Dr Chris Day part 94

In a perfect NHS, we wouldn’t need whistle-blowers. Managers would thank staff for raising concerns and act swiftly to prevent avoidable harm to patients, as happens in many hospitals. But not all. If managers refuse to act and staff refuse to shut up, a protracted legal dispute is inevitable, with the odds stacked heavily against the whistle-blower. In Dr Chris Day’s four year legal struggle against Lewisham and Greenwich NHS Trust and Health Education England (HEE), he at least secured the badge of honour of a ‘good faith’ whistle-blower and managed to extract £55,000 in costs from HEE because of its earlier flawed conduct. Day and his legal team also exposed and then closed a loophole in the law that had previously excluded 54,000 junior doctors from any statutory whistleblowing protection (Eyes passim). But Dr Day found, as many others have, that such protection is very flimsy. After suffering six days of cross-examination by two tax-funded QCs, Dr Day decided not to risk financial ruin like Ed Jesudason (Eyes passim) and agreed to drop his claim. In return, Dr Day will not be pursued for eye-watering costs. In a fantastical joint statement, the two sides who had previously ridiculed each other’s claims decided that the tribunal was likely to find that everyone had acted in good faith towards each other after all, and that Dr Day had not been treated detrimentally for whistleblowing five years ago.

In August 2013, Dr Day was training in Emergency Medicine and was placed by HEE in the intensive care unit (ICU) of Queen Elizabeth Hospital Woolwich. With no prior experience in anaesthetics and intensive care, Day was alarmed to find a single junior doctor was responsible at night for up to 18 ICU patients, plus any ICU ‘outliers’, and was expected to admit new patients. Dr Day raised the concern that this was unsafe. In response he was told that ‘the system has worked well for years.’ Day discovered four other ICU juniors with no prior experience of intensive care or anaesthetics. In November 2013, core standards were published for ICUs which stated that there should be no more that 8 patients per doctor, and immediate access to an anaesthetist skilled with advanced airway techniques. In Woolwich, the on-call anaesthetist was also covering operating theatres and was not always immediately available. In November and December 2013, two patients deaths happened at night under the care of the ICU, with non-anaesthetic trained junior doctors. They were declared as Serious Untoward Incidents (SUIs) and went to Coroner’s inquest. In one, a chest drain punctured the liver and the patient died from haemorrhage. Another patient died because of a failure to investigate the cause of low blood pressure and to admit in a timely manner to ICU. Both SUIs were somehow excluded from the safety investigation into Dr Day’s concerns, which concluded the night time ICU staffing was ‘acceptable’.

Traditionally, junior doctors were expected to shut up and get on with it. However, the General Medical Council now places a duty on all doctors to speak up about serious risks and errors, including their own,  but may – as in Dr Bawa Garba’s case – wrongfully strike them off if they do.  Dr Day completed his attachment at Woolwich including 6 months as an anaesthetist where he was praised by his clinical supervisor for his competence, compassion, cheerfulness and communication skills (evidence that was excluded from formal investigations). However, he refused to move onto his next training placement until the ICU safety concerns he had raised had been investigated, and smears against him had been retracted. The ET witness statement from the trust’s Assistant Medical Director stated; ‘although medically competent, he may not make a good consultant because he refuses to accept authority and will not accept a reasonable explanation. He is markedly self-centred and hid behind a façade of patient safety.’ Another email stated ‘His inability to let these issues go is starting to worry me. I would consider not employing him again.’ But Dr Day was right all along. In 2014, the GMC staff training survey found that Day’s serious safety concerns were shared by many other doctors, and there were numerous ‘red flags’. The Dean of HEE London admitted that leaving ICU in the hands of junior doctors not trained in intubation was ‘totally unacceptable… consultants will have to get off their backsides and start supervising.’ In 2014, the CQC reported that QEH ‘requires improvement’. In 2017, a report on its ICU by  South London Critical Care Networkfound ‘a complete lack of medical leadership, low consultant staffing levels, inadequate clinical governance, significant concerns  and poor culture.’ In the CQC’s 2018 report, every single key domain (safe, effective, caring, responsive, well led) still ‘requires improvement’ as does the emergency department and intensive and critical care. End of life care is simply ‘inadequate.’ The question is, does the NHS need doctors like Chris Day who refuse to let these issues go? Or do we accept the NHS is – and always has been – understaffed, underfunded and dangerous, and just keep covering the harm up?