A hard Day’s night

This week saw the end of Dr Chris Day’s whistleblowing claims against Health Education England (HEE) and his former NHS Trust. A joint statement recognised Dr Day as a whistleblower and recognised his contribution to closing a gaping (and much denied) loophole in the law. But the joint statement also accepted that HEE and the Trust would probably have managed to resist his claims. What’s happened to produce this result?

First, let’s look at the most basic facts. Dr Day blew the whistle (and his concerns were substantiated by a subsequent report on the Trust). He then didn’t complete his training in circumstances where he felt his training had been derailed by the Trust and / or HEE. He brought a claim on that basis, having first to raise considerable funds to show HEE could even be held liable. Unusually, he won costs against HEE, in recognition of its flawed conduct in the case.

Dr Day’s further case came to trial this month. After 6 days cross examination, he’s withdrawn all claims. How’s this happened and what can we learn?

First, we know Dr Day’s whistleblowing did not lead the hospital to protect patients straight away. Rather, hazards were allowed to fester. Second, we know Dr Day’s training came to an end. On the basis of the joint statement, we are left with a conclusion that Dr Day felt he’d be unable to prove this was due to unlawful victimisation.

The HEE-Day joint statement references Dr Day’s good faith and his public service. So it’s not tenable that Dr Day brought his claims in bad faith – and indeed neither party nor the statement makes any suggestion of this. What then induced Dr Day to withdraw his claims before the opposing witnesses had to be examined? To attempt an answer, we have first to address some important misconceptions.

The first misconception is that the Employment Tribunal (ET) delves into the detail of the concerns that led to the whistle being blown. Most often it won’t.

Once it’s decided (or been agreed) a protected disclosure has been made, the focus will be less on the content of the disclosure (avoidable deaths) and more on whether the institution has a plausible deniability for what then happened to the whistleblower (“s/he fell; we didn’t touch them; we didn’t see anything etc.”).

The second misconception is that the institution is on trial. Even though the whistleblower is the claimant, in fact s/he is on trial. And because s/he is ususally alone, this trial is about them as a person.

Institutional lawyers engage in the politics of personal destruction. Just as in rape trials, their aim is to destroy the credibility and spirit of the whistleblower well before anyone has to look at the sordid facts of the case. The institution has the inherent advantages of going second, if at all; and having umpteen witnesses, so that if the credibility of one fails, they can compensate elsewhere. This also enhances their chances of plausible deniability: the whistleblower has to convince the judge that the institution’s witnesses acted in concert, when often they’ll have acted according to the same unspoken code of deniable reprisal.

The third misconception is that this is about facts. Long before judges give any opinion on what they feel should count as facts, the battle is fought over vulnerability; over who can be wounded and how.

Individual whistleblowers are vulnerable and often traumatised. Fundraising to bring their case is exhausting and forces them to speak up publicly (which exposes them and their family to personal attack). In contrast, the institution can fund its case without such measures, shielding its witnesses safely behind its QCs. This vulnerability has been recognised in rape trials (a rape victim has taken their own life, following on from a brutal cross-examination). Judges are meant to restrain lawyers from destroying the claimant’s character by picking over every past sexual encounter. This vulnerability is also recognised by the fact that the claimant’s identity can be protected in U.K. rape cases. Despite these notional protections, conviction rates for rape remain low. UK whistleblowers aren’t protected by the judge or by anonymity, and successful claims are rare. Against major NHS organisations, successes are almost non-existent. The law needs reform in this area – so it protects whistleblowers rather than putting them on trial.

A further lesson from criminal cases, is that human beings can be ably coerced if subject to protracted and hostile questioning. It’s well known that vulnerable suspects will confess in the moment in order to escape the situation, or to protect themselves or their family. This fact has been responsible for substantial miscarriages of justice. The same problem pertains in whistleblowing cases. The whistleblower goes first, and the institutions’ QCs seek to so damage them in front of their family that they’ll agree to settle e.g. to avoid the risks of costs / losing their home. The aim is to do this before any of the damaging facts about the institution can be aired.

Being cross examined for six days by two QCs backed by dozens of managers will have been a livid experience. Those who have not experienced it, are perhaps ill-placed to understand. While giving evidence, you’re allowed no discussion with your lawyers throughout that time. (The institution’s witnesses can be chatting away between themselves). Things are said that can’t be taken back or qualified. Honesty is punished with ridicule or twisted into insincerity. Honest mistakes are cast up as lies. Sleep runs out in short supply and thinking straight becomes a problem that can then be exploited ruthlessly.

Once battered and shattered, an offer can be made; that or a threat: “Withdraw and we’ll not come after costs. Persist and we’ll take your house”. What’s imagined as a search for truth, ends as a poker game where only those with deep pockets can stay at the table; a penalty shoot out where, alone, you have to score the first five penalties, before those lined up on the other side have to take one.

So what immediate lessons might we draw? First, the toll on Dr Day and family has been immense. Their health and well-being should be our first concern. Second, the practices of HEE and the Trust have not been scrutinised publicly. Their witnesses remain untested and unaccountable. Third, the financial cost to taxpayers has been huge, yet the full reasons for such spending may be shrouded in legal privilege. Fourth, junior doctors will have learnt the lesson. It’s not safe to speak up. After all, if the deaths of 656 people at Gosport can be ignored, why would anyone listen to a junior doctor?