The high-profile case raises questions about the adequacy of information governance practices in NHS hospital trusts and whether they are deploying information backup systems capable of properly preserving critical medical documents and communications.<\/p>\n
Cocke had accessed his NHS email account at a trust site at around 5.30am on 4 July 2021 and attempted to \u201cpermanently destroy\u201d upwards of at least 100 emails that were \u201cpotentially relevant\u201d<\/a> to the case, the tribunal was told.<\/p>\n The tribunal heard that Cocke had acted \u201cin a panic\u201d. According to an unsigned witness statement from Cocke that was read out in court, Cocke \u201cdeliberately\u201d and \u201cpermanently\u201d deleted a cache of emails and other electronic records and correspondence on the morning he was due to give evidence.<\/p>\n The tribunal judge, Anne Martin, then ordered the full disclosure of all relevant emails and other documents later in the day on 4 July.<\/p>\n Cocke attempted to delete the electronic communications and records less than 24 hours after a meeting of the trust\u2019s legal team, the tribunal heard.<\/p>\n Chris Day\u2019s barrister said in his closing submissions that Cocke deleted \u201cup to 90,000 emails\u201d. Day\u2019s representatives argued that Cocke\u2019s evidence could not be tested in court since Cocke withdrew as a witness at two separate points over the final 10 days of the four-week hearing \u2013 in each case, just before he was due to be cross-examined.<\/p>\n Cocke is now understood to have engaged the services<\/a> of a separate criminal law firm, Kingsley Napley LLP.<\/p>\n Day\u2019s protracted legal battle first began when, aged 28, he flagged under-staffing as a junior doctor working at Queen Elizabeth Hospital Woolwich\u2019s intensive care unit in 2013.<\/p>\n He has said his training number was deleted as retaliation for his whistleblowing activity, leaving him unable to complete his training and progress his career. He claims the unit\u2019s failings that he reported were subsequently \u201ccovered up\u201d.<\/p>\n After four years<\/a> of attempting to get his case heard, Day was granted<\/a> a full tribunal hearing in October 2018.<\/p>\n He withdrew his whistleblowing detriment claim when he said he was threatened with legal costs liability<\/a> \u2013 totalling more than \u00a3500,000 \u2013 by the trust and Health Education England (HEE), which is due to merge<\/a> with NHS England by April 2023.<\/p>\n Both organisations maintain they did not threaten Day with liability for their legal costs, but Day argued the threat of costs was used to strong-arm him into signing a public statement accepting the NHS \u201chad acted in good faith\u201d throughout proceedings.<\/p>\n The hearing in June and July 2022 has focused on a series of public statements issued by the trust to the press, MPs and local community leaders in the weeks following the contested settlement of the claim in late 2018.<\/p>\n Former health minister and chair of the neighbouring South London and Maudsley NHS Trust Norman Lamb<\/a> wrote to Lewisham and Greenwich\u2019s CEO Ben Travis in 2019, saying he believed one of the public statements that remains on the trust\u2019s website was \u201cseverely defamatory\u2026[and] damaging to Chris Day\u2019s reputation\u201d.<\/p>\n Lamb and former Health Secretary, Jeremy Hunt, provided witness statements in support of Day\u2019s case last month. Lamb told the tribunal under cross-examination that he was \u201chorrified\u201d at the way he believed cost threats were \u201cdeployed\u201d representing an \u201cexistential threat\u201d of possible insolvency to Day and his family.<\/p>\n<\/section>\n Chris Day\u2019s barrister, Andrew Allen QC, told the South London employment tribunal that Lewisham and Greenwich Trust had not been contesting the hearing \u201con a level playing field\u201d right from the start of the proceedings.<\/p>\n He said that the trust had not preserved or produced documents, or carried out the right searches for documents that should have been disclosed to the tribunal.<\/p>\n There had been \u201cegregious\u201d late disclosures of emails on the eve of the hearing\u2019s final day of evidence, the tribunal heard.<\/p>\n \u201cEmails had to be squeezed from the respondent, going back and back\u2026If that is the respondent\u2019s bar for disclosure, there may be a considerable number of other such relevant documents that have [still] not been disclosed,\u201d said Allen.<\/p>\n Allen said Cocke\u2019s U-turns over his fitness to be cross-examined, alongside scant supporting medical evidence of his ill health, threw into question the \u201cintegrity\u201d of the trust\u2019s witnesses and the \u201ccredibility\u201d of the evidence it provided to the tribunal.