“It was not about rogue staff or a rogue hospital. It was about a rogue system.”
But what is a rogue system? How does it tick? Who drives it? How does it kill more people in a single week than Ted Bundy murdered in a lifetime, and somehow it’s never held accountable?
These questions are incredibly important in NHS intensive care units, where the lives of every single patient hang literally by a thread.
ICU is where relatively young fit patients are kept alive by ventilators and dialysis machines until their bodies recover from massive trauma or overwhelming sepsis.
ICU is where rogue systems can repeatedly mean the difference between life and death. That’s why we can’t ignore Dr Chris Day’s whistleblowing battle against the ‘Rogue’ NHS.
In 2013/14, Dr Day made eight protected disclosures over several months to Lewisham & Greenwich NHS Trust regarding poor staffing and lack of supervision in their Intensive Care System.
Instead of investing in more staff, the NHS Trust spent hundreds of thousands of pounds doing everything possible to obstruct learning from Dr Day’s warnings. 'But what is a rogue system? How does it tick? Who drives it? How does it kill more people in a single week than Ted Bundy murdered in a lifetime, and somehow it’s never held accountable?' Click To Tweet
For almost 10 years, Lewisham & Greenwhich NHS Trust has refused to learn. During that time, Dr Day has won support from significant individuals such as Sir Robert Francis QC, Professor Allyson Pollock, Sir Norman Lamb, and even from Jeremy Hunt MP, the former Secretary of State for Health. The British Medical Association has also decided to throw its weight behind Dr Day.
This month, Dr Day’s case makes its final appearance before a judge – we have one last chance to deal with this textbook rogue system.
How did we get here?
Dr Day has fought multiple legal battles with both Lewisham & Greenwich NHS Trust and the British Government since his patient safety disclosures. Some of those battles are detailed in my blog here, but in short – after sacrificing his career and seeming to be on the brink of a significant legal victory – Dr Day suddenly withdrew his legal action under mysterious circumstances in 2018.
The settlement agreement basically said Dr Day had done a public service, everybody had probably acted in good faith, and no further action would be taken – even though Dr Day had spent the previous 5 years alleging he’d lost his career after reporting serious patient safety concerns, and the “rogue system” had done everything possible to undermine his credibility.
Many informed observers suspected that Dr Day had been threatened with legal costs, but Dr Day was refusing to say anything (we assumed there was a gagging clause in the agreement) and that seemed to be the end of the story.'Many informed observers suspected that Dr Day had been threatened with legal costs, but Dr Day was refusing to say anything (we assumed there was a gagging clause in the agreement) and that seemed to be the end of the story.' Click To Tweet
Except Lewisham & Greenwich NHS Trust then showed how incredibly stupid (or arrogant?) the Rogue NHS can be – they decided to tell a journalist that they hadn’t threatened Dr Day with costs. Which freed Dr Day to provide his version of what happened:
Yes, you understood Dr Day correctly: The NHS Trust waited until Dr Day was on the witness stand, battered him for a couple of days with two QC barristers, then threatened him with costs while he was giving evidence, and also threatened Dr Day with a referral to the GMC and threatened Dr Day’s solicitor with a referral to the Solicitors Regulation Authority. This is how the ‘Rogue’ NHS responds to a doctor raising serious concerns about patient safety.
This obviously wasn’t a good look for Lewisham & Greenwich NHS Trust’s senior management, because they were being paid by the public to provide patient care, not threaten doctors who raise legitimate patient safety concerns – so its initial response was to double down and deny very publicly any threats.'The Trust were being paid by the public to provide patient care, not threaten doctors who raise legitimate patient safety concerns.' Click To Tweet
Then suddenly, the NHS Trust admitted it had threatened Dr Day but it went further – it justified its threats to Dr Day by implying that he might have been acting dishonestly when he raised patient safety concerns. Textbook rogue.
For anybody thinking the Rogue NHS was getting very stupid, it’s about to get a whole lot stupider.
