This brilliant surgeon can’t find work in the NHS. Is it because he blew the whistle on child deaths at a leading hospital?
As a paediatric surgeon, Edwin Jesudason knew his job treating some of the country’s sickest and most vulnerable children carried onerous responsibilities.
His father, also a surgeon, had brought him up to believe that patients are always a consultant’s first and foremost priority.
He also took very seriously the General Medical Council’s instructions that clinicians who suspected that patients’ lives were being put at risk in hospitals had a moral and professional duty to raise the alarm.
So when he expressed his concerns about the standards of care he said he had witnessed while working at Liverpool’s Alder Hey Hospital, one of most famous children’s hospitals in Britain, he expected the authorities to investigate — not least because he claimed two young children had died as a result of professional misconduct.
Instead, says Mr Jesudason, an associate professor and award-winning paediatric surgeon, the authorities turned a blind eye after he and a colleague called for a review of ‘unnecessary’ fatalities among children who had undergone surgery at the hospital.
He not only claims that Alder Hey tried to stop him making his concerns public, but also now fears he has been blacklisted as a troublemaking whistleblower — and that he will never work again for the NHS.
But while Mr Jesudason welcomes the introduction of a ban on NHS gagging clauses, he warns that his experiences at Alder Hey show the NHS is likely to continue to ignore and ostracise clinicians who raise concerns about inadequate care.
The alleged culture of cover-ups at Alder Hey was such that the hospital fought for two years to supress an internal report revealing that nurses and theatre staff were so stressed they fainted in theatre. The report revealed that bullying was rife, shouting and swearing were commonplace, and warned that if something wasn’t done, a member of staff would soon ‘snap and attack someone’.
Mr Jesudason has not spoken publicly before, but this week he told the story of what happened at Alder Hey when he and a colleague, who cannot be named for legal reasons, called for an investigation of surgery practices after two babies died and others were ‘seriously injured’ after treatment.
Mr Jesudason claims one baby underwent surgery and died in 2007 despite a specialist surgeon having allegedly warned that the procedure would be dangerous. He says that another died after suffering an injury at the hands of a ‘stressed’ surgeon, and that other accidents and injuries were not reported properly.
‘Children were at risk — I was doing what was right’
From a laboratory in Melbourne, Australia, where he is doing research, Mr Jesudason talks in a calm and measured voice that betrays a slight hint of a North-West accent from his childhood in Cheshire.
‘To me, it was simply a question of doing what was right: children were at risk in a department that wasn’t analysing errors while surgeons were suffering from burnout,’ he says.
‘But when a fellow consultant and I raised the fact that our concerns about deaths in babies and children had been overlooked, we faced opposition from senior colleagues and, I believe, the hospital Trust itself.
‘It took a great deal for me to become a whistleblower. It was not a step I took lightly. The whole experience has been utterly traumatising.’
Mr Jesudason, 45, who studied medicine at Cambridge, joined Alder Hey in 1998 to complete his training. Ten years later, he was a fully qualified surgeon, and becoming increasingly alarmed about what he felt was a bullying culture in theatres where staff were afraid to raise concerns, and lessons from errors were not being learned.
‘When something went wrong during an operation on a baby,’ Mr Jesudason explains, ‘too often the attitude was “Oh well, these things happen” rather than asking “Why did it happen? And how can we stop it happening again?” And then speaking up was discouraged.’
By 2009, the surgeon was so alarmed that he wrote a letter to his employers at the University of Liverpool expressing his fears about bullying and its impact on patient safety. He also claimed that the consultant with whom he had reported ‘failings’, had been suspended after it was suggested he was suicidal.
‘Something had to be done. The university took my concerns to the hospital. But, when some of my colleagues became aware I had spoken out, they refused to work with me. It was incredibly stressful. Just like Mid Staffordshire, I believe my concerns were largely ignored.’
