A licence for NHS Trusts to destroy evidence in litigation
What do you think would make a Director of Communications of an NHS Trust get up at 5am, travel to one of the Trust’s hospitals and delete a 90,000 email archive, the morning they were due to give evidence in a whistleblowing case (click here for Computer weekly piece)?
Most likely answer: Because there was a load of content on their email account that was devastating to the Trust and their lawyers position in the whistleblowing case and or to the Director’s own personal position.
Why would that same Director of Communications agree to admit to the criminal offence of permanently destroying evidence, do so in a tribunal statement, then not sign the statement and then decline to be cross examined?
Most likely answer; Because that story is unlikely to be the whole truth. Why would an NHS Trust that has misled the press and MPs about my case just decide to be honest about permanently deleting an email archive at 5am one morning (any IT expert will tell you that explanation of emails being permanently deleted from NHS systems is complete non-sense) .
*Without a signature no one is responsible for the statement (not that the Judge cared)
Why would another director at the same Trust who also happened to be the person instructing NHS lawyers in the same whistleblowing case have their entire NHS email deleted whilst the litigation was still live?
Most likely answer: Because there was a load of content on their email that was devastating to the Trust and their lawyers’ position in the whistleblowing case and or to the Director’s own personal position.
Why would an NHS Trust risk instruct lawyers to deny to a Judge the existence of a record of a Board meeting that approved the settlement of a whistleblowing case
Most likely answer; Because the Trust and their lawyers were looking to hide from the court what was said at the Board meeting. In my case it has become clear the parties agreeing to the settlement (me and the Trust Board) were lied to before agreeing to the settlement which should invalidate the settlement (this has just been ignored by the Judge)
You would think the Judges dealing with my whistleblowing case would be interested in the above question and perhaps even want to know what the actual answers to to the questions are but they don’t – quite the opposite in fact.
We are going to see if the appeal courts are more interested than the London South Employment Tribunal in getting these important questions answered.
You don’t need to know much about my 10 year long whistleblowing case to appreciate the significance of above questions and the clear obstruction of justice they represent. The fact all this has been used by powerful people against a junior doctor in a whistleblowing case raising serious patient safety issues in mind blowing.
We have submitted two appeals to the Employment Appeal Tribunal backed by the British Medical Association challenging the London South Employment Tribunal on their actions in the dramatic June 2022 hearing of my whistleblowing case (read the appeals here). Win or lose these 2 appeals will have implications far beyond me.
It will be interesting to see if the Employment Appeal Tribunal will try and explain away multiple acts of destruction and concealment of evidence or will decide to actually deal with the situation.
What kind of a legal system allows large amounts of evidence from multiple sources to be destroyed in live litigation and countless other facts to be ignored just to get a bunch of senior healthcare and legal people off the hook in an NHS whistleblowing case – and to do so at the expense of a junior doctor, their family and the people living in 3 London Boroughs who may have wanted the serious patient safety and governance issues in their local Intensive Care Unit resolved?
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What is my whistleblowing case about?
My whistleblowing case centres on serious patient safety issues that I raised as a junior doctor working in a South London Intensive Care Unit. The ICU served 3 London Boroughs and the disclosure were made all the way back in 2013/14. Because of the way this case has been fought the serious issues have been and are still being concealed. The whistleblowing or protected disclosures that I made were linked to 2 avoidable deaths.
Below is my campaign video which tells the story of my case from 2014-2020. This Westminster Confidential blog by David Hencke covers the most recent updates. This August, I will have been fighting for justice for me, my family and the public for 10 years.
The alternate reality of the London South Employment Tribunal
The London South Employment Tribunal when dealing with my case has attempted to created some sort of alternate reality. In this alternate reality basic legal principles like disclosure and not destroying or concealing evidence don’t seem to apply. In this new order entire email archives can apparently be permanently deleted from encrypted NHS systems at the touch of button, one morning. It can then simply be declared that there is no hope of recovery of large volumes of relevant material. Any IT person will tell you that such an assertion is absolute nonsense but none the less it was swallowed whole by the London South Employment Tribunal. This was even after my barrister made clear to the Judge that there was no IT evidence back up the ridiculous claim of permanent deletion of evidence in an unsigned statement.
