguments to deprive junior doctors of statutory whistleblowing protection were legally flawed. Day is now going back to an Employment Tribunal to bring a case against HEE and the trust. This could take years to complete. In July, 3 years after Day first raised concerns about intensive care at QEH, an independent review detailed a complete lack of medical leadership, low consultant staffing levels and inadequate clinical governance. There were 19 patients to each consultant, escalation of deteriorating patients was ineffective and there was a poor culture of incident reporting. Had Hunt and the NHS listened to Day’s concerns in 2014, this may have been prevented. So why has Hunt and the DH spent millions trying to shut Day up, rather than hear his story? In 2013 South London Healthcare Trust, which ran QEH, was crippled with a terrible PFI deal, forced into a bankruptcy regime by the Trust Special Administrator with savage cuts to services and widespread staff demoralisation that made recruitment very hard. The government’s actions may well have precipitated the crisis in QEH ICU. Unsurprising Hunt wants to delay Day as long as possible. Meanwhile, even the GMC has spotted the wider consequences of the case, reporting that English doctors in training don’t feel protected by HEE to speak up and are ‘less secure about raising concerns for fear of suffering detriment to their career.’ Hunt’s pretence that the NHS now encourages and listens to whistleblowers simply doesn’t stack up.

You can support Dr Day’s case at www,crowdjustice.com/case/junior-doctors-round-3/