Health Education England wins case against Dr Chris Day with help from ‘misleading’ former postgraduate dean
The long-running legal saga of junior doctor Dr Chris Day’s whistleblower battle over patient safety in the intensive care unit at Woolwich Hospital took another twist this week.
Health Education England successfully overturned a decision ordering it to appear in court in June alongside Lewisham and Greenwich NHS Trust. The body convinced a judge that an exercise to influence a former Liberal Democrat health minister to change his mind in favor of Chris Day by Dr Andrew Frankel, a former postgraduate dean, had nothing to do with it. see with them.
My latest blog on this is here. It tells the bizarre story of Dr Andrew Frankel, who is also a distinguished consultant nephrologist at Imperial College Healthcare NHS Trust and an expert in the management of diabetes and kidney disease. He essentially debased himself by going behind the backs of his former employer, Health Education England, in an attempt to influence Sir Norman Lamb, then MP, to see another side to Chris Day’s narrative. The attempt would have been hugely helpful to Health Education England which has repeatedly tried to distance itself from the understaffing scandal in this intensive care unit.
Dr. Frankel tried to get his hands on Dr. Day’s training record
Dr Frankel’s methods included attempting to obtain details of Dr Day’s training record after he left Health Education England, which he was not allowed to see at the time. He then arranged a private meeting with Sir Norman to present an article outlining HEE’s case and emphasizing that he was only there to help young doctors and not to criticize them. Sir Norman has been a staunch supporter of Dr Day and publicly very critical of the way the HEE and the trust have treated him.
The judge was presented with two alternative interpretations of the facts. One presented by the health body was that it knew nothing of Dr. Frankel’s activities. Professor Wendy Reid, HEE’s medical director, told the court she was ‘stunned and stunned’ when she learned he had visited Sir Norman without his knowledge. He had previously presented the paper to her as a private document and an aide-mémoire if she or anyone else wanted to speak to Sir Norman. But later, when the body found out about his personal visit, they remained silent – not wanting to deny the actions of a former employee.
Dr. Day’s attorneys argued that, in fact, Dr. Frankel was acting as HEE’s de facto agent trying to present an alternative scenario to Dr. Day’s case. They drew their evidence from some sloppy phrasing in the emails – in particular Dr. Frankel’s juxtaposition of using the word “I” and then “we” implying that was HEE’s view. He had insisted when he met Sir Norman that he had stressed that he was doing it on his own initiative. There are no notes from the meeting. The body also discussed “behind the scenes” action to refute Dr. Day’s case.
Judge Katherine Andrews chose to believe HEE’s version rather than Dr. Day’s.
Frankel “fully recognized the temerity if certain actions”
She said: ‘My opinion is that the applicant sincerely believes that this implication and, therefore, his testimony is truthful in that it reflects his beliefs. I also find, however, that the testimony of Dr. Frankel and Professor Reid was equally true. They both distinguished themselves in their respective careers and appeared to testify with caution and candor. Indeed, Dr. Frankel easily recognized the recklessness of some of his actions, no doubt well-intentioned.
…”I acknowledge that Dr. Frankel’s use of words in his emails and the briefing paper is mixed. On some occasions he used the first person singular, which was entirely consistent with his private action.
On others he used the first person plural – sometimes clearly in reference to times when he was seconded to the respondent, but other times inappropriately using “we/our” etc. Dr. Frankel and also a strong personal identification with the issues.
…”The way he went about it, however, was utterly inappropriate and in doing so he slipped into language that confused his previous and current roles.”
I’m curious about that. Dr. Frankel has authored a few fairly significant research papers in his other consulting role. I would have thought he would be very careful with the use of his tongue – at least I hope so for the sake of his research.
She also absolved the health body of any involvement in supporting Dr Frankel.
“Ratification can only apply when the person whose act is in question (Dr. Frankel) declared or purported at the time of acting as agent and to have the power to bind the principal (the defendant) , it is clear that the plaintiff cannot successfully plead for ratification when in fact the opposite has been professed by Dr. Frankel, who has expressly and repeatedly stated that he was acting in confidence and not on behalf of the respondent.
The decision is significant and absolves HEE of having to explain its actions in this murky affair.
As Chris Day says on his fan site:
“At the end of 2019, we won an important victory which ensured that HEE would have to answer everything at a final hearing on both their denial of cost threats and the false document sent to Sir Norman Lamb.
An order dated October 3, 2019 from Judge Sage rejected all of HEE’s arguments as to why they should not attend a final hearing on the facts and ordered them to respond at a final hearing on their denial of the threats of costs and the allegedly false and damaging document sent to Sir Norman Lamb
“Following my solicitor’s illness with Covid-19 in March 2021, South London Area Judge Freer (who was the trial judge who signed my grossly unfair settlement) allowed the judge’s decision to be varied Sage outside any appeal procedure by a Judge Kelly in a new order which essentially superseded Justice Sage’s order. This gave HEE a second chance to get out of the case on technical grounds. HEE has now succeeded in this and been saved from responsibility for his actions over the threats of cost and the misleading document sent to Sir Norman Lamb.
“The regional judge also failed to advance my unnecessary cost request or dismiss it even though it was filed in 2019. This request focuses on how young doctors in the country have been excluded from whistleblower protection for 4 years. This video summarizes the problems that the regional judge seems to hope will simply disappear.
“I have made a request for the Judge’s (Regional Judge Freer) record of my 2018 hearing which has been settled. The Tribunal has not answered this question. It is my only hope for an honest record of this audience, so it’s hard to understand.”
Dr Day needs to speak to the BMA who paid for his legal representation to see if he can appeal the judgment.
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