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NHS trust suspends two governors as whistleblower email dispute continues

Governors at an NHS trust have been suspended after asking questions about emails used to bring a General Medical Council investigation against a whistleblower

Two elected governors have been suspended, pending investigation, by the University Hospitals of Morecambe Bay Foundation Trust (UHMBT).

Computer Weekly understands the pair were told by the trust’s chair, Mike Thomas, that they were being suspended on the same day as they were due to raise questions around disputed emails that appeared to implicate whistleblowing medic and ex-trust employee, Peter Duffy, in a string of clinical errors which led to the death of a patient at a UHMBT hospital in January 2015.

Thomas, however, told Computer Weekly that the suspensions were not related to concerns around the disputed emails.

He said it was “inaccurate and wrong” to suggest “the decision to suspend two public governors was directly related to any single incident and specifically concerns raised around emails found during the independent investigation into the Trust’s urology services."

In late May, the General Medical Council (GMC), which acts as the chief watchdog for UK doctors, dropped a 30-month probe into Duffy over the contents of the emails. But Duffy maintains the emails could still put him in the frame for potentially criminal charges.

The two governors were due to raise questions at the 20 June meeting around conflicting evidence in respect of the emails - which had apparently been sent by Duffy during the days leading up to the 2015 death of 76-year-old Morecambe man Peter Read, but did not appear until 2020.

Duffy, a surgeon, helped lift the lid on more than 500 cases of “actual or potential harm” at UHMBT’s urology services through his patient-safety reporting.

He claims senior staff at the trust falsified the emails in question as part of an “executive vendetta” waged against him in retaliation for his whistleblowing. UHMBT denies the allegations.

Duffy believes the potentially incriminating emails were backdated and made to appear as if they had been sent from his UHMBT email account years after Peter Read’s avoidable death in January 2015. Read’s care at UHMBT was at the centre of Duffy’s whistleblowing and became the “index case” in a subsequent investigation NHS England ordered into the trust’s urology unit.

Eight-year standoff

The dispute over these emails marks the latest chapter in a bitter eight-year standoff with trust bosses since Duffy flagged patient safety dangers at UHMBT.

Duffy oversaw his final surgical procedure on Friday 7 July at Noble’s Hospital on the Isle of Man. This brought his work, after 43 years in the NHS, to a premature conclusion.

He told Computer Weekly the decision to suspend the two governors was “disturbing” and that the email dispute should be subject to board-level scrutiny.

He said: “It is deeply disturbing to hear that governors have been suspended from UHMBT’s board, shortly after questioning the appearance of backdated evidence in UHMBT’s IT records.

“They resulted in a 30-month GMC investigation which could easily have resulted in me being struck off the medical register and facing criminal charges, and which ultimately resulted in me resigning from the profession as a consequence of the strain and fear that these actions created.”

In late May, the GMC dropped its lengthy probe into Duffy due to conflicting evidence over the authenticity of the disputed emails the trust had provided to the regulator. The GMC also highlighted the “particular regard” it gave to its “inability to place weight” on an external IT report that had found there was no evidence of tampering or foul play over the disputed emails.

In light of the GMC decision, Duffy said: “The governors would be abdicating their duties and responsibilities to public safety were they not to be vigorously questioning such a sequence of events.”

Mike Thomas, UHMBT chair, said: “Following numerous complaints from members of our Council of Governors about the behaviour of two of our public governors, and a request to act, we have suspended the two public governors from their duties in accordance with our Foundation Trust Constitution.

“An independent investigation will now take place into the conduct and behaviours of the two public governors. Once completed, the report will be presented to the Council of Governors to decide as to whether there is a case to answer that requires any further action.”

Disputed emails

The decision to suspend the pair follows a recent resignation by another governor, Sue Allison, over the handling of Duffy’s email allegations.

Allison, herself a former whistleblower at UHMBT’s breast screening service, said that governors had been “suppressed” when seeking answers to Duffy’s email claims and wider care concerns involving urology and other departments, such as trauma and orthopaedics, where patient safety concerns have recently been flagged.

Speaking to Computer Weekly, she said of the trust’s suspension move: “This follows the same playbook that gets used for anyone who tries to challenge Morecambe Bay Trust in order to improve patient safety: they're not welcome and they get squashed.

"He [the chair] decided he was going to act very fast - he wanted to control the narrative on this and he did not want them in that meeting.

"They've got a big fight on their hands now that the GMC has dropped the investigation into Peter Duffy.”

She added that the two suspended governors “were driving at that all the time, asking very pertinent questions - which is why the trust wanted to silence them.”

