Employment Tribunal hears whistleblowing concerns about patient safety at Alder Hey Children’s Hospital
In the report below on an Employment Tribunal hearing, Dr S McDaid is the Claimant, Alder Hey Children’s NHS Foundation Trust is the Respondent. Employment Judge Ryan plus Tribunal Members Barker and Khan were hearing the case. The case involves both allegations about disability discrimination and also about what happened to Dr McDaid after whistleblowing.
Below is a short report on the start of day 7 (20th November 2018) of a 14 day case which started shortly after 10.00 am.
Employment Judge Ryan asked if there was anything parties wanted to mention, and said that he planned to take a break at around 11.00 am to 11.30 am unless someone gave him a signal it was needed sooner.
He briefly talked about a series of events that had previously happened when doors had opened during a fire drill, which also involved an engineer on the air conditioning and how it was no fault on the person’s part that such an extraordinary sequence of events had happened.
One legal professional quipped that it wouldn’t have been believed in the Coroner’s Court.
Dr Mary Ryan was the first witness. One representative said it wasn’t going to take up a full day and mentioned a Dr Steve Ryan.
Employment Judge Ryan said that he intended to finish at about 4 o’clock and commented on the hat trick of Ryans. He said he was not sure if Dr Mary Ryan was affirming, but asked her to flip over the yellow card to the blue card.
Dr Mary Ryan read either the oath or the affirmation about the evidence she was about to give.
A representative asked her to give her full name and her professional address. She answered that it had been her professional address at the time, then in answer to a follow-up question that she was now based at Urgent Care 24 in Wavertree, Liverpool.
The same representative asked if she had had an opportunity to read through her 12 page witness statement. Dr Ryan replied that she had. In response to a question whether its contents were true, Dr Ryan answered, “Yes”.
The other side’s legal representative referred to Dr Ryan’s time as Clinical Director and asked her if she had had any training about the obligations that an employer has towards disabled people? She replied that she had at that time.
She was asked if an employee with a disability would be afforded protection under the Equality Act ? She answered yes to this also.
He asked her a further question about cancer, to which she answered yes.
Dr Ryan was asked about the [Alder Hey Children’s NHS Foundation] Trust’s sickness, absence and attendance policy, to which Dr Ryan answered yes. He referred to the third bundle at which point Dr Ryan said she had seen the policy. Asked if Dr Ryan had ever read it through, she answered not in full.
Referring to 1.0.16, he referred to what the Trust expected of managers and at paragraph 10, how one of the individual duties of managers was appropriate consideration of the health status and disability of employees. He understood that this was a proactive duty to ensure disabled employees were given consideration and it wasn’t a case of waiting to be asked by a disabled employee?
Dr Ryan answered, “No not necessarily”.
He asked her if whether she as a manager would need to consider the way in which alterations were made and that she was responsible for suitable alterations for a disabled employee? Dr Ryan answered yes.
Referring to paragraph 7 of her witness statement, he referred to Dr Ryan’s knowledge that Dr McDaid had raised issues about the estate.
Dr Ryan apologised and said she had turned to page 7 instead of paragraph 7.
Continuing he asked a further question of Dr Ryan about Dr McDaid’s concern. She answered that in as much as it was reported to her, not directly reported to her by Dr McDaid, that Dr McDaid was unhappy with her room at Sefton as it was on a different floor to the main group of people in CAMHS [Child and Adolescent Mental Health Services] and that Dr McDaid was unhappy with this.
Another question was asked of Dr Ryan to which she answered that she was not directly managing Dr McDaid but it had been reported to her in passing.
Dr Ryan was asked about the steps that those who did directly manage Dr McDaid had made? Dr Ryan answered that she had assumed they had listened to her complaint, but that Dr McDaid was unhappy.
Asked if she was told that a disabled employee found it difficult to go up two or three flights of steps would she intervene, Dr Ryan answered yes, but if asked.
Dr Ryan was asked if it was appropriate to allocate Dr McDaid a room on the first floor if there was no impediment. Dr Ryan said that her understanding of the estate was that it was difficult and there was not enough room. There had been active discussions about moving staff but they had struggled to find somewhere in Sefton. She felt that because of the disability issue she felt it was reasonable to swap.
Asked if she was to swap with someone with no impediment, Dr Ryan answered that she didn’t know who else may well have had disabilities, clarifying it further in response to a follow-up question to answer who else with disabilities in that office.
Asked if she was unaware of a reason why a swap couldn’t take place, Dr Ryan answered that neither was she aware a swap could take place because she wasn’t aware who else was there.
Referring to paragraph 12 of her witness statement, he referred to the consultants who were unhappy with the proposals for reorganisation and he asked her if Dr McDaid was one of the consultants with concerns about the process?
Dr Ryan answered that she was aware the consultants had issues, but as Dr McDaid was a consultant she assumed she was part of that.
Asked if she knew that Dr McDaid was personally raising concerns, she answered that she knew the consultants in general were raising concerns, but it became more obvious it was Dr McDaid and another doctor later on.
