Two clinicians who say they lost their jobs at Berkshire Healthcare NHS Foundation Trust after raising patient safety concerns claim the trust’s legal team brought a five-figure costs threat against them to prevent witnesses from giving evidence in a tribunal.
The threat of costs liability, intended to bring the case to a halt, was made halfway through the hearing – less than 48 hours before witnesses for the trust were due to give evidence.
One of the claims put forward at the tribunal hearing was that the trust had destroyed crucial evidence by deleting the email account of a former staff member.
The clinicians – Samir Lalitcumar and Ahmed Ghedri – brought allegations of poor practice against current and former staff at the trust. Berkshire NHS trust claimed their allegations, including claims that the trust had deleted email evidence, were “without merit”.
A fortnight into the tribunal hearing, both out-of-work medics were threatened with costs liability, known as a “drop-hands offer”, totalling more than £300,000, had they opted to proceed with their case and lost.
Lalitcumar and Ghedri had brought claims of whistleblowing detriment against their former employer, Berkshire Healthcare Trust. They say they were “victimised” and unfairly dismissed as a result of having blown the whistle on dangerous care within the trust’s geriatrics services – potentially affecting upwards of 2,000 patients.
Additionally, they alleged Berkshire Healthcare managers had misled staff over some of the alleged care failings and that there was an inadequate review process within the trust for investigating the handling of their claims.
The trust told Computer Weekly that the claimants’ allegations, including their claims of evidence destruction, were “without merit”.
Their allegations could not be fully tested in court, however, given the doctors’ claim that they were forced to withdraw their allegations in light of the drop-hands offer.
Premature conclusion
Lalitcumar and Ghedri have claimed that an ex-employee’s email account was deleted by the trust – despite it being aware of the developing legal proceedings.
The two physicians maintain that key evidence supporting their claims was contained within the email account, which was deleted in advance of September’s tribunal.
Ghedri alleged that the trust’s human resources lead, Joanne Evans, deleted key emails despite being aware that the electronic communications were likely to form part of upcoming litigation. “Joanne Evans [was] aware of [my] ongoing whistleblowing claim [when she deleted the email account],” he told the tribunal.
It is standard practice, according to NHS Digital, which provides technology for health and care services, for health service staff’s email accounts to be deleted within 90 days of them being left inactive.
Health service guidance on IT governance, however, suggests that it is the trust’s responsibility to retain copies of emails in view of developing or imminent legal proceedings.
A spokesperson for NHS Digital said: “It is the responsibility of individual NHS organisations to ensure they have processes in place to store emails or other documents that may be required in the future. Some NHS trusts use separate email systems, rather than NHSmail, and have their own local policies and procedures in place for these.”
But Lalitcumar argued the health service should have mechanisms in place to prevent such evidence destruction.
He told the tribunal: “How is it that those emails are deleted? NHS Digital should’ve said, ‘We don’t want another Harold Shipman’ [case developing and should have preserved them].”
He and Ghedri alleged that the trust failed to properly investigate their patient safety concerns.
In total, the trust is understood to have presented 19 witnesses to give evidence during an employment case that was expected to last at least four weeks. The witnesses were due to begin giving evidence at the tribunal hearing.
At around 3pm on Tuesday 27 September, Lalitcumar and Ghedri were contacted by their legal team, notifying them of the drop-hands offer and its terms. They were told the deadline for response was 9am on Wednesday 28 September.
Bishops Gate Legal, the firm representing the clinicians, also informed the medics that if they were to proceed with the case and adverse findings were to be made against them, the firm would also make the pair liable for their own costs – estimated, by that point, to be around £100,000.
Lalitcumar said Bishops Gate Legal had been engaged on a “no win, no fee basis” to represent the pair in the case.
The firm has been contacted for comment.
Missing evidence
The trust’s legal team denied, however, that the two doctors had been dismissed because of the protected disclosures they had made in relation to Berkshire Healthcare’s elderly care service.
Legal representatives for Berkshire Healthcare told the tribunal that Lalitcumar was offered mediation by the trust and that he was not denied the opportunity to raise and air clinical concerns. The trust added that the pair’s dismissal did not stem from their protected disclosures.
James Arnold, the counsel acting for Berkshire Healthcare, said the trust’s finance director, Paul Gray, dismissed Ghedri “after considering all of the evidence – that’s the reality of the situation, isn’t it, Mr Gedhri?”
The trust told Computer Weekly that the claimants’ allegations, including their claims of evidence destruction, were “without merit”.
A spokesperson for Berkshire Healthcare said: “The trust considers the claims that were made by the two doctors to be without merit. The doctors subsequently made the decision to withdraw all of their allegations.”
The trust did not respond to Computer Weekly’s questions regarding alleged evidence destruction and cost threats.
‘Inequality of arms’
The sum represented by the threat of costs liability made against Lalitcumar and Ghedri was “life-changing”, according to the pair.
“Dr Samir Lalitcumar and his colleague, Dr Ahmed Ghedri, specialty doctors in elderly care, were threatened to withdraw their claims due to life-changing costs even before the trial began,” Lalitcumar told Computer Weekly.
Cost threats are a controversial litigation tactic that have cut short high-profile whistleblowing cases within the health service over recent years. NHS workers and MPs have argued that they can prevent matters of considerable public interest from being aired given an “inequality of arms” that exists between government-backed healthcare bodies and individual claimants.
“Many whistleblowers face an inequality of arms at tribunals,” ex-shadow health minister Justin Madders told a 2019 House of Commons debate over whistleblowing regulation.
“They have often lost their job by that point, and they face a very difficult situation, with highly paid QCs running rings around them, which is often the result of employers trying to find loopholes in the law to avoid liability.”
Referring to another prematurely concluded NHS case, former health minister and chair of South London and Maudsley NHS Foundation Trust Norman Lamb told MPs that a whistleblowing junior doctor had been “defeated by superior firepower”.
A separate NHS whistleblower, meanwhile, warned in recent weeks that there was “increasing potential for electronic tampering” with electronic patient records and NHS staff communications in such disputes with health service managers and executives.
Asked whether NHS Digital was concerned by the number of high-profile cases involving allegations of electronic evidence tampering or deletion over recent months, the health service’s national IT and electronic data provider declined to comment.