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Update on £700K to Crush a Junior Doctor - Don't Let Them Get Away With It
 

Dear Supporter,


Yesterday, I went against 3 Queen’s Council (QC) barristers at an employment tribunal preliminary hearing – 3QCs doesn’t happen every day at a Preliminary Hearing..


It is scandalous that the £310k raised by this crowdfund, raised by your amazing generosity, has been exhausted fighting the legal games of NHS lawyers rather than dealing with the actual whistleblowing disclosures that I made back in 2013-14.


The NHS’ law firms Capsticks and Hill Dickinson have been paid £700k and now probably closer to a million pounds to make this case about everything other than the serious safety issues that I raised.


That said, yesterday, I felt we were treated fairly. Both the Trust and Health Education England have new QCs that seemed to want to keep the case focused on the key issues.  


Yesterday in the Tribunal, we made some significant progress on getting some of this case finally resolved.


Unfortunately, even if we win it will not lead to any compensation for my career loss for me and my family because of the outrageous settlement agreement that I felt forced to sign in October 2018. This video explains more about that.


The good news is that we made progress on the following;


1. A Final and Public Hearing

A 15 day public hearing was listed for 1 March 2020.


2. Status of my whistleblowing disclosures finally accepted by HEE (after 6 years)

Yesterday in court, after 6 years of fighting, Health Education England finally accepted that I made statutory qualifying protected (whistleblowing) disclosures for the purpose of whistleblowing law. This now means HEE have finally accepted either or both of the following;


a) My disclosures contained information tending to show a reasonable belief that the health and safety of NHS patients has been, is being or is likely to be endangered for the purpose of Employment Rights Act Section 43 1(d)


Or


b) My disclosures contained information tending to show a reasonable belief that safety issues have been, are being or are likely to have been deliberately concealed. (ERA s43 1(f)


HEE’s QC confirmed that HEE will clarify which of the above it is within 28 days as it is possible to accept that both categories apply to my disclosures. The big question here is why it has taken HEE 6 years and a huge amount of public money to get to this point.

This is the letter that I sent 2 days before the hearing giving my position on the protected disclosures. Please forgive the typos in the letter – I have had a lot of paper work to do over the last few days!



3. My Skeleton Argument in support of Wasted Costs Passed to Regional Employment Judge

I am committed to recovering the money in wasted costs for the crowdfund spent winning back whistleblowing protection for junior doctors. This money can only be spent on my legal fees and any excess can be given to other Crowdjustice cases. If successful it is unlikely to come in time for the final hearing in March 2021. My skeleton argument on the wasted costs application centred on how junior doctors were argued out of whistleblowing protection by hiding evidence. This has been passed to the Regional Employment Judge to consider. (Details of the issues are set out in the letter from former health minister and lawyer, Sir Norman Lamb and the Journalist Tommy Greene to the legal regulator)



4. Application to Amend Pleadings Succeeded

I succeeded in my application to amend my tribunal pleadings  (document that says what I formally say the case is about) to include the following new evidence. The key new additions are below which I think are important.


  • The Record of the Trust Board Meeting that Approved Settlement in October 2018


“On 15 July 2020 the Claimant was copied into the following email that was sent to the Solicitor Regulation Authority from the Journalist Tommy Greene; 

 

“Attached to the forwarded email is a response to a Freedom of Information request by Lewisham and Greenwich Trust. It is a fairly straight forward request, asking for the details of a trust board meeting that took place in October 2018. It has been stated in open tribunal that at this board meeting the controversial settlement agreement in Dr Day's whistleblowing case was approved by the trust's board. 

I believe the SRA and Dr Day should both seek the records of this conference, as my FOI request and all questions I have put to the trust board secretary on this matter have been met with the same response - they have declined to answer any questions on the meeting (which have been put to them several times) and now claim no records of the meeting can be provided as they say it took the form of a 'confidential teleconference'. Trusts can be referred to the Secretary of State for failing to keep records of their meetings - particularly ones that deal with matters of such public interest as this one - and for failing to disclose them.”


This now means the Trust has to disclose this document. I personally think it is unacceptable this document was not disclosed in the application to set aside the settlement that was considered by the Employment Tribunal, Employment Appeal Tribunal and Court of Appeal but chucked out. This video explains more about my view on this process.


  • Evidence from the Care Quality Commission


The NHS Whistleblowing expert, Sir Robert Francis QC, wrote to the Care Quality Commission to express concerns about the First Respondent’s public statements in the Claimant’s case. A letter from the Care Quality Commission to Sir Robert Francis dated 29 May 2019 that Sir Robert Forwarded to the Claimant states;

We share your concerns about the content and tone of the publicly available statements on the Trust's website and having taken up the concerns with the Trust, they have advised that they have sought the advice of their lawyers and they intend to keep the statements on the Trust website.


The Claimant applies to add as a detriment the First Respondent’s deliberate failure to remove false and misleading statements from their website despite concerns being expressed by the healthcare regulator the Care Quality Commission. The reasons for the statements being false are set out in the Claimant’s Grounds of Claim (ET1) and not repeated here.”


Conclusion

I have been challenged by several people stating the case is too important to have me doing it on my own. 

I genuinely feel uncomfortable about more crowdfunding for the 15 day hearing so I intend to represent myself but this would change if my crowdfunders felt differently. This is the link to the crowdfund.

Thank you again for your support on Crowdjustice and beyond.


Best wishes


Dr Chris Day








 
 
 
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