Dr Minh Alexander retired consultant psychiatrist 6 October 2023
Hampshire Hospitals NHS Foundation Trust is currently under the microscope because of Employment Tribunal hearings into claimed whistleblower detriment and unfair dismissal against Mr Martyn Pitman, senior consultant obstetrician.
Mr Pitman’s case has been widely covered in the media.
Notably, he is suing not only his former employer the trust who dismissed him earlier this year after a long saga of disclosures and dispute, but his former Chief Medical Officer Lara Alloway is also a named respondent.
The grounds of dismissal were “some other substantial reason”, namely a purported breakdown of relationships. This is a route frequently used by employers to dismiss whistleblowers when they have been unable to establish a case of misconduct or incapability, The other classic being redundancy.
I focus briefly here on apparent lack of transparency by Hampshire Hospitals NHS Foundation Trust about legal spending.
Mr Pitman’s barrister cross examined the trust’s Chair Steve Erskine yesterday, and in the process pointed out that Bevan Brittan are currently instructed by the trust to handle Mr Pitman’s claim, but were also presented as an independent advisor during the trust’s consideration of Mr Pitman’s concerns about whistleblower reprisal.
Erskine was asked when Bevan Brittan was hired to act for the trust against Mr Pitman.
| Bevan Brittan and Capsticks in the NHS Bevan Brittan are one of the large law firms which regularly acts for NHS organisations. For example, they were retained by University Hospitals Birmingham NHS Foundation Trust which employed an ex Bevan Brittan partner as Chief Legal Officer. Whilst retained by UHB, Bevan Brittan co-authored a Fit and Proper Person report on the then trust CEO. The whistlelower in that case, Mr Tristan Reuser, was misinformed by the trust’s lead investigator that the law firm had no previous links with the trust. After consulting with Bevan Brittan, Hampshire Hospitals hired Gary Hay a former Capsticks partner to investigate the trust’s handling of Mr Pitman’s concerns that he had suffered reprisal for whistleblowing. Capsticks is another large law firm which regularly acts for NHS organisations. It acted for an NHS CCG and an NHS trust in dispute with whistleblowers Maha Yassaie and Hayley Dare respectively, where the issue of impartial investigation was raised as a concern. Hayley Dare’s witness statement recounts how her trust chief executive offered her an “independent” investigator to look into her concerns, who was in fact employed by the trust’s solicitors Capsticks: “Mr Shrubb [trust CEO] told me that the investigation would not be internal and that arrangements would be made, so that I did not give evidence on site. (This subsequently turned out not to be true, and the report was authored by an employee of Capsticks, solicitors for the respondent, so not independent at all.” This is a Capsticks information sheet for NHS employers about the firm’s services, from the period when Gary Hay was leading such services: Capsticks Employee Relations Support Services This includes advising NHS trusts with their MHPS cases against doctors (investigations of alleged misconduct and incapability). Gary Hay is listed as one of Capsticks’s key contacts in this document. |
I have looked at Hampshire Hospitals NHS Foundation Trust transparency data for records of trust spending on Bevan Brittan’s services.
The trust publishes monthly transparency data on spending over £25,000.00 in line with requirements for public bodies.
I have looked at details of trust spending back to 2019, when formal processes escalated in Mr Pitman’s case and it is more than likely that legal advice would have been sought by the trust.
Mr Pitman’s Employment Tribunal claim was received in 2021, so there would at the very least have been legal expenses from that time onwards.
These are the few published details that I could find on spending badged as “legal services”:
Data on Hampshire Hospitals NHS Foundation Trust legal spending since 2019
There is remarkably little disclosed in the transparency data on trust legal spending apart from payments for insurance to Willis Ltd, payments to 4OC Ltd and Imperial for strategy, payments to DAC Beachcroft for “Pathology mgt [presumably management]” and a single payment to an unnamed “one off supplier” of £25,728.00, also for “pathology mgt”.
Nowhere in the data could I find payments for other legal services.
There are no recorded payments to Bevan Brittan amongst the spending over £25K.
Why is there no such record?
Could Bevan Brittan could have been paid in smaller amounts that did not require disclosure but if so, why?
In addition to the lack of spending data on Martyn Pitman’s case, why does there seem to be no other trace of litigation spending in the transparency data?
There is another ET claim against Hampshire Hospitals which according to an ET judgment of 6 April 2023 is due to be heard on 30 October 2023, which must also have incurred legal costs.
