Trust loses whistleblowing case over ‘pioneering’ procedure
A senior medic has won a whistleblowing case after judges ruled she was dismissed after raising concerns about a new procedure her department was using.
An employment tribunal found consultant nephrologist Jasna Macanovic was fired from Portsmouth Hospitals University Trust after telling bosses a dialysis technique called “buttonholing”, which had been “championed” there, was potentially dangerous.
The trust’s case was that the way she had gone about raising concerns had made for an untenable working environment in the Wessex Kidney Centre.
The process saw a Care Quality Commission complaint, an independent investigation and multiple referrals to the General Medical Council.
The tensions were such that when the trust’s medical director was urgently summoned to a mediation session, he found a room in which everyone, including the external mediator, was or had been in tears.
The judgment published this week said during that hearing “several witnesses were in tears describing these events, years later. [The] day-long mediation failed to resolve things, with (we find) great pressure applied to Dr Macanovic to withdraw the GMC referral [of clinical director Paul Gibbs]”.
Dr Macanovic was dismissed in March 2018.
Employment Judge Fowell said: “The plain fact is that after over twenty years of excellent service in the NHS, Dr Macanovic was dismissed from her post shortly after raising a series of protected disclosures about this one issue. It is no answer to a claim of whistleblowing to say that feelings ran so high that working relationships broke down completely, and so the whistleblower had to be dismissed.”
Dr Macanovic resigned from the regional renal transplant team in July 2016 when she discovered two incidents had occurred that “had not been reported by either surgeon” and felt that one of the surgeons had misled the medical director over the issue, the tribunal heard.
“She did not, however, simply resign privately,” the judgment said. “She gave her reasons very publicly in a meeting. These were allegations of the most serious kind. They clearly had a major effect on her working relationship with [the two surgeons].”
The tribunal found buttonholing – a method to make kidney dialysis more convenient and less painful – had been going on in the unit since 2014 and “seems to have been pioneered by the vascular access nurses and surgeons in Portsmouth”.
In an email sent after the resignation meeting, Dr Macanovic said the practice was considered inappropriate by the vast majority of experts in the field and that no other renal unit in England was using it.
Criticism of the CQC
The case exposes some worrying governance, both within the trust and between it and the Care Quality Commission, with which the issues were raised in 2016.
When the CQC asked the trust for more information the unit’s clinical director responded that in his view that the deaths and infections were not due to the buttonholing.
He added that the deaths had not been concealed during a presentation on the technique to a conference of the Vascular Access Society of Britain & Ireland and that, contrary to claims, patients had given informed consent.
The CQC made no further enquiries and wrote back saying “they were satisfied that there were no safety concerns and that appropriate governance had been followed”.
The head of the renal unit reported the CQC findings to the team but refused to show them the whole letter, saying a request to see it would “question his probity” and that of a colleague. The tribunal said this was “misjudged” and opinion among the 20 consultants was “divided on buttonholing if not openly sceptical” but that “it was being championed by [clinical director] Paul Gibbs and he prepared the response to the CQC which the others were not allowed to see”.
The trust then commissioned its own internal report, from an employee called Simon Hunter.
Judge Fowell said: “Of the original allegations, there was no doubt that the red incidents had occurred and had not been reported at the time, but Mr Hunter concluded that this was the result of failures in training, procedure and governance, rather than by individuals. Dr Macanovic was unhappy with the guarded terms of the report.”
She later wrote to the CQC to say: “I find it almost unbelievable that CQC national specialist adviser would give a green-light to the technique in direct contradiction to the national and international guidelines and advise that I personally obtained from the most recent national director for renal care… who co-authored the national guidelines in 2011.
“This experiment was not done as a proper study, not even a pilot project and no discussion within the unit took place. So I am astonished that there is a reference to ‘appropriate governance processes being followed’ in the extract from your report.”
In response to Dr Macanovic and the judge’s comments, the CQC said: ”Inspectors followed up directly with the trust and the member of staff concerned, and the information was reviewed by senior inspection team colleagues, CQC’s then National Professional Advisor for Surgery and a nephrology specialist. We engaged with the trust’s leadership team to understand the steps taken to ensure oversight of any risk. This prompted the trust to seek input from an independent reviewer and led to their subsequent action to strengthen the processes in place to ensure safety when using this specific type of procedure.
“As with all hospital trusts, services provided by Portsmouth Hospitals Trust are subject to ongoing monitoring and where we receive information to suggest any risk to patients or staff we will always follow it up to ensure people are receiving safe care. Information shared with us by those working to deliver services is incredibly valuable source of intelligence which we will always listen to and use to inform our monitoring and inspection activity.”
The judge said the trust suggested that the Hunter report found against Dr Macanovic on most issues and that she unreasonably refused to accept its conclusions, “but in fact many of the conclusions supported her views, or found that she was right to raise them, and it called for a more detailed internal review of buttonholing”.
After receiving the Hunter report, Mr Gibbs wrote to colleagues saying: “If you really believe the questions raised about this innovation are related to governance or concern for patient welfare, rather than a (sic) opportunistic attempt to discredit me, I believe you are being naive.”
The tribunal said this was an “emotional appeal, essentially to take sides with him against Dr Macanovic”.
She responded to this and other messages saying: “The BH business is absolutely and totally not a private issue. It has never been. I feel so cross even that I had to spend some time looking things up. Paul should have listened to what I had to say on 7 September. The project is a lunacy and will end up in tears for all involved. I am trying to get some sense so we do not end up as headline news.
