The law is an intriguing thing; employment law even more so.
Long-time Health Policy Insight readers will remember that we covered John Watkinson’s original Employment Tribunal victory against his dismissal as CE by Royal Cornwall Hospitals Trust in terms which NHS South West’s CE Sir Ian Carruthers’ colleagues didn’t much like.
We later reported the RCHT's plan to appeal the ET’s verdict in Wilkinson's favour.
Last Tuesday, the DH published the Verita independent inquiry’s review into John Watkinson’s treatment by RCHT and NHS South West.
It’s strange: SOS Lansley’s original written ministerial statement on 17 June 2010 appeared to promise that he would report this to the House from the floor, but this did not happen. His statement said, “The findings of the review will be published later this year and I will update the House on the outcome of the review and my response”.
So firstly, the Health Secretary’s deadline (“this year”) was missed.
Which is intriguing.
And DH published the review’s text online at 3 pm on Tuesday, which co-incidentally is just about the Health Service Journal’s busiest point in the week.
The timing issue of the Verita review further commands our attention when it reveals at 3.4 that “Our draft report was submitted to the Department of Health at the end of September”. Given the importance of the subject, and the priority given to it by the Secretary of State for Health (not to mention his commitment to a 2010 publication), a three-month delay before publication is considerable.
The truth is out there
Verita are increasingly well-known as NHS independent review providers, and their managing director Ed Marsden co-wrote this one with Verita associate Lucy Scott-Moncrieff, 2012 President-elect of The Law Society.
So, what does their Verita report, ’An independent review into the approach and behaviour of NHS South West in relation to the dismissal of John Watkinson by Royal Cornwall Hospitals NHS Trust’, say?
You might not have been wholly gobsmacked to learn that it found:
”3.38 The SHA put pressure on the RCHT board, but was justified in doing so. … We do not consider that the SHA had a ‘hidden agenda’.
“3.39 The RCHT chair and non-executive directors were relatively inexperienced in the NHS and it was good practice for them to take advice from the more experienced SHA before making their own decision. We consider that they made the decision to suspend Mr Watkinson in good faith and for good reason.
“3.46 We find no evidence that the RCHT board‟s dismissal of Mr Watkinson was motivated by any ‘hidden agenda’ of its own or of the SHA, or was a result of pressure from the SHA”.
On page 164, the review asks, ”What part did the SHA play in the decision by the RCHT to dismiss John Watkinson and if it played any part, how and why did it do so?
“11.67 RCHT said that the SHA played no part in the decision to dismiss John Watkinson.
“11.69 The SHA said it had taken no part in the decision to dismiss John Watkinson.
“11.81 We find no evidence that the actions of the board in dismissing Mr Watkinson were motivated by any “hidden agenda” of their own or of the SHA, or were carried out as a result of pressure from the SHA.”
Mmmm. In the hypothetical eventuality that Sir Ian Carruthers and colleagues in NHS South West SHA had somehow colluded to engineer the dismissal of John Watkinson (a hypothetical eventuality for which, let’s remember, the Verita review emphasises it found no evidence), the likelihood would have to be that Team NHS South West would not have ambled into their evidence session with Team Verita with their ‘Extremely Dastardly Plans’ box file under their corporate arm, dropped it onto the table and said “go on, fill your boots: it’s all there under W for Watkinson”. Really, if you think about it, you might actually expect such (purely hypothetical) evidence of a collusion that clearly didn’t happen to be a bit scarce.
Faith in the ET’s findings
The review is severally intriguing.
For a start, there appears to me to be a strong disconnect between the review’s findings at points 2.4 & 3.27:
”2.4 In conducting the review we did not and do not challenge the decision of the employment tribunal that Mr Watkinson was unfairly dismissed.
“3.27 We take these findings as our starting point. The employment tribunal reached these conclusions after a long hearing, with both sides represented by counsel, and we assume that the evidence was thoroughly tested. We note that the trust and SHA denied having acted improperly”.
and at point 3.28:
”3.28 We were struck by the fact that the employment tribunal‟s judgement made no comment about the method by which it supposed the SHA managed to get the trust board to dismiss Mr Watkinson. RCHT and the SHA are different organisations, based in different towns some distance from each other. If RCHT was wittingly or unwittingly doing the SHA’s bidding, there must have been a mechanism by which this was achieved.”