In 2010 he went on a sabbatical to America after winning a medical research award, but his heart was set on resuming his work at Alder Hey after his study was complete — it was fulfilling and important to him. ‘The babies we operate on can recover to enjoy a full life and live well into the 22nd century,’ he explains. ‘That is a tremendous goal and if you have the skills to help them do that, it’s not something to walk away from,’
His hopes of returning, however, were to be dashed. He learned later a plan was mooted to discredit him.
A letter I have seen shows one senior surgeon thought the allegations about patient harm were the tip of the iceberg, and the department was in a ‘major crisis’. He wrote ‘we can expect more damaging allegations’.
The same surgeon warned that the hospital could expect a ‘very dirty fight, fully in the public eye’, adding that the hospital’s most effective means of fighting back would be to ‘bring Prof Jesudason (who remains a talented surgeon and researcher) before the General Medical Council for sanction.’
He added that Mr Jesudason had the ‘Alder Hey Children’s Hospital over a barrel’. When Mr Jesudason returned briefly to the UK in 2011, he made another confidential statement to his bosses at Liverpool University, claiming his concerns had still not been properly investigated.
Alder Hey was being hit by damaging publicity as stories about the stressful conditions at the hospital began to emerge.
Newspaper reports seemed to validate what Mr Jesudason had said, claiming the hospital had failed to properly investigate cases in which children had died or suffered injuries in surgery. There were also accusations that doctors and nurses who spoke out about substandard care were being bullied.
The hospital now called in the Royal College of Surgeons to carry out a review in response to the stories. It found that while the paediatric surgery department offered a ‘safe surgical service’, it no longer offered ‘world-class’ care. It also said that whistleblowers’ allegations were not investigated properly.
It added: ‘Alder Hey is not at the present time attaining world-class standards of care or world-class standards of research in the department of paediatric surgery.’
Mr Jesudason says the Royal College report vindicated his stance. ‘It showed we were right to speak up. Everyone is human and can make mistakes. But in clinical care it’s essential we are open about mistakes and so learn from them to avoid repetition.’
By now Mr Jesudason realised that plans were afoot to ensure that when he returned from his research in America his post would no longer be available.
In July last year, he successfully procured a High Court injunction to stop a hospital panel convening to decide whether to oust him. By December he was back in court claiming he had been victimised for whistleblowing, but his case collapsed — he withdrew his allegations, and was forced to pay the hospital’s £100,000 costs.
Alder Hey claimed that the issue surrounding moves to dismiss him arose from colleagues claiming they could no longer work with him, and so was not related to him being a whistleblower, something they had accepted he was in 2009.
The court had been unimpressed he had leaked confidential information that emerged during the case. Why had he done this? ‘I didn’t want to be gagged, so I decided to release documents I had received during the court hearing to Patients First, a group campaigning for safer care,’ he says. ‘It was in the public interest for failings at the surgery department to be in the public domain’.
By now his marriage to a surgeon at the hospital had broken down due to the stress. He also had to remortgage his home to pay the legal bills.
So, was Mr Jesudason a troublemaker? That internal report the Trust was eventually forced to release suggests there was at least some truth in his reports of bullying at Alder Hey.
It is an in-depth analysis of the working conditions in the operating theatres in 2010. It exposes how nurses supporting surgeons during operations were at breaking point from overwork, bullying and stress — and some had considered going to the Press as whistleblowers.
Alan Phillips, the then head of the Trust’s staff counselling service and author of the report, said he had been ‘inundated’ with stressed-out theatre staff seeking help.
‘Concern for the safety of patients was a powerful theme,’ he wrote about his contact with 60 nurses and support staff. Staff told of ‘incidents where they or colleagues had been required to attend operations when they were severely under par, exhausted from long hours, or physically and mentally unable to perform their duties confidently or competently.
‘Several incidents were recounted where staff had fainted or had been otherwise incapacitated while in theatres. The distress exhibited … was accompanied by various degrees of anger and variations on the theme of “if something isn’t done soon someone will snap and attack someone”.’