“I have researched the topic and sought opinions; I have reviewed our data. The data is shocking. If this gets out, all of us, doctors, nurses, interventional radiologist, vascular lab techs will be gone.”
After heated consultant meetings, complaints were lodged with the trust medical director about Dr Macanovic and these were being considered when she wrote to the General Medical Council.
The judgment said her referral “named Dr Robert Lewis as the chief of service who ‘assumed full responsibility for this uncontrolled experiment’ and also mentioned the medical director, at that time, Simon Holmes. Mr Gibbs and Dr Sangala were also named as those leading the practice.
“She accused them of a cover-up, of lying and dishonesty. It was by any standards a serious step, and might have led to them being suspended or struck off.”
After receiving advice from the National Clinical Assessment Service the trust decided to begin disciplinary action. The judgment said medical director John Knighton oversaw the investigation as case manager and that, “this must have been decided at a high level given their seniority. Dr Knighton, as medical director, reported directly to the chief executive, Mr [Mark] Cubbon”.
The trust’s dignity at work policy said a non-executive director should have been appointed to make sure Dr Macanovic, as a whistleblowing complainant, was not left unsupported. “In due course, a non-executive director was appointed, but although she was copied in to some emails, she made no contact with Dr Macanovic,” the judgment said.
This was the backdrop to the mediation meeting that left everyone in or close to tears.
The judgment said getting Dr Macanovic to withdraw her GMC referrals was the “main point” of that meeting, and her refusal to do so was the “cause of consternation on the part of the other consultants and even the external mediator”.
The tribunal said: “We can only conclude that they all lost sight of the important principle that this was a protected disclosure and as such it was wrong to pressure her into withdrawing it.”
Dr Macanovic — who has been working at Oxford University Hospitals since August 2018 – was later formally excluded from consultants’ meetings and told to “avoid further informal discussions about buttonholing, pending external investigations”.
After this Dr Knighton ordered a halt to buttonholing after being approached by four of her colleagues; but later reversed this decision after representations from Dr Lewis, Mr Gibbs and another two doctors.
Dr Knighton, who remains the trust’s medical director, later decided to proceed with disciplinary proceedings against Dr Macanovic, in a meeting with the team which was investigating her, but without the representatives of the Local Negotiating Committee (a staff consultative body), contrary to NCAS policy.
The judgment said this meant “instead of the decision being taken at one remove from the investigating team, and in consultation with staff representatives, the opposite occurred”.
Dr Macanovic was later found guilty of “serious misconduct” in a panel chaired by trust chief nurse Theresa Murphy.
Judge Fowell said the most serious failing in the disciplinary process was Dr Knighton’s offering the claimant “the opportunity to resign during the disciplinary hearing itself”. The judgment said Professor Murphy repeated the offer on the day of the outcome and “that offer can only mean that the outcome was a foregone conclusion”.
The GMC’s investigations later found that buttonholing should have been introduced as a research project with “a formal protocol and ethical review” but “because of the gradual way in which it was introduced it was not introduced in this way. As it was not conceived as a research project, the fact that it did not follow the research governance framework does not raise any serious concerns.”
The GMC said Dr Lewis had not been service director at the time and should not be blamed.
The judge’s conclusion was that Dr Macanovic had been dismissed for whistleblowing.
The judgment said: “It is true that in the course of the referral to the GMC and in the previous whistleblowing complaints she did make quite scathing personal criticisms of Mr Gibbs and Dr Lewis and was often dismissive of other people’s views or expertise.
“She was never an easy colleague. But it is artificial to try to distinguish between the manner of raising the concerns from the concerns themselves, and that was not how it was seen at the time.”
It added: “One particular point raised on behalf of the trust was that they took the buttonholing issue seriously, indicating that it was a separate matter. In fact, our view is that the consultant body in the renal unit were led by Mr Gibbs as clinical director, and he was a strong proponent.
“Dr Lewis gave Mr Gibbs his backing on this issue, and so Mr Gibbs was the one in a position to respond to the CQC. That is not so much treating her concerns seriously as attempting to resist or deflect them.”
A later external review led by a consultant nephrologist from Manchester said buttonholing “cannot be recommended as routine practice for all patients” but “could still be used where there was a strong desire by the patient and as part of an informed decision making process”.
‘Reflection and accountability’
In a statement following the judgment Dr Macanovic said: “This is the culmination of a very tough five and a half years. I’m proud of my resilience to see this case through and grateful for the support from my family and friends, patients, colleagues and the legal team. I am thoroughly enjoying practicing medicine as a consultant nephrologist in my new position.
“However, I’m still deeply sad that, after 23 years of impeccable service to the NHS, 17 in Portsmouth, I found myself in this situation. I hope there will be some reflection and accountability, so medical professionals will feel safe, supported and protected in raising serious medical concerns.”
A Portsmouth Hospitals University Trust spokesperson said: “We respect the decision of the employment tribunal panel and as a trust are committed to transparency and continuous improvement.
“At PHU, the safety and care of our patients is our top priority, and we took the original concerns raised very seriously. These concerns were thoroughly investigated and reviewed internally and externally, including by the Care Quality Commission.
“We are committed to supporting colleagues raising concerns, so they are treated fairly with compassion and respect.”
The trust said “buttonholing” was still a treatment offered at the trust but it was “fully discussed” with patients to allow them to make an informed choice. It said that, like all procedures, it was reviewed and monitored under its clinical governance processes.
A future hearing will decide on compensation for Dr Macanovic.
This story was amended at 7.22am on March 24 to include a response from the CQC