Point 3.30 lists a series of hypotheses, which seems a very odd thing for an independent review to do:
”We could see a number of ways in which the RCHT could have dismissed Mr Watkinson as a result of pressure from the SHA, arising from Mr Watkinson‟s stance on upper GI. For instance:
- the SHA could have told RCHT board members that they had to dismiss Mr Watkinson, but that they had to pretend to do it for another reason, and the board could have knowingly complied
- the SHA could have told the board that Mr Watkinson had to be dismissed because of the Hawker report, although its real reason was because of Mr Watkinson‟s stance on consultation about the reconfiguration, and the board could have innocently complied
- the SHA could have said nothing to the board about Mr Watkinson‟s dismissal, but the board dismissed him because it believed it knew that this was what the SHA wanted, and it believed the SHA wanted it because of the upper GI issue
- the SHA could have said nothing to the board about Mr Watkinson‟s dismissal, but the board could have dismissed him because it correctly believed that this was what the SHA wanted the board believed that the SHA wanted this because of Hawker and Bromley but actually the SHA wanted it because of upper GI
- the board could have dismissed Mr Watkinson in good faith, but were manipulated into doing so by the SHA, which was motivated by Mr Watkinson’s stance on upper GI consultation
- the board could have dismissed Mr Watkinson in good faith, but were unconsciously responding to what they felt to be the wishes of the SHA, which they believed to be that the SHA wanted to get rid of Mr Watkinson because of his stance on upper GI services.
However, point 3.31 not only extends this hypothesising, its two short sentences read like a massive non-sequitur: the second line in no way follows from the first - “3.31 No doubt other explanations fit the employment tribunal’s finding. No doubt either that the degree of culpability of the SHA and the board would depend on which of these explanations was correct, if indeed the finding of the employment tribunal was correct.”
It also seems to sail perilously close to contradicting its own prior pledges of respect to the ET verdict at points 2.4 and 3.27, by doing what can be read as coming awfully close to casting aspersions on the ET's findings:
Overall, the Verita inquiry report appears equivocal as to whether it truly agrees with the ET's verdict. It states, ”3.34 We must allow for the possibility that the employment tribunal was mistaken and that the SHA did not put pressure on the board to dismiss Mr Watkinson and that the board dismissed him because it had genuinely lost trust and confidence in him as a result of the Hawker report and his response to it. Such a conclusion would not challenge the employment tribunal finding that Mr Watkinson had been unfairly dismissed, although it would disagree with the employment tribunal’s finding about why he was dismissed.”
The logic in their conclusion at point 3.34 is not apparent to me. If the ET’s findings about why John Watkinson was wrongfully dismissed were indeed incorrect to the point that the Verita inquiry team disagree with them (as their report here hypothesises, and indeed ultimately concludes), then how could the ET's judgment be correct?
Terms of reference
The Verita inquiry report states at point 3.35 ”The bulk of our report seeks to answer the questions raised by the employment tribunal judgement and the concerns raised by Mr Watkinson”.
That’s nice and clear.
There is just one problem. These are not the questions that the Verita Review was set by the Secretary of State, who wrote:
“The Terms of Reference for this review will be;
“To examine all the SHA‟s interactions with the Royal Cornwall Hospitals NHS Trust in relation the dismissal of John Watkinson and, by association, the trust‟s position in relation to the provision of the upper GI services in Cornwall. In particular, to determine:
“- The chronology of events and decisions made in the running up to the dismissal of John Watkinson;
“- What involvement NHS South West had in his dismissal and whether or not this was motivated by the reconfiguration of upper Gastro-Intestinal services or otherwise;
“- Whether the SHA acted appropriately, proportionately, in keeping with its role and within its statutory responsibilities.
“The review should not duplicate the review of the proposals to reconfigure upper GI services in the southwest which was recently carried out by the Independent Reconfiguration Panel, nor any subsequent appeal of the employment tribunal‟s decision. However, it may consider these and any other relevant background evidence to make its determinations.”