The report, obtained under the Freedom of Information Act by Private Eye magazine, shows how staff blamed aggressive leadership styles where ‘swearing and shouting appears to be an accepted way of giving and receiving feedback’. They described a ‘bullying, intimidating, coercive, aggressive, hostile and vindictive’ working environment.
Then there was the ‘management infighting and destructive competition’ preventing staff seeking support from managers because they feared ‘the risk of reprisal, betrayal of confidential disclosures [NHS-speak for whistleblowing]’.
Meanwhile, Mr Jesudason remains bewildered as to why he now appears unemployable to the NHS. He has applied three times to return to Britain as a children’s surgeon and each time his application has been rejected, without even being shortlisted.
Dr Kim Holt, a paediatrician who became a whistleblower to expose failings at Great Ormond Street, praised Mr Jesudason for speaking out. The 54-year-old doctor, who set up Patients First, says: ‘We are lucky that Mr Jesudason was not gagged in this case and can tell his story. Cover-ups, as I know, put patient’s lives at risk. We need a transparent NHS where clinicians’ concerns are listened to.’
In a statement, Alder Hey claimed they acted correctly and never tried to gag Mr Jesudason. ‘In January 2011, Mr Jesudason raised concerns about Alder Hey’s clinical practice through protected disclosures. These concerns were taken very seriously and addressed by an independent review by the Royal College of Surgeons in May 2011. Both of these [dead] children were included in the process.’
‘The Royal College of Surgeons report and the trust action plan was openly shared on the Trust website following the review in 2011. Recommendations were made on how we could improve the service and we acted on these recommendations. We strenuously refute that lessons were not learnt or allegations ignored.
‘In 2009 the Medical Director expressly spoke to Mr Jesudason and followed up with two letters to ask if he had any clinical concerns. Mr Jesudason did not respond to this.’
‘A subsequent review by the Care Quality Commission in 2012 also found that patients have safe and appropriate care, treatment and support.’
A spokesman added that ‘robust measures’ were put in place to improve working conditions for staff following Mr Phillips’s report into stress.
Meanwhile, Mr Jesudason now languishes in academia in Australia. A highly trained and very capable surgeon is unable to find work in Britain’s NHS.
Victory for NHS whistleblowers: Health Secretary bans gagging orders on NHS staff
Gagging clauses which have prevented hundreds of NHS whistleblowers speaking out are to be outlawed.
Departing staff will instead be given a new legal right to raise issues that could be in the public interest, such as patient safety, death rates and poor care.
Last night Health Secretary Jeremy Hunt insisted that creating a culture of ‘openness and transparency’ across the NHS was vital to prevent a repeat of the Mid Staffordshire scandal, in which as many as 1,200 patients died.
In an interview with the Daily Mail, he said that so-called ‘compromise agreements’, under which NHS staff cannot raise anything embarrassing to their employers when they leave their jobs, would be barred with immediate effect.
‘There has been a culture where people felt if you speak up about problems in the NHS you didn’t love the NHS. Actually, it’s exactly the opposite,’ the Health Secretary said.
‘We need a culture of openness and transparency if we are going to stop another Mid Staffs from happening. ‘The era of gagging NHS staff from raising their real worries about patient care must come to an end.’
Senior figures in the NHS had warned that the case of whistleblower Gary Walker, who broke a gagging clause to speak to the Mail about high death rates, was the tip of the iceberg.
MPs want to question embattled NHS boss Sir David Nicholson about £14.7million of taxpayers’ money spent over three years on almost 600 ‘compromise agreements’ with departing staff.
An estimated 90 per cent of the documents contain gagging clauses which ensure potential whistleblowers are silenced, but there have been growing calls for the practice to be stopped.
The Health Secretary said: ‘We are just going to ban them. All these compromise agreements have to be approved by the Department of Health and the Treasury. ‘We are now saying we won’t approve any with a confidentiality clause that prevents people speaking out about patient safety or patient care.
