Campaigning NHS Doctor Wins Second Appeal in his Long-Running Whistleblowing Claims

Chris Day, who raised patient safety concerns linked to two avoidable deaths at a London hospital trust, has been granted an appeal hearing to contest the ruling of an employment tribunal judge.

Day alleges his training number was deleted by the government agency Health Education England when aged 28, he flagged understaffing at Queen Elizabeth Woolwich Hospital’s Intensive Care Unit in 2013. He has embarked on a decade-long legal battle, with HEE and Lewisham and Greenwich Trust thought to have spent upwards of £1m defending the case.

Following a hearing last summer. Judge Anne Martin found that Lewisham and Greenwich had not deliberately concealed evidence, perverted the course of justice nor been in contempt of court, after its then-communications head, David Cocke, destroyed up to 90,000 emails and e-archives while the case was still live.

An appeal court will now hear Day’s bid to challenge this ruling.

It follows a separate decision that a full hearing will take place into claims a leading law firm acted fraudulently for some four years during the litigation between Day and NHS bodies by withholding key contracts on which the high-profile case turned.

Day’s legal campaign attracted national attention when it exposed a government-created ‘gap in the law’, which had the effect of depriving 54,000 junior doctors of statutory whistleblowing protections. This was addressed in a legal ruling on Dr Day’s claims in 2018.

Day, however, believes he has struggled to have his whistleblowing claims taken seriously by the employment tribunal system.

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‘Compromised’ Review

Following the 2022 tribunal case, the trust commissioned KPMG to carry out a review of corporate governance and media strategy.

The review made recommendations on the trust’s whistleblowing policy, record-keeping and how to manage the approval of public statements – which were a key concern of last summer’s tribunal hearing, with Day claiming the trust had issued statements about him that were defamatory.

KPMG’s review also noted that the trust was referred to the Information Commissioner’s Office (ICO) watchdog over “the deliberate destruction of emails” and “absence of corporate knowledge”, alongside other issues. The ICO took no regulatory action.

A spokesperson for the trust told Byline Times that the review cost approximately £23,000, adding: “The full cost of the report was covered by LGT.”

Day, however, believes that the review exercise could not have been independent due to connections between KPMG and a key trust figure at the centre of his case, who he claims has misled an MP and former health minister over the dispute.

Kate Anderson is director of corporate affairs at Lewisham and Greenwich, having moved directly to the trust from KPMG in 2015 and has been the instructing client in Day’s case since 2019.

The trust’s CEO, Ben Travis, wrote to then-MP Norman Lamb in March 2019 to inform him why Anderson had been instructed to carry out a review into the handling of Day’s dispute that dismissed many of the junior doctor’s claims. But the review was never published, nor was an audit trail or the terms of reference.

Travis admitted during last summer’s tribunal that a number of the review’s findings were factually incorrect. He also confirmed that no substantial documentary evidence of the review existed.

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Ex-Minister ‘Misled’

Anderson also authored a crucial trust board meeting note, which recorded the approval of a controversial settlement agreement that brought Day’s case to a premature close in late 2018.

Lewisham and Greenwich withheld records of the extraordinary October 2018 board meeting from Freedom of Information requests – claiming that no minutes or other records of the meeting existed – and from two different tribunal judges before the meeting note was eventually produced during the final days of last summer’s tribunal in July 2022.

Day said: “It was clear to all observing the June hearing that Kate Anderson, as instructing legal client in my case, failed to disclose and denied the existence of a key board meeting note that she authored [and] that approved the contentious settlement of my case.”

“It was also clear from live evidence that Ms Anderson attempted to mislead Norman Lamb in a letter she drafted for the Trust CEO dated 6 March [2019]. The letter reports on a review Ms Anderson conducted into my case in which no documentary evidence was disclosed or indeed apparently exists.

“This review was used to refuse Norman Lamb’s request for a public inquiry.”

Day says that not only her proximity to KPMG but also her previous conduct in respect of his case made the firm an “inappropriate” choice to carry out the review into Lewisham and Greenwich’s handling of his case.

He said: “I am very surprised KPMG conducted the independent review into my whistleblowing case, given the instructing legal client in my case for the Trust, Kate Anderson was a former senior manager at the firm.

“In these circumstances paying public money to KPMG to review my case seems inappropriate for very obvious reasons.”

A spokesperson for the trust told Byline Times that the exercise was carried out by a Midlands team separate to the one Anderson had worked for before joining Lewisham and Greenwich.

“KPMG has provided Lewisham and Greenwich NHS Trust’s internal audit service since its formation in October 2013 having previously worked for Lewisham Healthcare NHS Trust,” the spokesperson said.

“However, the independent review, which was commissioned by the Trust Chair, was carried out by a different KPMG team based in Birmingham to ensure impartiality.”

The spokesperson added: “Kate Anderson joined the Trust in 2015 and continues to be employed as our Chief of Staff. Prior to this, she worked at KPMG as a senior manager in the London Public Sector Audit team.

“Any suggestion that a role she held over eight years might lead to a compromise of this review is completely without merit.”

KPMG declined to comment.