Chapter 4: Healthcare organisations and individuals
Subsequent investigations
On 29 October 2002, Lord Hunt’s Assistant Private Secretary wrote to Mr Pollitt in the Directorate of Health and Social Care South to say that Lord Hunt had discussed the proposal for a separate independent inquiry with Sir Liam, and “agreed that an independent inquiry would not be the appropriate course of action at this time”. Instead, “Lord Hunt has asked that that CHI be sent back to Gosport War Memorial [Hospital] to look at the handling of the complaints which make up the nurses’ dossier that recently came to light” (DOH000151, p1).
Subsequent correspondence between Mr Samuel of the SHA and the Directorate of Health and Social Care South and DH makes it clear that the SHA was determined to press ahead with a management investigation into the handling of the 1991 nurses’ concerns, and had prepared a press release. The correspondence is dated 25 November, and the response from DH points out that there was a clash with the further CHI review, as “the final bullet point in CHI’s TOR [Terms of Reference] … is, effectively, what is being proposed in the management review” (DOH000141, p1).
On 6 December, Mr Cruddace wrote to Sir Liam confirming that the SHA and the two PCTs (East Hampshire and Fareham and Gosport) “have commissioned an independent internal management investigation into events at Gosport War Memorial Hospital between 1988 and 1998 in order to decide whether disciplinary action should be taken in relation to senior managers and clinical managers". This was to be undertaken by Michael Taylor, formerly Chief Executive of Oxfordshire Health Authority, and the Terms of Reference “have previously been … agreed with the Police” (DOH000132, p3).
Subsequent correspondence makes it clear that Mr Taylor had already started his management investigation and was searching records (DOH603797, DOH603839). Within a week of Mr Cruddace’s letter indicating that Hampshire Constabulary was aware of the Terms of Reference, the SHA’s Director of Public Health, Dr Tanner, had been told that “the chief investigating officer for the Constabulary, Det. Chief Superintendent Steve Watts was in contact to say that they now had concerns about the terms of reference of our own management investigation” (DOH000131, p1). The SHA had placed the management investigation on hold.
The record of a meeting on 17 January 2003 (DOH603728) set out discussion between the SHA (Mr Cruddace and Mr Samuel), Fareham and Gosport PCT (Lucy Docherty, Chair), East Hampshire PCT (Margaret Scott, Chair) and a lawyer (from Beachcroft Wansbroughs). Mr Cruddace reported that at a previous meeting the “police had indicated to the CMO [PROFESSOR DONALDSON] that … they felt that the management investigation should be suspended and that the second CHI investigation should not proceed … the CMO had agreed that the second CHI investigation would stop” (DOH603728, p3). Following a three-hour discussion as recorded in the meeting notes, the management investigation was to be suspended and the redeployed CEOs, Mr Piper and Mr Horne, would be invited to return to their CEO positions (DOH603728, p10).
On 30 January, Sir Liam wrote to Mr Cruddace to say that the Directorate of Health and Social Care South had written to Lord Hunt on 24 January “informing him of the decision of the Strategic Health Authority (with the agreement of the Primary Care Trusts involved) to reinstate the two NHS managers who have been redeployed pending investigations into the concerns about standards of care at Gosport War Memorial Hospital” (DOH000124, p2). The letter made it clear that neither the SHA management investigation nor the second CHI investigation could go ahead:
“… for the foreseeable future because the police have said that it could interfere with their own investigation … Your decision to reinstate them [the two managers] to their previous posts acknowledges the inevitability of the delay and your view that it is unfair (and possibly in breach of employment law) to continue to deny them reinstatement in the absence of information.” (DOH000124, p2)
Having said that he had discussed this with Lord Hunt, Sir Liam concluded as follows:
“Clearly this is a decision for your Authority and the Primary Care Trust as the statutory NHS bodies.
We do have concerns, however, about the course of action to be taken and would ask you to assure yourselves that this is the most appropriate action bearing in mind all the circumstances.
We would ask you particularly to consider the question of public confidence in local services and especially to reflect on whether your decision would be seen publicly to have had integrity in the event that at the end of the police investigation a prima facie case for wrong-doing were established.” (DOH000124, pp2–3)
Although the second CHI investigation had not started before it was placed on hold, the management investigation had completed enough work to produce an initial report (DOH702113). Mr Taylor set out the conclusions in uncompromising terms:
“a) The failure to follow-up the expression of concerns made by nursing staff about prescribing practice in Redclyffe Annexe from 1988 was a negligent act by the Unit Management Team.
b) It is unrealistic to accept that senior managers of the Unit Management Team were unaware of the concerns about prescribing practice. The main managerial responsibility for inaction following formal correspondence in 1991 appears to lie with Mr Horne, Mr Hooper, Mrs Evans and Mr Millett. Managers seem to have placed too much reliance on the unwillingness of junior nurses to speak out in front of GPs at a meeting held on 17 December 1991 to justify any further action. If correct, this was both a naive and wholly wrong conclusion by the managers named above.
