Monday, 5 January 2015

Inaccuracy and Obfuscation - the facts thus far

I do not have all the answers, as I do not have all the facts and I do not have the knowledge of a legal expert.  However this piece is simply designed to summarise some of the key facts relating to the Meirion Thomas saga, so that you can use this to make up your own minds, and realistically we will all need more information before we can do this with any degree of certainty.

Firstly I wrote some recent pieces criticising the coverage of events by the Daily Mail and the Spectator.  The chief reason for criticising their coverage was that they told only one side of the story and ignored some key aspects of it.  Both the Mail and the Spectator ignored that Mr Meirion Thomas’ arguments contained factual inaccuracies, were not solidly based on evidence and were widely dismantled by more reasoned objective work elsewhere by the likes of the RCS and Margaret McCartney.  It was also strange not to mention the legal element to this affair when they were overtly criticising the Royal Marsden’s actions.  Therefore my chief arguments were not about the rights and wrongs of Mr Meirion Thomas’s or the Marsden’s actions, it was with the biased and stilted coverage by the Mail and the Spectator.
Secondly to my limited understanding of the law in this area, it is worth remembering throughout that I am not giving an opinion about whether I think the law is morally right, or whether anyone’s actions are morally right or wrong, I am just describing the legal aspects of this case according to the limited facts we have available.  It is worth remembering that we do not know the exact terms of Mr Meirion Thomas’s contract, we do not know what has gone on behind closed doors in discussions between him and his employer, and we do not know what the exact outcome of these discussions have been.  Let us just note what the Royal Marsden have stated:

“Following two articles that appeared in the Daily Mail on Thursday 20 November and in the Sunday Mirror on Sunday 23 November by Professor Meirion Thomas, The Royal Marsden NHS Foundation Trust would like to make it clear that Professor Thomas’ views are entirely his own and in no way reflect the opinion of those working at The Royal Marsden.

“Professor Thomas has expressed his personal views about GPs and health tourism in the Daily Mail and Sunday Mirror respectively without consulting staff at The Royal Marsden. We do not share, condone or support the views he has expressed. It is important to state that all individuals are entitled to express a view. They are not however entitled to speak on behalf of an organisation without that organisation’s consent. Professor Thomas did not seek or receive this organisation’s consent to either article.

“The Royal Marsden is very proud of its good working relationships with our GP colleagues, particularly through our GP engagement programme and referral process, and we value their experience, knowledge and the excellent contribution they make within the NHS.”

The difficulty in interpreting any of this is that we are not privy to the full information; hence some speculation is simply not sensible or wise.  It is worth remembering the facts about what was written in that the Mail article named the author as a ‘Royal Marsden consultant surgeon’ and it was never stated this articles were his personal view.  Some would argue that it should be assumed that the articles are his personal views, there is a great difficulty with this argument as he does mention his specific employer and job title, he talks about work relating to this specific employer (Lansley opinion) and he may have used a photograph on Trust premises, and he does this without stating that the articles are a personal view.  I will freely admit this is not black and white, but to suggest that it is clear these articles are his personal view is absurd and in denial of the facts.  The facts significantly close down the distance between Mr Meirion Thomas’ personal opinion and his employer, the Royal Marsden, and from the Marsden’s statement it appears that this is a significant factor in their actions thus far.  It is therefore likely that Mr Meirion Thomas' articles breached Trust media policy on more than one occasion and the terms of his contract with the Trust.
The legal arguments about reputational harm are likely relevant.  If employees have been judged to have caused significant harm to their employer’s reputation by their actions then this would be another avenue by which the Royal Marsden may choose to act.  There is certainly a reasonable case for arguing that Mr Meirion Thomas’ articles causes reputational harm given their disparaging nature.  Certainly Mr Meirion Thomas does not meet the legal definition of a whisteblower and would not have a credible case if he used a public interest defence to justify his articles.  However from what has been stated it appears likely that the Marsden felt Mr Meirion Thomas had breached his contract of employment by ‘speaking on behalf of an organisation without that organisation’s consent’.  It remains unknown which exact details in the articles led the Marsden to this opinion regarding speaking ‘on behalf’ of an organisation. We also do not know precisely what action has been taken by the Royal Marsden, the talk of confidentiality or ‘gagging’ clauses may or may not be true.
In purely legal terms given the available information it appears that the Royal Marsden have acted properly and to suggest otherwise would appear to be rather evidence free.  It is also worth noting that I have not yet given my opinion on whether I think the Marsden’s actions are morally right or the most effective course of action, this has not been my motive, I am simply trying to give my readers as much objective information as possible with which to make up their own minds.  Perhaps I shall do this at some point, but at the moment I do not want to confuse these simple arguments, I want more information before coming to any definitive moral judgements on this complex affair.  If people have an issue with the Marsden’s actions then they should either point to specific legal arguments or direct their arguments towards the legal system, and not the Royal Marsden.

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