NHS Professionals Can and Will be Ruined for Whistleblowing.

David Prior, chairman of CQC, told the Health Select Committee this week that a ‘chilling’ culture in NHS hospitals discouraged potential whistleblowers from speaking out. In response I wrote to him, agreeing and giving a description of my experience of such a culture at Walsall Hospitals NHS Trust from 2008 to 2010 which ended in my dismissal. I have not worked since. Here is the unabridged letter:

23 October 2013

Dear Mr Prior

Re: There has been a deafening silence from clinicians for too long.

Thank you for the evidence you gave to the Health Committee yesterday and its subsequent press coverage. I agree with your thesis that good clinicians speak up for patients and good leaders will encourage staff to speak up and will listen to what they say. Gold dust.

The Midstaffs experience and survey after survey shows that staff often do not speak up believing that no-one will listen or, even worse, they will suffer personally. This was my experience at a West Midlands hospital from 2008 to 2010.

I was the senior clinician in the paediatric department and by 2008 had been head of department for 7 years. I was removed as head of department in April 2008 for daring to suggest a consultant I was managing had problems with competence. There was agreement in the consultant body with my view. The Trust failed to engage with this.

In October 2008 I raised serious concerns about mismanagement of the department. A Royal College of Paediatrics (RCPCH) review later agreed that the Trust executive had inappropriately appointed managers with no paediatric qualification or experience who were managerially aggressive (I used the word bullies) and sidelined senior frontline staff. The context to this was a cost-cutting exercise to prepare for FT application and to pay for the new PFI hospital.

I expressed concerns about proposed swingeing cuts to the nursing establishment and proposed medical redundancies. If left unchallenged these would have (and partly did) result in an unsafe service. As important, a mismanaged redundancy programme resulted in the loss of some of our best nurses and the demoralization of those who stayed.

I also reported major problems with the child protection service which the Trust was not taking seriously. A child (Child K in the Local Safeguarding Children Board Serious Case Review) died following catastrophic mistakes in basic safeguarding. No serious attempt was made to address these mistakes. A nurse with no safeguarding experience was appointed internally to mitigate redundancy numbers. A subsequent appointee was bullied out of her post by managers. The CEO suggested she was not up to the job and that managers swearing at her could be excused as they were under stress.

Children were put at serious risk through changes to in-patient accommodation made without reference to clinicians. An antiquated ward heating system repeatedly broke down over 2 winters causing sick babies to become hypothermic.

Management failed to take these issues seriously. The CEO for example took 8 months to provide an unsatisfactory written response to my concerns about safeguarding.

In April 2009 as a result of this I was unceremoniously excluded from the hospital. Documents obtained by Data Protection Act showed the Medical Director claiming to NCAS that I needed excluding as I was obstructive, unmanageable, writing defamatory letters to a manager, thought to be psychotic, leaking information to the press about Child K, might interfere with any Trust investigation of my exclusion and posed a threat to staff and patients. If that sounds a bit crazy in itself it is exactly what the telephone transcripts show. He had not mentioned a word of this to me before excluding me and never did at any future date. Not a word of it was true.

The investigation into my exclusion concluded that I had no case to answer. The RCPCH review subsequently agreed that even if the allegations made against me had been true they did not warrant exclusion. I returned to work after 5 months.

There had been if anything a deterioration in the department in my absence. The consultant I had originally complained about was repeatedly being reported to the West Midlands Deanery for bullying, making trainees afraid to speak out, being unsupportive and not attending calls out of hours. The managerial bullying was worse. One consultant had found a new job and others were talking of leaving. I wrote a comprehensive disclosure to the CEO and said that if she failed to act I would consider my obligations under the Trust whistleblowing policy discharged and I would go outside the organisation. The Trust Chair then met me with my BMA rep and agreed to commission an independent review of the paediatric department through the RCPCH.

