Statement from Lewisham and Greenwich NHS Trust – Dr Chris Day Whistleblowing Case
We employed Dr Chris Day as a junior doctor (Emergency Medicine, Core Training Year 2) at Queen Elizabeth Hospital (QEH), under a fixed-term training contract from August 2013 until August 2014.
Dr Day raised a number of concerns related to a night shift in January 2014, when he was working in the intensive care unit (ICU) at QEH. The concerns were about whether there were enough doctors working on the night shift covering the medical wards. On the night in question, two doctors who had been scheduled to work on the medical wards had failed to come in. As a result, our site manager took action to deal with this unexpected staffing shortage, including arranging for the on-call consultant to come in and provide additional cover.
Dr Day wrote to the Trust Chief Executive in August 2014, just before leaving the Trust at the end of his fixed term contract detailing complaints about how his concerns had been handled. As a result we commissioned an external investigation into all the issues he had raised.
The external investigation found it had been appropriate for Dr Day to raise his concerns and that the Trust had responded in the right way by calling in the on-call consultant to provide additional support. The investigation also found that there was no evidence that there were patient safety issues as a result of what had been an unexpected situation. We wrote to Dr Day to let him know the outcome of the investigation.
In October 2014, Dr Day submitted an Employment Tribunal claim for unfair dismissal and whistleblowing detriment (i.e. treating Dr Day unfairly because he had raised whistleblowing concerns). He submitted a further claim for additional whistleblowing allegations in April 2015. He subsequently withdrew his unfair dismissal claim in 2015.
Dr Day’s claims were also submitted against Health Education England (HEE). Originally, Dr Day’s case against HEE was rejected on the grounds that HEE was not his employer. However, this was overturned after Dr Day appealed the decision. Following this, HEE has worked with the British Medical Association and NHS Employers to ensure whistleblowers can take legal proceedings against HEE for detriment.
The Employment Tribunal hearing for whistleblowing detriment brought by Dr Day commenced on 1 October 2018 against the Trust and HEE. After six days of evidence, Dr Day withdrew his case. The following statement was agreed by all parties:
- “Dr Day blew the whistle by raising patient safety concerns in good faith.
- Dr Day has performed a public service in establishing additional whistleblowing protection for junior doctors.
- The Tribunal is likely to find that both the Trust and HEE acted in good faith towards Dr Day following his whistleblowing and that Dr Day has not been treated detrimentally on the grounds of whistleblowing.
- Dr Day’s claims are dismissed upon withdrawal.”
The claim brought against the Trust was settled on the basis of Dr Day withdrawing his case, the agreed statement (above), and the parties agreeing not to seek any award for legal costs. No financial payment will be made by the Trust as part of the settlement and the settlement is not subject to confidentiality. At the point that Dr Day withdrew his claim, we decided that we should not pursue Dr Day for costs and we have been clear from the outset that the Trust does not want to discourage other colleagues raising matters of concern.
We are pleased that this matter has been resolved for all concerned and that Dr Day accepted that the Tribunal was likely to find that the claims against the Trust would have been dismissed had they not been withdrawn. It is very sad that matters got to this stage. We have always been clear that we did not treat Dr Day unfairly on the grounds of whistleblowing and that we investigated his concerns thoroughly and appropriately.
This process has been stressful for those involved, especially for our staff who had been called to provide evidence. This was exacerbated by the lengthy gap between the claims being made and the hearing, due to related legal proceedings to include HEE in the Employment Tribunal.
Some of this publicity around this case has incorrectly made a link to the findings of a peer review of the critical care unit at QEH undertaken by the South London Critical Care Network in February 2017. This review found a range of concerns, including the number of consultants employed in critical care. It is important to be clear that these were not the same issues that Dr Day had raised in January 2014, which related to junior doctor cover on the medical wards. We responded to the peer review immediately, appointing additional medical and nursing staff and introducing a range of other safety measures. These improvements were noted by a subsequent peer review of critical care at QEH, undertaken by the South London Critical Care Network in February 2018.
However, much of the publicity and social media activity around Dr Day’s case has created a negative impression of the Trust, and this does not reflect how we are fully committed to supporting anyone who raises concerns, or our commitment to continually improving the quality and safety of our services.
Recent work to support staff has included arranging regular staff drop-in sessions, engagement sessions with junior doctors, who are also now supported by a guardian for safe working hours (a senior member of staff who champions safe working hours for junior doctors). We have also appointed Freedom to Speak up Guardians, who are independent from the Trust and provide confidential advice and support. We will continue to review the effectiveness of these routes and to listen to, and act on, the views of our staff.