Court of Appeal: What did we argue about?

On 19th and 20th November 2019, we argued the case before three judges and against the hospital’s QC. You can read our skeleton argument here: jesudason-skeleton-ca-appellant.pdf

I’ve tried to crystallise key points and why this matters below.

Ground 6: Section 43g – Was it reasonable to go to the media?

We said it was because eg the concerns about the Ahmed suicide claim and cover up have never been investigated. Neither had the leak of whistleblowers’ information. Neither had several clinical concerns where notes had gone missing, where there had been an unauthorized use of silicone on some child surgeries (hypospadias) and where there was use of faulty keyhole surgery equipment with risk of contamination as reported by manufacturer, Storz. But a judge told my lawyer not to talk about the clinical matters as they were ruled out.

The hospital said these were minor points and how was the tribunal to know they were to decide them. They said Ahmed narrowed his complaint from briefings about suicide to just mental health (we say that broadens the complaint as suicide is but one of a type of mental health issues). The hospital say I gave up all these matters when I left. We say you can give up on issues as they relate to you, but not concerns that relate to others or the public interest.

The judges read in silence the evidence about the hospital wanting to weaponise the GMC against me and Dr Phil Hammond. The risk is an adverse precedent where such conduct isn’t condemned as a clear risk to safety.

One judge asked why Ahmed hadn’t pursued these issues himself (he developed a condition after the way he was treated). But the risk is a precedent that if you see wrongdoing to others eg someone being victimized, you can only report and seek investigation and have protection if they also dare (where they may be traumatised).

The risk of considering this point, but without allowing discussion of my clinical concerns about patient care, is that you don’t take account of the full reasons for going to the media as a last resort. For example, after taking the advice of top research doctors, Professor Sir Brian Jarman (Imperial) and Professor John Ionnaides (Stanford), I have sought an independent analysis of the hospital’s data on neurodisabled children having vagotomy and pyloroplasty because the published data are “tenuous” and suggest the possibility of increased harm. That request continues to be resisted and the hospital has relied instead on surgeons’ opinions but without having statistical experts analyse in full. The GMC recognised we still need basic data on cause and time of death and on criteria for selecting patients for the operations being tested against the other (fundoplication alone vs fundoplication with vagotomy and pyloroplasty). In front of the Employment Appeal Tribunal, the hospital QC made an extraordinary attack that this was an accusation of “Dr Mengele” proportions but had to back down and accept this overblown claim had never been made. The hospital still refuses an independent statistical analysis of the full data set. One judge wondered about the impact on the surgeon doing that research. Unlike Ahmed, he’s kept his post but he hasn’t brought a case to defend his position on this issue. He hasn’t released the source data either, since first being asked in 2009.

Ground One: Was there harm to me as a whistleblower?

We said the hospital can’t dismiss my concerns as baseless and lay claim to investigations that never happened without that being a harm. In other words they can’t lie about me and my concerns without that being a harm.

The hospital say the denials don’t harm me because they’re just exaggerated.

The judges at first seemed to dub the hospital’s denials as over egging the pudding.

The risk is a precedent where hospitals can lie about serious concerns and lay claim to investigations that have never been done and that this could be excused as exaggeration. This problem of denigrating whistleblowers and their concerns underlies many recent healthcare scandals.

Ground Two and Four: Were the hospital denials caused by my whistleblowing and was their manner and tone influenced by it?

We say obviously, as the denials were of concerns expressed in my protected disclosures. Their attacking approach to me was more than trivially influenced by my whistleblowing.

The hospital said it was only robustly defending its reputation and putting the record straight.

We’d said that can’t be right. You can’t put the record straight by lying about investigations and their results.

The risk is a precedent where hospitals can lie about serious concerns and lay claim to investigations that haven’t been done and that this could be excused as defending their reputation and setting the record straight. This problem of managers putting reputation before safety underlies many recent healthcare scandals.

Ground Three: Did the Tribunal address whether Mr Jones did what was alleged and why?

We say the tribunal didn’t even describe what we’d shown. He’d altered evidence to the GMC and admitted on oath that it was to up the ante against me. He’d written admitting that the altered evidence was submitted in response to my protected disclosure. So we say he’s admitted wanting to cause harm to me and the reason was my whistleblowing. When asked about what in our skeleton argument the hospital would change on this matter, their QC blustered but offered little.

The hospital say Jones gave evidence to the GMC and that the tribunal found nothing wrong in that at all. We say you can’t put the record straight by altering it.

The risk is a precedent where you can get away with altering evidence, admitting that you did it to harm the whistleblower, and that the reason is their whistleblowing.

Ground Five: Was race a factor?

We say the tribunal went completely wrong here. It mixed up the evidence with the claims, therefore doing justice to neither. It didn’t compare my treatment adequately to my comparators.

The hospital says it doesn’t matter because the tribunal gave the reason the hospital acted as it did. It was protecting its reputation, not treating me differently.

The judges seemed to wonder if the mix up meant that at least the tribunal had looked at the evidence. But we said it did so in the wrong way and superficially. So the tribunal might simply say of a detailed piece of evidence that this was a complaint brought too late when in fact it is not a complaint at all. They should have gone on further to read the detail of the evidence and then consider the picture it builds. Informed thus, they should then have turned to the actual complaints (which they missed).

The risk is a precedent where a serious matter like this is concluded, without the ET even looking at the evidence correctly or reviewing the claims correctly.

Closing thoughts: The hospital spent a great deal of time denigrating me without reflection on the fact that this does nothing to make care safer. Rather it serves to inhibit speaking up. It also neglects the service that Ahmed and I rendered to the hospital and patients, both before whistleblowing, but also after – by identifying serious matters needing proper care and attention.