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HE NHS will always need whistleblowers. Healthcare is complex, rapidly changing and dangerous; staff are fallible, variably trained and widely spaced; and demands are huge and resources limited. No matter how much is spent on regulation and risk management, shit will always happen – mistakes, incompetence, inhumane treatment and corruption. But the same shit doesn’t need to keep on happening. If it’s picked up and acted on, many lives and much money can be saved. If staff, patients and carers are encouraged to speak up, you can even stop mistakes in their tracks before harm is done. As this special report highlights, however, the shocking treatment of NHS whistleblowers persists as the body that is trusted to care for us from cradle to grave systematically covers up scandals, crushes dissent and kills patients unnecessarily…
Dr Kim Holt, Baby P and
Great Ormond Street
Hospital
AFTER finally issuing an apology to whistleblower Dr Kim Holt last month, Great Ormond Street Hospital (GOSH – a foundation trust-in-waiting) and its Teflon-coated CEO Dr Jane Collins were doubtless hoping to draw a line under Baby P. But Lynne Featherstone MP is now calling for an investigation into Collins’ actions in withholding vital information – the Sibert report – from the original serious case review into the death of baby Peter Connelly. Collins says this was on legal advice and her board is backing her. The hospital has friends in high places: Ivan Cameron, the prime minister’s severely disabled son, was treated at GOSH; and its charity is wooing Samantha Cameron as a patron. Collins, who removed herself from the General Medical Council (GMC) register and can’t be referred over Baby P’s death, has survived persistent calls for a public inquiry and a vote of no-confidence from 50 consultants last year. But she needs to be held accountable for the audit trail of suppression that has protected one of Britain’s most cherished hospitals and deflected the blame for Baby P’s death disproportionately on to sub- standard social services and one under- qualified consultant, Dr Sabah Al-Zayyat, who missed the child abuse. Peter Connelly was found dead in his cot on 3 August 2007. In January 2008, Dr Collins
commissioned a report, written by Professor Jo Sibert and Dr Deborah Hodes, two renowned paediatricians, entitled Review of Child Protection Practice of Dr Sabah Al-Zayyat. Normally NHS trusts “own” these expert reports and can publish the favourable bits and miss out the bad bits, but you are expected to come clean for a serious case review. Collins didn’t. The Sibert report exposes serious failings in the management at St Ann’s child development clinic in Haringey, where GOSH employed the clinical staff: “Dr Sukanta Banerjee (a consultant) told us the state of affairs at St Ann’s was a ‘clinically risky situation’. We agree with her and we believe the present arrangements for seeing child protection cases at St Ann’s cause grave concern. In particular, the lack of consultant staff.” But GOSH already knew this. In 2003, it paid and gagged Professor Sam Lingham, who was then running the child development clinic single-handed. GOSH then hired four new consultants, who found the working environment very unsafe. They wrote a letter in 2006 highlighting their concerns about a “lack of unified records”, “missing records” and “no child protection follow-up”. To make safe decisions on the risk of child abuse, accurate and comprehensive notes are essential. Two of the consultants left. Kim Holt was put on special leave, having already written to management about the dangerous and poorly functioning clinic. So GOSH hired Sabah Al-Zayyat into a consultant post that required two years’ child protection training. Dr Al-Zayyat’s CV made clear she had none. She was also to do a very difficult job with no notes. By the time Baby P presented at the clinic, he had already been to A&E three times previously, as the notes would have made clear. At nine months, Peter had been admitted to the paediatric ward at the Whittington hospital
with an unexplained haematoma. The hospital noticed bruising on Peter’s head, cheek and buttock describing it as classic non-accidental injury. At the time, Peter’s mother provided a variety of different explanations for the injury. At 13 months old, Peter arrived at A&E at North Middlesex University Hospital after a head injury. The CT scan was normal but Peter had bruising and scratching on his face, and his mother provided two different explanations for the injuries. At 16 months Baby P again presented at A&E, this time with a rash on his scalp, itchy left ear discharge and swelling in the ear lobe. He also had bloody scabs on his infected scalp, itchy hives and head lice. His mother again gave two different versions of events, blaming it on an “allergic reaction to Red Leicester cheese”. A diagnosis of child abuse had already been made, but Dr Al- Zayyat knew nothing of this. The Sibert report makes it clear three times in bold that “ This information was not in the St Ann’s notes.” This was hardly what Collins wanted to hear, as she could no longer blame Baby P’s death on one doctor – who made serious clinical errors - when there was also a convincing written audit trail implicating GOSH and her leadership. So what did Collins do? She tried to manage the problem. Immediately after Baby P’s death, Kim Holt was offered a year’s salary in November 2007 to leave. In December 2008, when Baby P’s death had become a tabloid sensation, Dr Holt was offered £120,000 to sign a compromise agreement with a “super- gag” clause. But there was one catch. Lawyers for Great Ormond Street, Beachcroft, wrote to Dr Holt claiming: “Our client is not aware that Dr Holt has ever raised concerns over the management of child protection issues.” This one sentence sought to rewrite the audit trail and ensure GOSH could escape blame. The offer of £120,000 was then made expressly
