An NHS Trust “deliberately” deleted as many as 90,000 emails that were “potentially” critical to a legal case brought by a whistleblower who revealed that under-staffing in an intensive care unit was linked to two avoidable deaths.
Chris Day, a former junior doctor at Queen Elizabeth Hospital’s intensive care unit in Woolwich, is bringing a tribunal case against Lewisham and Greenwich NHS Foundation Trust over allegedly defamatory statements issued about him by the trust.
Day has said his training contract with Health Education England was terminated within six weeks of his one-year placement ending with Lewisham and Greenwich as a result of a dispute that developed after he had blown the whistle on staff shortages.
He said the dispute with Lewisham and Greenwich and Health Education England, which trains junior doctors, resulted in his national training number being deleted, blocking his career and forcing him to work as a locum doctor ever since.
An employment tribunal heard this week that Lewisham and Greenwich NHS Foundation Trust’s head of communications, David Cocke, “deliberately destroyed” email and other digital evidence including electronic archives just before he was about to give evidence.
The high-profile case raises questions about the adequacy of information governance practices in NHS hospital trusts and whether they are deploying information backup systems capable of properly preserving critical medical documents and communications.
Cocke had accessed his NHS email account at a trust site at around 5.30am on 4 July 2022 and attempted to “permanently destroy” upwards of at least 100 emails that were “potentially relevant” to the case, the tribunal was told.
The tribunal heard that Cocke had acted “in a panic”. According to an unsigned witness statement from Cocke that was read out in court, Cocke “deliberately” and “permanently” deleted a cache of emails and other electronic records and correspondence on the morning he was due to give evidence.
The tribunal judge, Anne Martin, then ordered the full disclosure of all relevant emails and other documents later in the day on 4 July.
Cocke attempted to delete the electronic communications and records less than 24 hours after a meeting of the trust’s legal team, the tribunal heard.
Chris Day’s barrister said in his closing submissions that Cocke deleted “up to 90,000 emails”. Day’s representatives argued that Cocke’s evidence could not be tested in court since Cocke withdrew as a witness at two separate points over the final 10 days of the four-week hearing – in each case, just before he was due to be cross-examined.
Cocke is now understood to have engaged the services of a separate criminal law firm, Kingsley Napley LLP.
‘Defamed’ whistleblower
Day’s protracted legal battle first began when, aged 28, he flagged under-staffing as a junior doctor working at Queen Elizabeth Hospital Woolwich’s intensive care unit in 2013.
He has said his training number was deleted as retaliation for his whistleblowing activity, leaving him unable to complete his training and progress his career. He claims the unit’s failings that he reported were subsequently “covered up”.
After four years of attempting to get his case heard, Day was granted a full tribunal hearing in October 2018.
He withdrew his whistleblowing detriment claim when he said he was threatened with legal costs liability – totalling more than £500,000 – by the trust and Health Education England (HEE), which is due to merge with NHS England by April 2023.
Both organisations maintain they did not threaten Day with liability for their legal costs, but Day argued the threat of costs was used to strong-arm him into signing a public statement accepting the NHS “had acted in good faith” throughout proceedings.
The hearing in June and July 2022 has focused on a series of public statements issued by the trust to the press, MPs and local community leaders in the weeks following the contested settlement of the claim in late 2018.
Former health minister and chair of the neighbouring South London and Maudsley NHS Trust Norman Lamb wrote to Lewisham and Greenwich’s CEO Ben Travis in 2019, saying he believed one of the public statements that remains on the trust’s website was “severely defamatory…[and] damaging to Chris Day’s reputation”.
Lamb and former Health Secretary, Jeremy Hunt, provided witness statements in support of Day’s case last month. Lamb told the tribunal under cross-examination that he was “horrified” at the way he believed cost threats were “deployed” – representing an “existential threat” of possible insolvency to Day and his family.
‘No concealment’
Chris Day’s barrister, Andrew Allen QC, told the South London employment tribunal that Lewisham and Greenwich Trust had not been contesting the hearing “on a level playing field” right from the start of the proceedings.
He said that the trust had not preserved or produced documents, or carried out the right searches for documents that should have been disclosed to the tribunal.
There had been “egregious” late disclosures of emails on the eve of the hearing’s final day of evidence, the tribunal heard.
“Emails had to be squeezed from the respondent, going back and back…If that is the respondent’s bar for disclosure, there may be a considerable number of other such relevant documents that have [still] not been disclosed,” said Allen.
Allen said Cocke’s U-turns over his fitness to be cross-examined, alongside scant supporting medical evidence of his ill health, threw into question the “integrity” of the trust’s witnesses and the “credibility” of the evidence it provided to the tribunal.