The 3 person review panel sat in early 2010. A report was written but only 2 copies printed. I was given one and the CEO the other on 26 March 2010. The following facts about the review are now clear:

  • The 3 panel members were gagged by the Trust. The CEO of the RCPCH informed me of this recently when I wrote a formal complaint about the review. The panel members he told me were unable to help his investigation because of the gags.
  • I wrote to the panel chair before the review started stating that I was a whistleblower, gave incontrovertible evidence of protected disclosures to the panel at interview and yet the report, without giving any evidence, said that I was not a whistleblower.
  • The report was highly critical of Trust senior management. It was suppressed by the CEO. Even the Trust board did not see it. According to one non-executive director (transcript of appeal hearing) the board accepted the CEO’s claim that it was too confidential for them to see. The CEO told my ET (agreed transcript) when cross examined on why she had not let the board see it, “Because they didn’t ask”.
  • Under the review’s instruction dissemination of its findings were left entirely to the CEO. I was disbarred from having any part in this. The CEO sent a highly selective summary omitting serious criticisms of senior management to a select group. The CEO specifically altered the review’s instruction of who should see its findings in this summary. As a result middle grade non-clinical managers saw the summary but even senior clinicians who were department heads were excluded. The CEO had recently escaped a consultant vote of no confidence so this was perhaps understandable.
  • The review chair refused my written requests to see the RCPCH policy his panel was working to. The RCPCH Registrar likewise refused. Lately the RCPCH has relented and provided me with its policy, “A protocol for external clinical advisory team visits” which was given to the review panel. It is clear from this that there were serious breaches of the protocol including the signing of gags which put the whole process beyond further scrutiny.
  • Part of the reviews methodology was to take notes of all witness interviews then destroy them after use. This is specifically contrary to RCPCH policy and again protects the review from scrutiny.
  • At no future point was any panel member willing to attend either an internal disciplinary or an external legal proceeding to be cross examined on the review. The review, its conduct and conclusions were carefully and methodically put, by the Trust and the review panel, beyond scrutiny.

Immediately the report was given us the CEO asked me to agree to all its findings and required outcomes without caveat. I expressed concern about two specific issues: the dissemination of the review which I knew the CEO would want to suppress and an instruction about the expression of my Christian faith at work which had not been raised with me in interviews and which I guessed was based on mischievous complaints by managers I was in conflict with. I got an email by return from the CEO asking me to resign. I did not. I then received an appointment for a disciplinary hearing with date, time, place and the names of panel members. I can perhaps be forgiven for thinking this was “here’s one I prepared earlier”. The hearing was a blatant breach of Trust policy as no investigation had taken place. It was stood down by the CEO after BMA representations.

The review chair was then appointed (the interview committee consisted of the CEO and Trust chair with no medical representation) as head of the paediatric department. This was helpful in his planned career move from paediatric nephrology to management. He was aware that the CEO was suppressing the report but refused to do anything. His first act on taking up the post was to meet me and tell me that unless I signed up to the findings of the review immediately I would “soon not be working in the Trust.” The BMA advised me this was discriminatory as no-one else had been made to sign anything. I did not sign.

I was then called to a meeting with the CEO with my BMA rep present. The meeting was digitally recorded. The CEO told me she and the Trust board had decided my position was untenable. This according to a non-executive director was untrue; he knew nothing about it. “We’ve been kept in the dark David.”

The CEO offered me a 6 figure sum, well above my contractual entitlement, and a good reference if I left immediately. She told us that because the SHA was involved in the offer I would have to sign a gag. The BMA and I later made separate inquiries at the SHA (including its CEO) and we were told nothing was known about this offer.

The offer in any case was in breach of the instructions laid down for settlement in Maintaining Higher Professional Standards. I called it what it was, a bribe at tax-payers expense and refused it. As a result the disciplinary procedure was restarted against me. I was finally dismissed for “gross misconduct and insubordination” In December 2010 after what my BMA rep described as a kangaroo court.