The Tribunal was all to keen to swallow the idea of permanent deletion of emails it so it could be accepted as a reason for no less than 5 of the key senior people involved in my case having their emails over certain key dates deleted or otherwise made unavailable. This combined well with not producing those individuals to be cross examined.
The extent of the destruction and concealment of evidence that has occurred in my case is shown by the text coloured in green on the below disclosure order that was made towards the end of the June hearing. This order sets out the evidence the Tribunal initially said they needed in order to decide my case fairly (but at that time had been withheld). This was before the Judge learnt that much of this evidence had been destroyed some of it during the June hearing. The green shows the evidence that was destroyed or concealed or otherwise made unavailable by the end of the June hearing.
The Judge then decided to to a blind eye to the significance of the above evidence that she said she needed being destroyed or otherwise made unavailable.
What was the June 2022 Hearing About
After 10 years of litigation and over 20 hearings, I have still never got to cross examine the people responsible for the destruction of my career and the cover up of the patient safety issues all the way back in 2014. This has come as a result of unacceptable legal conduct trying to prevent the case ever being heard by a court and then a result of a hugely contentious settlement agreement that occurred just before my lawyers were due to cross examine the NHS 14 witnesses in October 2018.
The June 2022 hearing focused on how this October 2018 settlement came about and what the NHS have chosen to say publicly, to the press and to MPs about my case and how it settled.
My position in the June 2022 case was that evidence from multiple sources show that the NHS and their lawyers misled the press, MPs and the public on the safety issues in my case, the formal investigation findings and in their denial of using cost threats to induce the settlement of my whistleblowing case and force the wording of an agreed public statement. The obvious detriment to me of this is that it makes me look vexatious and dishonest with my case. People these false statements at face value continues to have personal and professional consequences for me.
My criticism of the the London South Employment Tribunal is that whilst ruling against me they have allowed my opponents to destroy and conceal evidence and ignored pretty much all the evidence that I and 5 other witnessed presented in support of my position.
How did the 2018 Settlement come about?
At a Board meeting on Sunday 14 October 2018, the Lewisham and Greenwich Board were asked to approve a settlement agreement in my whistleblowing case. At that time, the case had been hotly contested for 4 years. The timing of the settlement was significant as it came just before my legal team were due to question the NHS’ 14 witnesses on some extremely serious issues that I set out below. Those in the public gallery including some journalists assumed that I has being paid off and started to put that to me. I set this out clearly in my evidence at the June 2022 hearing;
The papers show that that the Lewisham and Greenwich Board were told by NHS managers and their lawyers Captsicks Solictors a number of false statements about my case some of these were used to secure their agreement to the settlement agreement which I will now turn to.
Misleading on the Settlement
Firstly, the Board were told that I had decided to freely to withdraw my whistleblowing case and to freely make an agreed statement saying the NHS acted in good faith in my case. The Board were further told that the Trust made it clear to me before and at the time of the settlement that they would not pursue me for costs if I decided to proceed with the case. This gave the false impression that the Trust chose not to use the pressure of legal costs to influence my decision to settle and that my decision was made entirely free of this type of pressure.
The evidence before the June 2022 Tribunal shows the truth of the situation to be very different. Most of this evidence (see red highlights below in a letter to the the SRA) was ignored by the June 2022 Tribunal. Those that misled the Lewisham and Greenwich Board knew that the NHS barristers had used several proposed applications for costs against me and wasted costs against my lawyers to induce the settlement of my case and to force the wording of an agreed statement. We can dance around debating whether or not this is a cost threats which lawyers and Judges seem desperate to do but what this definitely is not is NHS laweyers making clear to me before I settled that I would not be pursued for costs if I proceeded with the case. That can only mean the Lewisham and Greenwich Board were lied to.