Shoot the
MeSSenger
‘If our concerns
had been taken
seriously at the
time we raised
them, we could
have prevented
the death of Baby
Peter’ Whistleblower Dr Kim Holt
A Private Eye Special by Dr Phil Hammond and Andrew Bousfield
How NHS whistleblowers are silenced and sacked
subject to these allegations being withdrawn. Kim Holt bravely refused. GOSH also failed to tell the Treasury that the £120,000 pay-off, at taxpayers’ expense, would be tied to a silencing agreement. Faced with Dr Holt sticking to her principles, the strategic health authority sprang into action. NHS London spent £103,000 on a report from a firm of solicitors, which appears to exonerate NHS managers. GOSH spent £286,797.41 on Verita management consultants who also seemed to find no fault with management (and did not even interview the four consultants who signed the 2006 letter). Dr Holt, meanwhile, remained on special leave at a cost of £95,000 a year, and GOSH had spent £82,218 on legal advice to date in her case. All of this is taxpayers’ money. No manager has faced any sanction as a result of their failings in running the child protection clinic. And what of the Care Quality Commission? In February 2009 Dr Holt sent it the letter written by all four consultants, and her letter to Cyril Chantler, GOSH chairman, and Jane Collins from November 2006. In May 2009, the CQC responded by releasing a report in which the problems at the child protection clinic were all put down to “communication”. No blame was levelled at any manager and the whistleblowing letter of the four paediatric consultants was ignored. When Dr Holt contacted the CQC to make it aware of previous whistleblowing disclosures, she was told that the CQC had considered her information. However, recently the CQC has “lost” all communications with Great Ormond Street and has said that the any information may have been used for “horizon scanning” or to contact people with concerns. Were people contacted? Not that the Eye could ascertain. And certainly not the Camerons. They think GOSH is absolutely marvellous. As The Lancet observed: “If GOSH’s management team had been in Wigan they would be gone by now.” In the meantime, health secretary Andrew Lansley has persistently refused to meet Dr Holt and has resisted calls for a public inquiry. Someone at GOSH has been protected; but it certainly wasn’t Peter Connelly.
Gagging for it
PUBLIC money should never be used to suppress information that’s in the public interest. There are several doctors at GOSH who’ve been gagged and who can’t now speak about their safety concerns. Indeed, it’s hard to think of a situation when it can ever be acceptable to gag an NHS employee. And yet 13 years after gagging was outlawed by the public interest disclosure act (PIDA), a Channel 4 investigation revealed that 55 of the 64 NHS compromise agreements it sampled had gagging clauses. In some cases they prevent the doctor making derogatory statements about the NHS and/or telling anyone but close family that he or she has signed the agreement. The doctor or nurse cannot even tell anyone else about the existence of their super-gag. It’s a brilliant way to bury bad news. Gagging clauses can apply to whistleblowers,
whatever their rank, and to incompetent staff who’ve been paid to move on. Either way, safety concerns are hidden and there’s no guarantee lessons are learned or that harm will be prevented. In November 2009 the Information Commissioner forced Liverpool Women’s NHS Foundation Trust to give details of compromise agreements and their cost to the public purse. Thirteen members of staff had signed agreements at value of £440,000, all containing “gagging” clauses. Of those 13 silenced members of staff, four were specifically prohibited from making any contact with the media about any NHS matter. One senior consultant was threatened with a court injunction to prevent him from expressing his concerns to an MP. All in a single hospital. Using this decision, the Eye asked all NHS trusts to provide us with the number and value of compromise agreements. More than 40 NHS organisations refused to provide the information. The arguments for exemption were many and varied: the information “would prejudice the effective conduct of the trust’s public affairs”; “the dissemination of the information was highly restricted”; and “individuals may be subject to inquiry, comment or criticism”. Dudley NHS Foundation Trust wanted £10,412.50 to provide the information; and University Hospital Leicester argued that we couldn’t even publish its reasons for refusal. To pay off and silence a doctor, a trust needs central government approval. We asked the foundation trust regulator, Monitor, for the pay-off approval forms but it said it had passed them on to the Treasury and not kept copies. The Treasury couldn’t help as it said the forms were not stored. The Eye then enlisted the help of Stephen Barclay MP of the public accounts committee (PAC). He raised the issue on the floor of the House but was brushed off. He also asked for details of foundation trust pay-offs three times at sessions of the PAC, and only got an answer when the chairperson, Margaret Hodge MP, threatened to call all the foundation trust accounting officers to parliament. At that point Sir David Nicholson, the NHS chief executive, graciously produced the figures. As Barclay observed: “In 2005 the PAC made a recommendation that gag clauses on pay-offs be stopped – it’s absolutely clear cut. The Department of Health responded by producing the NHS Circular and praying it in
aid. Yet five years on it’s all still going on. There is a systemic failure.” So despite the public interest disclosure act, the efforts of MPs on the public accounts committee and the DoH circular, NHS managers are still hosing down bad news with taxpayers’ money, silencing whistleblowers, signing deals off with the Treasury and escaping any form of accountability.
