Further response to the BMA

The BMA has issued further information, to which I have responded.

I’d direct readers first to the unresolved safety concerns. Alder Hey claimed to Parliament these were investigated, but has had to confess on oath, that they haven’t been. The BMA has not responded to disclose its full role in the Ahmed scandal. Readers may also wish to review these pages on the 2012 case and the 2016 one.

The BMA’s response on their website is structured as a Q&A. I have reproduced it below in italics (the typographical errors are in the original), interspersed with my own response to it.

1. Why did the BMA issue legal proceedings against Mr Jesudason, a whistleblower who raised concerns about patient safety issues?

The BMA supported Mr Jesudason in bringing a legal claim against his employers Alder Hey ChilMren’s NHSFT (‘Alder Hey’). Based on the information that he provided to us, and the independent solicitors who we paid for, we were successful in obtaining an interim injunction preventing Alder Hey from convening a meeting at which he would have likely been dismissed.

His employer continued to defend the claim and seek to prevent us from turning the interim injunction into a final injunction.

During the course of cross examination, it became clear that Mr Jesudason had misrepresented facts, both to his employers, Alder Hey, and the independent Solicitors, Gateley, who were advising him. The result of this was that Mr Jesudason’s case fell apart, and he faced a potential for being in civil contempt of court?

Once again, this is inaccurate. I disclosed my identity as a whistleblowing source to the solicitors Gateley and they to the BMA before any cross-examination. The BMA continued the case into full trial nonetheless – and uniquely amongst its cases. This raises the question why (answer, to avoid me “kicking up a fuss” as they said in their own notes at the time).

The BMA has a responsibility to its wider membership and a duty to use members money wisely, and for this reason we expect members to be honest in their dealing with the BMA and the solicitor that we provide. The BMA’s agreement to pay the lawyer’s fees is conditional upon the member being honest in their dealing with the BMA and the solicitors.

During the 2016 High Court hearing, the BMA confessed on oath that it was not “open and candid” with me.

Whistleblowers cannot safely disclose their identity (leading potentially to other sources) when, as in this case,

• BMA personnel are amongst those seeking their removal,
• the BMA is not honest about the fact that it is running a “conflict” case against the whistleblower (and fails to disclose the papers on this into Court) and
• the BMA is using the same personnel on both sides of the dispute.

The BMA knows I can’t pay, therefore it has been wasting members’ money. Why?

The BMA asked Mr Jesudason to pay the solicitors fees, and he refused to do so. In the circumstances the BMA felt that it was inappropriate to expect members’ subscriptions to fund these charges, which is why we sought to recoup the costs from Mr Jesudason – the member whose wilful actions, not those of his legal representatives or the BMA, led to the collapse of his case.

The Trust made Gateley an offer on the basis of which BMA withdrew funds constraining settlement in the case at its half-way point. Gateley’s notes for these discussions have not been disclosed to Court, leaving an unusual gap in their records.

Gateley were conflicted, as they said in their earlier notes, and as evidenced by the fact that they brought the BMA’s letter of claim against me (01.02.13) while still on the record as acting for me (until 18.2.13).

The BMA can’t be pursuing this case to save members’ money, as it has known I don’t have the money to pay them. The BMA and I can agree to reveal our “without prejudice” emails to resolve this point. This is the second time I have made this offer.

The BMA had other reasons to pursue this case. It coordinated this litigation with Alder Hey and its members there, emailing to arrange meetings to do so.

2. What were the misrepresentations of fact in this case?

This was a case where Mr Jesudason was claiming that the reason his employers were wishing to dismiss him was due to protected disclosures he had made in 2009 and 2011. His employers wanted to convene a meeting in July 2012 to consider his dismissal.

Alder Hey claimed that the reason they wanted to hold the meeting to consider his dismissal was not related to the protected disclosures in 2009 and 2011 but was rather due to a breakdown in working relationships. They cited the fact that some of the persons complaining about Mr Jesudason had never been the subject of any complaint by him, and that some of the issues that were being raised about Mr Jesudason predated the disclosures he had made.

Gateley solicitors, working with an alongside Counsel, determined that, based on the facts as presented to them by Mr Jesudason, his claim satisfied the BMA’s merit criterion and was eligible for BMA support.

In May 2012 an article appeared in Private Eye magazine that raised many of the issues that Mr Jesudason had previously raised about Alder Hey and which was critical of Mr Jesudason’s colleagues.

