Berkshire NHS trust accused of destroying email evidence in case involving patient safety risks

A tribunal hearing into allegations was cut short after trust's legal team allegedly threatened claimants with five-figure liability costs

Two medics who claimed Berkshire Healthcare NHS Foundation Trust put the safety of geriatric patients at risk have accused the trust of destroying email evidence related to the case.

Samir Lalitcumar and Ahmed Ghedri, two clinicians who made claims of poor practice against current and past employees of Berkshire Healthcare Trust, have said they were fired by the trust for raising concerns about patient safety.

A tribunal hearing into allegations made by the two medics was cut short after clinicians stated that the trust's legal team threatened them with five-figure costs to keep them from testifying in tribunal.

If either of the doctors had chosen to pursue their case and failed, they were faced with costs liability, or a "drop-hands offer," totalling more than £300,000. The threat of costs liability was issued less than 48 hours before the trust's witnesses were scheduled to testify.

Lalitcumar and Ghedri claim they were victimised and wrongfully fired for raising concerns about possibly harmful geriatric care provided by the trust that might have affected as many as 2,000 people.

They further claimed there was an inadequate review procedure inside the trust for looking into how their concerns were handled and that officials at Berkshire Healthcare Trust had misled staff about some of the alleged care shortcomings.

One of the allegations made at the tribunal hearing was that by deleting a former employee's email account, the trust had destroyed important evidence. The email account, according to the two medics, included crucial information which supported the claims that they had made.

Ghedri told the tribunal that Joanne Evans, the trust's Human Resources head, erased important emails despite being aware that the electronic communications would probably be used as evidence in an upcoming lawsuit. This goes against IT governance for the health sector which sates that in view of ongoing or impending legal procedures, a trust should keep copies of emails.

A spokesperson for NHS Digital told Computer Weekly: "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. Some NHS trusts use separate email systems, rather than NHSmail, and have their own local policies and procedures in place for these."

Lalitcumar and Ghedri say the trust ignored their concerns about patient safety by conducting an inadequate investigation.

The trust told Computer Weekly that the allegations, including the claims of evidence deletion, were "without merit," and legal counsel for Berkshire Healthcare has refuted claims that the two clinicians were dismissed as a result of protected disclosures they made in relation to the trust's geriatric care service. The trust offered Lalitcumar mediation, according to the trust's legal staff, and he was given the chance to voice his clinical concerns. The trust further said that the firing of the two was unrelated to their protected disclosures.

Of course, we'll never know because the claims cannot be tested in court.

The use of costs threats is a contentious litigation strategy that has recently been used to end high-profile whistleblower cases within the healthcare industry. Given the "inequality of arms" that exists between government-backed healthcare organisations and individual claimants, NHS employees and MPs have claimed that costs threats may prevent problems of great public interest from being discussed.

In a 2019 House of Commons discussion over whistleblowing laws, former shadow health minister Justin Madders said that many whistleblowers confront an "inequality of arms" at tribunals.

"They have often lost their job by that point, and they face a very difficult situation, with highly paid QCs running rings around them, which is often the result of employers trying to find loopholes in the law to avoid liability," Madders added.