Behind the gag
NONE of the NHS trusts would provide names for the staff they had paid off and gagged, or the reasons why. When the Eye contacted Alder Hey Hospital to ask about gagging orders, the answer was very firm: “Alder Hey has never placed gagging orders on any member of staff.” But the Eye already had in its possession the compromise agreement relating to a senior child heart surgeon, Mr Marco Pozzi, and the amount he was paid, namely £156,000. That agreement prevents Mr Pozzi making any adverse or derogatory statement about the trust and communicating with any media. When we put this to the trust, it apologised for the “misunderstanding” but wouldn’t say what it wanted to keep quiet. Marco Pozzi gave evidence to the Bristol Inquiry and became the lead surgeon in children’s heart surgery at Alder Hey. From 2003 to 2008, a freedom of information request reveals, his mortality rate for 80 arterial switch operations was an enviable zero. Not a surgeon one would want to lose. From a local MP, however, we have learned that Mr Pozzi had been instrumental in limiting the practice of an underperforming surgeon and had concerns about
Pay off, shell out, shut up
The Treasury made 2008-09 a bumper year for non-foundation trust pay-offs, approving 192 at a cost of £5,990,504. Foundation trusts now hold the baton with 105 pay-offs worth £2,408,026 so far in 2010-11. The top five FTs for pay-offs are:
South Staffordshire and Shropshire (2010/11) £330, Sherwood Forest hospitals (09/10) £320, Central Manchester University hospitals (10/11) £224, Alder hey Children’s (08/09) £198, University College London hospitals (10/11) £177, For figures for all NHS trusts see www.medicalharm.org.
‘After someone has been killed in a patient safety incident, you
can often see that all the ingredients were in place for a disaster…
It was almost as if the person who died was a “dead patient
walking” as they stepped through the entrance of the hospital.’
Sir Liam Donaldson , former chief medical officer for England, 18 November 2005
Her recommendations have been watered down or ignored to the point that she has openly questioned whether her £21m public inquiry was worth it. But the NHS can get results. Tower Hamlets PCT has worked with whistleblowers and patients to remove the unacceptably bad GPs. Between 2003 and 2010, the careers of 23 GPs were terminated. They include:
A whole practice of three partners and a locum who systematically oversaw the premature death of hundreds of people every year, by passivity, ignorance and neglect.
A GP who was convicted of sexually assaulting a pregnant Somali patient at an ante-natal clinic in his surgery. This GP had asked partners to pray to help him resist “temptation from the devil” but no one had explored his “temptation” further.
A GP who had come to the UK from Nigeria via Bulgaria and Germany who was woefully deficient in all areas of clinical knowledge and practice.
A GP who kept records on patients that were unintelligible, and who failed to act on letters from hospital keeping hundreds of them in a cardboard box under the stairs.
A husband and wife GP practice caring for 11,000 patients so poorly that thousands of them had to be recalled for immunisation checks after it emerged that refrigerators at the practice were totally inadequate. They also employed a “nurse” who was not qualified.
The process of removing dangerous doctors in Tower Hamlets took great effort and cooperation between those raising concerns and those acting on them. It’s a beacon of how patients, clinical staff and managers should work together. But usually the system works against whistleblowers to suppress scandals that might be politically or commercially damaging.