<\/p>\n Ben Travis, the trust\u2019s CEO, was its only witness, and he was ultimately cross-examined.<\/p>\n Acting for the trust, Daniel Tatton Brown QC said that \u201cthere has been no concealment in this case\u2026Cocke, the alleged concealer, the destroyer of documents, was instrumental\u201d in bringing a string of emails to the court\u2019s attention.<\/p>\n Tatton Brown was referring to emails that relate to Janet Lynch, a former workforce and education director at the trust, who, as the instructing client, had been responsible for instructing the trust\u2019s solicitors in the case up until late 2018. She left Lewisham and Greenwich in 2018 and now works for another NHS Trust in <\/span>Hertfordshire.<\/span><\/p>\n Tatton Brown added that the suggestion documents had been destroyed so as to conceal evidence from the tribunal was \u201ca red herring\u201d.<\/p>\n A spokesperson for NHS Digital said: \u201cMs Lynch\u2019s NHSmail account was permanently deleted in 2018 as part of our routine account hygiene processes and not for any other reason. Accounts must be logged into at least once every 90 days to remain active and are permanently deleted after 210 days if they remain inactive.<\/p>\n \u201cNHSmail is a communication tool to support the secure exchange of information and is not designed as a document management system. This is clearly explained in our published guidance, and 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.\u201d<\/p>\n NHS Digital told Computer Weekly it was the trust\u2019s responsibility to store copies of Lynch\u2019s emails when she left Lewisham and Greenwich Trust in 2018.<\/p>\n The tribunal heard that Cocke phoned NHS Digital a number of hours after having attempted to delete the electronic records and communications.<\/p>\n But NHS Digital told <\/span>Computer Weekly that it had \u201cno contact record for David Cocke and no enquiries related to the request of email deletion on the 4 July\u201d.<\/span><\/p>\n A number of questions remain as to the recoverability of the emails the trust\u2019s legal team says Cocke \u201cpermanently\u201d destroyed. The trust has provided no forensics assessment nor has any other kind of IT expert opinion been provided by the trust yet to support its legal team\u2019s arguments on this point.<\/p>\n<\/section>\n The trust made a series of late disclosures between Monday 4 July and the eve of the extended hearing\u2019s final day of evidence on Wednesday 13 July, including a note of an extraordinary board meeting on Sunday 14 October 2018. <\/p>\n The tribunal heard that trust bosses at the meeting discussed the controversial settlement agreement<\/a> offered to Day, as well as the publicity that may have arisen had he proceeded to cross-examine any of the trust\u2019s witnesses.<\/p>\n The trust had initially withheld the document from freedom of information (FoI) requests and the tribunal, before it was finally disclosed more than two weeks into the hearing.<\/p>\n When this journalist sought a copy of the note through a FoI request in 2020, the trust said it held no record of the meeting, and that \u201ca formal meeting of the Trust Board was not held on Sunday 14 October\u201d. It added: \u201cBoard members did have a confidential teleconference that day.\u201d<\/p>\n The question of disclosure practices on the part of the NHS and its legal representatives has already been the subject of controversy in the case of Day.<\/p>\n Day\u2019s legal battle turned for a number of years on the question of whether HEE could be considered an employer of doctors below consultant level in England. HEE\u2019s legal team argued that no employer-employee relationship existed between HEE and around 54,000 junior medics.<\/p>\n In 2019, commissioning contracts<\/a> that set out the employment terms under which junior doctors had been engaged by HEE were uncovered through this journalist\u2019s FoI request.<\/p>\n The commissioning contracts set out employment terms for junior doctors at Lewisham and Greenwich and other NHS Trusts in England when Day underwent his training placement at the South London trust. This showed that HEE was acting in the role of an employer.<\/p>\n A separate request showed that the solicitors\u2019 firm Hill Dickinson, which had up to then represented HEE in the case, had drafted the contracts \u2013 for a fee of around \u00a313,000 \u2013 that it had failed to disclose for more than three years during the litigation. <\/p>\n<\/i>\u2018Defamed\u2019 whistleblower<\/h3>\n
<\/i>\u2018No concealment\u2019<\/h3>\n
![\"Chris](\"http:\/\/cloudnewshub.com\/wp-content\/uploads\/2022\/07\/nhs-trust-deliberately-deleted-up-to-90000-emails-before-tribunal-hearing.jpg\")
<\/i>History of non-disclosure<\/h3>\n