https://www.bmj.com/content/374/bmj.n1961

BMJ 2021; 374 doi: https://doi.org/10.1136/bmj.n1961 (Published 05 August 2021) Cite this as: BMJ 2021;374:n1961

1. Clare Dyer

An NHS boss who wrongly assured the General Medical Council that a doctor he was reporting to the regulator was not a whistleblower has received a formal warning from the GMC for making a misleading and inaccurate statement.

David Rosser, then medical director of Heart of England NHS Foundation Trust, referred consultant ophthalmic surgeon Tristan Reuser to the GMC in June 2017 after the trust had decided to dismiss him. He told the GMC that Reuser had not been involved in any whistleblowing episode or other attempts to raise concerns within the organisation.

But the previous January Reuser and another consultant had made a “protected disclosure” under whistleblowing law to the trust. They raised concerns about nurses who sometimes agreed to assist at procedures and at other times refused, seemingly without just cause.

“Dr A and his colleague [other doctors at the trust] stated that the problem meant that a number of surgeons at HEFT [the trust] faced a very frustrating and stressful situation on a weekly basis and that if not addressed, it had the potential to cause patient harm,” the GMC’s written warning states. “Given the above, Dr Rosser’s declaration at the end of his referral email to the GMC was misleading, albeit unintentional, and incorrect.”

The main reason given for Reuser’s dismissal was that he performed an urgent orbital decompression, in which a manager who was not clinically qualified held down the patient’s eyelid with a retractor after the nurse who had previously agreed to assist refused. After Rosser’s referral of Reuser to the GMC, the regulator investigated. It found that the operation was successful and the patient risked losing his sight had Reuser not operated that day and so decided to take no action.

In October 2018 an employment tribunal ruled that Reuser had been unfairly and wrongfully dismissed. The employment judge said it was “unlikely” that Rosser had forgotten the protected disclosure and criticised his explanations as “inconsistent and unconvincing.”

In August 2018, during the employment tribunal hearing and more than a year after he made the statement, Rosser sent an email to the GMC stating that his declaration denying Reuser’s whistleblowing was incorrect. The GMC began investigating Rosser’s conduct after receiving an anonymous complaint.

Rosser was told that the regulator proposed to issue him with a formal warning after an investigation. He refused to accept it, exercising his right to a hearing before the investigation committee.

The committee accepted that the inaccurate statement was unintentional but said Rosser had been “reckless” in failing to check that his statement was true. The warning, which says that his conduct “risks bringing the profession into disrepute and must not be repeated,” will appear on his record on the medical register for two years.

Heart of England NHS Foundation Trust later merged with University Hospitals Birmingham NHS Trust, and Rosser is chief executive of the combined trust. The trust appealed against the employment tribunal’s judgment but lost on all six grounds in May 2020.1

Reuser succeeded in a cross appeal against the tribunal’s decision that, although he was a whistleblower, it was not the reason he was sacked. That finding was sent back to the original tribunal to be looked at again.

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   1. Dyer C
   2. Trust boss gave misleading information to GMC about consultant who was unfairly dismissed. BMJ2020;369:m1838. doi:10.1136/bmj.m1838 pmid:32371445FREE Full TextGoogle Scholar