Ben Travis, the trust’s CEO and Ben Cooper QC, Lewisham and Greenwich’s former barrister in the Day case, were the only witnesses who were ultimately cross-examined.
Acting for the trust, Daniel Tatton Brown QC said that “there has been no concealment in this case…Cocke, the alleged concealer, the destroyer of documents, was instrumental” in bringing a string of emails to the court’s attention.
Dr Chris Day with his wife Melissa Day who appeared as a witness in the hearing
Tatton Brown was referring to emails that relate to Janet Lynch, a former workforce and education director at the trust, who, as the instructing client, had been responsible for instructing the trust’s solicitors in the case up until late 2018. She left Lewisham and Greenwich in 2018 and now works for another NHS Trust in Hertfordshire.
Tatton Brown added that the suggestion documents had been destroyed so as to conceal evidence from the tribunal was “a red herring”.
A spokesperson for NHS Digital said: “Ms Lynch’s NHSmail account was permanently deleted in 2018 as part of our routine account hygiene processes and not for any other reason. Accounts must be logged into at least once every 90 days to remain active and are permanently deleted after 210 days if they remain inactive.
“NHSmail is a communication tool to support the secure exchange of information and is not designed as a document management system. This is clearly explained in our published guidance, and it is the responsibility of individual NHS organisations to ensure they have processes in place to store emails or other documents that may be required in the future.”
NHS Digital told Computer Weekly it was the trust’s responsibility to store copies of Lynch’s emails when she left Lewisham and Greenwich Trust in 2018.
The tribunal heard that Cocke phoned NHS Digital a number of hours after having attempted to delete the electronic records and communications.
But NHS Digital told Computer Weekly that it had “no contact record for David Cocke and no enquiries related to the request of email deletion on the 4 July”.
A number of questions remain as to the recoverability of the emails the trust’s legal team says Cocke “permanently” destroyed. The trust has provided no forensics assessment nor has any other kind of IT expert opinion been provided by the trust yet to support its legal team’s arguments on this point.
History of non-disclosure
The trust made a series of late disclosures between Monday 4 July and the eve of the extended hearing’s final day of evidence on Wednesday 13 July, including a note of an extraordinary board meeting on Sunday 14 October 2018.
The tribunal heard that trust bosses at the meeting discussed the controversial settlement agreement offered to Day, as well as the publicity that may have arisen had he proceeded to cross-examine any of the trust’s witnesses.
The trust had initially withheld the document from freedom of information (FoI) requests and the tribunal, before it was finally disclosed more than two weeks into the hearing.
When this journalist sought a copy of the note through a FoI request in 2020, the trust said it held no record of the meeting, and that “a formal meeting of the Trust Board was not held on Sunday 14 October”. It added: “Board members did have a confidential teleconference that day.”
The question of disclosure practices on the part of the NHS and its legal representatives has already been the subject of controversy in the case of Day.
Day’s legal battle turned for a number of years on the question of whether HEE could be considered an employer of doctors below consultant level in England. HEE’s legal team argued that no employer-employee relationship existed between HEE and around 54,000 junior medics.
In 2019, commissioning contracts that set out the employment terms under which junior doctors had been engaged by HEE were uncovered through this journalist’s FoI request.
The commissioning contracts set out employment terms for junior doctors at Lewisham and Greenwich and other NHS Trusts in England when Day underwent his training placement at the South London trust. This showed that HEE was acting in the role of an employer.
A separate request showed that the solicitors’ firm Hill Dickinson, which had up to then represented HEE in the case, had drafted the contracts – for a fee of around £13,000 – that it had failed to disclose for more than three years during the litigation.
Norman Lamb told fellow Parliamentarians in a House of Commons debate later that year that the failure to disclose these contracts – which may have had the effect of prolonging the case by some number of years – was “totally unacceptable, and it smacks of unethical behaviour for the law firm to make money out of not disclosing a contract that they drafted themselves”.
The chancellor of the exchequer, Nadhim Zahawi, has written to the Solicitors’ Regulation Authority, which regulates solicitors in England and Wales, to request “substantive answers” concerning alleged misconduct raised with it in the handling of Day’s case. An application has been lodged by Day as regards to Hill Dickinson’s conduct and the contracts in question.
In his final submissions on 14 July 2022, Allen said that he believed “that the respondent’s conduct of this litigation…has placed the fairness of the hearing in jeopardy”.
He added that “by not calling the relevant witnesses” behind the trust’s approach to settling the case and its controversial public statements, Lewisham and Greenwich had sought to construct a misleading case “which has crumbled around them” once the late disclosures came about.
A spokesperson for Lewisham and Greenwich NHS Foundation Trust said: “As legal proceedings are still ongoing, we are unable to provide a comment at this time.”