After paying hundreds of thousands of pounds (taxpayers’ money) to very expensive lawyers to shut down Dr Day’s case, Lewisham & Greenwich NHS Trust re-opened the case itself by going on the offensive and making public statements which undermined Dr Day’s disclosures about systemic ICU failings. The Trust gave the impression he had only raised concerns about staffing on medical wards on one night in January 2014:
Lewisham & Greenwich also wrote to 18 public officials, including MPs, assuring them that external investigators and a Quality Visit by the Healthcare Deanery had found that Dr Day’s concerns had been properly dealt with. Both simply untrue. The external investigation by MJ Roddis Associates was seriously flawed (we’ll talk more about that later), but even Roddis raised the following criticisms against the conduct of the NHS Trust:
Upto this point, Dr Day had been circumspect about disclosing what had actually happened in Lewisham & Greenwich’s Intensive Care Unit. Perhaps he had been advised to “follow the rules” by his legal team, but by now we were all beginning to suspect that the rogue system had made the rules. So he started speaking up very publicly about what had happened.
The first thing we all found out was that this wasn’t about one busy night on the medical wards. In fact, Dr Day had repeatedly raised serious patient safety concerns over a number of months with senior staff at Lewisham & Greenwich:
- phone call and email on 29 August 2013 that, inter alia, doctor/patient ratios and medical supervision was inadequate and a risk to patients at Woolwich ICU;
- 3 September 2013 that, inter alia, doctor/patient ratios and medical supervision were inadequate and a risk to patients at Woolwich ICU;
- phone call and email on 10 January 2014, that, inter alia, the Trust’s arrangements at Woolwich hospital for that night were putting patient safety at risk;
- email on 14 January 2014 that managers were providing false information and failing to investigate and deal with patient safety issues at Woolwich ICU;
- email on 14 January 2014 about attempts to create confusion about the patient safety issues he raised and present what had actually happened as a consequence of his competence rather than a matter of patient safety;
- 21 January 2014 that the Trust was failing to investigate and deal with patient safety issues at Woolwich ICU;
- email on 29 April 2014 to complain about the level of risk patients and the Claimant were exposed to, giving false information and attempts to confuse and discredit the safety concerns the Claimant had raised.
The other thing we found out was that Lewisham & Greenwich’s senior supervision of these complex sick patients was shockingly dangerous: I mean, how did they allow an unsupervised trainee doctor to insert a chest drain into a patient’s liver? 'The other thing we found out was that Lewisham's senior supervision of these complex sick patients was shockingly dangerous. I mean, how did they allow an unsupervised trainee doctor to insert a chest drain into a patient's liver?' Click To Tweet
How does the Rogue NHS make itself “accountable”?
So the question arises: What does the rogue system do when it’s challenged? The answer is: It finds an external investigator like MJ Roddis Associates.
MJ Roddis Associates is a very special firm which is funded by the taxpayer to perform some very special activities for NHS corporate execs.
It helps healthcare managers to “modify doctors behaviour” and “plan their futures”. It ensures that “fresh problem people do not emerge from amongst its staff”.
It appears that Dr Roddis investigated the case of Dr David Sellu (wrongly scapegoated and sent to Belmarsh Prison after a patient died following systemic failings in a private hospital). More recently, Claire McLaughlan – who works for MJ Roddis Associates – is investigating the case of the prominent NHS whistleblower Dr Prasad.
Are Dr Day and Dr Prasad and other NHS whistleblowers the sort of “problem people” that MJ Roddis Associates investigates? 'Are Dr Day, Dr Prasad and other NHS whistleblowers the sort of 'problem people' that MJ Roddis Associates investigates?' Click To Tweet
Incredibly, Lewisham & Greenwich NHS Trust paid Roddis Associates £12,000 to sit in the public gallery during Dr Day’s Employment Tribunal hearing. Now that’s the definition of “rogue system” for you.
Dr Day says that Roddis Associates were informed that an unsupervised ICU junior doctor put a chest drain into a patient’s liver, and Roddis Associates decided not to put that into their report.