Dr Ryan was asked specifically about the on call changes and working conditions, to which she answered that the concern was that they would become busier on call if mental health practitioners were assessing children in the Emergency Department.
Asked for her view about the working conditions of the consultant psychiatrists compared to other consultant groups, she answered that the changes would be monitored after three months and if they were much busier steps would be taken to recompense them and that this was standard practice.
Dr Ryan answered another question saying that she was not clear what concern the consultants had. Asked if the changes proposed were unsafe, Dr Ryan answered that it had not been made clear to her.
Asked if she had asked Dr McDaid she answered, “No”. Dr Ryan was asked if she cared, to which she answered yes, but that she didn’t know what she was asked to care about.
In response to another question, she referred to another doctor who was Service Group Lead and then in answer to a further question referred to a view that the consultants were blocking the changes and seemed more concerned about being busier.
Dr Ryan answered to another question that this view she had taken at face value. She was asked if the proposal involved patients in Accident and Emergency being seen by less qualified personnel? Dr Ryan answered the question about the proposals by referring to the mental health qualifications of those who would be seeing the patients.
Dr Ryan was asked if the result would be fewer medics seeing people presenting with psychiatric symptoms to which she answered during the timeframe. She was asked if more medics were available for non psychiatric work, to which Dr Ryan gave a long answer about junior doctors at most three years out of medical school with no psychiatric training and very little experience of children’s mental health assessment. Dr Ryan said she was interested in more appropriate care for children with mental health problems.
Dr Ryan was asked if the consultant psychiatrists disagreed with her and if she encouraged any individuals to come forward if patient safety was in jeopardy? To the second part of the question she answered yes.
She was asked if those with concerns should bring them up any proper way they see fit to which she answered yes.
Asked if she had met with Dr McDaid to discuss Dr McDaid’s concerns, she asked if this meant just Dr McDaid or Dr McDaid and Dr Andy?
Dr Ryan answered that she didn’t have a recollection of a separate meeting or with both of them.
She was asked a question about paragraph 17 of her witness statement that referred to a meeting, Dr Ryan answered that it had been a meeting of a very large group of doctors with at least ten people in the room.
Dr Ryan was asked about a presentation that Dr McDaid and Dr Andy had with them. Dr Ryan confirmed that this was her recollection.
Asked about an email at page 146 of bundle 1, that came from Dr Andy’s email address but had been signed by both Dr Andy and Dr McDaid, she was asked if she recalled receiving it. Dr Ryan said that she didn’t recall receiving it.
Asked if she suggested that she didn’t receive it, she answered that she had no recollection of it.
Dr Ryan was asked if “Raising Changes” was a slogan which was an aspect of the whistleblowing policy at Alder Hey? Dr Ryan answered yes.
Asked if Dr McDaid was raising concerns in line with the Trust’s whistleblowing policy, she answered that “Raising Changes” was a slogan to encourage people to voice issues to the Trust. Dr Ryan continued that it had become shorthand for an opportunity to complain about everything from the car parking, to the food in the canteen, but that for serious safety concerns she would expect not to use that line as she would not automatically think it was a whistleblowing issue.
Dr Ryan was asked if the Trust had a written whistleblowing policy as it didn’t appear in the bundle? Dr Ryan answered that she had not had recourse to use it. Asked if regardless of the title, the body of the email raised safety concerns about the proposed changes to the service, to which Dr Ryan answered, “Yes”.
Dr Ryan was referred to page 147 paragraph 3 and safety concerns about acute care, she was asked if she was clear that this was not about the car park or the canteen, to which she answered, “Certainly”.
Asked about a meeting at which safety of patients was raised, Dr Ryan said she understood that Dr McDaid and another did try to raise it at a meeting, although Dr Ryan felt it was fair to say that Dr McDaid had not particularly got her point across and in retrospect Dr Ryan would’ve handled the meeting differently. Dr Ryan didn’t understand that Dr McDaid was using the meeting to voice serious concerns about safety and she didn’t think that Dr McDaid articulated well.
However Dr Ryan recognised she was frustrated and fed up that day and had viewed the behaviour as obstructive, with a lack of patient focus and an unwillingness to offer things differently to patients. Dr Ryan did acknowledge that she should have listened better during the meeting.
Asked why Dr Ryan didn’t follow-up the email with an escalation of the concerns through whatever process the whistleblowing policy suggested, she answered that someone else had replied with the suggestion that it be discussed and sorted out at a meeting, Dr Ryan had assumed the meeting would happen and it would be discussed more thoroughly at that meeting.
Dr Ryan was asked if those meetings happened, to which Dr Ryan answered “No.”
Asked if other than the meeting on the 14th and the follow-up email, to her best recollection no further meeting happened, she replied that this was “Correct”.
Dr Ryan was asked if there was any further attempt at interrogation or understanding. She answered that she honestly didn’t know as she wasn’t full-time and only working two days a week so didn’t have availability.
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