“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
LEWIS CARROLL, Through the Looking-Glass (1934).
I want to thank you again for all your support and I wish we’d had better news.
The Court of Appeal has dismissed our challenge. I’ve set out key issues in a Q&A style to hopefully make things clearer for non-lawyers (like me).
Any points in our favour?
Yes. The Court found Trust directors’ categorical claims about the scope and findings of safety investigations were each time false, and detriments in law, as per this from CEO Louise Shepherd:
“We have reiterated that these issues were investigated independently by different professional bodies on a number of occasions including the Royal College of Surgeons; the General Medical Council; and the Care Quality Commission; and each time were found to be completely without foundation…the Trust has absolute confidence in our Department of Paediatric Surgery, and in the conclusions of the RCS and GMC following their investigations, which have proved Mr Jesudason’s claims to be absolutely untrue”.
Obviously untrue?
Yes. Trust directors knew the Royal College of Surgeons (RCS) found safety problems and hadn’t investigated others. The directors, senior staff and regulators knew these denials were false. As I’ve reported all along, it’s a culture – and it’s unsafe.
Why so long to state the obvious?
Trust directors instructed a QC to defend their falsehoods as “without falsehood”.
The Court of Appeal’s decision peels away that facade.
Why didn’t lower judges act?
The tribunal judge knew the directors’ statements to be false from the Trust’s oral and written evidence. He misrepresented their falsehoods as “overstatement”. More senior judges then seemed reluctant to state the true position. Trust falsehoods misled two Select Committees of Parliament over matters including children’s deaths.
Just an off day?
No. Trust directors repeated their false denials over the course of a year. They coordinated these false communications to several parties, in the UK and abroad.
There’s a pattern, and at least one of the Alder Hey directors has form. David Henshaw was Chair of the Strategic Health Authority criticised in the Kirkup report for glossing over baby deaths at Morecambe Bay (where factual reporting could have saved lives).
Louise Shepherd, CEO, was another of the directors who made these false reports, and was in charge when Liverpool Women’s Hospital harmed hundreds of women leading to the biggest class action law suit in UK history at the time. This has since cost the NHS tens of millions in settlements.
Another director who falsely dismissed all concerns, Rick Turnock, denied amongst them, a case over which he’d been criticised by the RCS and for which he’d admitted liability in court. The child’s family received substantial compensation.
Why didn’t you win then?
Once we’d shown the Trust directors had committed detriments in law (ground 1), we then had to show motive; that their false claims were more than trivially influenced by my whistleblowing (ground 2 or 4).
We said that’s obvious. The safety concerns are the content of my whistleblowing and the Trust’s false and detrimental claims targeted that identical content. Instead, the Court of Appeal relied on the tribunal judge, in effect finding the Trust directors were genuinely motivated to make false statements to protect their reputation.
Can false claims protect reputation?
They can’t – if reputation has any genuine meaning. It’s hard to fathom why any judge believes Trust directors are genuine in motive if they’re using falsehoods to defend reputation. The Trust directors kept the key falsehoods from media briefings, indicating they weren’t for reputation after all.
Surely Trust directors had your whistleblowing in mind when falsely denying your concerns?
Indeed. In fact, Trust directors were mindful to omit the detrimental falsehoods when writing to organisations where whistleblowing protection automatically applied.
Any other sign of motive?
We said yes: firstly, the manner of the directors’ falsehoods, targeting my safety concerns and me personally; secondly, these Trust communications, on which judges have consistently been silent:
First is the letter by surgeon Colin Baillie in which he frets about the press knowing the true problems and agitates for the Trust to use referral of me to the medical regulator (GMC) as its “chief weapon”.
Second is the email in which a number of the Trust directors mull referring Dr Phil Hammond to the GMC after he criticised the Trust in the press.
Third is surgeon, Matthew Jones’ admission on oath that he altered evidence to “up the ante” against me.
Fourth is what the tribunal judge heard Clinical Director, Simon Kenny, admit on oath. Kenny had admitted losing his temper at me and was asked how he felt on reading my protected disclosure. To general astonishment, he said “raped”. [Kenny’s wife had already written his response to my safety concerns was “paranoid” and “defensive”].
