The Judgment can be downloaded here or viewed below this article

It is very disappointing that an Employment Tribunal can effectively just explain away an NHS Trust Director destroying an entire email archive before giving evidence in a whistleblowing case and another NHS Director (who happens to be the instructing legal client for  4 years of a whistleblowing case) having her email account deleted. Added to the mix was the concealment from court disclosure of a key board meeting that approved the settlement of my case, 18 letters to MPs and further emails from the senior doctor recipients of my protected disclosures. I believe the public were also hugely let down when the tribunal statements of 2 consultant anaesthetists, that set out how serious patient safety issues in my case were concealed and misrepresented to MPs and the press, had their evidence disregarded.

Some of the Press present in the public gallery have started writing about what they observed and how that compares with the Judgment. This Westminster Confidential blog is the first;

The Judgment is bellow this update.

This is the reaction of  Dr Bob Gill, a local GP that observed my June hearing who had a slightly different reaction to the Tribunal to the NHS’ antics in court. Here he challenged the Board of Lewisham and Greeniwch on what happened during my hearing in June. 

Computer Weekly Covered the NHS’ Antics also

Computer Weekly wrote about what they observed also.

The Judgment

The only positive thing; it appears even this Tribunal had no choice but to find that it was not true of Lewisham and Greenwich Trust to claim they had made it clear that they would not pursue me for costs before I decided to withdraw the case and settle. The Tribunal also conclude this was detrimental but claimed it was nothing to do with my whistleblowing so I could not be compensated for it. This does mean even this Tribunal has found that the Trust have misled the press and MPs on this point.

Here are 7 observations that I would make on the Judgment.

1.Tribunal ignores/explains away the following acts of contempt of court

a) An NHS Director destroying an entire archive of emails on the morning he was due to give evidence and of an anticipated application for a disclosure order. The relevant Director then claimed mental health issues and that the emails had been permanently destroyed but the Trust provided no IT evidence that the emails could not be recovered.  

b) Permanently deleting the email account for Janet Lynch, the NHS Director that acted as instructing client for the NHS Trust, communicating with the lawyers during my whistleblowing case from 2014-2019.

c) Denying the existence of the record of the Board meeting that discussed and approved the settlement in my case. This false denial was made to a Judge as part of a disclosure application. It was then produced on the final days of the 16 day hearing.  Have a read of what the Board discussed in that meeting that the Trust hid for 4 years here.

d)Falsely denying there was no record of a key meeting with Norman Lamb and then producing it on the final days of a hearing and hiding from disclosure other email content (see details)

e)Claiming that large numbers of emails from the 3 senior doctors involved with my protected disclosures, that allegedly caused me detriment were now unavailable (with no IT evidence) see NHS lawyer’s statement

f)Hiding from disclosure 18 letters to local MPs and stakeholders and then disclosing them late when HEE let slip about them, whilst keeping 4 further letters hidden until after the hearing. Already criticised by another Judge.

See our strike out application that sets out all the conduct explained away by the Tribunal that we argued made a fair hearing impossible and was clear contempt of court. .

This Order made mid-hearing by the Judge illustrates the extent at which evidence, that the Judge said she needed, was destroyed. The highlighted text in green is evidence ordered to be disclosed mid-hearing that was found to have been destroyed, concealed or otherwise made unavailable.

2. The Tribunal does not give any weight to the statements of 2 senior consultant anaesthetists (one a trained barrister and head of investigations at her Trust). These doctors explain how the evidence in my case shows serious patient safety issues in intensive care linked to 2 deaths were concealed and then further explain how this and the results of investigations were misrepresented to the press and MPs.  The Tribunal somehow concludes their evidence was not relevant and does not engage in the substance of each of the statements even though the Trust statements give the false impression my disclosures were just about ward cover and not serious issues in intensive care. Read their statements that were effectively ignored here.

