Sacked NHS whistleblower vindicated
Tribunal judge orders that radiology manager who reported senior doctors' misconduct be reinstated on her full salary
Sunday 11 July 2010
An NHS worker with an unblemished 27-year career was sacked after she blew the whistle on senior doctors who were moonlighting at a private hospital while being paid to diagnose NHS patients, an employment tribunal has heard.
Sharmila Chowdhury, 51, the radiology service manager at Ealing Hospital NHS Trust, repeatedly warned the hospital's most senior managers that doctors were dishonestly claiming thousands of pounds every month.
A Watford employment tribunal judge took the unusual step last week of ordering the trust to reinstate Ms Chowdhury's full salary and said: "I have no hesitation in saying that you are probably going to win."
The ruling will be a bitter blow for the trust, particularly as despite the seriousness of the allegations, it failed for two years to take any action against Miranda Harvie and Peter Schnatterback, the two doctors accused of fraud at the hearing.
Instead, Ms Chowdhury was suspended after a counter-allegation of fraud made against her by a junior whom she had reported for breaching patient safety. Radiographer Michael McWha made the allegation at the request of Dr Harvie, the tribunal heard. Ms Chowdhury was sacked for gross misconduct in June, eight months after her suspension.
This case is the latest to highlight the inadequate legal protection for whistleblowers who speak out about wrongdoing in the NHS. It also raises the uncomfortable question about the power yielded in the NHS by senior doctors. The onus is now on the trust to prove at next February's tribunal that Ms Chowdhury was guilty of fraud and not, as she claims, sacked because she was a whistleblower.
Speaking after the judgment, a tearful Ms Chowdhury expressed her relief after months of financial hardship. A widow with a teenage son, Ms Chowdhury has been forced to move back in with her elderly parents and rely on the goodwill of outraged lawyers. She told The Independent on Sunday: "I cannot believe what has happened to me. I was horrified and humiliated when escorted out of the building, and for a whole month, I had no idea why I was suspended. I was just doing my job. I thought the trust would want to know consultants were doing private work on NHS time. The public has a right to know what is happening with public money.
"This whole thing has completely changed me. I'm trying to stay positive but I loved my work, my department, and there are not many jobs out there. I hope the trust sees sense and tries to resolve the situation. If it hadn't been for Julie Morris at Russell Jones and Walker who took on my case for free, I would have lost everything I'd worked for all my life."
Ms Chowdhury qualified as a radiographer at Hammersmith Hospital in 1983. She worked her way up the management chain before starting as Ealing's deputy imaging manager in 2003.
The alleged fraud came to her attention after starting as service manager is 2007. It was her job to balance the books, report all staff absences and make sure X-rays, CT and MRI scans were of a high quality. But in addition, she had a separate informal agreement with the trust to read X-rays, for which she was paid £2 per report. She did this every morning and would then work through lunch to complete her normal duties.
Mr McWha alleged that Ms Chowdhury was carrying out this extra work fraudulently. He did so after Ms Chowdhury launched an investigation upon discovering his failure to upload reports and scans from 100 patients on to the imaging system, which may have caused delays in diagnosing life-threatening conditions. The trust admitted during the disciplinary hearing that it had failed to find any evidence to support his claim. But Ms Chowdhury was sacked for gross misconduct anyway, in order to placate the consultants who were fed up with Ms Chowdhury's interference in their business, the tribunal heard.
From July 2007 onwards she had informed managers that Dr Harvie was being paid for 14 half-day sessions a week when she was working only seven. Evidence that Dr Harvie and Dr Schnatterback were working alternate Mondays at the Clementine Churchill Hospital in Harrow, while being paid to be at Ealing, was passed on. Dr Schnatterback also claimed £250 for evening sessions when his private commitments led to an NHS backlog, the tribunal heard. Frustrated by the trust's apparent refusal to tackle the consultants, Ms Chowdhury wrote to the NHS Counter Fraud service in July 2009. Nothing happened.
Weeks before her suspension, she angered several consultants after reporting them for claiming four hours of overtime when working only three. Reports of duplicate claims and extra annual leave days were also made. All these protected disclosures were made to the finance director in October 2009, who referred the issue to the trust's fraud officer. He interviewed Ms Chowdhury in November 2009; days later she was suspended.
Ms Chowdhury's barristers, Helen Mountfield QC and James Laddie from Matrix Chambers, suggested that the case illustrated the "long-established tradition in the NHS of power being wielded by consultants".
In defence, Andrew Sharland, said: "This claim that there was some kind of grand conspiracy is unlikely to stand up. Ms Chowdhury is making very serious allegations against senior NHS consultants. This shows an extreme prejudice towards the NHS and towards the senior consultants."
The trust said it was unable to comment on confidential matters relating to individual employees. Dr Schnatterback told the IoS that his twice-monthly private sessions were always approved by the clinical director and he did more NHS work than he was paid for. Dr Harvie denied the allegations. Mr McWha refused to comment.
Ms Chowdhury's lawyers told the hearing: "The stated reason for dismissal is scandalous. It does not even survive the briefest scrutiny. This is not a mistake – it is a sham."
The judge awarded her full pay until the hearing begins in February, including pay for the work which the trust claims was fraudulently completed.
Gagged by the NHS
The failure of the Public Interest Disclosure Act 1998 to protect whistleblowers has been highlighted in numerous IoS reports. Each case has shown the personal, professional and financial costs faced by each doctor, nurse and manager who has spoken out.
Last year, we reported the widespread use of "gagging orders" on whistleblowers after the details of Dr Peter Bousfield's settlement by Liverpool Women's Hospital were revealed in court. Paediatrician Dr Shiban Ahmed is preparing for his employment tribunal after resisting efforts to be gagged. But at what cost? Ramon Niekrash, the surgeon who won his whistleblowing case against Queen Elizabeth Hospital in south London, has been awarded £17,500 in compensation. His costs, unrecoverable, came to £180,000.
Andrew Lansley, Secretary of State for Health, said last week the Government had plans to give the current legislation "more teeth". It can't come soon enough. NL
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