Steve Bolsin and Ash
Pawade
POLITICAL reforms often court disaster. Twenty years ago, the Bristol Royal Infirmary was keen to become a trust hospital under the Tories, just as Mid Staffs wanted to be a foundation trust under Labour and GOSH does under the current coalition. This means balancing the books and burying any scandal. The BRI also wanted the money and status that goes with being a regional centre for cardiac surgery. Unfortunately, it wasn’t very good at it. Stephen Bolsin, a cardiac anaesthetist, was shocked by what he observed after joining the BRI in 1988: “My first indication that something was badly wrong with the technical skill of James Wisheart was the incredibly long time he took to complete cardiac operations in children and adults. This involved long cross clamp times, which is when the heart is starved of oxygen, leading to death, serious heart failure and other major complications after surgery. I had been in my consultant post two months. What could I do?” In fact Bolsin did a huge amount, raising
concerns repeatedly with senior consultants and the trust chief executive, and alerting the Department of Health and national leaders when he was knocked back. He collected figures to show how awful the results were for a whole range of complex child heart operations, supported parents who were fighting for a public inquiry and reported both surgeons and the chief executive to the General Medical Council (GMC). He was a hero; yet the medical and managerial establishments hated him for exposing how dangerous and self-protective they were. It took 19 years from Bolsin’s first concerns for a public inquiry to conclude that a third of the children undergoing surgery prior to 1995 had received “less than adequate care” and that between 30 and 35 had died unnecessarily. The fate of dozens of children who suffered severe brain damage after surgery was largely ignored and some families are still fighting for compensation. The further tragedy of Bristol was that it was avoidable. Had those in authority acted promptly on Bolsin’s concerns, the scandal would never have happened. Many more babies’ lives would have been saved, many children and young adults would be living without brain damage and many more families would still be intact. After the inquiry, parents realised that everyone seemed to know about Bristol but them. The guilt of not protecting your child was too much for some to bear. Marriages split up and two fathers committed suicide. Bolsin, a leading thinker in patient safety, would have been a huge asset to the NHS had he not been ostracised and briefed against. At a European cardiac surgeons meeting, he was described as “the most hated anaesthetist in Europe” and found himself unemployable in the NHS. He left the UK in 1995 to work – very successfully – in Australia. That year Ash Pawade – a brilliant and brave paediatric cardiac surgeon – arrived at the BRI from Australia. He turned the unit around by achieving some of the best results in the UK and then publishing them. But child heart surgery was desperately in need of reorganisation into fewer, larger, better-staffed and equipped units that could expand and train for the future. Pawade was the only child heart surgeon in Bristol for four years, on call 24/7. In 2004, Labour pushed to get waiting times down for adult heart surgery. This led to a severe shortage in Bristol of perfusionists who manage the bypass machines for adults and children. The chief perfusionist circulated an email saying his department would not be able to cope. Pawade supported him, writing to managers to say that children’s lives were at risk. No more perfusionists were appointed. In May 2005, a baby called Abbie Hattam died after an overworked perfusionist made a drug error. Pawade supported his colleague and called the trust managers to account for failing to address the staffing problems and trying to mount a cover-up at the coroner’s inquest into Abbie’s death. He was warned to “stop digging or shit will fly and some of it will stick to you”. The BRI had learned none of the lessons of the heart scandal. Pawade, the hero who had turned round a disastrous service, was ordered to the CEO’s office and asked to apologise for
“impugning the integrity of the trust’s legal team”. Pawade left the NHS shortly afterwards, without any recognition of his extraordinary achievements. Last year the BRI Histopathology Inquiry - triggered by disclosures in the Eye - found a management culture that “veers towards the opposite of what is required... at times defensive, responds aggressively to criticism, is sometimes unwilling to acknowledge, let alone learn from, mistakes, and which is based on overconfidence bordering on arrogance”. It’s as if the Kennedy Inquiry into child heart surgery had never happened. The Bristol disease appears incurable. As for child heart surgery itself, Labour bottled out of safely centralising the units, despite another scandal in Oxford and a report of another 76 “excess deaths” in four small units. Current attempts are being delayed by petty local politics, ego and intransigence. Meanwhile babies continue to be harmed unnecessarily (see Medicine Balls in the last Eye ).
Nicholson and Bower:
asleep at the wheel?
LIKE an angry doctor prescribing the wrong treatment again and again, Labour got annoyed that its vast army of regulators couldn’t stop the scandals. Mid Staffs hit the fan in the fag end of the Labour administration just as Bristol had done for the Tories. Labour blamed the regulators, the regulators blamed each other, the unions and Royal Colleges sat on their hands and the patients just died. According to Bill Moyes, former head of Monitor, the foundation trust regulator, health secretary Alan Johnson tried to prevent the estimated death toll at Mid Staffs being made public. Were it not for the tenacity of Julie Bailey, whose mother Bella had died at Mid Staffs, and her Cure the NHS campaign group, the true extent of the scandal would never have emerged and there would be no public inquiry. Mid Staffs is equally embarrassing for the current coalition because it implicates the two most powerful people in the NHS. Cynthia Bower has been chief executive of the Care Quality Commission since 2008 and was chief executive of NHS West Midlands from 2006 to 2008. Her evidence to the Mid Staffs inquiry has been very revealing. The strategic health authority failed to act on very high death rates at Mid Staffs and other hospitals in the region, and failed to scrutinize complaints from patients or relatives about poor care. Even worse, it commissioned a lame piece of research from Birmingham University to justify not taking action. The CQC under Bower even made Dr Heather Wood – lead investigator for the Mid Staffs scandal – sign a gagging clause when she left office. Dr Wood believes that the CQC in its current form would not spot another Mid Staffs. David Nicholson was also soundly asleep at the wheel. He’s been chief executive of the NHS since 2006 and has continued the culture of centralised, top-down enforcement. In 2003 he was appointed chief executive of
‘The DoH deliberately and systematically suppresses
sound evidence from reliable sources which they would
prefer not to hear… ’
David Hands , professor in health policy and management and former NHS CEO
CUSSED QUARTET From left, Dr Jane Collins, Great Ormond Street’s Teflon-coated chief executive; Cynthia Bower, current boss of the Care Quality Commission and late of NhS West Midlands, who has given evidence to the Mid Staffs inquiry into unacceptably high death rates; David Nicholson, NhS chief executive and former local health boss whose appearance before the Mid Staffs inquiry has been postponed; and Dr Barbara hakin, the Department of health’s director of commissioning, who believes: “You need to meet targets whatever the demand.”