‘We will make sure there is a specific clause in them saying that nothing in them can prevent people speaking out on issues such as patient care.
‘Mid Staffs happened because there was a culture of covering up problems. We need to encourage front-line NHS employees who see problems to come forward, in the first instance to tell their own institution about them but then having the ability to go beyond that if they don’t think anything is being done about their concerns.
‘That culture of openness and transparency is at the heart of what we are going to try to do to drive up standards across the NHS.
‘This can only be part of our response to Mid Staffs. If we have a culture where whistleblowing is necessary then obviously something has gone wrong.’
Mr Hunt said a new chief inspector of hospitals would be charged with ‘creating a culture of consistent striving for excellence’. ‘The chief inspector will examine lots of areas, but one third of the entire score for a hospital will be based on patient experience – the extent to which patients would recommend your hospital to friends and family, the extent to which your complaints procedure actually listens to people,’ the Health Secretary said.
‘In too many hospitals, staff think that patient care is something you do when you have done everything else.’
Mr Walker claimed he was sacked as chief executive of United Lincolnshire Hospitals on a trumped-up charge after raising concerns about patient safety. The father of two said he accepted a so-called supergag as part of a settlement package of an unfair dismissal claim, reported to be at least £500,000, in 2010. He broke the terms to speak out last month about a ‘culture of fear’ in the NHS. He claimed Sir David Nicholson ignored him when he raised concerns about patient safety in 2009.
Despite indications that support for Sir David is waning in Number Ten, Mr Hunt said he had an ‘honest disagreement’ with those calling for the head of the NHS to resign.
‘I don’t think he was personally responsible for Mid Staffs. He was part of a whole targets culture that went badly wrong so he has responsibility in the same way that all managers did,’ he said.
‘But he also led the campaign to bring down MRSA rates and bring down waiting lists.’ Ministers also fear the disruption that would be caused by Sir David’s exit in the next few weeks, with 30,000 people in the NHS due to start new jobs on April 1 as a result of the Government’s NHS reforms.
Sir David is due to appear before MPs investigating disastrous health service IT projects next week, but members of the public accounts committee also want to question him about his own expenses claims.
“The Team” members at UEA were warned that their tree ring interpretations were unsound
We now have what appears to be the first fruit of the ClimateGate 3 release of Warmist emails. Below is an email to Briffa and Jones from Don Keiller, a tree ring expert — unlike anybody in The Team. Briffa did reply to Keiller but was so slippery that he enraged Keiller. Subsequent emails to the one below are at the link
From: Keiller, Donald
Sent: 02 October 2009 10:34
To: ‘ email@example.com’
Cc: ‘ firstname.lastname@example.org’
Subject: Yamal and paleoclimatology
Dear Professor Briffa, my apologies for contacting you directly, particularly since I hear that you are unwell. However the recent release of tree ring data by CRU has prompted much discussion and indeed disquiet about the methodology and conclusions of a number of key papers by you and co-workers.
As an environmental plant physiologist, I have followed the long debate starting with Mann et al (1998) and through to Kaufman et al (2009). As time has progressed I have found myself more concerned with the whole scientific basis of dendroclimatology. In particular;
1) The appropriateness of the statistical analyses employed
2) The reliance on the same small datasets in these multiple studies
3) The concept of “teleconnection” by which certain trees respond to the “Global Temperature Field”, rather than local climate
4) The assumption that tree ring width and density are related to temperature in a linear manner.
Whilst I would not describe myself as an expert statistician, I do use inferential statistics routinely for both research and teaching and find difficulty in understanding the statistical rationale in these papers.
As a plant physiologist I can say without hesitation that points 3 and 4 do not agree with the accepted science.
There is a saying that “extraordinary claims require extraordinary proof”. Given the scientific, political and economic importance of these papers, further detailed explanation is urgently required.
Dr. Don Keiller.
