04196-16 East Lancashire Hospitals NHS Trust v The Times

Decision of the Complaints Committee 04196-16 East Lancashire Hospitals NHS Trust v The Times

Summary of complaint

1. The East Lancashire Hospitals NHS Trust complained to the Independent Press Standards Organisation that The Times breached Clause 1 (Accuracy) of the Editors’ Code of Practice in article headlined “Whistleblower surgeon wins battle to clear name”, published in print on 12 June 2016, and online on 11 June 2016.

2. The article reported that a surgeon “who was subjected to abuse from colleagues and was sacked after raising concerns about a failing NHS trust” had “won a five-year battle that has cost more than £1 million of public money”. It said that an employment tribunal ruled that he had been “unfairly dismissed after enduring a campaign of abuse from fellow staff”. It said that he had been “subjected to abuse from colleagues and sacked after raising concerns”, and that he “became a victim of a hate campaign […] for raising his concerns”. It reported that one colleague said he would not allow the surgeon to “operate on his dog”, and another said that “he wouldn’t piss on him if he was on fire”. It said that following his suspension from the hospital, the complainant’s “case against him was so discredited that its attempt to get him struck off by the GMC [General Medical Council] was itself struck out by the High Court through lack of evidence”.

3. The article appeared in the same form online.

4. The complainant said that it was inaccurate for the article to suggest that the surgeon had been dismissed – or that a breakdown in relationships had taken place – because he had raised concerns as a whistleblower. The employment tribunal made no such findings as to the reason for his dismissal. Instead, it had only ruled in the surgeon’s favour because the complainant’s case had failed on a procedural issue: it had found that the breakdown in relations between the surgeon and his colleagues had the potential to be a fair reason for the dismissal, but that the complainant had not sufficiently explored the possibility of mediation. Further, it was inaccurate to state that the surgeon had been suspended: instead, his practice had been restricted to non-clinical duties.

5. The complainant was also concerned that it was also inaccurate to describe the breakdown of relationships as a “campaign of abuse” or “hate”: no such campaign took place. It was also misleading to state that the complainant had had a “case” against the surgeon which was discredited: the proceedings against the surgeon which were dismissed by the High Court had been brought by the GMC, and not the complainant.

6. Further, the complainant said that the article gave a misleading impression of the surgeon’s case at the tribunal because it had omitted reference to details of a number of other serious allegations made by him which were either withdrawn or failed. The complainant was similarly concerned by the omission of reference to a number of points it had made in a statement to the newspaper prior to publication, and to why the breakdown of relationships had happened.

7. The publication denied that its coverage was inaccurate in breach of the Code. It said that it had accurately summarised the tribunal’s findings and its reasons for upholding the surgeon’s claim. It said that it was accurate to describe the surgeon as a “whistleblower”: he had raised a number of concerns with the GMC about the implications for patient safety of some of the conditions and procedures at the hospital. Further the tribunal found that he had made a number of disclosures that were regarded as protected disclosures – “whistleblowing” – under the Employment Rights Act 1996. While the newspaper acknowledged that the surgeon had not been found to have been unfairly dismissed on the grounds of protected disclosure, it said that the article did not make any such claims. It noted, however, that the surgeon had made his first protected disclosure less than a month after taking up his post, and that the breakdown in relationships appeared to have started at around the same time.

8. The newspaper said that, having found that the surgeon had been dismissed over a breakdown in relationships, the tribunal was not concerned to make findings of exactly how or why that breakdown had happened. It said that the article’s characterisation of the breakdown was accurate: the surgeon’s colleagues had made a number of comments about him following his raising concerns with the GMC which could be accurately described as “abuse” or “hate”. It also noted that the article in any case made the complainant’s position clear by quoting its spokesperson who said that the tribunal had only ruled against it on a “procedural issue”.

9. The newspaper said that the GMC had only been able to take forward its case on the basis of the evidence and complaints made by the surgeon’s colleagues. It said that it was not therefore significantly misleading to characterise the GMC’s action against the surgeon as “the trust’s case”.

Relevant Code provisions

10. Clause 1 (Accuracy)

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

Findings of the Committee

11. The employment tribunal had found that the surgeon had been unfairly dismissed following a breakdown in relationships between him and his colleagues. The Committee acknowledged the complainant’s concern about the newspaper’s description of the breakdown as a “campaign of abuse” or “hate”. The newspaper had, however, supported its characterisation of the comments in these terms by providing examples of these. Doing so did not raise a breach of Clause 1.

12. The tribunal had also found that the surgeon had made a number of protected disclosures during his time at the hospital. It was not, therefore, inaccurate to refer to him as a “whistleblower”. Further, and while the Committee acknowledged that the tribunal had not found that the surgeon had suffered any detriment for making these disclosures, it was clear from the ruling that he had come under criticism from his colleagues after making referrals to the GMC: the ruling referred to a report drawn up by the member of staff who investigated the alleged breakdown in working relationships, who said that “[a number of the surgeon’s colleagues] all feel very strongly about the referral [to the GMC] made by [the surgeon]. All describe a breakdown in trust and confidence in [the surgeon] as a result of this”. In these circumstances, and given that it was not in dispute that the breakdown of relationships took place at approximately the same time as the surgeon’s disclosures after which time he was dismissed, it was not significantly misleading to state that he had been “subjected to abuse”, become a “victim of a hate campaign” or “sacked” after raising concerns. The article did not suggest that these claims formed part of the findings of the tribunal, and there was no breach of Clause 1 in respect of this point.

13. The selection of material for publication is a matter of editorial discretion: publications have the editorial freedom to make such selections, provided that they do not raise breaches of the Code. In this instance, the article accurately reported the tribunal’s reason for finding that the surgeon had been unfairly dismissed, focused on the surgeon’s vindication after lengthy legal proceedings, and made clear the complainant’s position that its case had failed on a “procedural issue”. In these circumstances, the omission of details of the claims made by the surgeon which were later withdrawn or which failed; the complainant’s account of why the relationship breakdown had taken place; or a comprehensive account of the complainant’s position did not render the article significantly misleading, inaccurate, or distorted. There was no breach of Clause 1 in respect of the omission of these details.

14. The Committee did not consider that it was significantly misleading for the newspaper to characterise the GMC’s case as that of the complainant. While the Committee acknowledged the complainant’s position that it had not directly referred the surgeon to the GMC, the investigation had taken place after the complainant had restricted his practice to non-clinical duties. Further, the surgeon’s colleagues’ evidence and complaints formed the basis of the GMC’s case. Neither was it significantly misleading to state that the complainant had “suspended” the surgeon in circumstances where it had imposed significant restrictions on his duties. There was no breach of the Code in respect of these points.

Conclusions

15. The complaint was not upheld

Remedial Action Required

16. N/A

Date complaint received: 27/06/2016
Date decision issued: 08/11/2016