I believe I was dismissed because of the serious concerns I raised about the paediatric department particularly from 2008 to 2010. I was an embarrassment to the CEO and Trust Chair especially after the review was so critical of senior management. There is a paper trail of my claims to be a whistleblower which the Trust and review panel preferred to ignore. The layers of secrecy around the review which was conducted by a RCPCH approved panel are inimical to a patient safety culture. What kind of a Trust board can accept a service review of a department for which it has governance responsibilities being kept from it? A supine board in my opinion. The review chair was specifically complicit with the CEO in suppressing the report his panel produced.

I did my best at all times as a doctor. I kept faith with my patients, my professional code and my conscience. At my disciplinary hearing the Trust solicitor is on record as saying. “This hearing is not about the loss of a job. It is about the end of a career.” This was followed by the disciplinary panel chair who was the Director of Nursing who added, “…and never being able to practice medicine again.” There was no doubt in their minds of the consequences of my dismissal. This may give a clue as to why medics and nurses are sometimes reluctant to speak up.

My book “Little stories of Life and Death @NHSWhistleblowr” includes this material but in a more narrative form and will be published soon. Meanwhile I will publish this letter on my blog in the next couple of days, not to embarrass you in any way but to raise the profile of NHS whistleblowing.

Yours Sincerely

David Drew

 

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The Case of the Disappearing Computer.

In 2010 I was dismissed from Walsall Healthcare NHS Trust after I raised serious concerns about patient care in the paediatric department. I was found guilty of Gross Misconduct and Insubordination by an internal disciplinary panel. I appealed against my dismissal. On 24 January 2011 the paediatric clinical director Dr Nadeem Moghal wrote giving me permission to access my hospital computer to prepare for my appeal. He insisted that I be supervised because of the sensitivity of the data on the computer. I used my computer on 11 February 2011 to access files for my appeal. I was supervised by Mr Paul Davies a senior IT officer. I told him that I would be taking the Trust to an employment tribunal and asked what provision would be made to secure the hard drive. He told me it would be mothballed in a secure place. I did not give it another thought.

computer theft

By August 2011 I was preparing for the employment tribunal and contacted the trust solicitor to gain access to my computer once more to help prepare my case. “The Trust has checked the repair department but has not able to find the hard drive. This means that we are not able to give you access to the PC” was the emailed response. I was represented at that time by a BMA solicitor. Her advice was that there was nothing to be done. Shortly after that I parted company with BMA legal advice when I was asked to accept an out of court settlement and sign a gag.

I prepared my case without being able to review all the documentation on my computer.

My case ran at Birmingham employment tribunal in April 2012. Six months later in November,after a conversation with a data protection specialist, I became concerned as to what had become of my computer. If it was lost a large quantity of confidential patient data was potentially on the loose. I described this data as follows in my letter of 29 November 2012 to the Walsall Healthcare NHS Trust’s CEO, Mr Richard Kirby:

“My computer hard-drive held large quantities of confidential and highly sensitive patient information. This included more than 6,000 emails and a large number of letters and reports, many containing patient information involving cases of physical and sexual abuse. In addition up to or more than 1000 digital images were stored on the hard drive. Since I often did my own clinical photography, including child abuse work, many images would have been of that nature. These included images of children with suspected and actual physical and sexual abuse and children with disfiguring medical conditions. Some of these would have been identifiable by the file names.”

I then stated my on-going ethical obligation:

“Although I no longer work for the Trust I have, under GMC guidance, a continuing duty of care to my patients and their families. I gave all families specific undertakings about the security of the digital images in particular. All other records are covered by an understanding implicit in the doctor-patient relationship. All these records were kept on a password protected computer in a secure office.”

The CEO replied on 21 December to report that the, “Trust solicitor does not think that the hard drive was ever lost.” He claimed that the hard drive had been destroyed because it was broken. He could provide no specific evidence of the secure disposal of the hard-drive I had reported. It is hard to know what is meant by Richard Kirbys’s account. Most of the data on a broken hard-drive can be extracted by an IT technician. Of which the trust has many.

