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Surgeon is taking claims of victimisation over whistleblowing to High Court

BMJ 2012; 345 doi: http://dx.doi.org/10.1136/bmj.e8247 (Published 03 December 2012) Cite this as: BMJ 2012;345:e8247
  1. Clare Dyer
  1. 1BMJ

A consultant paediatric surgeon who claims that he is being victimised for raising concerns over patients’ safety at Alder Hey children’s hospital is to go to the High Court this month, in a case that could help clarify the law on doctors and whistleblowing.

Edwin Jesudason is trying to prevent Alder Hey Children’s NHS Foundation Trust sacking him. The trust said that it wanted to sack him because colleagues could no longer work with him, but he claimed that the real reason was that he raised concerns about patient safety in 2008.

In a five day hearing that starts at the High Court in Manchester on 17 December, he will argue that the trust had breached his contract in not following the normal NHS procedures for disciplinary action on conduct and capability and in failing to adhere to its own whistleblowing procedures.

Jesudason, a reader at Liverpool University who holds an honorary contract as a consultant surgeon with the trust, won a High Court injunction last July stopping Alder Hey from going ahead with a hearing that could have led to the termination of his contract.

Since 2010 he has been on a three year Medical Research Council secondment in Los Angeles and is not due to return to work at Alder Hey till April 2013. The trust said that there has been a breakdown of relationships in the department of paediatric surgery but denied that this was linked to Jesudason’s whistleblowing disclosures.

Alder Hey said that his concerns were investigated by a Royal College of Surgeons review in May 2011, which concluded that the department of paediatric surgery provided a safe surgical service.

The review, which looked at 20 cases or case series, found that “overall surgical care did not fall below the general standard of practice prevalent within the UK at the time.” But it noted that in five of the 20 “either the care given was suboptimal, or clinical governance appears to have been weak.”

Ian Lewis, the trust’s medical director, said, “Since 2004 the trust has been aware of difficulties in working relationships between Mr Jesudason and his colleagues within the department of paediatric surgery. From that time the trust has sought various forms of mediation, both internal and external, but this has not been effective in resolving these matters.

“The impending High Court hearing in December is centred on a point of law around the process the trust wishes to follow in order to resolve the ongoing issues.”

Jesudason told the BMJ that he had been made a consultant in 2006 and denied that the trust had been trying various forms of mediation since 2004. He added, “Trusts are obliged to have whistleblowing policies, and these insist that the whistleblower will be protected. Such policies place contractual obligations on employees, because one can be sacked for going to the press and not following the policy.

“There are likewise obligations upon the employer that, if properly enforced, could make whistleblowing policies worth more than the paper they are written on. This could give much needed protection to those exposing wrongdoing at Mid Staffordshire or elsewhere in the NHS and making whistleblowing safer makes patients safer.”

Jesudason is being supported in his dispute by the BMA.

Notes

Cite this as: BMJ 2012;345:e8247