c) It is highly regrettable that the Royal College of Nursing failed to follow-up the referral of its concerns to the Community Unit and the Heath Authority in 1991. This may well have contributed to the issue ‘remaining silent’ until the police investigation of 1998 and the CHI investigation of 2001.
d) Clear evidence exists to demonstrate continuing concern and confusion about prescribing practice at the hospital during the years following the establishment of the Portsmouth Healthcare NHS Trust e.g. external clinical opinion in 1999. The Trust Board failed to respond to external clinical concerns about usage of opiates and initiate appropriate investigations.
e) The board of the Portsmouth Healthcare NHS Trust was assiduous in preparing formal policies and procedures. What remains unclear is:
- the degree of staff and consumer involvement in the construction of policies
- the awareness and application of the policies by the majority of clinical staff
- whether or not the policies were regularly evaluated.
f) The finding within the CHI report that the Portsmouth Healthcare NHS Trust failed to review prescribing practice following various trigger events in 1998 is strongly supported. The inevitable conclusion from this inaction is that inappropriate practice continued up to 1998. What, however, must be established is the degree to which practice at Gosport War Memorial Hospital was atypical of practice in other community hospitals. If practice was significantly different, then executive and non-executive members of the former Portsmouth Healthcare NHS Trust board should be held accountable for this failing. If it can be established that opiates were routinely prescribed in excess of conventional practice, the clinicians responsible would be culpable of professional malpractice.” (DOH702113, p4)
A subsequent report produced by Mr Cruddace for the SHA (Board) on 11 February stated that the investigating team for the management investigation “reviewed a substantial number of documents from PHCT and the former health authority [Portsmouth and South East Hampshire Health Authority]". The report noted that “these documents include board minutes, executive management team minutes, various policy documents as well as a substantial number of adverse incident forms. Among this material are a number of papers that are relevant to the investigation” (DOH703690, p4). The description of the documents closely resembles that contained in the log describing the three boxes referred to in paragraph 4.59 above. The Panel has been unable to locate these documents, despite repeated requests and investigation. Mr Samuel's recollection was that, having collected the boxes from storage, he transported them in his car to the headquarters of the SHA in Oakley Road in Southampton, where he deposited them in a locked room. He was confident that, at some subsequent point, the boxes had been passed to the police.
In addition, the Panel has received a minute of Part II of the formal meeting of the SHA held on 11 March, which also makes reference to these documents. This minute states that “Mr Samuel tabled a Report on Investigations into the Care and Treatment of Inpatients at Gosport War Memorial Hospital”. The minute goes on to say:
“It was noted that the SHA as commissioner of the Management Investigation, would be responsible for the safe and secure storage of the paperwork. A paper will be presented to a future Part II Board Meeting on the findings to date of the Management Investigation.” (DOH703750, p9)
On 21 March, Barbara Moore of the Community Hospitals Association wrote to Mr Cruddace enclosing a report which had been commissioned by Mr Taylor, titled What Characterised Conventional Clinical and Managerial Practice in Community Hospitals during the period 1988–2000 (DOH702111). The report, based on a sample of community hospitals in three different areas, showed that clinical governance practice developed more or less in line with what was expected, including policies for prescribing and monitoring drug use.
Mr Cruddace wrote to Mr Taylor on 15 May and confirmed that the management investigation remained on hold (DOH603775). In his note to Lord Hunt and other Ministers of 1 October 2002, Sir Liam had said: “Previous experience has shown that once a NHS investigation is halted by a Police investigation, then it can take years to start again. We cannot afford for this to happen” (DOH000156, p3). The records show that these remarks were prescient. The management investigation would never be restarted. The second CHI investigation was never undertaken.
Following notification that the police investigation had formally concluded with no charges brought, a government lawyer from SOL (Solicitors – a government body responsible for providing legal advice) wrote to Colin Phillips, a DH official, on 18 January 2007 (DOH000285). Her note questioned what future action might be taken by the police, the Healthcare Commission (the successor to CHI) and the SHA. It also included unequivocal advice on the timing of publication of the Baker Report: “I agree that publication should be withheld until the GMC has investigated” (DOH000285).
Following the legal advice, Mr Phillips briefed Sir Liam on 26 January 2007 (DOH000278, p4). Hampshire Constabulary had stopped the second CHI investigation in January 2003, before it had been started; the Healthcare Commission view in 2007 was that “unless new or different information is brought to their attention, they would not want to revisit an old CHI investigation” (DOH000278, p5). The former SHA had placed the management investigation by Mr Taylor on hold at Hampshire Constabulary’s request in January 2003; in 2007, Hampshire PCT was “reviewing their files” to decide whether to reinstitute an investigation led by South Central SHA, but was “doubtful now whether reviving the old internal review serves much real purpose” (DOH000278, p5). The question of whether a different form of investigation would be required by Article 2 of the European Convention on Human Rights was also noted.