Can you see anything there about the ET judgement?
There is a line about “any subsequent appeal of the employment tribunal’s decision”. There is nothing about the Verita review’s self-defined goal to “answer the questions raised by the employment tribunal judgement”. The ET’s judgment didn’t raise many questions – it was pretty clear, and pretty clearly damning.
The Bromley Report ‘rebuttal’ - was it? wasn't it?
Watkinson was appointed RCHT CE by Sir Ian Carruthers and colleagues, having come from Bromley Hospitals Trust. A review of Bromley was commissioned after Walkinson’s move to RCHT, which proved critical of his management.
The Verita report mentions at 5.4 John Watkinson’s statement that a press release was drafted to respond to the Bromley issues: “5.4 … That Sir Ian Carruthers had recognised that the Bromley report was flawed and not a significant issue and had drawn up a protective press release with Peter Davies in June 2008”.
It is curious, given the Verita team’s search for the truth and for documentary evidence, that there is no comment regarding this ‘missing’ press release. This press release is needed, and conspicuously missing from the many appendices.
Sir Ian’s St Mellion speech
One of the determining points in the concerns of RCHT clinicians about NHS South West’s attitude to cancer service reconfigurations arose from a speech given by Sir Ian Carruthers at St Melion on 2 May 2008, in the wake of critical comments made in the media by RCHT interim chair Peter Davies about RCHT losing cancer services.
A consultant present at the St Mellion meeting took notes:
“7.30 / 7.31 RCHT consultant gynaecological oncologist Alberto (Tito) Lopes' notes of Carruthers' 1 hr 20 min St Mellion speech: ‘he forcefully made the point that transfers to Derriford were going to take place and that media pressure would make no difference ... viii. Public outcry will not work – waste of effort. Real effort is moving from 2 to 1 centre and it won‟t be Cornwall. ix. Whole of Cornwall can sign petition but won’t change outcome’.”
The Verita team write at point 7.32 “we asked Sir Ian about this meeting (who said) ... ‘firstly the change would happen, and it didn’t matter how many protests there were, how many decibels, how many campaigns, they would not change the evidence and the evidence said that better outcomes for patients would be in centralised centres. Secondly, I made the point therefore that centralisation was inevitable based on the evidence’.
There is a striking difference between any of the contemporaneous Tito Lopes notes (whether those used at the ET or not - see both point 7.31 and also point 7.34), which do not refer to Sir Ian talking about evidence at all, and Sir Ian's 7.32 comments to the Verita inquiry.
It’s also interesting that elsewhere, the Verita review relies on John Bewick's contemporaneous notes to offer reliable backing to an interpretation of a conversation that John Bewick and John Watkinson remember differently (see points 10.10 and 10.11, and 11.35) on the critical-seeming issue of whether Mr Watkinson sought the removal from RCHT of acting chairman John Mills, as alleged at point 9.26 by SW SHA chair Sir Mike Pitt.
On Sir Ian’s speech, NHS South West communications director Andrew Millward is quoted at 7.29 as saying, ”given my life is about briefing everybody about everything, particularly the Department (of Health), I felt I should phone Ian. In hindsight I probably shouldn’t have phoned Ian, but I phoned him and said, ‘before you go in, because you might be asked about this story, you need to be aware that Peter has said this’.”
Millward's first sentence here seems to vertiginously contradict what he says at the start of his second sentence.
Moreover, Millward's assertion that he would not have been involved in approving a supportive press release, contained in the following passage about the negative Bromley report:
"Did the SHA agree a supportive press release with RCHT in June 2008?
“9.9 Mr (Peter) Davies said in his witness statement that he had agreed a press release with Andrew Millward at the SHA. We told him that Mr Millward could not remember this, and did not think he would have been party to agreeing a press release without having seen the report. Mr Davies said the trust’s communications officer, Greg Moulds, had said that the SHA were worried about the Bromley report and wanted to have a robust response ready to whatever might come out, so could they be thinking about it. ‘Greg and I drafted something – which is what you have – and that would have gone back to the SHA. I did not do it directly, it would have gone back to Andrew Millward’.
