Chapter 5: Hampshire Constabulary and the Crown Prosecution Service

In order to understand the beginning of the first police investigation, it is necessary to set out how the family of Gladys Richards viewed her treatment and the circumstances of her death at the hospital. On 29 July 1998, Mrs Richards, a 91-year-old resident of the Glen Heathers Nursing Home situated in Lee-on-the-Solent, Hampshire, had fallen and sustained a right fractured neck of femur. She had been admitted to the Royal Hospital Haslar (‘Haslar Hospital’), where she underwent implantation of an artificial hip joint.

On 20 August, Lesley Lack, Mrs Richards’ daughter, made a verbal complaint to Lesley Humphrey, Director of Quality at the Portsmouth HealthCare NHS Trust, about the poor standard of care that had been provided to her mother (RCN000013, p1).

Mrs Richards died on 21 August. On 24 August, Dr Jane Barton, clinical assistant at the hospital, reported Mrs Richards’ death to the Coroner and the cause of death was stated to be bronchopneumonia (HCO500071, p1).

Chapter 4 describes the steps taken by the Trust following Mrs Richards’ death. This chapter explains how the action taken by Mrs Richards’ daughters, Lesley Lack and Gillian Mackenzie, prompted the investigation by Hampshire Constabulary.

On 27 September 1998, Mrs Mackenzie telephoned Gosport Police Station. She spoke with Detective Constable (Det Con) Nick Bettesworth and alleged that her mother had been unlawfully killed at the hospital. Det Con Bettesworth made a note of the complaint on a ‘Hampshire Constabulary Message Form’, which was later sent to Detective Inspector (Det Insp) Stephanie Morgan, one of the police officers who would become part of the resulting police investigation (HCO001036, pp18–19).

In the Message Form, Det Con Bettesworth recorded a number of additional concerns that had been raised by Mrs Mackenzie, including: that her mother’s cause of death had been wrongly recorded on the death certificate; that a hospital investigation into the death had taken place; that there had already been a degree of liability admitted by the hospital; that the subsequent response from the hospital referred to conversations that had not taken place; and that Mrs Mackenzie felt that there was a cover-up by the NHS (HCO001036, pp18–19).

The Message Form records that Mrs Mackenzie was not willing to provide Det Con Bettesworth with the details and had insisted that she wished to speak to the head of Gosport Criminal Investigation Department (CID). On the form, Det Con Bettesworth expressed the view that the case seemed to fall short of unlawful killing, that this might be a case of negligence and that it was, therefore, a matter for the General Medical Council (GMC). Referring to Mrs Mackenzie, Det Con Bettesworth also wrote that “she appears on the phone to be ‘copus mentus’ (normal) but obviously we only have her word with regards to the ins and outs of the incidents and what she claims to be in this report” (HCO001036, pp18–19).

The documents do not make clear the basis on which Det Con Bettesworth made these comments. Their tone would prove to be an example of the mindset of the police throughout this investigation, as disclosed by the documents reviewed by the Panel. There is no record of any investigative, evidential or reasoned basis for forming the view that the case seemed to fall short of unlawful killing at this stage. In a later statement, Mrs Mackenzie said that Det Con Bettesworth’s attitude gave her the impression that he regarded her as emotional and that he was “dismissive” of her request (HCO501762, p2).

Det Con Bettesworth confirmed that he had informed Mrs Mackenzie that he would take advice, make some preliminary enquiries and that someone would get back to her. The note to Det Insp Morgan ends “over to you” (HCO001036, p19).

By 2 October 1998, Detective Constable (Det Con) Richard (Dick) Maddison, who was appointed as the Investigating Officer, met with the sisters Mrs Mackenzie and Mrs Lack at Gosport Police Station. In a later statement, Mrs Mackenzie recalled that during this meeting both of them outlined the nature of their concerns to Det Con Maddison, who in turn expressed the view that it was not a police matter and that they should contact the GMC (HCO501762, pp3–4).

It would appear that Det Con Maddison spoke with Nurse Philip Beed, Clinical Manager. In a later statement, Mrs Mackenzie recalled that Det Con Maddison informed her that he had “had a conversation with the managing nurse who he said was called Philip” who had informed Det Con Maddison that Mrs Richards’ treatment had been explained to her daughters and that they had agreed with it (HCO501762, p5).