Speech restrictions in England
While the Human Rights Act 1998 (“HRA”) gives us the “right” to be free from interference with “with peaceful enjoyment of property, (deprivation)… of… possessions or (subjection of) a person’s possessions to control,” interference which is carried out “lawfully and… in the public interest” is above board. Furthermore, evidence obtained from illegal searches and seizures is prima facie admissible in an English court (which has a discretion, not an obligation, to exclude it). Lacking a credible prohibitory function, the HRA’s provisions are less rights, more self-imposed guidelines. They flow from the state rather than delineating its boundaries, their function being to restrain only transgressions deemed by the state itself to be sufficiently grave.
Other “rights” under the HRA are similarly wet. As was made very public over the course of last year’s Reform Section 5 campaign relating to the Public Order Act 1986, freedom of speech is far from absolute in Britain, especially when compared to the United States. In America, picketing the funeral of a murdered seven-year-old is permissible; in Britain, however, what is fairly ordinary political speech in the U.S. is not protected, and often criminal, even despite the Section 5 campaign.
It is thus by design. Convention rights are subject to express restrictions, including such as “are necessary in a democratic society… for the protection of the reputation or rights of others.” This is a contentious concept from a civil liberties standpoint and has most publicly been brought to the fore in the context of Section 5. But the debate pre-dates the 21st century, an early iteration taking place in the context of the Public Order Act 1936, the 1986 Act’s predecessor.
Quite how far this concept of the rights of others has moved Britain down the slippery slope is only evident when one compares cases decided under the old rule, prior to the passage of the HRA (under section 5 of the 1936 Act), with cases after it. The 1936 legislation reads:
“Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence.”
This is very similar to the Section 5 we know and love. However, in the absence of the HRA the rule was applied far differently, as illustrated by the case Brutus v Cozens from 1973. In Brutus, the defendant dared to interrupt a tennis game at Wimbledon by staging a sit-in while throwing anti-apartheid leaflets in the air; after being peacefully removed from the grounds of the All England Club, Brutus was arrested and charged with “using insulting behaviour.”
At first instance, the judges hearing the case acquitted Brutus; however the prosecutor, perhaps a closeted tennis fan, appealed, arguing that “insulting behaviour” under the 1936 Act was that which was “disrespectful and contemptuous.” The Court of Appeal agreed, and interpreted the statute to also include:
“behaviour which affronts other people, and evidences a disrespect or contempt for their rights…”
…however, this view was decisively overruled on further appeal to the House of Lords, which found that “an insult has a narrow meaning which is… aimed at or intended at a person’s susceptibilities… the words must hit the man in question.” The Lords opined that “behaviour which evidences a disrespect or contempt for the rights of others” does not “of itself establish that that behaviour was threatening, abusive or insulting.”
Brutus, therefore, set down two principles. First, insulting, threatening or abusive behaviour must be insulting, abusive, or threatening per se in order to fall within its scope; second, it is perfectly possible to be disrespectful and even contemptuous of the rights and sensibilities of one’s fellows without falling within its ambit. The statute banned insults, abuse and threats, it did not ban contempt for the rights of others. The two types of conduct, while potentially very similar in certain circumstances, were legally not the same.
The rights of others
As of 1973, then, the “rights of others” were not a consideration in question relating to freedom of expression. Thirty years later, however, the formalisation of the protection of the “rights of others” by the HRA changed the landscape. In McCann (2002), Lord Hope pointed to it as an express justification to interfere with freedom of speech, adding that “respect for the rights of others is the price that we must all pay for the rights and freedoms that it guarantees.” McCann was followed by Norwood v DPP (2003), where it was found that a criminal conviction for hanging a poster that read “Islam out of Britain” was “a necessary restriction of… freedom of expression… for the protection of the rights of others” (those rights being, as argued by counsel for the prosecution but not expressly confirmed by the Court of Appeal, the convention rights of freedom of conscience and belief, and freedom from discrimination).