This is the case of Ms Theresa Lanni and a claim of disability discrimination, which features allegations of workplace bullying and stress.
The trust should account more clearly and completely for its legal spending.
Hampshire Hospitals NHS Foundation Trust is one of the most financially challenged trusts, with a reported deficit of £27.7m, and it is in financial special measures.
Hampshire hospital trust ‘one of worst’ with £27.7m deficit
In context, there has been a PFI burden:
It is especially serious if in this setting of financial difficulties the trust has been diverting precious public money into protecting the reputations of very highly paid senior managers.
The issue of properly independent investigation of whistleblower cases also remains a vex issue.
And the question remains of whether large law firms which depend on the NHS for lucrative corporate contracts can ever be truly independent when tasked with investigation of individual NHS employees’ cases.
RELATED ITEMS AND DRAMATIS PERSONAE
In a statement shortly before the Tribunal hearing commenced, the trust claimed that “all” Mr Pitman’s concerns were “thoroughly and impartially investigated, including in some instances through external review”.
It remains to be seen if the Tribunal agrees with this assertion.
The fact that Bevan Brittan both advised the trust about the handling of Mr Pitman’s concerns of reprisal and acted for the trust in defending against Mr Pitman’s ET claim is a concern. Many whistleblowers will also feel uneasy about any Capsticks connection.
TRUST STATEMENT
Published on: 25 September 2023
In response to recent coverage around former member of staff, Mr Martyn Pitman, a spokesperson at Hampshire Hospitals NHS Foundation Trust said:
“Dismissal is always a last resort and since Hampshire Hospitals was formed 11 years ago, no member of staff has ever been dismissed for whistleblowing or raising concerns over patient safety; and they never will be. Mr Pitman has not been actively working at the hospital for two years and the questions surrounding his dismissal will be resolved at an Employment Tribunal later this year.
“We actively encourage our staff to raise any concerns they have in a number of different ways and support those who do so. The trust ensured that all issues raised by Mr Pitman were thoroughly and impartially investigated, including in some instances through external review. [my emphasis] Every effort was made to repair his relationships with the maternity and clinical colleagues in question – efforts which were unfortunately unsuccessful.
“We are increasingly concerned that Mr Pitman’s representation of the reasons for his dismissal could discourage others from raising important issues.
“Patient safety remains our top priority, and our maternity teams work exceptionally hard together to provide the best care to our patients. We are proud to be fully recruited to midwives, and of the progress being made to offer the best possible service to those in our care.”
Connections between Hampshire Hospitals NHS Foundation NHS Trust and the former trust board of Portsmouth Hospitals University NHS trust
There are now several links evident between Hampshire Hospitals NHS Foundation NHS Trust and the former trust board of Portsmouth Hospitals University NHS trust.
Hampshire recently appointed Tim Powell as Chief People Officer. He was previously director of workforce at Portsmouth and involved in poor decisions in the whistleblowing case of Dr Jasna Macanovic:
Simon Holmes former medical director at Portsmouth who was also involved in Dr Jasna Macanovic’s case and launched a disciplinary process against her after she whistleblew to the General Medical Council about unsafe care, is now a NED at Hampshire.
The ET determined that Dr Macanovic was blameless and did not contribute to her own unfair dismissal in any way.
The relevant section from the ET judgment about Simon Holmes launching disciplinary action is as follows.
Importantly, the ET noted that Simon Holmes failed to share NCAS advice with Dr Macanovic:
“Disciplinary Action
65. On 2 May, Dr Holmes, the Medical Director, and Ms Susie Lowe, Head of the Employee Relations team, took some telephone advice from NCAS – the National Clinical Assessment Service. They are a division of NHS Resolution (the replacement body for the NHS Litigation Service), and they generally advise on doctors who are perceived to be under-performing in some way. Their written response to Dr Holmes (p.572) on 4 May confirmed their discussion: The Trust is mindful that Dr 19339 is a whistle blower, but concerns have been expressed by her colleagues about her behaviour and you have received 3 letters of complaint alleging that she exhibits aggressive, bullying and intimidating behaviour. … The issue is, as you are aware, complicated by Dr 19339 whistle blowing status and it will be important to document carefully the preliminary information which has been received so that this is available for future scrutiny if required. Potentially it may be necessary for the Trust to be able to demonstrate that Dr 19339 is not being victimised for having raised concerns. I advised that to avoid any allegations of bias, it may also be useful for the role of Case Manager, to be delegated so that the person making any decision about how to proceed is free of any real or perceived conflict of interest. Likewise the Case Investigator should be suitably senior, experienced and independent.
