Chapter 4: Healthcare organisations and individuals
The Baker Report
Meanwhile, Professor Baker was completing his investigation into deaths in the hospital, and he submitted his report to Sir Liam on 11 June 2003 (RBA100195). Based on a detailed analysis of 81 medical records, the report identified many important failures of clinical care (RBA100032). Professor Baker summarised his conclusions in stark terms:
“On the basis of these sources of evidence, I have concluded that a practice of almost routine use of opiates before death had been followed in the care of patients of the Department of Medicine for Elderly People at Gosport hospital, and the attitude underlying this approach may be described in the words found in many clinical records – ‘please make comfortable’. It has not been possible to identify the origin of this practice, since evidence of it is found from as early as 1988. The practice almost certainly had shortened the lives of some patients, and it cannot be ruled out that a small number of these would otherwise have been eventually discharged from hospital alive.” (DOH000072, p4)
Professor Baker’s report was passed to SOL. The subsequent legal advice was reflected in a note from Michael Evans of DH’s Inquiries and Investigations Unit to Sir Liam on 30 September 2003 (DOH000073).
Mr Evans’ note is significant. It considered whether the Baker Report should be published or circulated to the police, the GMC, the SHA and Dr Barton. It also considered whether the report should be circulated to Ann Alexander, who represented relatives of patients at the hospital. The note summarised the legal advice as follows:
“SOL’s advice is that:
- the report is potentially damaging to Dr Barton
- publication could therefore prejudice any criminal trial
- even if Dr Barton is not charged then the report would be damaging to her (although not necessarily in a defamatory sense).
As a result, we are advised that if publication is to be considered then this should not take place at least until the conclusion of the police investigation.” (DOH000073, p2)
The note suggested that if the report were to be published, it should be published sooner rather than later, “in order to reduce its impact on any future trial” (DOH000073, p2). Before making such a decision, the note said, DH would also need to seek the views of the police and the Crown Prosecution Service. However, it is clear from the rest of the document that the view put to Sir Liam, reflecting the legal advice, was against publication and in favour of limited circulation.
The note then turned to the matter of who should receive copies in the interim, again closely based on the legal advice:
“SOL’s advice is that the report is of great relevance to the police and should be released to them, although we will need to seek assurances about confidentiality if you decide that the report is not to be published more generally. It is arguable that the GMC should also receive a copy from you, in confidence, to help inform any decision they may wish to make concerning patient safety. For the same reason, Dr Simon Tanner should also receive a copy to inform any decision by the SHA about Dr Barton’s practice and any further action that may need to be taken locally.
If you agree that the police, the GMC and Dr Tanner should receive a copy of the report then fairness would require Dr Barton to receive a copy. She would then know the foundation of any allegations based on the contents of the report. I understand that the GMC, if it receives the report, is in any event likely to want to copy it to Dr Barton at some stage so we could take the initiative and provide her with a copy of the report rather than wait for the GMC to do so.” (DOH000073, p3)
Subsequent correspondence and events make it clear that Sir Liam accepted the advice to withhold publication of the Baker Report pending the completion of the police investigations. Instead copies were subsequently provided in confidence to Hampshire Constabulary, the GMC, the SHA and Dr Barton.
It is notable that throughout the correspondence and in the Baker Report, there is a tacit assumption that the underlying problem was the conduct of one doctor, Dr Barton. Earlier DH briefing suggested that concern over a potential rogue doctor prompted by the Shipman case had arisen soon after DH had become aware of the matter, in July 2001. The briefing referred to “an uncomfortable resonance about the investigation, and I would rather that Ministers are aware of the case than find out only if it turns out that there has been serious wrongdoing” (DOH000451, p2). It seems that this underlying concern shaped the response almost from the outset.
It is also notable that on 28 October 2002, the Gosport Medical Committee had written collectively (there were 12 signatories) to Sir Liam to raise its concern that Dr Barton was “being used as a scapegoat". The letter, which was stamped as received on 10 December 2002, pointed out that Dr Barton had worked as a clinical assistant to “approximately ten Consultant Geriatricians” and that her “senior colleagues were not only aware of these practices, but had similar prescribing practices” (DOH603803, p1).
From late 2003 until 2007, there is a marked absence of relevant correspondence between the local NHS organisations, the SHA and DH about practice at the hospital. It seems that these organisations were waiting for the outcome of the police investigation. In 2006, Hampshire and Isle of Wight SHA became part of the larger South Central SHA as a consequence of national reorganisation, and the Directorate of Health and Social Care was abolished. Fareham and Gosport PCT and East Hampshire PCT became part of the larger Hampshire PCT, and Portsmouth Hospitals NHS Trust took over responsibility for inpatient services at the hospital (DOH601939, DOH601940).
