The British Medical Association (BMA) has hit on a new way to get around the protection of journalists’ sources. Sue their whistleblowers for breach of contract or misrepresentation if they dare not “come out” as a journalist’s source when challenged.
The following FAQs may serve as the easiest way to understand the issues in the case. Once I have a link to the finalised judgment, I’ll post it on here too.
Who are you and why did you blow the whistle?
I worked as a consultant paediatric surgeon at Alder Hey where I blew the whistle on a culture that repeatedly failed to address avoidable child deaths and victimised a fellow surgeon, Mr Ahmed, for highlighting this. The latter showed this was not just misfeasance (error) but malfeasance (wrongdoing).
Did you try official channels to deal with the problems?
Yes. I reported my concerns first to Alder Hey and also the University of Liverpool. When I said that serious matters were left unresolved, the General Medical Council (GMC) asked me to send the issues to them. When they too failed to resolve matters, I tried the Care Quality Commission (CQC), again to no avail.
Why has the BMA sued you?
The BMA is a doctors’ trade union, but also a lucrative business, providing financial products and advice to its members. It says I broke its rules, costing it a lot of money and therefore I should pay so other members can benefit fully from their services.
I don’t believe this is the real reason. The BMA has spent more suing me than I can pay. It knows I don’t have the money because I even had to represent myself against its team of lawyers. So it’s a waste of money for BMA members.
The BMA’s QC said it sued me because of what I’d been saying about the BMA. This includes my speech at the Annual Representatives Meeting in 2014. So the BMA seems angry about what it sees as a slight on its reputation. In my view, that’s still not the full reason. By subduing and discrediting me, the BMA inevitably helps those members who sought to discredit Mr Ahmed as mentally ill and me as being uncollegial.
Why did you resist?
- I believe the BMA was conflicted, placing interests of certain Alder Hey members before others, and also before patients’ interests.
- I believe it’s an opportunity to highlight the detail of what has happened – and not just the version the BMA has paid good money to have a judge endorse by going to court. However, I have the documentary evidence, so in time people will be able to read and judge for themselves. Unfunded and unrepresented, I was simply unable to make full use of this evidence in court.
- It exposes how the BMA has devised a new attack on whistleblowers like me, who go to the media as a last resort, but dare not out themselves as sources for fear of retribution that is runious in terms of both money and career.
What was the result in BMA case?
After 18 months waiting for a decision, I lost. I owe the BMA £200k plus similar in costs.
What was the actual BMA case against you?
The BMA says it would never have funded my 2012 whistleblowing case vs Alder Hey had I dared to out myself when challenged by Alder Hey as having blown the whistle to Dr Phil Hammond of Private Eye. The BMA’s case was that blowing the whistle, but not daring to out myself when challenged, was a breach of contract and misrepresentation.
What was your defence?
I acted in the public interest, exhausting all official channels and only then escalating serious and unaddressed concerns to the press. These concerns are the real issues, not the sideshow about going to the press. The BMA’s internal documents show it had already assumed I was talking to the press. It downplayed this at the time as a “bee in the bonnet” of the Trust.
In any case, I couldn’t out myself to the Trust for the following reasons:
- Mr Ahmed’ s treatment and the guarantee of further reprisal;
- I feared the BMA was complicit because senior BMA members, including the BMA Place of Work Representative, were seeking my removal.
To protect whistleblowers in such cases, Dr Hammond of Private Eye advised strictly that (1) he, not I, was the only doctor and source who escalated concerns to Private Eye; (2) Private Eye never names sources so one can’t know if one is a source they’ve relied on.
What did the judge find?
The judge acknowledged the public interest issues were deeply felt, but held that it was no defence to the BMA’s contractual claims. He acknowledged Dr Hammond’s approach had been used before by Dr Steve Bolsin to protect himself in Bristol. However, the judge held the arguments about strictly not being a source lacked credibility and criticised me for advancing them here, given I knew of Dr Hammond’s work for Private Eye.
What was your case against the BMA?
The BMA was conflicted and hadn’t represented my best interests. Rather it had been steering me towards a pay-off to protect the wider interests of Alder Hey members seeking my removal. For example, I provided evidence showing:
- I’d blown the whistle on my BMA Place of Work Representative who then sought my removal.
- that when the Trust was denying rumoured plans for reprisal and my removal, the BMA knew, but failed to warn me, that the Trust employment QC was already engaged to do exactly that – even before the RCS investigated.