Birmingham and The Black Country SHA and in August 2005 became chief executive of Shropshire and Staffordshire SHA and West Midlands South SHA. Mid Staffs started on his watch and his evidence to the public inquiry is likely to be equally revealing. Or at least it would have been if the DoH hadn’t delayed producing key documents and postponed his appearance. Nicholson has now been appointed – without any apparent competition – as chief executive of the coalition’s new NHS Commissioning Board. The combination of rapid structural reform and impossible efficiency savings is a perfect storm for more scandals, particularly if the same leaders are enforcing the same culture of denial and blame. At Mid Staffs staff have even been blamed for not blowing the whistle. In fact there is evidence that plenty of concerns were raised over a period of years. The problem is that they were not acted upon.
Raj Mattu
IN 1999, managers at University Hospitals Coventry and Warwickshire NHS Trust (UHCW )
- a neighbour of Mid Staffs – came up with a clever policy to hit Labour’s waiting time targets. They decided to stuff five beds into wards designed for four, so three beds had no easy access to suction or oxygen sockets and there was very little space to move between them. In December, a 35-year-old man was admitted to the cardiology ward having arrived at A&E the night before and had a cardiac arrest. Unfortunately he was put in one of the beds with no suction or oxygen supply nearby. With the patient blue and choking, Dr Raj Mattu – a consultant cardiologist and world- renowned researcher – looked down his throat and found a large blood clot. This could have been removed by suction, but there was none available and the crash trolley could not get to the side of the bed. Dr Mattu could not remove the clot as the crash team looked on helplessly. The patient died soon after.
Mattu filled out a clinical incident form, also signed by two of the emergency nurses. There were other alleged deaths implicating the 5-in-4 beds policy, one just three weeks later. Mattu received no response to his clinical incident form and wrote to CEO David Loughton chasing a response. None came. Sixteen months later, 80 clinical incident forms had been filled in by doctors and the trust had still not acknowledged Mattu’s letters. Mattu was twice voted in by his colleagues as clinical director and twice vetoed by management. In September 2001, the Commission for Health Improvement (CHI) visited the site. It issued a damning report, saying the practice of 5-in-4 was “wholly unacceptable” and “must stop and cease immediately”. To add to the trust’s woes, the mortality ratio was higher than even Mid Staffs. Loughton went on local TV and claimed that there had been no deaths he knew of as a result of the “5 in 4 policy”. In consultation with his union, Mattu went on TV a week later and described the death he had witnessed. Loughton then commissioned a secret review of the death from an anaesthetist, Dr Mark Porter, now the BMA’s lead spokesperson on whistleblowing. Dr Porter’s report declared “this is a failing that should not have happened”, but adds: “There are records of medical problems sufficient to conclude that his death may have been unavoidable, or was not avoided by medical management that could have been taken.” The report was a godsend to Loughton. Mattu’s representative, Stephen Campion, was called to an off-the-record meeting with Loughton at a local hotel. At that meeting, Campion claims Loughton said: ‘I’m not interested in giving Dr Mattu a parking ticket, I want him off the road.” Two months later, Mattu was suspended on an allegation of bullying. He remained suspended for six years. Loughton left the trust in 2002. An independent QC was employed by the trust to conduct an internal review at a cost of more than £1m in 2005. He recommended that Mattu be reinstated. After the suspension was finally lifted in 2007, the trust sent more than 200 allegations about Mattu to the GMC.
Every allegation was dismissed by the GMC, but the stress was huge. Finally in November 2010, the hospital sacked Mattu for becoming ill during the process. Mattu suffers with a multisystem autoimmune disease which comprises sarcoidosis, pancreatitis and lung disease, and is known to be exacerbated by stress. The trust had been fully aware of his condition since 1999. Throughout Dr Mattu was offered pay-offs with gag clauses that he courageously refused. The entire episode has cost the trust £5m; it has destroyed the career of one of the finest consultants it ever had; and staff at nearby Mid Staffs were left in no doubt about the dangers of whistleblowing. UHCW told the Eye it had conducted an independent review into deaths from 5-in- wards. However, the trust was unable to provide the name of the reviewer or the text of the independent review. The review therefore remains secret and we have no evidence that it took place. UHCW denied that 200 complaints had been made to the GMC about Dr Mattu but did not provide the real number.
