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November 16, 2016

Private Eye Medicine Balls 1430
Filed under: Private Eye — Dr. Phil @ 8:58 am

Clear as Day

Now that health secretary Jeremy Hunt has ‘won’ his battle to impose a new contract on junior doctors that they believe cannot be safely staffed, it is vital that junior doctors have robust whistle-blower protection so they can raise concerns about patient safety without fear of reprisal. Under the umbrella of their union, the BMA, junior doctors felt safe to speak up en masse, but now the BMA is in retreat, it will be left to brave individual doctors to fight their corner on behalf of patients.

Undoubtedly one of the bravest is Dr Chris Day, who unearthed the scandal that 54,000 NHS doctors in training appear not to have any whistleblowing protection if they dare to speak up and are punished as a result. In 2014, Dr Day was working on the Intensive Care Unit at Queen Elizabeth hospital in Woolwich which at night routinely did not adhere to national staffing levels as defined in ICU Core Standards, putting patients at risk and placing huge stresses on the competent and dedicated staff. The Trust has accepted that a protected disclosure about safety and staffing was made to it on the night of 10 January 2014, but Dr Day refused move onto the next job in his training program until allegations about him, and the patient safety concerns he had highlighted, had been properly investigated. As a result, his training number was withdrawn by HEE and his career path to consultant was stalled.

In pursuing an employment tribunal claim against Health Education England (HEE) and Lewisham and Greenwich NHS Trust, Dr Day discovered how easily doctors in training could be argued out of whistleblowing protection and denied a proper investigation of the facts of their case. Whistle-blowing law is currently only located within employment statute, and so only provides protection from detriment carried out by employers. And yet legal responsibility for the employment status of junior doctors is a complex and arguable game of pass the buck. A Trust can be seen to employ a trainee doctor at any one point in time, but it is the local Deanery under the auspices of Health Education England that is the body responsible for his or her training and, ultimately, career progress.

It is the Deaneries and HEE who recruit doctors in training, supplying them to various Trusts, and monitoring the terms of engagement via an appraisal or ARCP process. It was HEE who threatened Trusts that they would not provide trainee doctors if they did not impose Hunt’s new contract, and so clearly should be held accountable in employment law. Dr Day and his legal team argue that the Deaneries and HEE are in fact acting as an employment agency for the purposes of Section 43K(1) (a) and (2) of the Employment Rights Act. It follows that Deaneries are employing doctors for the duration of their training programs for the purposes of whistle-blowing protection.

On 19 November 2014, Jeremy Hunt promised a “comprehensive response” regarding Dr Day’s whistleblowing case. On 8 December 2014, he changed his mind and proceeded to deny all legal responsibility for the case and for Health Education England, citing the Care Act 2014. Hunt further stated in his legal papers that he has “no knowledge of the facts in this matter and holds no documentation.” At his preliminary hearing on 25 February 2015, Dr Day – and 54,000 other doctors by implication – were argued out of the right to have whistle-blowing protection. Instead of fighting the case on the facts, the NHS, the Deanery/HEE and Hunt instructed four separate law firms to argue that none of them could be held legally responsible for the situation or Dr Day’s future employment, and an unfair dismissal claim was impossible. Two weeks later, Hunt made an order to grant statutory whistle-blowing protection to student nurses, but not doctors in training.

Dr Day won leave to appeal the preliminary judgement in August 2015, after Mr Recorder Luba QC observed: “there would appear to be a lacuna in respect of the ability of a junior doctor to complain of detrimental treatment on account of a protected disclosure at the hands of the body responsible for his or her training and, ultimately career progress.” The Court of Appeal deemed his case to be ‘clearly arguable’ and ‘a matter of some importance.’ You would imagine the BMA would support Dr Day to the hilt, to fight for whistle-blowing protection for all doctors in training, but shamefully it isn’t. It initially supported the case but 5 working days before the claim had to be submitted it withdrew all legal help, leaving Dr Day, who has a young family to support, to crowdsource funding alone. MD resigned from the BMA over its treatment of whistle-blower Ed Jesudason, who it is still suing (Eyes passim). You can support Dr Day’s appeal at