When I stated publicly that the Trust used proposed costs applications (cost threats) to induce the settlement of my case and to force an agreed statement, the Board were told this was simply untrue and that the Trust had made clear to me before I decided to settle that they not pursue me for costs. This false statement was circulated to MPs, the public and the press. The evidence clearly shows the managing Partner of Capsticks Solicitors was responsible for briefing the Trust board. Capsticks are the panel law firm of the legal regulator (SRA) and so it is no surprise that neither the SRA or the London South Employment Tribunal can bring itself to even acknowledge such a powerful and influential person as misled a Board of an NHS Trust.
Misleading on the Whistleblowing Disclosures and Investigations
Secondly, the papers show that the Trust Board were misled about key details of my whistleblowing case. They were told that the whistleblowing disclosures in my case consisted of only a medical ward cover situation one night that was resolved immediately on being raised by me. They were also told that an external investigation concluded that my whistleblowing disclosures were responded to in the right way by the Trust. This misled the Board and was later used with the false statements about legal costs to mislead the press, MPs and the public;.
The evidence shows my whistleblowing disclosures were far more than a one off situation about medical ward cover but were in fact serious and ongoing issues relating to an Intensive Care Unit linked to 2 avoidable deaths. It also shows that the issues had been ongoing for several years. This was was also made clear by the Consultant Anaesthetists Dr Smith and also the Consultant Anaesthetist Dr Hormaeche at the June 2022 hearing. Their evidence was ignored by the Tribunal;
Misleading on Investigations
It was also the case that formal investigations made serious criticisms of the Trust and did not find (as the Board, MPs and the press were told) that the Trust responded in the right way. This was made clear to the London South Employment Tribunal from multiple sources. The London South Employment Tribunal ignored the evidence about my patient safety issues and investigations.
Could an Employment Tribunal really have believed that the below investigation findings (made clear in my evidence) really amounted to an NHS Trust responding in the right way to a doctor raising patient safety issues?
The Board of Lewisham and Greenwich NHS Trust never stood a chance of dealing with my case properly (but they do now)
The Lewisham and Greenwich Board were told a pack of lies by managers and Capsticks Solictors on 14 October 2018 to secure their approval of the settlement of my whistleblowing case. These lies were then repeated to the press and MPs. Proving the serious issues of patient safety and misconduct at the centre of this case and how they have been covered up and misrepresented to my detriment is what my case has been about firstly in respect of the destruction of my career and then through false and defamatory statements to the press, public and MPs. As my case has been crowdfunded, it is obvious to large numbers of people what has gone on here and it seems the legal system flat refusal to deal or even engage with the reality of the situation.
It should also not be forgotten that by misleading the Board of an NHS Trust, the Board were deprived of any opportunity to rectify the serious patient safety and governance issues affecting the populations of 3 London Boroughs. The fact that a million pounds of public money has been spent on distorting the reality of this situation is clearly going to be very difficult to justify which may explain the more recent and extraordinary actions in this case from the relevant senior legal and healthcare people.
One thing is now for sure, the Lewisham and Greenwich Board cannot hide behind being misled any more.
Hiding the Record of the Board Meeting That Approved My Settlement
It transpired at the June 2022 hearing that the record of the Board meeting that approved the settlement of my case on 14 October 2018 was hidden from the courts and me for 4 years (another fact the London South Employment Tribunal has taken no action on) . The Trust denied the existence of the record including to a Judge. The author of the Board meeting record, Kate Anderson was the Director instructing the lawyers in the case at the time that the existence of the record was denied to a Judge by the Trust’s lawyers. It is also interesting that Ms Anderson is a former senior manager of KPMG who were paid to conduct the recent independent review into my whistleblowing case. The review speaks for itself!