What about the other grounds?
Ground Three: What did Matthew Jones do and why?
We say: Matthew Jones admitted detriment on oath by confessing that he’d altered evidence to “up the ante” against me. His GMC statement admitted the altered evidence was a response to my whistleblowing disclosure (i.e. motive).
Like the tribunal, the Court of Appeal simply hasn’t dealt with Jones’ own admissions of detriment and motive.
Ground Five: Was race a factor?
On ground 5 (race), the Court of Appeal accepted the tribunal mixed up evidence and claims but decided it had looked at enough for its decision to be safe. It decided this despite the tribunal failing to examine the treatment of relevant white comparators who were highlighted to it.
The hospital accepted the RCS criticism of racist acts in the department (where only Ahmed and I were BAME) but the Court decided the burden of proof still hadn’t shifted to require the Trust to show race wasn’t a factor in my treatment.
Having accepted the RCS findings on racist incidents, the Trust has since argued the opposite – that neither Ahmed nor I were affected.
Ground Six: Protection to go to press?
The Court of Appeal blocked protection for going to the press. It blocked any discussion of the safety issues missed by the RCS report. This blocked consideration of how these issues required press scrutiny. It concluded that neither of the matters we were allowed to consider (Ahmed case, K-drive leak) needed media examination.
The Court agreed the Ahmed issue was important, recognised the RCS hadn’t investigated and agreed the tribunal gave only limited reason for dismissing it [four brief paragraphs, none in the whistleblowing part of the judgment].
But it followed suit, perhaps unaware that CEO, Louise Shepherd, admitted on oath that she’s never investigated and Mr Baillie has never been cross-examined. For example, he’s never explained why his statement to the Ahmed tribunal mentions only the public petition he signed (stating he’d no concerns about Ahmed’s health), but omits any reference to his internal letter claiming Ahmed was talking of suicide.
The Court of Appeal failed also to reconcile evidence on a matter known as the K-drive leak of the RCS report. Consultant Simon Kenny said no such leak occurred but BMA records at the time (confirmed on oath in the High Court) show the opposite, with Kenny admitting the leak and another surgeon, Mr Lamont, downloading the report.
What about attacks on your credibility?
It’s been said that all litigation damages reputation. Any whistleblower up against a powerful institution risks being denounced and tends to sacrifice reputation for safety concerns. More so, when the institution operates the opposite way; forcing the whistleblower on to riskier routes to get concerns addressed.
The Court of Appeal’s decision on the Trust’s falsehoods begs a key question. How unreliable can a whistleblower be, if the institution’s directors resort to repeated falsehoods to defend their reputation?
When I first blew the whistle I’d no idea how harsh the attacks would be. I’d worked at Alder Hey since 1998, being promoted to consultant in 2006. Before secondment to the USA (2010), I received these emails from the Trust’s Medical Director, about a colleague’s child for whom I’d done challenging surgery.
“Just wanted to wish you all the best for your time in the States and looking forward to your return. Once again, I’d like to reiterate the superb quality of care provided to [name redacted] and also to pass on these thoughts from [other parents]. Look forward to joining you on the 25th @ [venue for leaving do].
————————
“Just wanted to say what a totally remarkable job you and the [theatre] team did for [name redacted]. You’ve go[t] another bunch of admirer’s [sic] now who cannot sing your praises round enough. I hope I can get a chance to say thanks face-to-face”.
Once the legal process began over whistleblowing, the same Medical Director – with little or no further contact since I left for the USA – was called on to give a statement denouncing me as unsuitable for the team, and my post.
That’s how quickly the hospital QC turned the tables. After years of mangling my words, he’s got judges to focus on me – rather than the hospital’s falsehoods about the scope and findings of safety investigations. So, on the RCS report – several of the hospital’s own witnesses admitted significant gaps, and judges haven’t seen the un-redacted half, yet the hospital QC has them pronouncing the report “thorough” and complete.