Dr Day also alleges that MJ Roddis Associates misrepresented Dr Day’s evidence until they realised he had an audio recording of his conversation with them. It gets even worse than that. From Dr Day’s evidence, it appears that MJ Roddis Associates’s investigation provided false statements exonerating the rogue system.
For instance, one of Dr Day’s concerns was that the ICU department didn’t always have staff with “airways management” skills available.
This was a serious issue because Intensive Care is full of intubated ventilated patients. It’s a bit like having a surgical department with nobody who can deal with a bleeding patient.
Dr Day says that Roddis Associates falsely claimed that airways management was immediately available. 'From Dr Day's evidence, it appears that MJ Roddis Associates's investigation provided false statements exonerating the rogue system.' Click To Tweet
Apparently, Roddis Associates also falsely told Lewisham & Greenwich NHS Trust that a recent Quality Visit by Health Education England had found no problems with staffing and supervision.
In fact, junior doctors told HEE they felt stretched, bullied and undermined by senior doctors, and said very often there was nobody available for immediate help with airway management.
Worse still, Roddis Associates apparently decided it was safe for Dr Day to be single-handedly looking after 18 ICU beds, seeing sick patients on other wards, and admitting very sick patients in A&E.
It’s not clear if Roddis Associates were ignorant or deceitful, but national Core ICU standards stipulate that there should be one doctor per 8 ICU patients.
Ideally that doctor should stay with his very sick highly vulnerable 8 ICU patients – not be running around the medical wards and A&E department.
So who regulates the rogue system?
For a rogue system to operate effectively, it needs a regulator which is weak and ideally co-opted. In patient safety cases, this has required co-optation of both legal regulators (because NHS Trusts can’t get away with causing widespread patient harm unless they have dodgy legal representation) and medical regulators.
The role of the Solictors Regulation Authority in this case has been raised by Sir Norman Lamb himself. However, what about the Care Quality Commission?
The CQC is supposed to make sure health and social care services provide people with safe, effective, compassionate, high-quality care and encourage care services to improve.
Most recently, the CQC was rating Shrewsbury & Telford as “good” even while hundreds of babies were dying potentially avoidable deaths. It fell to brave parents to force an investigation.
Even the rogue NHS couldn’t threaten bereaved parents with legal costs or refer them to the GMC. But what kind of regulator requires parents of hundreds of dead babies to go directly to the Health Secretary to order an investigation? 'What kind of regulator forces parents of hundreds of dead babies to go directly to the Health Secretary to order an investigation?' Click To Tweet
Ultimately of course it’s British judges who regulate the rogue system, and perhaps the biggest question is: Who regulates the judges? Our constitutional system says that judges must be independent, and one of the less satisfactory results of judicial independence is that judges can’t be formally disciplined if they make bad, stupid or unjust decisions. There is a sort of “explanatory accountability” but even this fails at Employment Tribunals because legal proceedings in the ET aren’t recorded.
Two times, Dr Day’s case has been dealt mortal blows by judges. Firstly, an ET judge threw out Dr Day’s case against Health Education England after wrongly deciding HEE had nothing to do with Dr Day’s employment – thus depriving 54,000 junior doctors of whistleblowing protection against the organisation which controlled their careers. Dr Day had to fight all the way to the Court of Appeal to overturn that ghastly decision.
Secondly, a senior Lady Justice gave Dr Day permission to take his case to the Court of Appeal, and then – after it became increasingly clear that his arguments called into question the conduct of senior QC barristers – she suddenly realised that her permission had been a “clerical error” – revoking her own order, and preventing Dr Day’s legal case from proceeding.
Lewisham & Greenwich NHS Trust are now seeking to prevent evidence from two senior NHS anaesthetics consultants being heard in their final legal battle with Dr Day. Let’s see what this judge decides. 'Judges have twice made extraordinary decisions to close down Dr Day's battle for patient safety. Now Lewisham NHS are seeking to ban evidence from senior consultants about how dangerous they were. Let's see what this judge decides.' Click To Tweet