Major Law Firm Faces Court Over Withheld Contracts in Landmark NHS Whistleblowing Case
A judge has called for full disclosure in a case which deprived 50,000 NHS doctors of legal whistleblowing protection
A law firm that routinely advises health service bosses faces claims it withheld evidence in a landmark NHS whistleblowing case.
A judge has called for full evidence disclosure to assess claims that healthcare specialist firm Hill Dickinson acted fraudulently in a dispute over a lack of legal protection for NHS doctors in whistleblowing claims.
The firm will now have to account for its actions in litigation that saw more than 50,000 doctors below consultant level in England deprived of legal whistleblowing protections, according to the junior medic at the centre of it, Chris Day (37). The case also had implications for 865,000 agency workers across other sectors – including construction.
Had contracts drafted by the firm been revealed earlier in the litigation, MPs have also argued, it may have saved the taxpayer hundreds of thousands of pounds.
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When aged just 29, Day saw his training number deleted – allegedly in retaliation for having reported dangers to patient safety at an Intensive Care ward in South London. He had flagged understaffing that was linked to two patient deaths at Lewisham and Greenwich NHS Trust in 2013.
Megan Smith, a consultant anesthetist, said of the staffing levels Day had reported at a tribunal hearing last year: “There was a clear and present danger to patient safety: no doubt about that.”
But, when HEE successfully argued it had no liability in the case as an employer of medics in training, his legal battle developed into a lightning-rod case for junior doctors in the NHS at a time of historic industrial action.
Day, who still works as a locum A&E doctor, told The Guardian that he and his young family had been “ left to fight alone for whistleblowing protection for all junior doctors and their patients. It’s all been on our shoulders.”
At least two MPs have argued this four-year ordeal could have been saved had Hill Dickinson disclosed key contracts it had been paid public money to draft for its client, HEE.
Last month, an employment judge suggested that blame for withholding these contracts in the high-profile case potentially lies with the healthcare specialist firm and with HEE.
As of 2018, more than £700,000 had been spent by NHS bodies defending the case brought by Day. Overall costs are currently thought to stand at around £1 million.
Judge Gary Self said in his decision that “it is arguable that…Hill Dickinson’s conduct could be impugned to such an extent that there was a misrepresentation/fraud”.
Self found that the disputed settlement agreement that brought Day’s whistleblowing case to a premature conclusion in 2018 may also “fall away” if “misrepresentation/fraud” is proved over the lawyers’ failure to disclose the contracts.
He also said that “it is arguable that documents that should have been before” another employment judge who ruled on Day’s case were not handed over to the court, adding: “It is arguable that the fault lay with HEE or it is arguable that some culpability lay with Hill Dickinson.”
The judge said that it was “arguable that had the full picture been known at the time the settlement” was agreed by Day, he “would have declined to enter into it and sought other terms/outcomes”.
Self said he was “quite satisfied that all those matters need to be scrutinised following appropriate disclosure and evidence”.
The “Learning and Development Agreement” (LDA) contracts for junior doctors, which had been drafted by Hill Dickinson, set out the training and employment terms imposed on NHS trusts by HEE.
Creating years of wrangling in appeal courts, HEE successfully argued it could not be considered the legal employer of junior doctors and therefore not liable for Day’s whistleblowing claims.
The commissioning contracts drafted by Hill Dickinson were not disclosed at any point during the litigation. This lack of disclosure allowed the agency to argue it could not be considered the legal employer of junior doctors – a position that Court of Appeal judges overturned in 2017. The contracts were eventually obtained through FOI requests in 2019.
Ex-shadow health minister, Justin Madders, has said in the House of Commons that the firm’s legal arguments “resulted in a lengthy and wholly unnecessary legal battle where HEE was effectively seeking to remove around 54,000 doctors out of whistleblowing protections by claiming that they were not their employer”.
“Four years and hundreds of thousands of pounds later, they eventually backed down and accepted they should be considered an employer after all.”
Former health minister and current chair of a neighbouring NHS trust, Norman Lamb, said that the LDA contract “was drafted by the very law firm which was making loads of money out of defending the case against Chris Day”. “When I raise this with Health Education England, they won’t give me a proper response because they say the case is at an end,” he told Madders and other MPs.
“Does he agree that this is totally unacceptable and that it smacks of unethical behaviour for the law firm to make money out of not disclosing a contract that they drafted themselves?”
The Solicitors Regulation Authority – the watchdog for solicitors in England and Wales – investigated Day’s claims of professional misconduct against Hill Dickinson, but found in 2021 that there was no case to answer.
The SRA wrote to Day in December 2020, telling him it had interviewed no individuals at the firm during the course of its probe. A spokesperson for the SRA said: “We welcome reports from whistle-blowers and will always take allegations of misconduct about solicitors seriously. With regards to this matter, we looked at all the available information and decided to close the matter with no further action. If further information is made available, we can look again at the issues.”
When asked whether it interviewed any solicitors or other individuals connected with Hill Dickinson at any point during its investigation, the SRA declined to comment. HEE told Byline Times it is “not party to this current action”. Hill Dickinson declined to comment.