Or, for example, see Abdul v DPP (2011), where the convictions of seven Muslim activists picketing the Royal Anglian Regiment on its return from Iraq (using fairly explicit language, but language only) were upheld on the grounds that “it can properly be said, in this particular case, that prosecution and conviction was proportionate in pursuit of… the protection of the reputation or rights of others.”
The decisions in the three individual cases mentioned above do not make express mention as to which “rights of others” are being protected in each; what is clear from each, however, is that the courts are willing to employ a broad-brush application of Article 10(2) of the HRA to justify restraining freedom of speech.
From a civil liberties standpoint, this is unacceptable. The starting point about the “rights of others” is a simple one: in each, the defendants were speaking on matters which they believed “were not abusive and insulting because they were true.” None has a monopoly on truth in politics, and the protest outlined in reported cases, though distasteful, does not involve the application of coercion by the speakers upon their listeners. It is merely the meeting of widely differing points of view in a public space.
Caution is advisable, then, when one hears that the Government is planning to “(pull) Britain out of the European Convention of Human Rights” because, per Chris Grayling, “we cannot go on… where people who are a threat to our national security… are able to cite their human rights when they are clearly wholly unconcerned for the human rights of others.”
Where one day the “rights of others” serve to justify the deportation of a particularly infamous philosophical opponent of the British state, on many other days our own courts – not European ones – have shown considerable willingness to construe these “rights of others” to criminalise offensive and inflammatory, yet honestly held, political beliefs of ordinary people.
As the debate on the HRA and its possible repeal unfolds in the run-up to the next election we should not, therefore, be lulled into the commonly held, and false, impression that the HRA protects us as fully as we might like it to. Relating to speech alone, expression relating to the merits of political violence – whether such violence takes place at home or abroad – is thoroughly proscribed by section 1(3) of the Terrorism Act 2006, a vexing dilemma for prosecutors before the Arab Spring, in that their discretion to ignore “plots against the Libyan regime (which) were possibly encouraged years ago” was rather fettered by the “rapprochement” initiated by the Blair government, while concurrently “plots against Syria are openly tolerated.”
Written or electronic communications of an offensive but nonetheless firmly political nature remain illegal.
Furthermore, in Section 5, though “insulting” is gone, “abusive” remains – which gives one pause to wonder whether the Reform Section 5 campaign achieved anything significant as, looking to Abdul, the courts are very willing to conflate the two ideas: “the words shouted by the defendants were both abusive and insulting,” it was said at first instance, with Mr. Justice Davis adding on appeal that “it is not… possible to establish in advance a bright line statement of approach whereby prospective conduct or language can be styled as within or outwith the proper exercise of freedom of expression.”
That the only legally safe speech relating to Section 5 seems to be silence speaks volumes about the nature of the “rights” created by the HRA. However, we can sum the problem up in just one sentence. It’s not that the HRA goes too far, it’s that it doesn’t go nearly far enough.
‘I don’t want a poofter to be me in a film of my life’ — says British racing car driver
Motor racing star Sir Stirling Moss has caused controversy by saying he didn’t want ‘a poofter or anything like that’ to play him in a film.
His comments came during an interview when he said he would like a ‘masculine’ actor like James Bond actor Daniel Craig to portray him in any biopic.
The 83-year-old Formula One legend then made matters worse by backtracking, claiming he had ‘homosexual friends’ and that ‘there’s nothing wrong with it’.
Today gay and lesbian campaigners condemned him for his homophobia.
Three-times married Sir Stirling, who lives with his wife Susie in London’s Mayfair, made his original comments at the Motor Sport Hall Of Fame in London.
When he heard that the married Australian actor Chris Hemsworth was playing the late Formula 1 champion James Hunt in a film, Sir Stirling mused on who might play him in a similar film.
He said: ‘I hope the actor would be masculine, not a poofter or anything like that. Perhaps the guy from Skyfall?’
“Poofter” is the British/Australian version of “faggot”, though not as aggressive.