Gary Walker
THE United Lincolnshire Hospitals Trust was in trouble, with seven CEOs between 2000- 2006, each lasting on average only nine months. During that time, seven doctors were on the receiving end of compromise agreements, all with gag clauses. In 2006, the trust appointed Gary Walker, a turnaround chief executive who would stay. One of the first things Walker did was to abolish a middle manager fix which had seen A&E beds being pushed into corridors and cupboards without an oxygen supply to ensure that waiting time targets were achieved. Within two years financial deficits had been paid off and targets were met. In the winter of 2008, the trust experienced a dramatic rise in A&E admissions, sustained for eight months. Clinicians approached Mr Walker about the increased risk of hospital acquired infections
‘Strategic heath authorities and most NHS trust boards
are the hatchet men for the DoH. They operate a policy of
buying the silence of anyone who stands against
government policy.’ Gary Walker , former CEO United Lincoln NHS Trust
from patients’ notes and that the medical cover for patients on a private ward called Nathan House was insufficient. The Eye has seen an unrelated four-page letter from a patient who wrote “to demonstrate a remarkable, disappointing and very alarming drop in the quality of care” at Nathan House. Chemotherapy tablets were allegedly not prescribed; a dose of erythropoietin was lost; a nurse didn’t know where vital equipment was and couldn’t take blood; urine collectors were removed without gloves; a patient was told to swallow a tablet that was meant to be chewed; and a diagnosis of septicaemia was delayed because a thermometer wasn’t working. The trust investigated Dr K’s concerns and found no substance to them. However, it did launch an investigation into his conduct and referred him to the GMC for fraud. Dr K’s BMA rep said the charges were “completely incredulous” ( sic ) but they placed him under enormous stress. The GMC summoned him to an interim orders panel, where he collapsed and died of a brain haemorrhage at the age of 46. When Private Eye contacted the Christie to ask about the concerns on pathology notes and radiotherapy treatment, the trust said a “serious untoward incident” process had been completed, and that a “senior oncologist” investigated the concerns and found no substance to them. The trust was unable to say whether the oncologist was from within the trust, nor to provide any details of the investigation.
Gideon’s libel
IN JULY 2010, the GMC suspended surgeon Gideon Lauffer for six months. He’d previously been banned by Barking, Havering and Redbridge University Hospitals NHS Trust in Essex from carrying out laparoscopic and varicose vein surgery, but neglected to tell three private hospitals because he was too “embarrassed”. The GMC also declared that he operated outside his competence and had failed to tell a patient that he had damaged the man’s left testicle during an inguinal hernia repair. In March 2008 he had failed to tell a patient who was due to undergo a laparoscopic cholecystectomy that he would not be operating on her and that another surgeon would perform the procedure. And although he was not allowed to do laparoscopic surgery, he performed the first stage of the operation by putting the umbilical port into the patient before the other surgeon arrived. A finding of dishonesty normally leads to erasure from the medical register, but the panel decided that his dishonesty was “at the lower end of the spectrum” and took account of evidence that as a surgeon he was “too busy”. Or it could have been because the GMC had known about Lauffer since 2000 and not acted to protect the public, and is now itself too embarrassed to do so. This was the third time Lauffer had been in front of the GMC. The first time, in 2005,
followed the deaths of three patients: Arthur Rogers, 53, from Ilford, in December 1998 after Lauffer allegedly failed to close his oesophagus following a cancer operation; Mohammad Anwar, 61, in July 1999 after his punctured bile duct led to blood poisoning; and another, 41-year-old widow Manjit Dhillon, of Ilford, who needed a transfusion of 27 pints of blood after having her gall bladder removed. The GMC decided that what Mr Lauffer needed was “a performance assessment”. But in 2005, King George Hospital in Essex claimed to have no concerns about his performance and promoted him to clinical director of surgery. In 2008 Lauffer was back in front of the GMC following four deaths, including those of Allan Scamell, 63, who died in September 2007 flowing surgery for a hernia in which Lauffer allegedly sewed his bowel to the wall of his abdomen; and Terry Harris, 68, who died after his bowel was punctured during a routine gall bladder operation. Anne Harris, Terry’s wife, has counted 32 grieving families who lost someone or suffered serious injury following routine surgery with Mr Lauffer. In July 2008 the GMC ordered the interim suspension of Lauffer for 18 months. But could much of this harm have been prevented? Private Eye has learnt from a local MP that in July 1999 Mr F – a courageous gut surgeon who can’t be named – was the audit lead at King George Hospital and wrote to the medical director about the “much higher than expected number of hospital deaths for elective major upper GI [gastro-intestinal] cases... Before this gets out of hand we ought to clarify the situation and see if there is any need for concern.” The letter was headed “Hospital Elective Surgical Deaths”. He got no reply and documents show that Mr F wrote again a month later. He noted that another patient had died “following benign laparoscopic cholecystectomy… as well as the case of elective major gastrectomy who bled and died immediately after the operation”. Within two months, Mr F was facing disciplinary charges for allegedly calling a patient at home. An internal hearing followed and he was summarily dismissed by the trust. Mr F took the trust to an employment tribunal and, three years later, the trust packed the employment court with five lawyers and a barrister at public expense. After two weeks in court, Mr F accepted £200,000 in a compromise agreement and an apology from the trust which accepted he was a good faith whistleblower. His own lawyers swallowed up £125,000 and the agreement, which included a “gagging” clause. Mr F could only talk to his immediate family and could not, directly or indirectly, make any comments about the trust. When the Eye asked for details of compromise agreements from Barking, Havering and Redbridge University Hospitals Trust, Mr F’s agreement was omitted. His concerns, and the record of his gag, remained secret. Mr F has been unable to talk to Private Eye. None of the surgeons recently involved in restricting Lauffer’s practice has heard of the concerns raised back in 1999. Whistleblower Mr F has since found NHS employment hard to come by. Mr F wrote to the GMC about Lauffer in 2000. On one occasion that Lauffer
ended up in front of the GMC, Mr F received a letter from lawyers warning him to remain silent. King George Hospital told the Eye there was “nothing illegal” about gagging clauses and that they no longer held Mr F’s details on file. No one we asked has any idea where Mr Lauffer is working now, who is auditing his work and whether he is safe. The GMC is just hoping it all quietly goes away. Anne Harris will make sure it doesn’t.