My last word to Richard Kirby was as follows

“Just as serious for me now is the Trust’s admission that it has destroyed my hard drive, knowing that it contained information which was potentially evidential not just in my employment case against the Trust but in future quasi-judicial processes and other investigations.

A parliamentary investigation into the mistreatment of NHS whistleblowers is now I believe inevitable post-Francis. See my letter in the Sunday Telegraph:

I hope that one of the issues such an inquiry will look at is the numerous ways in which Trusts attempt to disadvantage whistleblowers, including interference with their computers. On this specific matter I propose therefore to take no further action other than to make the following statement for future reference:

“Walsall Healthcare NHS Trust, following my dismissal, claims to have destroyed the computer I used when I was employed there as a consultant paediatrician. This was done despite one of its officers, Mr Paul Davies, having assured me that the hard drive would be kept in secure storage and despite my several written requests that I be given further access to it prior to its destruction.”

Can anyone smell dead fish?

I am not the only whistleblower to have had his computer interfered with. Professor Narinder Kapur was head of Neuropsychology at Addenbrookes. He had an exemplary record until he raised concerns about unqualified staff treating patients. He was also dismissed in December 2010. He won his case for unfair dismissal. The Tribunal made 18 specific criticisms of the Trust. One involved his computer. Documents disclosed to the Tribunal (the people pursuing whistleblowers are bad but sometimes not very bright) showed that IT staff at Addenbrookes under management instruction accessed his computer and cloned it. The Tribunal judged this behaviour to be “entirely contemptible”. There are other stories which I will save for another time.

So, what to do? Last week I made a formal complaint to the Information Commissioners Office about Walsall Healthcare’s actions. The ICO has increasingly taken an unsympathetic view of data breaches, The NMC recently lost CDs with child data on them and was fined £50,000. The record fine for an NHS Trust I have seen was for £350,000. I love Walsall and its people. I would not want a penny to be taken out of the local health economy. But when serious wrong has been done by a public body and an individual citizen cannot get at the truth what does he or she do? I will post the ICO’s response when I get it.

PRESS RELEASE   Birmingham NHS Trust sends in bailiffs against whistleblowing midwife

PRESS RELEASE
 
Birmingham NHS Trust sends in bailiffs against whistleblowing midwife
 
For immediate release Wednesday July 24th 2013
 
Birmingham midwife and NHS whistleblower Elsie Gayle expects Bailiffs acting on behalf of Sandwell and West Birmingham Hospitals NHS Trust to break down the doors of her home after she ran out of money to challenge her victimisation for raising concerns about patient safety.
 
NHS whistleblowers organisation Patients First has written this week to new Trust Chief Executive Toby Mills asking that he urgently intervene to prevent this action and to sit down with Elsie Gayle to discuss a constructive way forward which would include scrutiny of her original complaint.
 
Following the Francis Inquiry into Mid Staffordshire, Trusts are being urged to protect whistleblowers and be open and transparent. Elsie Gayle has written four times to NHS England Chief Executive David Nicholson but he has refused to intervene so far. Despite that, Elsie Gayle is hoping that a last minute intervention by the new Trust Chief executive will prevent this act of vandalism.
 
Elsie Gayle said today
 
“Today after years of challenging the bullying and intimidation of my former employers they are actively seeking to have bailiffs break down the door of my family home. 
 
“Returning to work at City Hospital in 2002, after 6 years abroad I was shocked and disgusted at the quality and standards of care given to mothers and babies.
 
“I was severely bullied to the point of suicide, for no reason; and became very concerned at the culture which seemed to permeate the whole of the Trust, right up to the Board. I observed good midwives and doctors who spoke up being driven out of employment and the profession.
 
“I blew the whistle on this awful situation and lost my job. My claims were suppressed and never properly investigated; and I was treated as the problem.
 
