Surgeon’s gagging order costs NHS £2 million - Palmer v Lister Hospital - Stevenage
A surgeon who took the NHS all the way to the Court of Appeal after he was suspended from his job in 2003 has apparently cost the NHS £2 million.
Mr Bernard Palmer was a consultant surgeon at Lister Hospital in Stevenage, Hertfordshire, until he was suspended in 2003 due to allegations of misconduct in the workplace. He was put on “garden leave” for six years and then dismissed from his employment when he reached the age of 65. Mr Palmer subsequently issued a High Court claim for breach of contract and an Employment Tribunal claim for unfair dismissal and age discrimination. Although he succeeded in both of these claims he is apparently subject to compromise agreements due to these claims which stop him from talking about the amount that the NHS trust settled the claim for – referred to in the media as a “gagging order”.
The problems started for Mr Palmer when complaints were made in 2003 that he was working outside his “area of expertise”. He had apparently undertaken surgery on two women with bowel obstructions, one who had an ovary removed and the other who had a partial hysterectomy due to extensive tumours. Neither of the women complained about the surgery and there were no allegations that Mr Palmer had failed to carry out the procedures properly. However, complaints originated from somewhere (where was actually a matter of some confusion) and Mr Palmer was suspended indefinitely from work. This suspension continued until 2009 when he was dismissed.
During this period of suspension Mr Palmer was apparently paid his full salary of £117,000 per annum plus pension and National Insurance contributions. The Tribunal criticized the fact that the NHS Trust had left Mr Palmer on suspension, stating that “any reasonable employer would have made it an urgent priority to facilitate the return to work of such a skilled and highly paid professional”. One of the Employment Tribunal panel members further commented that the case was likely to have cost the NHS Trust over £2 million in the costs of litigation, Mr Palmer’s salary, and the award of compensation made against the NHS Trust. The Tribunal further described the NHS Trust’s behaviour as a “truly shocking case of arbitrary and outrageous use of executive power”.
After the judgment of the Employment Tribunal, Mr Palmer commented that “What really concerns me, is this problem rife throughout the NHS. People are suspended for political ends, but they hardly ever go to court as they know it will be the end of their career”.
So, what is a “gagging order”? What’s referred to in the media as a gagging order is generally a clause in a settlement agreement which states that the parties to the agreement must keep particular terms of the case and the agreement confidential. This is absolutely normal in settlement agreements (whether these are COT3 agreements or settlement agreements), although concern has been recently highlighted as to the potential for such clauses to stop employees or former employees make “protected disclosures”.
According to the Telegraph
Bernard Palmer was put on ‘gardening leave’ for almost six years, until he reached 65, and was then prevented from working despite his firm desire to do so.
Mr Palmer, who practised at the Lister Hospital in Stevenage, Herts, is even now subject to a ‘gagging order’ preventing him from talking about financial aspects of his case, despite winning legal victories in the High Court and at employment tribunal.
Last night he said: “My career was effectively ended a decade early, at very great expense to the taxpayer.”
Campaigners say his case highlights how NHS trust boards can continue to throw public money at legal cases, with little external scrutiny.
Mr Palmer was suspended in 2003 after being accused of working outside his “area of expertise” during operations on two women with bowel obstructions.
He removed an ovary in one patient after spotting it had a cancerous lump, and he performed a partial hysterectomy due to extensive tumours.
Neither patient complained - a judge said the source of complaint remained “obscure” - and the trust never referred the matter to the General Medical Council.
Nonetheless Mr Palmer, who described himself as a “born surgeon”, was excluded from work until his retirement in 2009, except for a six-month placement elsewhere.
He later won a High Court case for breach of contract, and an employment tribunal for unfair dismissal and age discrimination.
The tribunal panel stated it was “sobering” that through his “prolonged and forced” absence, the trust “was paying him his full salary of £117,000 a year plus, of course, pension and National Insurance contributions”.
“Any reasonable employer would have made it an urgent priority to facilitate the return to work of such a skilled and highly paid professional,” found the panel.
A panel member said the total case was likely to have cost the taxpayer well over £2 million.
The panel ruled the trust’s behaviour amounted to “a truly shocking case” of “arbitrary and outrageous use of executive power”.
Professional rivalry appears to have underlain the situation. Some staff did not regard him as a team player and said he rarely compromised.
There was “a somewhat unpleasant atmosphere in the department of surgery at the Lister, apparently caused by professional rivalry and hostility between some of the surgeons”, found the panel.
It ordered the trust keeps paying him until he is 70, meaning it will have forked out almost £1.2 million in basic salary alone, not to mention pension benefits. Legal costs ran to hundreds of thousands of pounds.
Last night Mr Palmer, 68, from Letchworth, who was supported by the Medical Protection Society (MPS), said: “I was blackballed, but no good reason was ever given.”
He continued: “I was a born surgeon, and spent 20 years to become a consultant. To have that suddenly taken away is terrible.”
“What really concerns me, is this problem is rife throughout the NHS. People are suspended for political ends, but they hardly ever go to court as they know it will be the end of their career.”
A trust spokesman said: “Mr Palmer was suspended originally in July 2003 following serious concerns raised about his clinical practice. The Trust has never since accepted that he was not working outside his field of expertise in the cases concerned.”
He said Mr Palmer had never been “gagged” from raising matters of patients safety of clinical practice, and that the confidentiality clause only extended to “details of financial arrangements”.
A spokesman for the MPS said that in 2009/10 108 doctors were "excluded" by their employers, pending GMC fitness to practice proceedings.
Professional indemnity organizations including the MDU, BMA and MDDUS may provide legal advice including support if your case goes to court. Members of the Doctors' Support Group often find that the expected support is countered by the organization's get out clause to the effect that it is discretionary. If you need legal advice when you indemnity lets you down, consider asking a colleague who has been through this situation. There are firms that can advise you on how to find a skilled employment solicitor in London or in the area you work. There are some specialist health employment law solicitors.