Two questions concerning alleged concealment of evidence had been tabled by Duffy for discussion at the governors’ meeting held on 20 June 2023.

Duffy had asked why extensive searches of UHMBT’s IT archives in 2018, as part of a tribunal claim he brought against the trust, found that “these ‘2014’ emails didn’t exist in 2018”.

The judge in that case ordered that all communications in respect of Read’s death be disclosed to the tribunal. UHMBT combed through some 3,000 departmental emails for the 2018 tribunal hearing - but the two disputed emails, purportedly sent in December 2014 by Duffy, were not handed over.

An NHS England spokesperson told Computer Weekly the reason the two emails were not found earlier was that UHMBT upgraded its IT systems to Microsoft 365 at some point between 2018 and 2020. According to NHS England, this meant the emails could not previously be located through searches in response to Freedom of Information requests or court orders.

Through Microsoft 365’s more advanced search function, NHS England’s spokesperson said, the emails could finally be retrieved.

Duffy, however, contends that, “Declaring this evidence would have profoundly changed the NHS England inquiry and would have killed off any possibility of the subsequent 30-month GMC witch-hunt”.

Lorraine Crossley-Chase, UHMBT’s head governor, stated at the 20 June meeting that the emails dispute was not an issue for the trust. Instead, she argued, it was addressed by a private company that had subcontracted two other firms to investigate the IT tampering claims.

“This issue is not anything to do with the trust,” she said. “It’s gone on to [private firm] Niche - it belongs to Niche.”

Niche Health and Social Care Consulting was commissioned by NHS England to investigate UHMBT’s urology services in 2019. It subcontracted two unnamed firms to assess Duffy’s email falsification claims during the course of this work, but has not published an ensuing report into the IT tampering allegations. The report found no evidence of tampering or foul play over the disputed emails.

Niche Health and Social Care Consulting has said it would be in breach of contract if it published the report into Duffy’s IT tampering claims or provided it to the GMC probe into Duffy. The firm has provided confidential copies of the IT report to both Duffy and to Read’s family.

Suzie Hayman, another UHMBT governor, told trust colleagues at the board meeting that, contrary to Duffy’s claims, she did not believe it was possible to back-date the emails in question.

“Those emails would have been there,” she said. “I do not believe this assertion that they were hacked in, [that] they were planted.”

A ‘legacy of distrust’

Two NHS-commissioned reviews have this year highlighted divisions within UHMBT’s Council of Governors.

A PWC report commissioned by the trust, for which Thomas and Crossley-Chase were interviewed, found that: "Relationships between board members and governors require further development, in particular in relation to a subset of the Council of Governors with ongoing concerns about historic issues at the Trust.

“These challenges are recognised by the board, with the chair leading the ongoing response, working with the head governor.

“The Trust has provided the governors with significant depth of information and access to internal review teams in these areas with the aim of addressing these concerns."

UHMBT paid PWC approximately £60,000 to carry out the exercise, which formed part of the “well-led” assessments it and other trusts are required to commission every three to four years.

A follow-up review that was carried out by Niche as part of the broader work it has done on UHMBT’s urology service since late 2019 also noted strained working relationships within the council of governors due, in part, to previous trust failings.

The “assurance review”, which was published by NHS England in June, determined that the board of governors was “hampered” by “a legacy of distrust”.

Through a focus group run as part of the exercise, this review found it was “abundantly clear” that “the relationship between the Trust and the governors remains hampered for some by a legacy of distrust stemming from the Kirkup review; high[-]profile staff tribunals; and issues in Urology, Trauma and Orthopaedics.”

The review also found: “There is continuing disruption in the governor group with differing perspectives and too much time spent on dealing with perceived past wrong doings [sic] that the Trust at board level has attempted to address and resolve.

“There remains a lack of acceptance amongst some governors to use the processes that are in place. Significant email traffic on repeat issues is a significant distraction for Trust staff.”

NHS England has been contacted for comment.

Aaron Cummins, UHMBT’s CEO, said: "Whilst we respect Mr Duffy's right to share his version of events in whatever way he feels appropriate, it is important to remember that the recent and extensive independent investigation by Niche Health and Social Care Consulting, commissioned by NHS England and NHS Improvement, looked into all of the concerns raised about the Trust's Urology services, including those concerns outlined in Mr Duffy's first book.

“That investigation stated that not all the claims in that book were accurate.

“With regards to the claims that these emails were falsified, the two separate independent, external reviews of those allegations conducted by Niche Health and Social Care Consulting as part of their investigation, found no evidence the emails in question were tampered with and no evidence they were not sent from Mr Duffy's NHS hospital email account.”

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