“They offered me 3 lots of money to settle my case, which would include the usual confidentiality clause attached. My professional code as a midwife does not allow me to do this, so I declined.
 
“However I gave the Trust the option of giving me a chance to develop a quality service. In return I was dismissed from my job, despite a remarkable and unblemished career.
 
“I complained to the Employment Tribunal Courts, and revealed some underhand tactics used to get rid of me. But I found myself up against a powerful Trust who were prepared to spend as much public money as it took to ensure that I ran out of money. 
 
“They continue to pursue me for costs, although I have written to the new Chief Executive asking him to intervene, but have not yet had a reply.”
 
Patients First, the NHS whistleblowers campaign added:
 
“We are appalled at the continuing victimisation of an outstanding midwife. We have written to the new Trust chief executive earlier this week asking that he intervene and call of the bailiffs and sit down and listen to Elsie’s important story”
 
For further information
 
Elsie Gayle may be contacted at elsie_gayle@hotmail.com  and 07794318557 for more details.
 
A copy of the letter to Toby Lewis, new Trust chief executive, is attached
 
Copies of the letters written to David Nicholson by Elsie Gayle are available on request from Elsie Gayle by email
 
Our purpose 
Patients First’s purpose is to reduce death and harm in the NHS by campaigning for the UK Government to create policies and laws that ensure the NHS becomes open and accountable and we will actively support all those who raise concerns about patient safety

How mental health is used as a weapon

Repeated Allegations about my Mental Health at Walsall Healthcare NHS Trust.

I have provided the Health Select Committee with a number of documents relating to my dismissal as a consultant paediatrician by Walsall Healthcare NHS Trust. I have included in those documents some reference to my employer’s claim that I was or might be mentally ill. Having seen Nina Lakhani’s articles in the Independent newspaper this week about Kay Sheldon’s experience  as a non-executive board member at CQC I think it would be useful to provide more details of my own case. It is common knowledge that whistleblowers experience attacks by their employers in the area of their mental health. As my case demonstrates this can be sustained, unpleasant and completely unfounded.

 

I attach a letter I wrote to my Trust’s chairman on 16 August 2010 which largely speaks for itself. I have provided a few details below.

I was excluded from work in April 2009 after raising concerns about patient safety, child protection and medical and nursing redundancies. Immediately following my exclusion I was sent an urgent appointment to see a psychiatrist against specific NCAS advice and without being forewarned of this. I wrote to the Medical Director to complain but he did not reply. On BMA advice I did not keep the appointment but rang the psychiatrist out of courtesy. I asked what information he had been given as a context for my assessment. He told me that a secretary had made the appointment and he had been left to believe that it was the usual problem with NHS consultants, drink or drugs.

Following my exclusion I obtained from NCAS by Subject Access Request information that the Medical Director at my Trust had provided about me on the day of my exclusion. The Medical Director and another consultant gynaecologist suggested I might be psychotic. They both suggested diagnoses (hypomania and bipolar disease) which were beyond their experience and competence. This was a breach of my confidentiality or worse. The Medical Director I had only seen twice in the previous 6 months and the other consultant was known to be hostile to me. At no time had I been made aware of these concerns. The Trust had not asked me to see the Occupational Health Consultant.

NCAS phone transcripts showed that the Medical Director had made other serious claims about my behaviour which were untrue. If they had been true they should have been raised with me first. They had not been. Nor were they at any future time. These included a claim that I had “written a large number of unpleasant and potentially defamatory emails to the matron.” This was untrue. In the previous year I had only sent the matron one email. It is clear that the Trust believing its communications about my mental health and behaviour were confidential felt free to say whatever it wished whether it was true or not . I was given no right of confidentiality nor of reply in any of these these matters.

I subsequently visited the Occupational Health Consultant (OHC) about the psychiatric appointment. He apologised and told me that immediately after my exclusion the Medical Director had called him and said that I had myself requested a psychiatric assessment. This was untrue as evidenced by my strong written protest to the Medical Director written the day I received the appointment.

