Whistleblowing - Dr Chris Day

Protect patients and junior doctors: Round 2

By Dr Chris Day

I'm continuing the fight to secure the same full statutory whistleblowing protection for junior doctors that protects other NHS staff.

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  • About the case

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The order arrives from the Court of Appeal granting us leave

Oct. 14, 2016

On the question of whether HEE is an ERA s43k employment agency of junior doctors and whether a junior doctor's career is protected by whistleblowing law?

Lord Justice Elias states in his order in respect to our arguments,

“This is a matter of some importance. The Grounds raised in the appeal are clearly arguable.”

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My name is Chris Day. I am 32 and a doctor with a young family. I have been fighting for whistleblowing protection for myself and other junior doctors since August 2014. I have lost my career as a result of raising concerns about the adequacy of night time staffing of an Intensive Care Unit in South East London that routinely departed significantly from national standards of staffing.

Our initial CrowdJustice appeal for whistleblowing protection for junior doctors raised over £42,000 from 1,499 people. The case has been covered by ITV News and we have been featured in multiple newspaper and journal articles.

I am asking for help to enable me to continue this fight.

My claim against Health Education England is currently waiting for the Court of Appeal to determine my application for permission to appeal. Unless my appeal succeeds, or there is a change to the law, the careers of junior doctors will not be protected by whistleblowing law.

I am asking for financial support to be able to pay my lawyers to continue my case in the Court of Appeal and subsequently in the Employment Tribunal and to go on advising me in my campaign to secure full whistleblowing protection for junior doctors. We are attempting to raise £100k to enable us to litigate this important point in the second highest court in the country.

I am tremendously grateful to all those who have supported me thus far. Please donate what you can so that my case and this campaign can continue until junior doctors have the same whistleblowing protection as other employees.

Why is this case important?

Do you want your doctor to be able to speak openly about patient safety and resourcing without being afraid it will damage their career? Can you really expect a doctor to do this if they do not have the same legal protection as other employees?

The Francis Freedom to Speak Up review found that 13.5% of NHS staff that raise concerns about safety are victimised. You would have thought that junior doctors should be thoroughly protected against this happening to them. Patients up and down the country rely on their professional expertise and rely on them to speak up if they have concerns about safety or resourcing. They don’t expect doctors to be at risk if they do.

My case, and my campaign, drew attention to the fact that junior doctors are not properly protected when it comes to whistleblowing law. Initially the authorities refused to accept that this is the case, but as a result of my campaign they have changed their position and have accepted that junior doctors need full statutory whistleblowing protection. Unfortunately, what they now propose does not go nearly far enough. More information on the new proposals is here.

The Hospital I worked at now accepts that I made a protected disclosure. In other words, it accepts that my case involved genuine whistleblowing done in the correct way. They have also accepted that there needed to be more staff on the intensive care unit. The Evening Standard quotes the Trust as saying:

“We identified the need to increase medical staffing numbers for the intensive care unit at the Queen Elizabeth. The unit is now fully compliant with quality standards.”

Despite this, I have waited over 2 years to have my whistleblowing case heard. Because of a problem with whistleblowing law it may never be heard in full by an Employment Tribunal and the facts of the case may never be properly scrutinised.

Media coverage and Parliament

My case has significant implications on a junior doctor’s ability to speak openly about safety or resourcing in the NHS, as I explained on ITV News.

New Statesman coverage of the casehttp://www.newstatesman.com/politics/health/2016/02/how-government-leaving-whistleblowing-doctors-twist-wind

The case was even discussed in Parliament March 24 2016.

Whistleblowing law and junior doctors

The law in this area is complex, but essentially there are two problems. The first is that Health Education England (HEE), the NHS body with ultimate power over junior doctors’ careers, still claims to be exempt from whistleblowing law. The second problem is that the short term contracts HEE arranges for junior doctors mean that their careers are not protected if they whistleblow. A junior doctor loses the right to have an Employment Tribunal order the NHS to give them their jobs back as the NHS organisation with actual power over employment claims to be exempt from employment law.

As a direct result of my litigation, a potential lacuna or gap in whistleblowing law has been identified. This was a problem that had previously been denied by the BMA, Government and NHS but can no longer be denied, a direct result of our campaign and litigation. The EAT Judge Mr Recorder Luba QC stated in his Judgment dated 26 August 2016.

“There would appear to be a lacuna in respect of the ability of a junior doctor to complain of detrimental treatment on account of a protected disclosure at the hands of the body responsible for his or her training and, ultimately career progress.”

After initially denying that there was a problem, the Government and the other authorities agree that the current law is inadequate but none of them are willing to put junior doctors on the same footing as other employees and give them full statutory protection. Unfortunately, what they now propose does not go far enough and continues to deprive junior doctors of the right to have their career protected by whistle-blowing law and their case heard in full in an Employment Tribunal. Their long-term career and employment continues not to be recognised by employment law. It has been left to me to campaign for this on my own. That is why I am asking for your help again.

The pressure our campaign and supporters were able to apply to the GMC, the medical regulator has resulted in them changing their position on this important issue. This has changed from not accepting that there was a problem to acknowledging it as follows:

“We believe that doctors in training across the UK must enjoy the same protections as others in the NHS who raise concerns.. We recognise that a level of concern now exists among doctors in training in England about whether they are adequately protected in their relationship with

Health Education England (HEE), and that, as a result, some may feel less secure about raising concerns for fear of suffering detriment to their career. We believe every doctor should feel able to raise concerns with impunity, without fear of unfair criticism, detriment or dismissal, and anything that prevents this from happening is not in the interests of patients or doctors.”

My legal team

I am extremely grateful to my legal team, James Laddie QC and Chris Milsom, barristers, and Tim Johnson/Law, solicitors.

We are also very grateful for the advice and support we receive from the charity Public Concern at Work.

What we have achieved with the help of crowd funds so far

Legal representation in my case in the Employment Tribunal and in applying for leave to appeal to the EAT, the EAT hearing and applying for leave to appeal to the Court of Appeal

The legal advice and analysis which has enabled me to expose the legal problems with whistleblowing for junior doctors.

How further funds will be spent

Continued legal representation in my litigation in the Employment Tribunal and Court of Appeal

Further legal advice to help me establish full whistleblowing protection for junior doctors.

For judgments, letters and to view media coverage relating to the case visitwww.54000doctors.org

On the question of whether HEE is an ERA s43k employment agency of junior doctors and whether a junior doctor's career is protected by whistleblowing law?

Lord Justice Elias states in his order in respect to our arguments,

“This is a matter of some importance. The Grounds raised in the appeal are clearly arguable.”

To view the full order visit:

http://www.54000doctors.org/judgments/order-made-by-the-rt-hon-lord-justice-elias.html

We have been granted leave by the Court of Appeal

Oct. 10, 2016

We have been granted leave by the Court of Appeal to appeal a decision of the Employment Appeal Tribunal that pushed the careers of 54,000 doctors outside of statutory whistleblowing protection.

Our application for leave as been met with considerable resistance from the NHS and has not been supported by the BMA.

Our letter exchange with HEE in respect to our application to the Court of Appeal can be found at;http://www.54000doctors.org/letters/letter-to-hees-lawyers-informing-them-that-we-have-won-leave-from-the-court-of-appeal.html

https://www.crowdjustice.org/case/junior-doctors-round-2/

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