The British Government, the ICU cover-up and Exercise Cygnus
The story of Dr Day’s protected disclosures about a dangerously understaffed intensive care department has taken on new urgency during the current COVID-19 pandemic. We now know that the Government – specifically an agency reporting directly to Jeremy Hunt– was sweeping Dr Day’s patient safety concerns under the carpet, at the same time as Exercise Cygnus was playing out.
Yes, you understood correctly: The Government’s agency HEE was effectively covering up evidence of understaffed ICU services, at the same time as the Cygnus Reports were informing the Health Secretary that the UK’s ICU capacity was completely inadequate for a likely future pandemic. Paul Nuki has reported that Jeremy Hunt refused to turn off ventilators during the mock pandemic exercise. But the question is – what did the Health Secretary do to address the problem of ICU capacity? 'The Government was effectively covering up evidence of understaffed ICU services, at the same time the Cygnus Reports were informing the Health Secretary that the UK's ICU capacity was completely inadequate for a likely future pandemic.' Click To Tweet
Mr Hunt is now a prime minister in waiting, fashioning himself as a patient safety advocate and pandemic champion. His own department congratulated him for winning a prize in patient safety, and more recently he is leading an inquiry into the Government’s COVID-19 response (no conflict of interest there!). You may want to know what Dr Day is now doing. He lost his ICU career following his patient safety disclosures, and is currently working as a locum A&E doctor in a London NHS Trust which has been overwhelmed by COVID-19.
Don’t take my word for it. This appalling case was discussed by senior MPs in the British House of Commons!
Every whistleblower is special, but Chris Day’s case is very special
Dr Day’s case is not an anomaly – there are numerous NHS professionals (nurses, doctors, radiographers) who have lost their careers after raising concerns about patient safety. However, his story has several features which make it stand out:
- Dr Day’s protected disclosure about ICU shortages took place against the backdrop of the Francis Report, following the Mid-Staffordshire scandal, with Jeremy Hunt promising “culture change” when NHS professionals speak up for patient safety.
- Most NHS whistleblowers suffer detriment only from their NHS Trust, but Dr Day’s detriment was caused by HEE – a national government agency reporting directly to the Health Secretary. In other words, the Government was directly implicated.
- HEE reponded to Dr Day’s legal case by providing misleading evidence to a judge which removed whistleblowing rights from all 54,000 junior doctors in England – putting the safety of millions of patients at risk. Sir Norman Lamb MP called for the law firm representing HEE to be investigated.
- Dr Day’s union – the British Medical Association – first said he had a strong legal case but then withdrew their support weeks before a legal deadline, even though 40,000 of its own members lost whistleblowing protection as a result. Dr Day then singlehandedly won legislative whistleblowing protection for the BMA’s 40,000 members after the BMA refused to represent their employment rights.
- Dr Day suddenly agreed a settlement – without financial compensation – after several days of brutal interrogation by NHS and Government barristers. However, serious questions arose regarding the circumstances of the settlement: His legal team say that threats were made against Dr Day and even against his lawyers, but the NHS and Government said they made no threats and Dr Day settled his case voluntarily.
- Following the Court of Appeal’s initial permission for Dr Day to challenge the settlement agreement on the basis of these conflicting accounts, a senior judge on the Court of Appeal then claimed the permission was a “clerical error” and withdrew permission.
However, that’s not the end of the matter! Even after the Health Secretary and NHS managers did everything possible to undermine Dr Day’s warnings about a dangerous ICU department, aided by a senior judge’s “clerical error”, the Health Secretary’s department and the NHS Trust allegedly continued to cause damage to Dr Day’s reputation by providing misleading information publicly and also privately to a senior Member of Parliament. Dr Day is preparing to wage battle in court with them one more time.
Dr Day is as brave as any whistleblower, but he has proven more resilient than most. He has won the backing of thousands of supporters who have funded multiple legal battles against the Government, forced the BMA to confront weaknesses in the contract it negotiated with the Government, crowdfunded a landmark legal case for another doctor which changed Government policy on medical manslaughter, had his own case widely reported by major newspapers, and been advocated for by senior MPs in Parliament.
He has walked into a conference of NHS chief executives and calmly challenged Jeremy Hunt’s patient safety credentials to his face.
The importance of Chris Day’s case is that if this robust gladiator for patient safety fails in battle with the Government, then it is difficult to imagine any NHS professional speaking up again.
Gosport is a dark warning of what happens when whistleblowing legislation is not fit for purpose. Will Cygnus whistleblowers be uncovered in years to come?
How serious is the UK Government about taking the actions necessary to protect life?
The UK has just been reported to have the highest COVID-19 death rate in the world. This dismal death toll during the COVID-19 pandemic was not an accident, it was not unpredictable. Exercise Cygnus and other pandemic exercises were well-executed plans which gave ample “top-down” organizational data to the Department of Health on how poorly prepared we were. Chris Day – like all whistleblowers – acted like a sentinel on the ground, probing from the “bottom-up” for weaknesses in our national infrastructure.
The Government’s response to his protected disclosure, and their response to Exercise Cygnus, clearly demonstrate that the Department of Health and executives at NHS England were never serious about taking the actions necessary to ensure patient safety, intensive care provision, or pandemic preparedness.