Mr Jesudason was asked by his employers, and subsequently by his solicitors, if he had provided the information for this article and he denied having done so.

The article referred to unresolved and serious safety concerns that I had previously taken to the Trust and the General Medical Council. I had then taken them to the Care Quality Commission (CQC) without daring to tell either the Trust or BMA.

These concerns included the death of Caitlyn Parry and the mistreatment of whistleblower, Mr Shiban Ahmed, as well as other cases.

When the CQC failed to address these, I escalated the matters to Drs Kim Holt and Phil Hammond. After the Private Eye report of these and other concerns, the BMA could have rebuffed the Trust “hunt-the-whistleblower” exercise, given the Financial Conduct Authority has heavily criticised and fined Barclays for just such a hunt. In the event, the BMA made no attempt to restrain the Trust, so I followed the protective advice of Dr Phil Hammond that he alone was the source because I, like others who had been in similar positions, dared not come out.

Had he admitted to having done so this would have provided strong evidence in support of his employers belief that there was a breakdown in working relationships that would have justified his dismissal.

Internal notes show the BMA had considered I was going to the press, but saw the matter at the time as a “bee in the bonnet” of the Trust – and continued funding my case nonetheless.

My colleagues’ own evidence was that they sought my dismissal after the protected disclosures I had made. One even asked that the Trust use the GMC as a “weapon” against me.

During legal proceedings there is an obligation of both parties to provide relevant documentation to the other party, this process is known as the disclosure process and effectively requires each side to show their cards to the other. The disclosure process is confidential and neither party can use documents that were disclosed for any other purpose until the documents have ben relied upon in Court, whereupon they may enter the public domain. This was explained to Mr Jesudason, by Gateley solicitors, on two occasions.

Again, there was a small-print document on disclosure, but no “warning” as the BMA has claimed recently in its earlier response.

A few days before trial, in December 2012, another article appeared in Private Eye which drew upon information that had been provided as part of the disclosure process. Mr Jesudason admitted under cross examination that he had disclosed document to Philip Hammond of Private Eye and therefore was the source of the information for the article. This admission risks Mr Jesudason being found to be in civil contempt of court as he had misused confidential documents.

Again, this is incorrect. The article and the issue arose pre-trial. I made clear to my BMA lawyers pre-trial that I had disclosed the whistleblowing information to Dr Hammond. The information exposed Alder Hey’s cover-up in the Ahmed case. The issue of civil contempt, if the Trust sought to pursue it, arose pre-trial. Nonetheless, the BMA continued, uniquely amongst its cases, to fund me into trial, then withdrew half way through.

Following these confessions Mr Jesudason admitted to the Court that is may be difficult for his colleagues to ever trust him again. The duty of ‘trust and confidence’ is at the core of the employment contract so this admission was significant.

I explained that trust was broken, but this was a point that had already been conceded months before at mediation. This is shown by the fact that, at pre-trial mediation, we had sought my integration into alternate teams. Note that the BMA pulled funds without allowing any attempt at re-examination by my own lawyers to permit clarification on any of these points.

3. People makes mistakes, but he was a whistle-blower so why not support him anyway?

The BMA does not dispute that Mr Jesudason raised issues that were of genuine concern to him in 2009 and 2011; we encourage all of our members to raise concerns appropriate and through the correct channels and we provide advice to our members on how best to do this.

Responsible employers support and value the raising of concerns

It is unlawful for employers to subject workers to any detriment for raising concerns, however the law does not provide whistle-blowers with immunity from being dismissed for reasons that are unrelated to their protected disclosures. In this case Alder Hey were claiming that there had been a breakdown in working relations with his colleagues. Mr Jesudason’s admission that he was the source of the information behind the article in the Private Eye in May 2012 lends weight to the employers suggestion that there had been a breakdown in relations. Mr Jesudason’s previous denial that he was the source of the information for the article prevented the lawyers from making an informed assessment of the merits of his case.

Internal notes show that the BMA saw the issue of the press as merely a “bee in the bonnet” of the Trust. The senior BMA representative figured that I’d been going to the press since July 2012, but that I wouldn’t feel able to disclose it. The BMA funded me nonetheless.

More seriously, the Private Eye article reported grave issues, several of which remain unresolved to this day.

The BMA, as a responsible trade union, cannot use members funds to support litigation that is premised upon incorrect facts. In this case the evidence did not suggest that Alder Hey had subjected Mr Jesudason to any detriment consequent to his raising of concerns.

