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April 8, 2013

Filed under: Private Eye — Dr. Phil @ 11:55 am

The dead Samaritans

ON 5 March, NHS chief executive Sir David “no accountability” Nicholson told the Commons health select committee that he always takes the concerns of NHS whistleblowers seriously and has always acted appropriately to investigate them when brought to his attention. Strange then that he should promote Dame Barbara Hakin to be his interim deputy when she is the subject of an ongoing GMC investigation triggered by the Eye (see Shoot the Messenger, Eye 1292) to ascertain whether she acted appropriately on the whistleblowing concerns of former Lincoln hospitals chief executive Gary Walker.

Walker raised concerns that enforced targets for routine care were harming emergency admissions to both Hakin and Nicholson, and was later sacked. Walker is due to reveal all to the health select committee on 19 March; but in appointing Hakin, Nicholson is putting two fingers up to whistleblowers everywhere in the NHS, safe in the knowledge that the GMC moves at the speed of a glacier, usually bottles important cases and that Hakin can simply remove her name from the medical register at any time to avoid accountability.

Nicholson claims he did not know that Walker had been gagged until recently, despite a whole Eye column being devoted to it in September 2012 (Hint – It was titled ‘The Mother of All Gags’). He also claims that he did not know about the high death rates at Mid Staffordshire prior to the Healthcare Commission report in 2009, even though they had been significantly high from 2001-02 to 2007-08, and published in the Torygraph. The Department of Health is either wilfully blind or wilfully incompetent.

As no one in the DH was apparently aware of these problems or indeed able to read, here is a pretty picture. It shows how trusts can disguise high death rates by recoding those that die as palliative care (code Z51.5). They are then ‘expected to die’ and disappear from the published death rates.


The graph clearly shows, even to Nicholson’s untrained eye, that while the rest of the NHS adjusted their palliative care recoding modestly (dark blue line, David), the hospitals in his former parish of West Midlands – Mid Staffs (red), Walsall (green) and George Elliot (light blue with circles David), all dramatically increased their palliative care coding. Was there a genuine, massive increase in the admission of terminally ill patients? Was this a correction of previous massive coding errors?  Or where they trying to hide poor care and high death rates? I think we should be told

Daily Mail journalists do at least read the Eye and have done a very proficient job of repackaging all our whistleblowing stories (Gary Walker, Raj Mattu and last week Ed Jesudason). The Mail rejoiced with the headline “Victory for NHS Whistleblowers” as Jeremy Hunt announced an end to gagging clauses.  Fine work from the Mail, and a campaign started long ago by the Eye, but Hunt’s stunt has been done before. In 1999 a Health Service Circular prohibited gagging clauses in compromise agreements.  The circular cited “employees too scared to speak up” and “powers that be… doing nothing about it”.  Fast forward to early 2012 and Nicholson wrote to all hospitals referring to a “small number of instances” where confidentiality clauses had been used. Will Hunt persuade local NHS managers desperate to avoid scandal to uphold the law? Lawyers will find easy ways around this, and no mention has been made of whether those already gagged are now free to speak up without getting the kind of unpleasant legal threat dished out to Walker.

Denial is a strategy beloved by Nicholson and his underlings. On 8 March 2013, Alder Hey told the Eye that it had “never issued a ‘gagging clause'”. Unfortunately the Trust may have forgotten that it has provided a compromise agreement to the Eye under freedom of information legislation, and the Trust confirmed that one corresponds to Mr Marco Pozzi a senior paediatric cardiac surgeon who gave evidence to the Bristol Inquiry.  The Eye had received information that a sum of £156,000 was paid for the silence of Mr Pozzi from a source (not Mr Pozzi) within the trust.  That agreement contains the following clause, “[Mr Marco Pozzi] shall not at any time, whether directly or indirectly, make, publish or otherwise communicate any adverse, disparaging or derogatory statements or announcements… [this agreement] prohibits all communications with Press, TV, radio and in any other media.” That looks suspiciously like a gagging order.

Alder Hey has also provided the Eye with mass redundancy agreements as part of disclosure to the Information Tribunal, which similarly contain an identical gagging clause (drafted by the same firm of solicitors).  One has been applied to Dr Alan Phillips, the trust psychologist who wrote the highly critical report into stress in the theatres department (see below).

The Eye has been unsuccessful in getting Alder Hey to investigate allegations by its former paediatric surgeon Ed Jesudason that surgeons were carrying out procedures on vulnerable children that were unnecessary and experimental, without any research approval and without informed consent or proper audit.

The Eye asked specifically for data about stomach surgery called fundoplacation with pyloroplasty and vagotomy carried out by surgeon Mr Matt Jones.  The data should be easily accessible through the Payment By Results system, together with morbidity, complications and outcome data. No response as yet.

After much effort, the Eye did get hold of the Phillips report, a victory acknowledged even by the Mail. In November 2010, Dr Alan Phillips the trust’s psychologist, studied the culture in the operating theatres and found “extremely high levels of sickness absence” and “staff reporting ‘coercion’, ‘bullying’, ‘emotional blackmail’ from NHS managers, Dr Phillips concluded: “As well as concerns expressed for patient safety, the human cost, as observed in the participants’ levels of distress, the quality of their work/life balance; the impact on their families and the quality of work is incalculable, as is the potential reputational cost to the trust, if changes to the existing status quo are not seriously considered.”

The full report was kept a dirty trust secret until the Eye won at the Information Tribunal.  Even theatre staff had been denied their own report, and the trust had prepared a doctored two page summary removing any criticism of NHS managers.  Dr Phillips had refused to sign the doctored version and left the trust under retirement and yes…  a gagging clause.  These factors might have influenced the Information Judge.

Whistleblower Ed Jesudason refused to take a gag but lost his case in the High Court after admitting passing information to the Eye. The Public Interest Disclosure Act is supposed to protect whistleblowers who share serious concerns with the media in good faith, but clearly not in the court of Justice Haddon-Cave. On December 17 2012, he entered Manchester High Court  and waved a copy of the Eye – concerned that some of the material appearing before the trial would prejudice him.  This showed the pisspoor attitude of the judiciary to the press and necessary exposure when other agencies have done nothing, been misled or at worse covered-up.  Jesudason resigned, with costs against him that have forced him to sell his house. His marriage has ended and he is struggling to find work as a surgeon. But at least he is not gagged.