High Court claims may be lucrative for British Medical Association (BMA) lawyers, but their deals are poor value for safety and the public purse. Cross-examination forces whistleblowers to out themselves as sources, even when journalists would be protected for refusing.
In 2009 and 2011, I reported a bullying culture in the Alder Hey Department of Paediatric Surgery that had contributed to serious clinical failures and the smearing, as mentally ill, of a whistleblowing surgeon, Mr Shiban Ahmed FRCS.
In 2012, while I was on secondment in the USA, Alder Hey sought to prevent my planned return to work in Liverpool. It argued that trust had broken down with colleagues on whom I’d blown the whistle, but insisted this had nothing to do with the fact that I’d blown the whistle. It said I’d have to be dismissed, not due to misconduct or incompetence, but because colleagues refused to have me back (technically a SOSR dismissal – for Some Other Substantial Reason). The BMA supported me to challenge Alder Hey’s conduct.
I’d worked with these colleagues from 1998 without any complaint, so the Trust’s claims stretched credulity. A truer picture is given by my colleague’s letter below. He encourages Alder Hey to use the General Medical Council (GMC) as a “weapon” against me. (The GMC aims to protect patient safety and improve medical education and practice across the UK.) He wrote this straight after learning I’d reported his mistreatment of Mr Ahmed and cases of patient harm. Note AHCH is Alder Hey Children’s Hospital.
We won a temporary injunction against Alder Hey in July 2012 and then tried mediation. The BMA lawyers and I recognised that trust was broken so we proposed my reintegration within other teams. Alder Hey refused and their QC reportedly said I’d never set foot there again. Instead, Alder Hey offered to pay me to walk away. I maintained to the BMA lawyers that my concerns needed investigation, not a pay-off.
As trial approached, a request under the Data Protection Act revealed the BMA had withheld the full details of a serious breach from Mr Ahmed and me: our whistleblowing information had been released to the very BMA members at Alder Hey who then sought our removal. I was growing wary of the BMA’s role in our cases.
Around that time, High Court disclosure also revealed letters proving BMA members had written that Mr Ahmed was suicidal. These letters had never been disclosed to Mr Ahmed or his legal proceedings. This was a breach of the Trust’s legal duty of disclosure.
To report the Ahmed cover-up, I sent the relevant excerpts from these documents to the CQC (Care Quality Commission: the independent regulator of health and adult social care in England) and GMC. This accidentally risked contempt of court because, as I later understood, the documents remained confidential until used in the forthcoming court hearing.
I also highlighted the documents and the Ahmed cover-up to my BMA lawyers. No-one seemed interested. I felt the BMA lawyers had little appetite to pursue the BMA members who were seeking my removal over their role in the claims against Mr Ahmed’s mental health.
Eventually, I released the documents showing the Ahmed cover-up to Dr Phil Hammond, and he to Private Eye (the UK’s best-selling news and current affairs magazine). This meant the issue couldn’t be concealed through an eve-of-trial pay-off.
Days before trial, the Trust offered that if I left, they’d keep paying me for 15 months not to work there. The BMA lawyers drafted a response seeking that I increase the demand to 36 months. Unknown to me, the BMA were negotiating on both sides and knew the Trust was willing to settle at 24 months.
At this point, Private Eye published the excerpts showing the call for Alder Hey to “weaponise” the GMC against me, and the evidence showing that colleagues had made claims about Mr Ahmed’s mental health, behind his back. Publication of this material exposed how Alder Hey had breached its legal duty to disclose this evidence to Mr Ahmed’s Employment Tribunal (ET) when he complained of this.
All hell broke loose – but not for Alder Hey or those behind the covert suicide claims. Instead, there was a furious hunt to find out who had gone to Private Eye.
I arrived into this from Los Angeles, jet-lagged and soon preoccupied by my Dad’s urgent hospital admission. Over 48 hours or so, I tried to figure out what had been published where and if other whistleblowers might be drawn into the maelstrom.
I stuck to the position given to me by Dr Hammond and used by him to try to safeguard against the retribution that’s guaranteed after media disclosures. This is that:
- he alone is the doctor who is the source for Private Eye, as he exercises his GMC duty to escalate only those concerns he deems serious;
- Private Eye never reveals its sources so one couldn’t know for sure if one was a source relied on or not.
Having collected my thoughts, I apologised to the court for mistakenly disclosing the “suicide” documents before they’d been used at the full hearing. I told my lawyers of Dr Hammond’s position and explained that these were the terms on which I’d helped his investigations for the December 2012 article and a previous one in May 2012. I explained that I hadn’t wanted these serious concerns to be “gagged out of existence”. My BMA lawyer responded on the record that it’s a “common part of any settlement, not just whistleblowing”.
The BMA lawyers knew the merits of the case, till then finely balanced, were badly damaged. Privately, they agreed their pay-off deal was “buggered”, but that the BMA would still proceed to the full hearing because, as their notes reveal, they didn’t want the reputational consequences of me “kicking up a fuss”.
Uniquely amongst such BMA cases (even those considered viable), the BMA funded me into full trial. I was cross-examined as expected for roughly half the anticipated hearing length, ending around about lunch, at the point where I told the Court what the BMA lawyers already knew: (1) I’d been working with Dr Hammond’s investigation in both his May 2012 and December 2012 articles – and that by following Dr Hammond’s protective advice and not outing myself, my responses to the Trust had been misleading; (2) I accepted (as at pre-trial mediation) that breakdowns of trust meant I couldn’t work again with those behind the Ahmed affair.
I was expecting the opposing BMA members at the Trust to be cross-examined on the Ahmed case that afternoon. But the Trust saw the chance to offer the BMA and its lawyers a way out by settling the case. The BMA lawyers took it, approaching me, and explaining that the BMA was “out” and would only fund the case to the end of the day, and only to achieve a settlement, not further trial.
The BMA lawyers have later disputed this, arguing that I simply settled after they told me that the merits of the case had sunk. The 2016 judge preferred the lawyers’ later account, despite my parents’ statements (as witnesses to the collapse of the case) and despite the very surprising gap in the lawyers’ notes, with no notes whatsoever to support their claims.
I was dumbstruck. Without funds or a legal team to pursue the trial further, I was constrained to settle. The Trust wanted a headline cost award of £100K. The BMA agreed it would pay £80K and me £20K. But once the agreement was signed – and with the stopwatch racing toward the payment deadline – the BMA revealed it wouldn’t pay or loan the £80K unless I agreed to pay the BMA’s costs too (~£250K). For this, the BMA sought a further mortgage on my home.
Having lost my career and with the BMA now refusing to help with £80K, I had to cope with the panic of trying to find the full £100K to pay the Trust’s costs. I prepared for bankruptcy but extended family rallied round and we made the payment just in time. This allowed me enough time to sell my home.
Straight away, and while still acting for me on the court record, my BMA lawyers then launched the BMA’s claim against me for its costs. This is a serious breach of solicitors’ rules. It’s made worse by the fact that they brought the claim against me by using facts they garnered while representing me (including details of my contacts with Dr Phil Hammond of Private Eye).
The 2016 judge made no comment on this worrying conduct. For me, it exemplified the conflicts of interest in the conduct of both the BMA and their lawyers. It motivated my counter-claim against the BMA. In these new proceedings the BMA was caught out both before trial and on oath for failing to disclose documents that showed their conflicts of interest.