66. The key principles were correctly stated in this letter – any action taken should not relate to the allegations but to her conduct, it should be investigated at a senior level, and the Case Manager should oversee things to ensure that this distinction was upheld. The letter also invited them to share their advice with Dr Macanovic, though this was not done. [my emphasis]
67. Armed with this advice, a decision was taken to initiate disciplinary action (Detriment 4). Dr Macanovic was invited to a meeting with Dr Holmes on 15 May, and afterwards his replacement, Dr Knighton, wrote to her (p.578) to confirm that an investigation into her conduct would be carried out by Dr Matthew Wood, Chief of Service for the Anaesthetists. It was to be a Level 3 investigation, i.e. one that could lead to her dismissal. HR support would be provided by Ms Lowe and Dr Knighton was to oversee all this as the Case Manager. This must have been decided at a high level given their seniority. Dr Knighton, as Medical Director, reported directly to the Chief Executive, Mr Cubbon”
Gary Hay, appointed by Hampshire to investigate the handling of Mr Pitman’s concerns of reprisal, has been a NED at Portsmouth since 2018, where he chairs the Workforce and Organisational Development Committee. This is Hay’s trust biog:
A Companies House entry for Law2Business Ltd indicates that the company was incorporated in October 2017 and dissolved in October 2019.
Law2Business Ltd’s sole officer according to Companies House was a Gary Hay, with correspondence address of Capsticks, London.
However, another similarly named company, Law2Business Limited with sole officer Gary Michael Hay of a different address was incorporated in 2020.
According to Companies House this company was also dissolved, after compulsory strike off in 2021.
Steve Erskine current chair of Hampshire was a NED at Portsmouth between May 2011 – Mar 2017. According to his LinkedIn entry, Erskine was at the Home Office 2005 to 2010 as Management Deputy Director Integrated Service Management. The LinkedIn entry gives no CV details before 2000.
Andy Hyett Hampshire Chief Operating Officer since September 2022 was according to his LinkedIn profile Divisional Business Executive at Portsmouth September 2009 – May 2011
MHPS Designated Board Members
These are senior NHS trust managers who are appointed to oversee the processes by which doctors are investigated, disciplined and dismissed.
MHPS designated board members are supposed to broadly ensure fair play, especially timely progression of cases so that accused doctors are not kept in disciplinary process “jail” for excessive periods as a punishment in itself.
MHPS is supposed to be broadly consistent with Article 6 right to a fair trial.
“Role of designated Board member 13. Representations may be made to the designated Board member in regard to exclusion, or investigation of a case if these are not provided for by the NHS body’s grievance procedures. The designated Board member must also ensure, among other matters, that time frames for investigation or exclusion are consistent with the principles of Article 6 of the European Convention on Human Rights (which, broadly speaking, sets out the framework of the rights to a fair trial).”
The MHPS designated board member is supposed to be someone to whom an accused doctor can turn, if they have concerns about process.
I have asked Hampshire Hospitals for information on all trust senior managers who have acted as MHPS designated board members in the last five years and the governance around investigated doctors’ experience of MHPS and their wellbeing and Safeguarding.
It seems relevant to mention that at Portsmouth Hospitals University NHS Trust, Melloney Poole a then non executive director, acted as the MHPS designated board member in Dr Jasna Macanovic’s whistleblowing case.
Given that the Employment Tribunal concluded that Dr Macanovic was blameless and did not in any way contribute to her own unfair dismissal, it raises questions about how well Poole discharged her duties.
Poole is a lawyer by background, and one would imagine better equipped than most NHS trust NEDs to understand the principles of a fair trial.
Poole joined the trust in May 2017 as a NED and by October 2017 was announced as the trust’s new Chair.
Dr Macanovic was dismissed by Portsmouth Hospitals University Hospitals NHS Trust a few days after a disciplinary hearing held on 28 February 2018.
This is a heart-warming BBC Hampshire piece of 5 July 2023 on Poole’s relationship with the NHS, including nice photographs:
NHS 75: Baby born on first day becomes hospital boss
Alexander's Excavations 
I am so glad that you are monitoring this issue.
To my mind, there is something unsettling, if not ignoble, in a David and Goliath battle in a health setting. It suggests health has become a side issue in favour of more bureaucratic matters. Plus the legal profession flourishing – instead of patients and personnel. Oh, dear!
As always, I wish the victims well.
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