On 5 October, Det Con Maddison submitted a two-page report to Det Insp Morgan (HCO001036, pp1–2). The report was accompanied by copies of the notes made by Mrs Lack regarding her mother’s care at Glen Heathers Nursing Home and at Gosport War Memorial Hospital (HCO001036, pp3–16), together with a copy of the response to her complaint by Max Millett, the Chief Executive of Portsmouth HealthCare NHS Trust. Det Con Maddison summarised the nature of the complaint to be:

• inaccurate death certificate
  
• false conversations referred to in Mr Millett’s response
  
• unlawful killing of Mrs Richards by Dr Barton, by omission of a nourishment/liquid drip, thus bringing about her premature death.
  

Mrs Lack’s notes and Det Con Maddison’s report (HCO001036, pp1–16) set out that:

• On admission to the hospital, Mrs Richards was able to walk, was pain free and no analgesia was necessary at that time.
  
• On admission to the hospital, Mrs Richards’ dementia-related anxiety had been misread as pain and she had been given morphine oral solution, which had affected the ability to give her fluids. In relation to this point Mrs Lack made the note “knocked off”.
  
• Mrs Richards had suffered a fall and a dislocated hip, and there had been a failure by the staff to appreciate that she had been injured and was in pain. She had also suffered a failure by nursing staff and doctors to carry out an examination, a delayed X-ray and, therefore, a consequent delayed referral back to Haslar Hospital.
  
• Haslar Hospital had administered an epidural, had carried out a manipulation of the dislocation and had provided Mrs Richards with fluids.
  
• Mrs Richards again recovered in Haslar Hospital and had returned to a pain-free condition, was using a commode, was able to stand and get out of bed and was eating and drinking before being returned to Gosport War Memorial Hospital.
  
• There were concerns around the manner of Mrs Richards’ transfer back to Gosport War Memorial Hospital, and the position in which her right leg had been left when she was returned to her bed on Daedalus Ward.
  
• Mrs Richards was found to be in pain due to the position in which her leg had been left.
  
• This pain had initially been treated with morphine oral solution, but once the leg was moved to a more comfortable position she no longer seemed to be in pain.
  
• An X-ray was carried out and confirmed that there was no dislocation and Mrs Richards continued to be treated with morphine oral solution.
  
• Subsequently, a large haematoma in the top of the right leg was diagnosed by Dr Barton as causing the pain.
  
• The use of a syringe driver was explained by Dr Barton as the kindest way to treat Mrs Richards. Dr Barton also said “and the next thing will be a chest infection”.
  
• Mrs Lack and Mrs Mackenzie agreed with the use of the syringe driver, the outcome of which was fully explained to them.
  
• From the commencement of the syringe driver to the day of her death, Mrs Richards received nil by mouth and did not have a drip, which would have given her nourishment and fluid.
  
• From Wednesday 19 August until Friday 21 August, Mrs Richards was not seen by any doctor.
  
• Mrs Richards’ daughters queried the cause of death recorded on the death certificate as the doctor did not attend their mother during the final days of her life.
  

In his response (HCO001036, pp22–5), Mr Millett dealt only with the questions asked by Mrs Lack in her notes and confirmed that:

• Mrs Richards’ dislocation could have been identified earlier.
  
• The delay in obtaining an X-ray was a consequence of the failure to identify the dislocation earlier and due to the opening hours of the X-ray department.
  
• Mrs Richards had shown signs of being in pain as she was put in the ambulance at Haslar Hospital.
  
• Dr Barton felt that the surgical intervention necessary to treat the haematoma would have required a general anaesthetic, which Mrs Richards was not well enough to undergo and, therefore, the only option was to keep her pain free and allow her to die peacefully, with dignity.
  

Mr Millett’s response did not refer to the report prepared by Sue Hutchings, Nursing Coordinator, referred to in Chapter 4.

Det Con Maddison concluded that there had “been a great deal of neglect, and miss treatment” of Mrs Richards, which had been accepted by the hospital. However, he also felt that an inconsistency between the accounts of Mrs Mackenzie and Mrs Lack with regard to a conversation with hospital staff about the treatment of their mother was an obstacle to prosecution and that, if the sisters wished to pursue the matter further, they should refer it to the GMC. The central issue to be investigated was the appropriateness of the treatment and care given to Mrs Richards, and not any question of the family’s knowledge or agreement (HCO001036, p2).