Dr Peter Wilmshurst
DR PETER Wilmshurst is the godfather of healthcare whistleblowers. He has taken on corrupt colleagues and the pharmaceutical industry for more than 30 years, and is still holding down a job as consultant cardiologist at Royal Shrewsbury Hospital. He is currently fighting three defamation actions brought by an American medical device company, NMT Medical, which is suing him in the English high court after comments he made at a cardiology meeting in the US in October 2007 were published on an American cardiology website by a Canadian journalist. Neither the website nor the journalist is being sued (see Eyes passim .) Wilmshurst was the principal cardiologist in the MIST trial, which was sponsored by NMT and aimed to see if closing a hole in the heart could reduce migraines. He and another researcher refused to be authors of an article about the trial in the cardiology journal, Circulation. They were concerned that the data submitted was inaccurate and incomplete. After publication, Wilmshurst sent the editor of Circulation hundreds of pages of documents, which led to a long correction, a four-page data supplement and a new version of the paper. Despite that vindication, NMT did not drop the libel action, which has gone on for more than three years. It cost Wilmshurst £100, in legal fees before his lawyers agreed to act on a “no win, no fee” basis. Dealing with thousands of pages of documents has taken up all his free time for the last three years. He works each weekend and during his annual leave. And the case has been very stressful for his family. If he loses, he will be bankrupt and may lose his home. NMT recently went into liquidation so Wilmshurst’s ordeal seems to be over, no thanks to English libel law which does nothing to protect whistleblowers acting in the public interest. But Wilmshurst knows the score. In 1981 he started research on amrinone, a heart drug which did not have the desired actions and had severe side effects. Amrinone’s manufacturer, Sterling-Winthrop, offered Wilmshurst and a colleague money if they did not publish their findings. “When we refused, they threatened legal action if we published. Doctors who were paid consultants for the company, tried to discredit me when I presented our findings at scientific meetings.” Wilmshurst discovered that the company had conducted illegal clinical trials in the UK and had submitted falsified documents for applications to market the drug in other European countries. By publishing his results
‘Criminal sanctions should be enforced against
individuals and NHS bodies for the victimisation of
whistleblowers and the corporate manslaughter of
patients who are harmed as a result of the failure to act.’
Dr Peter Gooderham , academic lawyer and whistleblowing expert
and speaking to regulators in other countries, he was able to prevent amrinone getting a European licence. In 1984 Sterling-Winthrop announced it was withdrawing the drug worldwide because of its unacceptably high rate of life-threatening side effects. However, in 1986 Wilmshurst discovered that it was still selling amrinone over the counter in parts of Africa and Asia. Wilmshurst asked Oxfam to use its representatives in developing countries to collect evidence and the drug was finally withdrawn worldwide. In 1996 Wilmshurst gave a seminar to 40 editors of UK medical journals, highlighting 16 cases of misconduct that were all well known in the medical profession, but in no case had the scientific record been corrected or the guilty punished. He has reported more than 20 doctors to the GMC for research fraud and other forms of misconduct. Usually the wrongdoing was known to individuals in authority for some time but Dr Wilmshurst was the only one to act. He deserves a medal.
