Episode 136: Dr Chris Day on His Decade-Long Legal Battle With The NHS

In 2014, an NHS junior doctor named Chris Day made “protected disclosures” to the hospital trust he worked for in south east London. He raised issues of understaffing (doctor/patient ratios were 1:18, more than double the national standard of 1:8) and reported two specific cases in which poor care led to avoidable patient deaths.The hospital trust took swift action, thanked him for bringing it to their attention, and wrote him a glowing recommendation.Just kidding.What could have been a ‘teachable moment’, or at least a routine incident of whistleblowing, instead set Chris on a collision course with Britain’s National Health Service, the then-national training provider Health Education England (HEE), and the justice system itself. In his words:One night in January 2014 I became a whistleblower. I did this without realising it and since then I have been very nearly swallowed up by an NHS made legal gap or ‘lacuna’ in whistleblowing law.Writing in 2016, Benedict Cooper explained the “lacuna” for the New Statesman:The fulcrum of the case is a gap – or “lacuna”, to get into the legalese – in the laws protecting junior doctors when they blow the whistle. A gap which exists because of an ambiguity as to who is ultimately responsible for their career, and which Day’s case has revealed. The status quo is that HEE isn’t fully bound by S43K whistleblowing laws because it is a training provider not an employer, while NHS trusts, which take junior doctors on as temporary employees contract-by-contract, don’t have to afford the same rights to them as they would more permanent staff . The background – and how this fits into the junior doctors contract dispute – is all here.Day and his legal team are arguing that this ambiguity is leaving junior doctors in a no-man’s land; that while doctors are duty bound to report concerns, they’re not protected against harsh treatment when they do; that HEE, as de facto employers of junior doctors, should step up and take responsibility for them.Chris found himself unable to work for the NHS as a junior doctor, characterised as “angry” and “emotional”, and embroiled in a fight to prove that he was an employee of the organisation he worked for in order to benefit from whistleblower protection.As Chris went from hearing to hearing, he found the lengths his former employers were willing to go to to discredit him and save face increasingly extreme:* In one episode, “one of the trust’s directors “deliberately” deleted up to 90,000 emails midway through a tribunal hearing in July 2022.” * The outcome of one hearing was a ruling that effectively stripped 54,000 junior doctors in the UK of whistleblower protection, later overturned on appeal. * The law firm defending HEE turned out not to have “disclosed key contracts it had been paid public money to draft for its client”, contracts that could have resolved the “fulcrum of the case” and prevented what ex-shadow health minister Justin Madders described as “a lengthy and wholly unnecessary legal battle where HEE was effectively seeking to remove around 54,000 doctors out of whistleblowing protections by claiming that they were not their employer.”As Tommy Greene wrote for Byline Times in 2023:This lack of disclosure allowed the agency to argue it could not be considered the legal employer of junior doctors – a position that Court of Appeal judges overturned in 2017. The contracts were eventually obtained through FOI requests in 2019.Believe it or not, Chris’s case is still ongoing, and, after more than ten years, the British Medical Association has now announced it is backing him up “as part of plans to improve its support for whistleblowers.”How much has the perennially cash-strapped NHS spent fighting Chris in court? According to Tommy Greene (writing in 2023):As of 2018, more than £700,000 had been spent by NHS bodies defending the case brought by Day. Overall costs are currently thought to stand at around £1 million.Chris joins me for a deep dive into his journey from junior doctor to “lightning rod”, and opens up about how he’s found the strength to keep going despite the numerous reversals along the way.You can visit Chris’s website, follow him on X or LinkedIn, or follow his case on CrowdJustice.1984today.substack.com1984.todayX: @1984TodayPod This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit 1984today.substack.com