The documentation available to the Panel shows the action taken by the police to assess the validity of the concerns being raised by Mrs Mackenzie and Mrs Lack. The report by Det Con Maddison consisted of a reiteration of the notes taken by Mrs Lack. Det Con Maddison did not: (i) identify any potential witnesses; (ii) take any statements; (iii) make contact with the hospital to secure medical notes, records or evidence, or Lesley Humphrey’s report which contained early accounts from nursing staff; (iv) undertake a scene visit; (v) consider any forensic evidence; or (vi) give any thought to the possibility of looking into other patient records for similar issues. In addition, he did not take any investigative steps to secure best evidence. This was particularly important given that Mrs Richards had been cremated and therefore could not be the subject of a post mortem and toxicology report. There was also no attempt to seek advice from the CPS.

The Panel has seen no documents to suggest that Det Con Maddison took any formal steps to refer the matter to the GMC.

In his report, Det Con Maddison confirmed that he had requested that research be started at the library (CPS001658, p2). On 15 October 1998, Adrian Dadd, a police sergeant in the training department who was often called upon to undertake research in matters of law, provided a note to Det Con Maddison. Sgt Dadd said that the only offence that seemed to be a possibility was manslaughter (CPS001657). He set out the basic elements of gross negligence manslaughter and concluded:

Between 5 October and 20 October, Det Con Maddison’s report was passed between a number of senior police officers for consideration and each provided comment.

The report was first sent to Detective Sergeant (Det Sgt) Nigel Oliver (CPS001642). In a covering note, Det Con Maddison wrote, “I have no idea why these two sisters are so out to stir up trouble”, and suggested that it might be because they felt “uncomfortable about not nursing their mother” (p1). He observed that there was a general acceptability of the use of a syringe driver to relieve pain, that a drip was a nuisance which inhibits the ability to provide care and that a drip would make no difference as “an elderly person can go a few days (5) without the need for fluid, most survive on a cup of tea a day and when in bed not moving it becomes less necessary … using diamorphine by making the patient more comfortable can increase the life expectation, it is not any form of euthanasia” (p1). He concluded that there had been a breakdown in communication between Dr Barton and Mrs Richards’ daughters and asked whether he should seek advice from a police surgeon or the Macmillan Trust (p1).

The documents reveal the mindset of the police: within 11 days of their approach to Hampshire Constabulary the family of Mrs Richards were effectively described as troublemakers.

In turn, Det Sgt Oliver referred the report to Det Insp Morgan. In his cover note (date-stamped 8 October 1998), Det Sgt Oliver expressed the view that there was no case for further investigation. This was based on his view that Mrs Richards’ daughters were consulted about the treatment to be provided to their mother and the likely effect of the syringe driver. Det Sgt Oliver concluded that the decision to use a syringe driver was a calculated medical decision made following the discovery of the haematoma (although there was no evidence in the medical records of this), and this appears to have been his rationale for no further investigation (CPS001642, p2).

Det Insp Morgan then referred the report to Detective Superintendent (Det Supt) Mike Lane. In her covering note, Det Insp Morgan acknowledged a “seemingly atrocious lack of care in relation to the deceased”. She went on, however, to concur with Det Sgt Oliver and expressed the view that there would be “considerable difficulties” proving that the “careless acts” had caused Mrs Richards’ death (CPS001642, p2).

In his response to Det Insp Morgan (date-stamped 16 October 1998), Det Supt Lane confirmed that the only criminal issue was the question of whether Dr Barton’s use of a syringe driver without a drip was appropriate or whether it had led to the death of Mrs Richards and constituted gross negligence. Det Supt Lane advised that the decision would rest with the CPS which could only make that decision once expert medical opinion had been obtained. Det Supt Lane directed that the options for obtaining appropriate medical opinion should be explored, the case should be submitted to the CPS and the family should be kept informed (CPS001642, p3).

Det Insp Morgan asked Det Sgt Oliver to instruct Det Con Maddison to obtain expert medical evidence (date-stamped 20 October 1998) (CPS001642, p3). The documents suggest that, rather than consulting a relevant expert, Det Con Maddison sought a statement from a Macmillan nurse on the use of palliative care. The resulting one-page statement dealt with palliative care generally and had no application to Mrs Richards’ case (HCO007012, p1).

By 2 October 1998, the first evidence file had been passed from Det Con Maddison to the local CPS. The note accompanying the file did not set out any evidence and it is not clear precisely what material was provided to the CPS for consideration. The note to the CPS described the accusation as “death being caused by a doctor failing to give liquid by way of a drip” and stated: “my enquiries have found that this is not a necessary procedure. The doctor fully explained the procedure of placing a syringe driver in place and the eventual outcome. This is admitted in the notes made” (CPS001641, p1).

