Response to the BMA

I’ve responded to the BMA’s statement of 11.05.18, which is included in italics.

Today’s ruling draws a line under a long-running case.

The ruling provides an opportunity for a conversation about the BMA’s conduct toward whistleblowers. First, and for their own safety, it’s imperative that doctors understand the BMA does not openly declare its internal conflicts of interest in such cases. As a consequence, it can act clandestinely against whistleblowers, on behalf of their opponents. In this, it can even use the same personnel on both sides of disputes, including disputes in full litigation. Second, the ruling also provides an opportunity for the BMA to disclose fully its knowledge of, and involvement in, the claims against the mental health of whistleblower and BMA member, Mr Shiban Ahmed FRCS. He remains on full pay, now seven years away from work.

The BMA is resolute in its belief that doctors should be able to raise concerns – particularly where patient safety may be at risk – and it was for this reason that in 2012 the BMA supported Mr Jesudason in a High Court Claim against Alder Hey Children’s NHS Foundation Trust (Alder Hey).

In fact, the BMA’s support for doctors who report concerns is limited. Mr Viv du-Feu, Director of Legal Services, admitted on cross-examination that the BMA has not supported a single doctor’s case to full trial over his 3-4 year tenure. That’s because the BMA do deals, arranging pay offs. But this comes with strings attached. In my case, when I expressed worries that key evidence on safety concerns (including the Ahmed affair) could be “gagged out of existence”, the BMA’s appointed lawyer responded it’s a “common part of any settlement, not just WB [whistleblowing]”. Publicly the BMA oppose gagging; privately that’s not the case.

However, it transpired during the proceedings that false information had been communicated by Mr Jesudason to his employers, and subsequently to the BMA and the independent solicitors engaged to support him regarding leaks to the media, in direct contravention of the terms of Mr Jesudason’s BMA membership.

What the BMA has cast as “false information” was actually me protecting my anonymity as a whistleblowing source, in the teeth of the Trust’s “hunt-the-whistleblower” campaign. Yet the BMA lawyers have trawled back and turned the fact that I dared not out myself as a source when challenged, into its claim for breach of contract and misrepresentation. It’s worth highlighting that (1) I’d already experienced reprisal having raised concerns about avoidable deaths, internally and with regulators; (2) BMA members at the Trust had smeared my whistleblowing colleague, Mr Ahmed, as mentally ill and destroyed his career; (3) the Financial Conduct Authority has just fined a Barclays executive for the same “hunt-the-whistleblower” approach used by the Trust, stating what should be obvious to the BMA if it supported those who speak up within healthcare: “Whistleblowers play a vital role in exposing poor practice and misconduct in the financial services sector. It is critical that individuals are able to speak up anonymously and without fear of retaliation if they want to raise concerns.”; (4) in evidence, to the Mid-Staffs enquiry, the then BMA Chair publicly agreed, and said: “giving people who wish to raise concerns anonymity may be the best way forward”.

Under cross examination in the legal proceedings, Mr Jesudason admitted to having provided false information that underpinned his legal claim. When provided, the correct information called into question the likely success of his claim.

This is incorrect. I disclosed my identity as a whistleblowing source to the BMA lawyers, before the hearing. The BMA lawyers said privately that the BMA continued the case into the hearing to avoid the consequences of me “kicking up a fuss”.

Then despite having been warned by his solicitors that documents provided to him by Alder Hey, in the litigation, could not be used for any other purpose prior to trial, Mr Jesudason leaked the same to Private Eye magazine. It published an article which referred to the documents a few days before trial.

Again, this is inaccurate. I received no “warning” but I did overlook a small print fact-sheet on the use of documents – amongst hundreds of legal documents.

Documents from the case showed two BMA members had claimed my colleague Mr Ahmed was mentally ill, even suicidal, just as he had complained in his legal proceedings. Yet their actions and these “suicide” letters had never been disclosed to him, in breach of the legal duty of disclosure.

Unknowingly risking civil contempt, I sent this evidence of the cover-up to the General Medical Council, the Care Quality Commission and my own lawyers. When none acted, I shared it with Dr Phil Hammond. As I explained at the time, I did not want the evidence “gagged out of existence” in the deal being planned between the Trust and BMA lawyers (between 15 and 36 months’ pay to walk away).

As regards Private Eye, the General Medical Council held:

“Whilst it is correct that the Private Eye articles focused to a degree on the personal experience of the whistle-blowers and, latterly, Mr Jesudason’s legal proceedings, they were primarily concerned with patient safety at the Trust and the proper treatment of those who blow the whistle about patient safety. Plainly these are matters of public interest. [underlining added]

There is a considerable amount of evidence that Mr Jesudason had genuine concerns about patient safety and the treatment of whistle-blowers at the Trust and by mid to late 2012 had reason to believe that he had escalated these concerns to a number of external agencies without success”.

Mr Jesudason also admitted to having done this under cross examination despite having previously denied the same, this put Mr Jesudason at risk of being in civil contempt of court and at risk of incarceration and resulted in the collapse of his claim.

Once again, this is incorrect. The whistleblowing disclosure of documents to Dr Phil Hammond was known prior to the hearing and throughout the two and a half days of my cross-examination, so it can’t be the cause of the case’s collapse. Otherwise, the case would have collapsed pre-hearing. The Trust would have had to lodge separate proceedings to begin to sue me for damages for civil contempt of court (they didn’t).

Mr Jesudason withdrew his claim and agreed to pay Alder Hey’s legal costs. He refused to repay costs the BMA had met running into tens of thousands of pounds. The Court has today awarded the BMA those costs. The Court has also refused him leave to appeal the judgment against him.

I was constrained to settle by the BMA’s refusal to fund further trial. The BMA had said at the time that it’d loan me £80K toward the Trust’s costs. But after I settled, and with the clock ticking for payment, the BMA made the £80K loan conditional on my paying the totality of their costs too (£200K, not tens of thousands of pounds). So I raised money for the Trust’s costs from extended family and sold my house in time to repay them. This left me without funds to fight the BMA’s claim against me, so my position has been weakened by the fact that I had to represent myself.

“The BMA’s position has always been that doctors should be able to work in a culture of openness so that concerns can be raised without fear of reprisal. At the same time, we have a responsibility to our wider membership, including those doctors to whom we provide access to and pay for independent legal advice, which is why we felt it appropriate to seek to recoup these costs from a member whose wilful actions, not those of his legal representatives or the BMA, led to the collapse of his case.

The BMA’s public claims are at odds with its private actions. It claims to support speaking up, and even anonymity for those who fear reprisal. But when I do this and follow Dr Phil Hammond’s advice to protect my anonymity, the BMA sues me for precisely that. It’s a “shoot the messenger” approach. When the BMA says it opposes gagging, its lawyer is saying privately it’s “common” even in whistleblowing cases. And when the BMA says it’s motivated to recoup its costs for the benefit of its members – that also can’t be true. It’s long known I can’t repay the £200K – or the similar sum it’s spent on the recovery case (say £400K total). The BMA and I can disclose the without prejudice emails to confirm whether it really wanted money from me.