I then suffered a series of physical illnesses as a result of the stress of my exclusion including severe eczema, asthma and crystal arthropathy. I returned to work in September after an investigation had decided that I had no case to answer. I then registered a grievance against the Medical Director. I claimed wrongful exclusion and untrue allegations to NCAS about my mental health and behaviour. I included in the grievance that I had received a psychiatric appointment contrary to the specific advice of NCAS and also that the Medical Director had misled the Occupational Health Consultant about this.

Following BMA representations the Trust agreed to an independent hearing of my grievance by a Royal College of Paediatrics and Child Health Panel. A report which was favourable to me was produced in March 2010. The report made no mention of my mental health issues or the Trusts behaviour with regard to these though I provided full documentation on this. It only concluded that the “consultant psychiatry referral particularly heightened” any pre-existing breakdown between myself and the Medical Director.

I had specifically asked the RCPCH panel to hear the OHC’s evidence to clarify this matter. The report showed he had not been interviewed. I asked the panel chairman, who after the review was given a post in Walsall to help further his management aspirations, about this. He said the panel had not thought it important to interview the OHC. This was a very important part of my grievance. It is for this and other reasons that I doubt the independence of the panel’s work. The Medical Director has been protected by senior management and the RCPCH panel from having to explain his actions.

I had a number of opportunities to speak to the panel chairman in 2010 and he continually made reference to my mental health. On one occasion he told me that while I might not have a psychiatric diagnosis there was widespread opinion among trust managers that I was unhinged. “That is the word they use David, “unhinged.”

The review panel without providing a scrap of evidence had also instructed me to refrain from the use of religious language at work. I am a quiet orthodox Christian who has always lived and worked peaceably with those of other faiths or none. The panel chair called me to his office one afternoon to ask me to accept his instruction on religious references in the workplace. I believed this to be a discriminatory instruction and contrary to employment law and refused. The BMA supported my opinion of this instruction. He then told me that I was the most extreme case of “cognitive dissonance” that he had ever seen. As a paediatric nephrologist he had no competence to make this diagnosis and I told him so. His prescribed remedy was that I read a book, “Mistakes were Made (but Not by Me): Why We justify Foolish Beliefs, Bad Decisions and Hurtful Acts by Carol Tavis and Elliot Aronson. In the context of this and other conversations I had no doubt that he was conflating suggestions that I was mentally ill or unhinged with my Christian faith. He is an atheist and an enthusiastic advocate for a secular NHS. My advocacy is for tolerant diversity.

In 2010 I was required by the Chief Executive to attend sessions with a clinical psychologist. After several sessions I was discharged. I wrote to thank him. Subsequently the Chief Executive for no obvious reason wrote to ask me to attend further sessions. I replied that since in the psychologist’s professional opinion our business was done I saw no need for this.

In my 16 August letter to the Trust Chairman I asked for help with the perpetual allegations that I was mentally unstable. I informed him that I had self referred through the occupational health service for a psychiatric assessment to provide evidence that I my mental health was good despite the stress I had suffered as a result of my whistleblowing. The assessment had confirmed my own opinion. In that letter also reported for example that the trust press officer had told the BBC that I was “doolalley” in an attempt to discredit me. I offered him a statement from the TV health correspondent to confirm this. The Chairman wrote back to say he regretted he could not take any action on my letter.

I continue to find examples of the way in which adverse references were made about my mental health by anyone who felt confident that they had the Chief Executive’s patronage. At my Employment Tribunal a consultant newly arrived in the hospital in 2009 recounted under oath how he was told by the Divisional Director in his first week that I had had a bike accident some years earlier and that my mental stability had been in doubt since that time. I am quite certain that the only people at Walsall responsible for creating the myth that I was mentally ill were managers. None of my clinical colleagues were involved in this. There can be little doubt that it was purposeful.

This is a problem that whistleblowers encounter in the NHS. It has to stop.

David Drew

16 August 2012.