On 20 November, Mrs Mackenzie complained to Sir John Hoddinott, the then Chief Constable of Hampshire Constabulary, that on 5 November Det Insp Morgan had spoken to her in an aggressive, uncivil and unprofessional manner and that she had passed the investigation file to the CPS prematurely given the lack of investigative steps. Mrs Mackenzie also complained that Det Con Maddison had not properly investigated her complaint regarding Mrs Richards’ death (HCO501782). This complaint was acknowledged on 10 December by Chief Superintendent (Ch Supt) David Basson, Head of the Professional Standards Department (PSD) (HCO501781).

On 24 November, the local CPS returned the file to Hampshire Constabulary and advised that there was insufficient evidence for a prosecution. The CPS’s view was that the Macmillan nurse’s statement was of no use and that there was a need for “properly qualified medical evidence”. The concerns “if investigated and backed up with medical evidence, could suggest such recklessness and neglect as to enable [the prosecutor] to consider further the possibility of proceeding against Dr Barton (or another or others of the Hospital staff) for manslaughter” (HCO007009, p2).

Given the CPS advice that further investigative action was necessary, the investigation into Mrs Mackenzie’s complaint about the conduct of Det Insp Morgan and Det Con Maddison was temporarily suspended pending the completion of the investigation (HCO501779).

The documents show how Det Con Maddison chose to interpret the need for “properly qualified medical evidence” as identified by the CPS. On 11 December, he rang Lesley Humphrey, who made a handwritten file note of their conversation. The file note says that Det Con Maddison had informed her that Mrs Mackenzie had asked the police to bring a charge of “unlawful killing” against the doctor in charge of Mrs Richards’ care. Det Con Maddison described the allegation as being that the doctor had failed to provide nourishment via a drip while a syringe driver was being used, thereby causing Mrs Richards’ death. Det Con Maddison added that he had already spoken with a Macmillan nurse who took the view that the drip was probably not used as it would have caused added discomfort. Det Con Maddison stated that he needed to decide what action to take, and that he felt it was not a police matter because it was about a clinical decision. The file note also records that Det Con Maddison requested that the hospital provide a statement and a copy of the medical records dealing with the use of syringe driver, IV fluids, decisions made and why, and the details of information that was shared with the family. Det Con Maddison said that he “had been in contact with the GMC who have asked him to write to them explaining that charge comes from Mrs Mackenzie and not police” (SOH900117, pp42–4).

The same file note records Lesley Humphrey as saying “we would do our best to help – be consulting our solicitors – get back to him next week” and lists these actions:

The file note shows that neither Hampshire Constabulary nor the Trust recognised the shortcomings of providing “properly qualified medical evidence” from within the hospital. There had already been a reference to possible corporate culpability in Sgt Dadd’s note of 15 October 1998. Despite this reference, Det Con Maddison’s approach led to the police relying on the hospital and its consultant, who were both potential defendants, to provide the crucial and determinative evidence in the case. This led to a complete failure by the police to secure any evidence relating to corporate conduct. Such information might have included documents and witness statements relating to the concerns that had been raised by nurses and the Royal College of Nursing in 1991. This in turn led to the Trust acting in a way that had the potential to seriously undermine the investigation and integrity of evidence.

Lesley Humphrey thought it appropriate to “alert” Dr Barton to the police investigation. This had the potential to undermine the investigation (SOH900117, pp42–4).

The Panel also notes that William (Bill) Hooper, the General Manager for the hospital, was informed about the police investigation and agreed with the action suggested (SOH900117, p44).

Six days after Det Con Maddison’s phone call, on 17 December, Lesley Humphrey sent a memo to Dr Althea Lord, a consultant geriatrician at the hospital and responsible for Dr Barton, requesting that Dr Lord provide a statement to the police. The memo dictated the issues to be covered by Dr Lord and confirmed that the Trust’s solicitor would be asked to comment on the content of the statement before it would be sent to the police. In this regard, Lesley Humphrey wrote “once we are all comfortable with the content we will forward to the police” (CPS001557, p1). The Panel has seen no documents to confirm what response was received from the Trust’s solicitor and whether or not any advice was received or any amendments were made to the statement.

On the same day, 17 December, Det Con Maddison wrote to Mrs Mackenzie stating:

On 22 December, five days after Lesley Humphrey’s memo, Dr Lord provided a two-page statement which dealt with three issues: (i) the use of diamorphine via syringe driver; (ii) the decision not to start intravenous fluids; and (iii) what was agreed with Mrs Mackenzie and Mrs Lack (HCO500062, pp2–3).