Something must be done
WHISTLEBLOWING is bad for your health. Stress-related illnesses, relationship breakdown and financial hardship are very common. Even if you win it can feel like a defeat. Consultant surgeon Ramon Niekrash was suspended from his job at Queen Elizabeth Hospital, Woolwich for 10 weeks after raising concerns about the impact of closing a urology ward was having on patient care. The tribunal found in his favour but left him with £160, legal bills. The trust used taxpayers’ money to pursue its vendetta. All the managers involved
are still employed by the NHS and some have been promoted. The GMC obliges doctors to raise concerns about patient harm or risk being struck off, but it then fails to support them and will even spend years investigating vexatious complaints against those who blow the whistle. Many surveys have found doctors and nurses are still too frightened of repercussions to report concerns about patient safety. The BMA claims to support whistleblowers but the largest portion of compromise agreements with gag clauses are negotiated by... the BMA. Professor David Hands knows why: “Professional bodies frequently collude with managers to define the problem as an employment issue because the sacrifice of one employee (who will shortly no longer be paying subscriptions) is better than losing a cosy relationship with an employer.” NHS whistleblowers are not always right, but are usually genuine in their concerns. They often end up leaving employment while those who suppress their concerns are promoted. Their dedication and altruism are lost forever, and the harm they’ve tried to expose is buried. Lessons are not learned, dangerous care is repeated and thousands of patients die from avoidable harm. America has its own National Whistleblower Centre and offers huge support to whistleblowers. Why? There is good evidence that whistleblowing is more effective than regulatory authorities, saves vast sums of public money and many lives. The UK should follow suit. What’s needed is not just better statutory protection for NHS employees who raise concerns, but statutory enforcement of sanctions for any professional – managerial or clinical – who fails in their duty to investigate
the concerns. And the investigation needs to be truly independent. The NHS needs its own crash investigation team, free from the NHS brotherhood, that goes in fast and dirty in response to poor outcomes, an unexpected death or injury, serious patient complaint or whistleblowing concern, do a thorough analysis and publish it. This was proposed by Dr William Pickering in 1998 and endorsed by the Eye. The CQC cannot be both regulator and inspector. The key Bristol Inquiry reforms must now be enforced to enshrine safety, humanity and transparency at the heart of the NHS. All gagging clauses in public services should be revoked. Junior staff must be properly trained, not left unsupervised and dangerously overworked. Managers must be free to serve patients, not ministers. Patients need to be given an independent voice, not hidden inside the CQC. The NHS needs an Outcomes Board not a Commissioning Board. Above all, patients, relatives and staff must be encouraged to speak up to stop shit happening. Patient harm must be monitored and displayed in real time, like a smoke alarm for the NHS. There are still plenty of brave NHS whistleblowers out there, and they need to be recognised and rewarded. And those in authority must be held to account for ignoring them. Dr Peter Gooderham (see below) had no doubt what needs to be done: “Criminal sanctions should be enforced against individuals and NHS bodies for the victimization of whistleblowers and the corporate manslaughter of patients who are harmed as a result of the failure to act on the whistleblowers’ concerns.” For more whistleblowers’ stories, references and supporting documents go to www.medicalharm.org.
Inflict subtle sanctions beyond legal protection – like cutting secretarial help and teaching budgets, blocking appointments and merit awards, “briefing against” informally. Whistleblowers are said to have “attitude problems” and to be obsessed with historic issues and not prepared to move on. Gather dirt on a whistleblower and inflict reprisals for actual or invented misdemeanours as the “official” reason for action against them. Allegations of mental illness are common and may be self-fulfilling as a whistleblower buckles under the stress. Refuse to disclose documents.
How to skin a whistleblower
PeTeR GOODeRhAM (1965-2011) was an academic lawyer and former doctor who devoted much of his life studying and supporting NhS whistleblowers. Before his death, he worked with the eye to define the methods the NhS uses to shoot the messenger…
‘NHS management is all about reporting up the chain and
making those up the line look good, including politicians.
The organisation has completely forgotten its primary
purpose.’ David Bowles , former NHS trust chair
NHS trusts breach the data protection and freedom of information acts with impunity. Take or threaten reprisals against colleagues who support a whistleblower. Threaten the whistleblower. Dr Peter Brambleby, ex-director of public health for Norwich PCT, was told he might “end up in the woods like David Kelly”. Accuse a whistleblower of not raising concerns early enough. This lays doctors and nurses open to censure by their professional bodies for delay. Claim it’s an employment conflict, argue that the public interest disclosure act does not apply and
suspend the whistleblower. Apply to the Treasury for public money to pay off and gag the whistleblower. Some silencing agreements require whistleblowers to sign statements suggesting all concerns have been addressed even if they haven’t. Threaten whistleblowers and the media with libel suits if concerns that could affect the reputation of a trust are to go public. Rely on the cowardice and apathy of the Department of health. It usually refuses to intervene, saying it’s a local employment matter. Make vexatious complaints to a professional regulatory body. The General Medical Council’s “Duties of a Doctor” guidelines are so vague they allow trusts to concoct dozens of complaints. Throw public money at an employment tribunal (eT). Trade unions rarely give adequate legal support to members, who are usually tribunal novices while NhS trusts are “frequent flyers” with unlimited
public resources. Whistleblowers can be saddled with crippling legal bills even if they win. If the trust loses the ET – or any legal ruling - it can keep appealing, using public money, until the whistleblower is bankrupt. Arrange an “in house” investigation. Often this is a sham instigated by the trust’s own managers who are not impartial. If the press insists on an external investigation, the trust can still organise and pay for it, recruit the panel, agree the terms of reference, hold the inquiry in secret and control how much, if any, of the report reaches the public. Don’t fear public inquiries. They’re belated exercises in grief management that seldom change anything. They occur long after the event, when many of those in the dock have moved on and problems, like whistleblowers, are dismissed as “historical”.