The hugely significant content of this Board meeting record that approved the 2018 settlement of my case was completely ignored by the London South Employment Tribunal. It showed amongst other things that the Lewisham and Greenwich Trust CEO Ben Travis, was not telling the truth in his evidence to the June 2022 hearing. The record shows that during the board meeting Mr Travis advised the Board that the case should settle. However Mr Travis stated the opposite in his evidence to the June 2022 Tribunal (at the time the Board record remained hidden from the court and me)
The above facts have been made abundantly clear to Judge Martin of the London South Employment Tribunal yet the Tribunal have concluded the settlement agreement in my case in 2018 was properly made and has taken no action on the plain fact that the Lewisham and Greenwich Board, MPs and the press have been misled on my case in order to secure the settlement. These decisions on my settlement were endorsed by the Employment Appeal Tribunal and Lady Justice Simler of the Court of Appeal after an apparent clerical error where Simler LJ initially granted me leave to appeal the settlement agreement for the obvious reasons ie that me and the Trust Board were lied to.
The June 2022 Tribunal chaired by Judge Martin chose to ignore all the evidence relating to the conduct of the various lawyers involved in settling my case in 2018 ( You can read this evidence here.). Given the level of destruction of evidence that has occurred in my case paragraph 315-317 of my main witness statement relating to the NHS barristers has not aged well. This evidence was completely ignored by the London South Employment Tribunal as dealing with it would clearly have had serious consequences for the lawyers involved.
President of the Employment Tribunal
In March, I provided a briefing to the President of the Employment Tribunal, Judge Barry Clarke, about the concerns that I have about the way the London South Tribunal has turned a blind eye to the serious issues that I have set out above. I was grateful and impressed that on the two separate occasions that I wrote to Judge Clarke, that he responded in less than 48 hours to my concerns with multi-page letters. Ultimately his conclusion was that these matters did not require investigation by him or his office which is clearly something I don’t agree with. These are not the sorts of issues that should wait for years for appeal courts to sort out. However, it was nice not to be ignored or insulted for once when raising these issues.
It does not take a rocket scientist to realise that the only explanation for this situation is lawyers being dishonest yet every time these facts come before Judges they are conveniently ignored to avoid such a conclusion. It is frankly getting embarrassing and raises serious questions about the world of employment law and whether it should be trusted with whistleblowing cases. It has been suggested to me by a Judge (off the record) that the reputation and public confidence in the English judiciary is more important than dealing properly with judicial conduct in individual cases however pitiful it is.
Next Steps
We are still awaiting a response from the Employment Appeal Tribunal on whether our appeals have been granted permission for a full hearing against Lewisham and Greenwich NHS Trust.
I feel very let down by the Employment Appeal Tribunal who in the past have chosen to just endorse the actions of the London South Employment Tribunal in my case. In additions to endorsing the settlement agreement in my case that is obviously based on a pack of lies, the EAT in 2015 turned a blind eye to obviously flawed and untruthful arguments that were used to argue the nations doctors out of whistleblowing protection (see Byline times). These arguments were eventually defeated and exposed at a huge cost to me and the taxpayer.
The rule don’t apply in my case
The decisions in my case so far have departed from the basic legal principles of disclosure, not destroying or concealing evidence and parties not being lied to when agreeing to contracts or settlements. These basic principle don’t seem to apply when it comes to my whistleblowing case. This is shambolic.
So we await to hear whether the Employment Appeal Tribunal will endorse 90,000 emails being delated during a hearing by an NHS director who then refused to be cross examined , another NHS Director deleting their entire email address and a Judge ignoring large amounts of a pleaded whistleblowing case whilst also obstructing a cross examination on this tribunal statement.
My hopes are not high given my past experiences and I am half expecting some elaborate explanation from the EAT about why destroying and concealing evidence is not a big deal and deleting the instructing client’s NHS email address is a perfectly legitimate litigation strategy.
The Employment Tribunal Will See You Now Doctor
I have written a Linked In article for those that wish to explore my case in greater depth
The Employment Tribunal Will See You Now Doctor