The Court criticised me over an old issue: not outing myself as a source for Dr Phil Hammond to Private Eye. In mitigation, Dr Hammond gave well-intended advice for my well-founded fear of retribution. After all, Mr Baillie was agitating to use the regulator (GMC) as a “chief weapon” against me.
My accounts of the 2012 case have also been inaccurately challenged. Some points are worth clarifying, if only because my family and I were there, and I’m no longer constrained in what I can disclose by virtue of ongoing litigation vs the BMA.
First, the disclosure of court documents and my involvement with Dr Phil Hammond was known to all sides before the 2012 hearing i.e. consistent with my position that this alone was not why the case stopped mid-hearing. Mr Justice King took 18 months to prefer the BMA’s argument, but my experience was in no sense unhinged or unfounded.
Second, in theory gagging isn’t allowed. In practice, the BMA-appointed lawyers did discuss gagging with me and said it was commonplace. Their own legal records confirm this. They discussed legal agreements where the Trust wanted documents destroyed. It felt very clear that the intent was to restrict what could later be evidenced. Again, my concern was certainly not unhinged or unfounded.
Third, on the issue of pay-offs, two High Court judges have read the “without prejudice” monetary offers, variously describing them, like me, as a “six figure sum” (Soole J) and “substantial compensation” (King J). The lower tribunal judge took a different view, but with no reasoning, despite being directed to the absurdity of the Trust’s position and the fact it conjured this challenge only after years of silence on the issue. It’s an example of the hospital QC dredging issues to divert from Trust directors’ falsehoods on serious safety problems.
The Court of Appeal repeated other inaccuracies, including that I went to the Independent on Sunday in 2010/11. The tribunal judge knows that (i) the IoS journalist confirmed this is untrue and (ii) the hospital withheld email evidence suggesting someone else responsible. I notified the original tribunal judge but he did nothing to correct this or the other matters above. Financially, one can’t afford to appeal every such error at each level. Practically, it’s exhausting and the courts often won’t allow it anyway.
Appearance of bias?
The Court of Appeal view any appeal via the lens created by the original tribunal, however flawed that may be.
My tribunal knew the statements penned by David Henshaw, Louise Shepherd and Rick Turnock were false. But it failed to say so or condemn them as detriments. It failed to record the serial alteration of evidence admitted by Matthew Jones, as well as his shifting accounts when detected. It failed to record Alder Hey directors admitting both the validity of my safety concerns, and also that some still haven’t been investigated.
I raised my concern with the tribunal judge that he’d (i) had two judgments overturned due to appearance of bias; (ii) failed to disclose his prior working relationship with Alder Hey Chair, David Henshaw (until months after our 2-day preliminary hearing of June 2015); (iii) even then failed to reveal his “really very good” personal friendship with a senior doctor who was both a former Clinical Director to CEO, Louise Shepherd, and also a colleague of Matthew Jones and the Alder Hey surgeons; (iv) only disclosed the latter weeks before trial (Jan 2016, when recusal and cancellation may have cost tens of thousands in lost barrister fees). The tribunal judge dismissed these and other concerns but the Employment Appeal Tribunal criticised his brief dismissal of my concerns as “unwise”.
Conclusion
We finally have judicial confirmation that Trust directors misled Parliamentary scrutiny, pedalling falsehoods that are detriments in law. It’s troubling that lower courts repeatedly erred on this. Too often the judicial process has felt like keeping a lid on things rather than getting to the bottom of them.
Even now the appeal judges blocked us on “causation / reason why”, accepting in essence that Trust directors lied to protect reputation. It’s ironic that I’m liable for the Trust’s costs as we didn’t get home on that second point.
Appealing Court decisions can feel like redo-surgery. It can be very hard to undo harm incurred earlier on. Videoing surgery and tribunals might make both safer. The whistleblower could then rely on videos of surgery to show their concerns. Videos of tribunals would keep them from the current inaccuracies, omissions and conjectures.
Bereaved families face similar struggles to access evidence and to overturn original but inaccurate findings, whether from internal investigations to Coroners’ courts. Increasingly, and for families and whistleblowers alike, it appears that justice really needs to be seen, to be done.
Jesudason Appeal 