Doctor sacked for raising concerns over patient safety wins case against regulator
Mr Kumar, Consultant in Trauma and Orthopaedics, is a Consultant Surgeon for the University Hospitals Morecambe Bay NHS Foundation Trust (the “Trust”). In addition to this role, he was seconded to work for the Care Quality Commission (“CQC”) in an advisory role on a part-time basis. His employment remained with the Trust.
The CQC is the independent regulator of health and adult social care in England and aims to monitor, inspect and regulate services. Mr Kumar was dismissed by the CQC in 2019, following a series of concerns he raised regarding treatment he had observed. On 5th September 2022, an Employment Tribunal found that Mr Kumar had been subjected to detriment as a result of whistleblowing disclosures made in his role at the CQC. Mr Kumar was awarded £23,000 for injury to feelings, caused by the damage to his previously untarnished reputation.
Mr Kumar’s Concerns
Mr Kumar raised concerns regarding the level of treatment and ‘inappropriate operations’ he observed at the Trust. Mr Kumar observed one surgeon performing surgeries that were ‘inappropriate’ and of an ‘unacceptable’ quality, putting patients at serious risk. Between 2015 and 2019, Mr Kumar repeatedly wrote to his senior colleagues at the CQC, expressing his growing concerns for patient safety.
Whilst the duty of candour, which ensures that medical staff must be open and honest with patients when something goes wrong is long established, Mr Kumar’s attempts to prevent potentially negligent treatment were repeatedly ignored. Mr Kumar also described how the CQC was unwilling to examine high infection rates and reports of doctors being harassed.
Instead of using Mr Kumar’s knowledge and expertise to improve the treatment patients were receiving, the CQC ignored Mr Kumar and sought to discredit him. The CQC requested details from Mr Kumar’s Trust regarding any disciplinary action against him.
Mr Kumar was sacked by the CQC in 2019 and he later described his frustration with the CQC:
“The whole energy of a few individuals in the CQC was spent on gunning me down rather than focusing on improvement to patient safety and exerting the regulatory duties.”
Under cross-examination, Mr Kumar explained that the damage to his reputation was significant and was solely his loss. The Tribunal’s Judgment described how this damage was against the backdrop of a previously untarnished reputation.
The Tribunal found that Mr Kumar was subjected to detriment on the grounds of having made a protected disclosure. The Judgment confirmed that emails and concerns raised by Mr Kumar had a ‘material impact’ on the decision to disengage him from his secondment with the CQC. The Tribunal awarded Mr Kumar damages of £23,000 by way of compensation for the damage caused to his reputation.
Mr Kumar explained his relief at the verdict stating:
“From a personal point of view, I feel vindicated.”
Council Chair of the British Medical Association, Professor Phillip Banfield, summarised the importance of this decision and whistle-blowers such as Mr Kumar who seek to protect patient safety:
“It is absolutely paramount that doctors are able to raise safety concerns without fear of recrimination or backlash from employers. This Judgment clearly underlines the fundamental need to protect whistle-blowers and is a significant legal victory that the BMA is proud to have supported.”