3.The Tribunal concludes that the real reason I settled was that my barrister Chris Milsom thought that I would have findings that my position in the case was untruthful. The Tribunal then conclude, contrary to evidence that Chris Milsom must have told me this and I must have agreed (a fact denied by me my wife and Chris Milsom). The Tribunal also found that contrary to evidence, that my former lawyers approached the NHS lawyers, to give them the impression that they thought my evidence was untruthful.

When this was put to Mr Milsom in the Tribunal the Transcript recorded from Chris Milsom;

CM: Forgive me. I suppose the point that I really do reject is that I did anything or conveyed anything which signified an agreement that Dr Day was to be regarded as untruthful.”

Mr Milsom also stated by email on 13 January 2019;

“I did seek clarity on costs should matters proceed in the course of my discussions with Ben on the Friday because he indicated the only offer that the Trust might make would be a drop hands offer. It was not as specific as the public statement suggests and did not link matters to the truthfulness of your evidence. I certainly made no comments as to your evidence being untruthful.”

The Judge ignored this evidence, concluding the opposite to what this evidence shows. 

4. The Tribunal finds that there is no direct evidence of cost threats and ignores the 2 sources of direct evidence from the solicitor’s conference note and my Barrister Chris Milsom’s email that was also referred to by Sir Norman Lamb in his statement and by the MP Justin Madders in a letter.

This letter to SRA sets out the robust written evidence there was for no less than 3 waves of cost threats.

Section 4 of my Main Statement covers the evidence in even more detail on cost threats.

This letter shows the MPs and former lawyers Justin Madders and Norman Lamb acknowledging what the evidence shows on cost threats (also ignored by the Judge without reason)

5.The Tribunal ignores the fact that my statement on Ben Cooper KC forced Mr Cooper to change his Tribunal statement in material ways even before he started to be cross examined. Judge Martin then intervened to stop the cross examination of Mr Cooper by Andrew Allen. We strongly objected to this in the hearing and Judge Martin promised to provide clarification in the judgment on her justification for this, but this has not been included in the Judgment.

This is my supplementary statement challenging Mr Cooper’s version of events and allegations of dishonesty made in his statement . 

6.The Tribunal ignored the call for a public inquiry from Norman Lamb and Justin Madders in this case. The Judge was clearly taken to this material.

7. The Tribunal acknowledges a wasted cost threat/reference was made against my former legal team but contrary to evidence from Chris Milsom only HEE is blamed for this. The Trust are allowed to deny all responsibility. The Tribunal fails to consider the possibility of this being the cause of Mr Milsom’s actions which are acknowledged as unusual.

The Case is Simple

This case had British Medical Association support for saying 3 simple things that are clearly robustly backed up by the papers and evidence from multiple sources. The position has also been endorsed by Norman Lamb who is a former lawyer and health minister and 2 consultant anaesthetists. You may have to make your own mind up!

1.The Trust lied to the press and MPs about the substance of my protected disclosures (see section 2 of my main statement on below link)

2.The Trust lied to the press and MPs about the findings of formal investigations (see section 3 of my main statement on below link)

3.The Trust falsely denied that ordinary cost threats and wasted cost threats were used to induce settlement and force the wording of an agreed statement (section 4 of main statement below link)

The legal papers for the June hearing are here . The Judgment does not even begin to deal with what is set out in them.

The David Henke blog on each of the Tribunal days can be read here.

I am very grateful to the BMA for funding and supporting this case. We will continue with our attempt at the hearing early next month to hold HEE to account for arguing doctors out of whistleblowing protection, by hiding contracts in order to stop my case being heard. The response to the Crowdjustice campaign for this has been incredible but I fear more of the same from the Employment Tribunal in December. Click here to go to that case.

After 9 years this is very hard to accept how this has ended given what we have lost as a family and the conduct of the legal system. Clearly well established legal rules do not apply in my case.  I will follow any advice from the BMA if they wish to challenge this Judgment.