“9.10 He could not remember whether Greg Moulds had confirmed that the SHA was happy with what he had drafted.
“Comment (by Verita team of authors) - We find nothing to support the suggestion that Sir Ian agreed the supportive press release or knew anything about it. Andrew Millward may have received a draft press release, but we have no direct evidence that he agreed it. He says it would not have been his practice to do so before publication” is intriguing.
Not only does what Mr Millward says contradict the evidence from both Peter Davies and John Watkinson, it might also be thought to mark him out as a less-than-fully-engaged director of communications. Mr Millward seems to be suggesting that it would not have been his practice to agree or indeed prepare a press release about a newsworthy report affecting the management of one of the trusts under NHS South West’s performance management ahead of a known 'problem' report’s publication. That seems quite surprising.
Nor does it seem to fit well with Mr Millward’s aforementioned evidence at 7.29 that “my life is about briefing everybody about everything, particularly the Department”.
There is no explanation why Verita’s team appear to accept Mr Millward’s word over Mr Davies’ and Mr Watkinson’s on this matter, which is curious – elsewhere, the review goes into considerable detail about justifying why it finds some witness statements or explanations convincing and others not so.
For a man whom John Watkinson was allegedly trying to remove from post, RCHT acting chairman John Mills remained quite on-side with the Watkinson world-view of the SHA.
See point 9.53 - ”At interview John Mills said ‘the board was put in an impossible position by the SHA’ and ‘that if we did not play ball we were out’.“
It becomes more explicit in the following passage:
”11.7 Two non-executive directors on the RCHT board told us:
- they recognised and valued the SHA‟s experience in dealing with difficult situations in the NHS
- they accepted the validity of the SHA‟s concerns
- they were themselves concerned by what the SHA told them
- they voluntarily, if regretfully, accepted the SHA‟s advice on what steps to take
- they did not feel bullied or threatened by the SHA, nor did they feel the SHA was trying to bully or threaten them
- they did not feel that the SHA was operating a “hidden agenda”.
“11.8 John Mills, chair of the board at the time Mr Watkinson was suspended, agreed with the first four bullet points above, but was doubtful about the final two. He had considerable experience of public service at senior level and he felt that the SHA handled the matter badly. In particular, he could not understand why no one in the SHA contacted him before 19 September to tell him Bromley was turning into a big problem that he would have to handle. This made him wonder if there might be a ‘hidden agenda’ to get rid of Mr Watkinson. He was clear with us that if he had been forewarned of the looming problem, he would not have been concerned that there might be a ‘hidden agenda’.”
The Verita report goes on to consider the question, “Why was the Bromley report not discussed with John Mills until 19 September 2008?
“9.11 Sir Ian Carruthers explained that the final draft was sent to the SHA in July on the understanding that it would not be shared with others until the Bromley board had considered it, and either accepted it or not. We put this to John Mills, interim RCHT chair, who did not accept this as a good reason. He pointed out that he was a senior public servant, and that at that level it was normal for information of this kind to be shared informally so as to give those who have to take action time to think about it.
“9.12 We put this point to Sir Ian, who explained that he had not felt that he could take any action on the report, however informal, until he knew whether the Bromley board had accepted it. He also told us he had been told to keep the report confidential because he supposed lawyers, including, (a name appears to have been removed here), Mr Watkinson’s, were checking it.
“Comment (by Verita authors) - It would have been unfair to Mr Watkinson for Sir Ian to have discussed the draft with Mr Mills until the Bromley board had accepted the Bromley report. If he had, Mr Mills would have learned of serious criticisms of Mr Watkinson that the Bromley board might have gone on to reject. There was no guarantee that the Bromley board would accept the report, which criticised them and Mr Watkinson. Furthermore, lawyers were checking it, so there was a possibility that parts would be changed. In that case, findings about John Watkinson in the draft might not appear in the final report.
“The SHA had no way of knowing until they received the final report if it would be the same as the draft they had been sent at the end of July, and so no way of knowing if all the draft’s findings relating to Mr Watkinson would appear in the final version.
