“THE freedom to raise concerns without fear of reprisal is vitally important for patient safety.” So trumpets the British Medical Association (BMA) in response to Sir Robert Francis’s Freedom to Speak Up Review. So why is the BMA suing whistleblowing surgeon Ed Jesudason for legal costs of up to £250,000 resulting from the collapse of a high court battle? If successful, it will bankrupt him.

Jesudason’s “crime” was to refuse to sign a compromise agreement brokered by the BMA’s appointed solicitors that demanded he destroy documents, including letters which exposed false claims that another whistleblowing surgeon at Alder Hey, Shiban Ahmed, was suicidal. The documents also exposed how poor the representation of Mr Ahmed was by the BMA.

Instead of taking the gag, Jesudason shared this evidence with the Care Quality Commission, Mr Ahmed and the campaign group Patients First, of which MD is a patron. MD was so appalled by the treatment of Jesudason and Ahmed, and the failure to thoroughly investigate their patient safety concerns, he wrote about it repeatedly in the Eye (issues 1364 & 1336).

Protected disclosures
Jesudason also made protected disclosures about the surgery department at Alder Hey Children’s Hospital Foundation Trust in 2009, and says the BMA acted against his wishes to settle the case in 2012. When the BMA realised he was sharing information with third parties, it pulled out of the case which caused it to collapse.

On the eve of collapse, 16 December 2012, MD was contacted by Janine Allen, a partner at Gately LLP (appointed by the BMA to represent Jesudason) and ordered to “permanently destroy as a matter of urgency” all email communications between myself and Jesudason. On 17 December, I received a demand from the same Janine Allen to “forward to us as a matter of urgency” all email communications between myself and Jesudason.

Jesudason is now expected to pay £250,000 for this confusing and contradictory representation. As he told the Health Service Journal: "The trust offered me a six-figure sum to go quietly, which I refused. I just wanted matters investigated. Days before we sought to make the injunction permanent and against my express wishes, my BMA lawyers tried to get an even bigger pay-off in return for destruction of the concealed evidence about Mr Ahmed. I have not slept under a roof of my own since 2012, and if the BMA win it would render me insolvent.”

Doctors who bully other doctors
The BMA knows better than anyone how badly whistleblowing doctors are treated, as it generally represents them at tribunals. It has a huge database of cases and compromise agreements that it presumably submitted to the Francis Inquiry. And yet the BMA does not get a single mention in the Freedom to Speak Up Review.

A whistleblower would naturally turn to his or her union for independent help, support and advocacy; yet in MD’s experience, more often the union will seek to suppress the concerns with a gagging clause and a pay-off rather than risk the wrath of, say, a large hospital that employs many more of its members. Often it is doctors who bully other doctors in whistleblowing cases, and all are “represented” by the same union.

Jesudason received a standing ovation at the BMA’s annual representative meeting in June 2014, and the meeting then called on health secretary Jeremy Hunt to hold a public inquiry into whistleblowing and to explore how the BMA could offer more support to whistleblowers. BMA leader Dr Mark Porter does not appear to have asked Hunt for such a public inquiry. The BMA claims Jesudason “did not follow advice provided by the legal team instructed to represent him, and shared confidential information externally”.

Concerns about patient safety
Coincidentally, this information is profoundly embarrassing to the BMA, as well as exposing serious concerns about patient safety and bullying at Alder Hey hospital. Jesudason, who has just £9,000 to his name, would rather give the money to Médicins Sans Frontières to fight ebola than to the BMA. The super-rich BMA has put £250,000 aside to pursue £241,000 Jesudason simply doesn’t have.

The Commons health select committee and Robert Francis are to be congratulated for acknowledging so publicly the pain and detriment whistleblowers suffer. But without unions and lawyers on their side, they will never win. In MD’s view, it is still not safe to blow the whistle in the NHS. And patients suffer as a result.

M.D.