- there was a serious leak of whistleblowing information putting Mr Ahmed and me in harm’s way, but the BMA failed to reveal the full details, protecting instead those BMA members at the Trust who were involved, and bent on our removal.
- the BMA has used the same individuals to represent me and my opponents;
- the BMA lawyers brought a claim for the BMA against me, while still acting for me;
- the BMA admitted it was conflicted on several occasions but didn’t tell me;
- my junior BMA representative admitted she’d had no formal training in cases like this and the conflicts of interest that arise; she relied on “instinct” instead.
- my senior BMA representative admitted she wasn’t “open and candid” with me. Supposedly on my side, she told my BMA lawyers “off the record” that she felt “conflicted” and would need to recuse herself from contact with the other side. She then, without my knowledge, had a pre-trial “Full Case Review” of my case with my opponents’BMA representative, after saying “the BMA was very concerned about the case” (on my opponents’ behalf not mine).
- the BMA lawyers showed little interest in the evidence of cover up by BMA members in the Ahmed case.
- the BMA hasn’t disclosed full evidence of its conflicts despite a court order.
What was the BMA’s defence?
It didn’t have a duty of care on those issues and even if there was conflict it had no impact on my case.
What did the judge find?
Independent lawyers ran my case, so BMA conflict couldn’t have impacted on it. He couldn’t see evidence it had.
What are your comments so far on the decision?
In obtaining this decision, the BMA has only reinforced the NHS blame culture; blaming me for going to Dr Phil Hammond, while ignoring the context of institutional failures that made this necessary.
I sought leave to appeal. The decision fails to engage with the public interest concerns. It acknowledged they’re deeply felt, without recognising they’re well evidenced and show serious organisational wrongdoing. Because of this omission, the decision overlooks a public interest defence against the BMA’s claims. It fails also to recognise how such serious concerns made it impossible to out myself as a possible source when challenged. The decision also didn’t engage with several of points 1-10 above.
What are the implications of this decision for you?
The decision furthers efforts by the BMA and Alder Hey to attack my credibility. This distracts from the serious concerns I raised, and which Alder Hey has admitted on oath (2016 Employment Tribunal) it’s failed to investigate all along. It’s a classic example of playing the man not the ball.
As a nation, we’ve recently been reminded of this approach in the Stephen Lawrence case. Duwayne Brooks was a chief witness, but he was hauled into court to be discredited on ancillary matters. This may have made justice in Stephen’s case harder to achieve. The Ahmed scandal merits full investigation, irrespective of efforts to discredit me.
I’m retraining as a junior doctor because I believe in the NHS and in serving patients. Despite this long effort, the judgment will reward me with bankruptcy.
What are the wider implications of this decision?
Overall, it’s a poor result for whistleblowers and for safety. It opens a new legal attack on whistleblowers who go to the media but dare not out themselves when challenged.
The judgement suggests there is no public interest defence to breach of contract, even when reporting the avoidable deaths of children.
It means NHS whistleblowers who maintain clinical integrity and escalate their concerns to the media must out themselves to their union if they seek help, and must do so even if they’ve blown the whistle on senior union officials who then seek their removal.
The judge says you instructed your BMA lawyers to attack the Trust’s hunt over Private Eye even though you were involved. What do you say?
I overlooked a paragraph in a dense lawyer’s letter. Had I recognised it I would have removed it, not wanting to draw attention to links with Private Eye.
The judge allowed that the BMA lawyers made omissions, despite their long experience. As I have described above, the judge himself made errors of omission in the judgment. It seems unfair to hold me to a higher standard than qualified lawyers and expect me to have done better, especially when I was new to litigation and was corresponding with six sets of lawyers at the time I missed that point.
The judge says the 2012 case collapsed after you admitted involvement in the first Private Eye article, and that your colleagues wouldn’t be able to trust you. What do you say?
What I said on oath was known to the BMA lawyers pre-trial so I struggle to see how that can be the real reason for the 2012 case’s mid-trial collapse.
The BMA lawyers continued my case to trial knowing the above because, as their notes show, they didn’t want me “kicking up a fuss”. It’s a concern that there’s a big gap in the BMA lawyers’ notes over this period.
In my experience, they withdrew, not because of so-called new information, but because the Trust offered them settlement as a way out. This left me on the hook, and collapsed the case just at the point that BMA members at the Trust were due to be cross-examined on the Ahmed affair. This meant that that evidence was never presented to the court.