Mr Phillips briefed Sir Liam on 26 January 2007 that the GMC was investigating Dr Barton and had a copy of the Baker Report (DOH000278, p4). In accordance with the legal advice from SOL, the recommendation for Sir Liam was that wider publication of the report should not be considered, “at least until the GMC have completed their processes and Dr Barton has had a chance to comment” (DOH000278, p5). Subsequent events make it clear that this recommendation was accepted.
In August 2007, Sir Liam responded to another briefing from Mr Phillips concerning the request from the South East Hampshire Coroner for a public inquiry rather than inquests into the deaths of some of those who had died at the hospital. Sir Liam’s view, as recorded by his Assistant Private Secretary, was that DH should wait for the GMC to finish its deliberations and then see if there was a case for any further investigation by the NHS. The Assistant Private Secretary added that Sir Liam agreed “that a full Public Inquiry is perhaps inappropriate given the safeguards now in place” (DOH000272, p1).
Correspondence in the period between 2008 and March 2009 shows that Portsmouth Hospitals NHS Trust and Hampshire PCT were focused largely on preparations for relevant inquests (DOH602073, DOH602082, MRE000782, MRE000780, DOH603144, MRE000211, MRE001459, MRE001646, MRE001678, MRE001638, MRE001615, MRE001600). Although the correspondence refers to some relevant matters in passing, there is no evidence that consideration was given to any further investigation of previous clinical failures at the hospital or the mishandling of the nurses’ concerns. The GMC and the Coroner continued to take action, and this is covered in later chapters.
At this stage, DH had not yet published the Baker Report. Mr Peter Walsh, CEO of the Association for the Victims of Medical Accidents, submitted a Freedom of Information (FOI) request for the report on behalf of the families on 6 February 2009. In 2009, Norman Lamb, then the Liberal Democrat Health Spokesman, also requested the report’s release and asked for an internal review. Ann Keen, Parliamentary Under-Secretary of State for Health, responded to Mr Lamb to say that on 13 July 2009, DH’s FOI Unit had responded to her saying that it considered that the exemption based on an intention of future publication (s22) applied. Since then, Ann Keen said, DH had learned that the Coroner intended to hold another inquest into a death at the hospital, but that a date had not been set. In addition, there was a continuing GMC hearing into Dr Barton’s fitness to practise. Given these facts, DH now considered that s31 (under which public authorities are not obliged to release information likely to prejudice the functions of law enforcement) applied, since the report’s release could be prejudicial to the administration of justice.
The final inquest was held in April 2013. Gerard Hetherington, the senior DH official now dealing with publication of the Baker Report, emailed Marjorie Palmer in the DH NHS Business Unit on 22 April 2013 to say that this did not necessarily mean the report could be published, since according to DH Legal Services there were issues relating to data protection (DOH104068). This meant that Dr Barton should be given the opportunity to review the report first. Mr Hetherington’s submission of 29 July expanded on these issues further, stating that DH had to consider under data protection legislation whether there had been any undertakings of confidentiality about personal data in the report. Professor Baker was contacted; he said that he had not given any such undertakings but, while he had not interviewed Dr Barton, he recommended that she should be given an opportunity to review the report and comment (DOH103593, p5).
Accordingly, DH sought Dr Barton’s address, and she was contacted on 27 June through her solicitor, Ian Barker. Dr Barton replied on 4 July through her solicitor that she was not asking for the removal of any content in the report. At this stage, s22 (the future publication exemption) was claimed in response to ongoing FOI requests (for example, RBA100213).
An official in the DH FOI team sought the advice of DH Legal Services and, on 24 July, a government lawyer advised the official that using s22 of the FOI Act as a reason for not releasing the report was becoming untenable, with no date for publication set (DOH104057). The official in the FOI team emailed Mr Hetherington to say that he also thought publication could not be delayed, and asked for a submission to Ministers to be expedited (this appears to have been previously discussed). He further said that if DH could not find a specific date that counted as a “reasonable interval”, then DH Legal Services’ advice was that the report should be published as a matter of urgency. Otherwise, DH ran the risk of the Information Commissioner’s Office ordering it to release the report, and publishing that order on its website (DOH104057). The Panel has asked the Information Commissioner’s Office if it has a record of any material relating to this, but it has not found anything. On 25 July, the official in the FOI team and the government lawyer again asked Mr Hetherington for the submission to be sent to Ministers, recommending publication of the report within seven days (DOH104065).
Mr Hetherington sent the submission (widely copied) to Earl Howe as Duty Minister on 29 July (DOH103690). He attached a copy of the Baker Report. There was no mention of Mr Lamb’s previous interest in the submission, despite the fact that he was now Minister of State at DH. Earl Howe agreed that the report should be published immediately (DOH103676, p7). It was published on 2 August.
Following publication, DH considered whether any further action should be taken in respect of the events at the hospital. This led to the consideration of whether a public inquiry, or a Hillsborough-type panel, should be established. This is explained further in Chapter 11 of this Report.