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A former nurse who raised serious concerns about patient data suffered because of a health trust’s lack of understanding of whistleblowing, an employment tribunal heard.
Southwark Primary Care Trust’s “low level” of understanding about whistleblowing policy was “shocking and concerning”, especially as the government had developed policy specifically about NHS whistleblowing, claimed barrister Mark Benney.
Southwark Primary Care Trust (PCT) became a Clinical Commissioning Group (CCG) in April 2013 as part of the national re-organisation of the NHS.
In a written submission, Mark Benney, representing former nurse Bernie Rochford, claimed that, “when push came to shove”, Andrew Bland, chief officer of Southwark CCG, had blamed the mishandling of Rochford’s whistleblow on the former head of governance at the trust, when it was such a fundamental error he should be called to account.
Rochford is claiming constructive dismissal by Southwark Clinical Commissioning Group in south London following bullying and intimidation between January 2013 and July 2014, when she resigned.
She had claimed that the Total Care Management database used by Southwark PCT to manage continuing healthcare was not fit for purpose and included details of dead patients, and raised serious concerns about information governance.
During the hearing on 18 September the tribunal was presented with a list of whistleblowing allegations made by Rochford. They included claims that patients were still at risk after Southwark replaced its patient database in April 2012.
Rochford claimed Southwark had deliberately side-stepped her concerns at a time when it was seeking to gain CCG status.
“To date, I am not aware that the patient records and history have been carried over to the new database. I believe patients that came though the CCT [Continuing Health Care Team Process] were unnecessarily put at risk,” Rochford wrote in a letter to Andrew Kenworthy, the chief executive of NHS South East London in July 2012, disclosed at the hearing.
She went on to say: “Safer measures are now being introduced, but I have no confidence in the process undertaken around this serious incident.”
Unreasonable manager expectations
Christopher Edwards, refuting the claims for Southwark CCG, said it was simply wrong to expect senior managers at the CCG to understand the intricacies of whistleblowing legislation.
“Given that factual background, it would be counter-intuitive for many people to be told anything they already knew to treat it as a whistleblow,” he said.
Benney said that if organisations only considered items they did not know about to be whistleblowing they would risk undermining the legal protection given to whistleblowers.
He said that despite legislation being set out “in black and white”, Gwen Kennedy, director of group commissioning, admitted to the tribunal a “lack of specific training in that area”.
“Somebody contemplating making a disclosure can’t know what is already in the knowledge of the employer,” said Benney.
Rochford was told about concerns with the processes at Southwark during her job interview with Kennedy in 2011, said Edwards. “To suggest that Miss Kennedy was trying to hide something was utterly fanciful,” he said.
Plots and conspiracies
Edwards went on to tell the tribunal that Rochford had seen “plots, conspiracies or nefarious activities” in everything management did since January 2013.
In written submissions to the tribunal panel he said Rochford was “intransigent” and reacted “wholly unreasonably to reasonable management actions, or viewing simple things (such as noting meetings) as some sort of plot against her”.
Edwards questioned why Rochford had decided to resign in July 2014, after the conclusion of an earlier tribunal, without waiting for the verdict.
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Benney said Rochford had been in a “catch 22” over the timing of her resignation, shortly after bringing an earlier tribunal case against Southwark.
“If she waited for the judgement and lost, as we know she did, it’s quite possible the respondent would have said ‘you have not resigned because of any breach on our part, it’s just sour grapes because you have lost the case’,” he said.
In his submissions, Edwards said the claimant “simply resigned, either because of her own personal intransigence” or perhaps, having sat through her first tribunal against Southwark, “she realised that she was not going to be vindicated, and thus resigned.”
The hearing at Croydon employment tribunal centre lasted nine days. A decision is not expected until later in the autumn.
Managers’ occupational health referrals ‘undermine’ nurse
Managers at Southwark Primary Care Trust made comments about then clinical health commissioner Bernie Rochford’s conduct in a series of occupational health referral forms which were designed to undermine her, barrister Mark Benney told the employment tribunal.
Cross-examining witnesses, Benney suggested that Southwark, now a Clinical Commissioning Group, had used the referrals to place pressure on the former nurse.
Benney suggested it was inappropriate to use the referral forms to report management issues, rather than medical issues, to external doctors who were assessing Rochford following a long absence with work-related stress.
He told Gwen Kennedy, now director of quality and safety: “What I would suggest is towards end of 2013 you were upping the ante and using referrals to undermine Miss Rochford.”
Kennedy rejected the claims, saying Rochford had not accepted reasonable adjustments made by the trust to allow her to return to work: “I think it’s very important for the doctor to realise that we had made considerable adjustments for Miss Rochford. I’m asking, if anything, the occupational doctor to know what we are doing to [facilitate her] return to the workplace.”
On one form, Benney said Kennedy had written a note to doctors criticising Rochford’s “critical and questioning tone”.
She told the tribunal she had been disappointed with Rochford’s attitude and behaviour after attempting to find her a position in another part of the NHS.
Referring to her comments in the occupational health forms, she said: “I am asking the doctor about her emotional wellbeing, if there is anything we can [do to] help Bernie in the way she’s presenting in [the] workplace,” she said.
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