During the 2016 High Court hearing, the BMA confessed on oath that it hasn’t supported any member to full trial in the 3-4 year tenure of its Director of Legal Services.

The BMA and Gateley had pursued my original case arguing that Alder Hey was acting detrimentally to me. It is odd now to reverse that position, unless the BMA is now acting solely in support of the Alder Hey members ranged against Mr Ahmed and myself.

4. I have heard it suggested that the BMA had a conflict of interest and were protecting other members who Mr Jesudason had complained about, what is your response to this?

There was a conflict between different members interests in this case, and the BMA had members on both sides of the issue who needed advice. The BMA instructed two teams – one to advise Mr Jesudason and another team to advise the other members. To ensure there was no possible conflict of interest each team was overseen by a different Head of Regional Services and an information barrier was erected between the two teams to ensure that all members could be appropriately advised on a confidential basis.

During the 2016 High Court hearing, the BMA confessed on oath that it was not “open and candid” with me.

It failed to disclose its conflicts at the time, a course of action we as medical professionals would be expected to do before any scientific meeting.

The BMA Head of Regional Services on my case admitted she was conflicted and felt she ought to recuse herself (just days pre-trial). But she then had a meeting with the junior representative for the other side (my opponents). The BMA has resisted my requests for the minutes of that “cross-border” meeting to be disclosed.

The BMA used the same personnel to represent Mr Ahmed, me, and then my opponents.

The BMA’s advisers in the North of England sent the case for the consideration of an independent law firm (Gateley), and specialist counsel was also instructed. Neither Gateley or Counsel had any conflict of interest, indeed they would be in breach of their professional obligations if they were to act in circumstances of a conflict.

Indeed in paragraph 18 of the Judgment Mr Justice Timothy King stated that:

“There has been nothing placed before me to sustain the proposition that these legal representatives were in a position of conflict of interest as regards the opposing side, or did anything other than act in the best interests of the Defendant”.

Without success, I have drawn the Judge’s attention to his omission of the fact that Gateley brought the BMA letter of claim against me (1.2.13) while still on the record acting for me (until 18.2.13). Gateley also admitted in their own notes that the Private Eye issue created a conflict for them. Yet they proceeded on my case, and into trial nonetheless.

5. What is the story behind the settlement offer made to Mr Jesudason, is it right that he be paid off for being silent?

Defendants in litigation often make offers of settlement for commercial purposes, and without any admission or acceptance of fault. These offers are meant to be confidential and should not become known to non-parties.

Disclosure of these offers has been ordered by an Employment Tribunal judge, so it is incorrect at this stage to suggest that they have been disclosed inappropriately.

When a law firm receives an offer of settlement it is under a professional obligation to communicate this to its client, and it for the client to decide whether or not to accept the offer of settlement.

This misrepresents the position. More correctly, Gateley will tell (“advise”) the client to take the offer or else the BMA will withdraw leaving the client unrepresented and / or facing costs. The client’s (the doctor’s) decision is therefore constrained by the BMA. The coercion is increased by the fact that these measures are often left until the verge of trial. By this point, the doctor has neither time nor funds to arrange alternate representation. Indeed, seeking a delay to make alternate arrangements, can itself incur massive costs even before the case is heard.

Settlement offers cannot be used to prevent anyone from raising concerns about matters of public concern, while it is possible to have a confidentiality clause within a settlement agreement any such clause is void in so far as it purports to preclude the worker from making a protected disclosure. At no point is the BMA aware of Alder Hey making any offer of money to Mr Jesudason in return for him not raising issues of concern.

That is the public position. In private, Gateley admitted gagging is common, even in whistleblowing cases. To achieve this, settlements can require that the whistleblower destroy evidence that substantiates their concerns. Without such evidence, the whistleblower cannot defend against defamation charges if they try to raise the issue thereafter. Of course, this is only one way of gagging.

The BMA is misrepresenting the position in my case. It knows Alder Hey offered to pay me off. It knows Alder Hey sought the destruction of evidence, including letters showing that BMA members had labelled Mr Ahmed as suicidal behind his back.

6. So why hasn’t the BMA been more vocal in explaining its side of the story in respect of Mr Jesudason?

The BMA did not wish to make any comment about this matter until judgment had been handed down on Friday 11th May 2018.

The BMA had the draft judgment for almost two weeks. It has had plenty of time to put its side of the story. The fact is that its story and its actions do not hang together.

The BMA’s actions have done nothing to protect patients. Instead, the BMA has only made it harder for NHS staff to voice their concerns safely to the press.