“We consider that Sir Ian behaved correctly towards Mr Watkinson.
“We appreciate that Mr Mills had reason to feel let down that he had not been kept abreast of developments with regard to the Bromley review but we consider that this was the responsibility of his chief executive, not of the SHA. Mr Mills confirmed to us that he knew that John Watkinson was aware that publication was imminent because Greg Moulds had been in contact with him to draft a press release about it. No doubt Mr Watkinson had been asked to keep the report private until publication but nonetheless he would have been entitled to let Mr Mills know what was coming, particularly as he himself felt the report was damning“.
This conclusion by the Verita authors appears to lend little credence to John Mills’ view that Sir Ian’s explanation about Bromley board acceptance of the report was not ”a good reason. He (Mills) pointed out that he was a senior public servant, and that at that level it was normal for information of this kind to be shared informally so as to give those who have to take action time to think about it”.
The Verita review authors do not make it clear why they consider that it was John Wilkinson’s responsibility as RCHT CE, rather than that of NHS South West SHA as RCHT’s performance managers, to tell John Mills about the Bromley report.
Likewise, general knowledge of Sir Ian’s legendary effectiveness as an NHS manager (he was for a period acting chief executive of the NHS, remember) may cause some to raise a quizzical eyebrow at the concept that Sir Ian Carruthers would have little clue about whether the Bromley report would change significantly – particularly since NHS South West chair Sir Michael Pitt termed the Bromley report “one of the most damning he had ever seen” (19 September 2008). Such a report would be unlikely to transmogrify into something flattering. And doesn’t good management mean preparing for a rainy day, PR-wise?
The Verita review also asks, ”Did Sir Mike Pitt tell John Mills that John Watkinson had sought to get him removed? If so, was this true?
“10.5 Andrew Millward says in his witness statement: “On Peter (Davies)’s resignation John Mills automatically took on the role of acting chair. I was present when (shortly after Mr Mills' appointment) John Bewick, who was acting chief executive in Sir Ian‟s absence, took a call from the claimant, who was complaining about Mr Mills’ appointment and asking for his removal. I learnt from Sir Ian that he repeated this request subsequently.”
“10.6 Mr Millward told us this was accurate. He also told us he believed that there was a record of the conversation he had heard, so we asked him to send it to us.
“10.7 John Watkinson told us he had spoken to Mr Bewick, director of strategic development at the SHA, but that the reports of the conversation were inaccurate. He told us this had also been raised in the employment tribunal, and he had told them what he was now telling us: ‘Yes, there was a conversation, but I didn’t say that. Mills asked for a note to be produced of that conversation and it was never produced because that was never said. This is nonsense really.
‘The correct context was it was just before the OSC and I was very concerned that Mills would go publicly against the PCT, and I was informing the SHA – I thought that was my duty – that that was a possibility, and asking for their support and advice. I didn’t realise there was somebody secretly listening to the conversation in the room, by the way; they didn’t tell me that. It didn’t matter anyway.
‘What I actually said was, it wasn’t to get him replaced. I was asked the question, ‘Would he be a good chairman substantively to be appointed?’, and I said that I thought that was questionable. That’s what I actually said. I didn’t say, ‘He should be removed as acting chairman’, I didn’t make any comment about that. It wasn’t my view. I was asked, ‘Would he make a good chairman substantively’, and I said, ‘No, I don’t think’ – no, I didn’t say, ‘No’, I said, ‘I think it would be questionable’. That is what I actually said, and I admitted that in the Tribunal.
‘But again, this is another part of the smearing that goes on. So they said that to Mills just at a time when Mills was at his most vulnerable to try and persuade Mills and then threaten Mills to suspend me, ‘Oh, he wants to get rid of you’. They never produced any evidence at all that that was the case.”
“10.8 Shortly after our conversation with Mr Watkinson, Andrew Millward sent us a copy of Mr Bewick’s note of the conversation with John Watkinson on 11 July. It reads: “11 July 2008. 9.10. JW calls (AM/JB): Peter (Davies) did not discuss resignation or vice chair. JB: JW must manage position of Trust. Not an acceptable statement from JM (see it as personal not Trust) undermining public confidence and reputation. John Watkinson: will not move away from agreed statement. JB: Sir MP did not “approve” but said would not stop it: disappointed. JB will not move to produce new chair: need to behave. Clear John Watkinson needs to generate internal discipline.”
“10.9 We later asked Mr Bewick to decode this note. He told us it said: ‘He (John Bewick) was not prepared to “parachute” in a new chair as it was not the SHA‟s role to make such an appointment and, in any event, there was no case for doing so.
‘He (John Bewick) advised Mr Watkinson to work on promoting the right kind of behaviour i.e. internal discipline at board level and “do the right thing for patients”.
‘In view of his greater NHS experience, Mr Watkinson should help the new chair in respect of “good standards and good behaviour”.’
10.10 Mr Bewick told us that Mr Watkinson rang him again on 14 July, the day before the OSC meeting, and he sent us a copy of his note of the conversation: ‘14 July 2008. 13.40 John Watkinson (on RCHT board discussion). Lack of politeness to Gabriel [Scally]. After GS left – JW advised should not move away from statement. Not politicians – job to run organisation recorded as advice to board. JM met P Davies at weekend – use OSC as platform. JW has not seen 7 page email to MP. Afternoon trying to minimise damage. Possible downside of both going to OSC – an RCHT downside. Non Exec booted out exec‟s for discussion on own. JW: progress on removing chair? JB: absolutely not. Integrity/give trust opp to do right thing at OSC’.
“10.11 Mr Watkinson told us that the possibility of removing Mr Mills was not discussed in the conversations and that Mr Bewick‟s note did not bear the construction Mr Bewick gave us. Mr Watkinson also denied that he had raised the possibility in the conversation of 14 July of Mr Mills being removed.
“Comment (by Verita authors) - Documentary evidence supports Mr Bewick’s recollection of this matter”.
The contemporaneous John Bewick note quoted at 10.8, of Bewick’s 11 July 2008 conversation with John Watkinson, undergoes a significant degree of interpretation by Mr Bewick that the quoted text simply does not seem to support. The note’s only comment regarding the chair is made by Bewick himself: “JB will not move to produce new chair “. This makes the Verita report’s reliance on it appear curious.
It is also extremely surprising that this note, and Mr Bewick’s interpretation of it, did not feature in Mr Watkinson’s employment tribunal proceedings. Indeed, under employment law, RCHT and NHS South West SHA would have been bound under disclosure to reveal any relevant documents – yet quite clearly, no note was produced.
The Verita review does not engage with this point.
If John Watkinson attempted to get rid of the RCHT chair in such a manner, that would surely have constituted gross professional misconduct. Such a document would therefore have been invaluable to a successful employment tribunal defence by RCHT.
The Verita review does not engage with this point.
One other interesting thought here: If John Watkinson is correct that John Mills asked for a note confirming that Watkinson sought his removal (as Watkinson’s evidence states at 10.7), then surely minutes will exist of that request by John Mills. It would be interesting if they could be found.
What’s really curious is that at 10.5 on page 135, the Verita review asks the question ”Did Sir Mike Pitt tell John Mills that John Watkinson had sought to get him removed? If so, was this true?”, and then completely fails to answer it.
Nowhere else in this document is any question left simply unanswered.
It reads as if some text has been removed here, but the question related left in place.
Further curiosity is raised by the following passage:
”9.91 ... Mr Watkinson had instructed solicitors with a view to issuing proceedings in defamation against the SHA, RCHT, John Mills and Sir Michael Pitt, and meetings took place to work out a joint strategy for handling these matters. Mr Watkinson‟s situation was discussed informally, and views were expressed about how matters might turn out. No one suggests that the SHA put any pressure on RCHT to dismiss Mr Watkinson, and Sir Ian confirmed to us that the SHA played no part in the dismissal process or the decision to dismiss Mr Watkinson.
“Comment (by Verita authors) – The evidence provided to us shows that the SHA complied with its duty to assist and support RCHT in managing these difficult issues. There is no evidence of impropriety or of pressure to dismiss Mr Watkinson”.
The law is an intriguing thing; employment law even more so.