In her statement, Dr Lord said that on 17 August 1998, when Mrs Richards returned from Haslar Hospital to Gosport War Memorial Hospital for the final time, she was in severe pain and was administered morphine oral solution. Mrs Richards was then placed on a syringe driver through which diamorphine, haloperidol and midazolam were administered continuously. This analgesia and sedation was considered necessary to keep Mrs Richards comfortable and aimed at addressing pain, anxiety and agitation. Mrs Richards was being provided with palliative care and, Dr Lord said, in this instance, fluids were often not used as they do not significantly alter the outcome (HCO500062, pp2–3).

Dr Lord also confirmed in her statement that any patient requiring intravenous fluids would need to be transferred to Haslar Hospital and that, owing to her age and fragility, such a transfer in the case of Mrs Richards would not have been appropriate. Dr Lord specifically pointed out that the concern around this was not raised by Mrs Richards’ daughters on the ward or in Mrs Lack’s notes that were sent to Lesley Humphrey. The statement concluded with an assertion that Nurse Beed discussed the use of morphine oral solution and diamorphine via syringe driver with Mrs Richards’ daughters, who agreed with such a course of action. Dr Lord did not raise any concern or criticism of the care that had been provided (CPS001705).

On 23 December, Dr Lord faxed her statement, along with a letter, to Lesley Humphrey. Dr Lord highlighted a number of issues with the content of the investigation report, which had been prepared by Mrs Hutchings (NHE000704). Dr Lord’s correspondence was copied to Mr Hooper, and also to Barbara Robinson (Service Manager) and Nicky Pendleton (General Manager). With regard to Mrs Hutchings referencing an agreed policy that patients would not be transferred to accident and emergency X-ray departments outside working hours, Dr Lord wrote:

Dr Lord highlighted that neither she nor the duty consultant geriatrician had been involved in the decision not to transfer Mrs Richards on the night of 13 August 1998. Dr Lord also confirmed that, on 20 December, she had issued guidance to the wards, under the supervision of Dr Barton and Dr Anthony Knapman, who also worked at Dr Barton’s GP practice and provided clinical assistant cover for Dr Barton, on what should be done if such circumstances arose again (NHE000704, p6 and p9).

Dr Lord also highlighted that she had not been consulted about Mrs Lack’s complaint. She wrote:

On the following day, 23 December, Lesley Humphrey responded:

Lesley Humphrey also sent an email to Mr Hooper, Barbara Robinson and Nicky Pendleton, in which she stated: “… with regard to the statement for the police I’ll get our solicitors to cast an eye over it before forwarding to the police with a covering letter from Max (looks excellent to me) and I’ve told Althea this” (NHE000703, p3).

On 19 January 1999, Mr Millett wrote to Det Con Maddison and provided Dr Lord’s statement. In his covering letter, Mr Millett said:

The documents available to the Panel show that Mr Millett’s letter to the police and Dr Lord’s statement were silently shared with Dr Barton, Mr Hooper and Dr Lord. This would not have been apparent to the police at the time (NHE000702, p1). Chapter 1 shows that Mr Hooper and Mr Millett had been made aware of the nurses’ concerns in December 1991 or January 1992.

On 1 February 1999, Det Con Maddison provided Dr Lord’s statement to Det Insp Morgan, with a cover note in which he again expressed the view that no further investigation should be carried out (HCO006998, p6). On 2 February, Det Insp Morgan passed the file back to Robert Wheeler, prosecutor at the local CPS, for consideration. The cover note, from Det Insp Morgan to Mr Wheeler, states:

On 11 March, Mr Wheeler responded in a short letter, which simply said: “In light of all the material provided, I do not consider there is evidence to justify a prosecution of the medical staff involved in the care of Mrs Richards for manslaughter, or any other criminal offence” (CPS001645, p1).

On 17 March, Det Insp Morgan wrote to Mrs Mackenzie to inform her of the CPS decision not to prosecute any of the medical staff involved in the care of Mrs Richards. That marked the end of this investigation (HCO500056).

There is nothing in the records to suggest that either the police or the CPS considered the need to instruct Counsel for advice or reflected upon the inadequacy of this investigation and the conflict of Dr Lord. Nor is there any reference to the Code for Crown Prosecutors. The documents suggest that no consideration was given to the range of potential offences and defendants or to the possibility that there were other similar cases at the hospital.

The conclusion of the first police investigation meant that Mrs Mackenzie’s complaint about the conduct of Det Con Maddison and Det Insp Morgan could be further investigated. On 16 August 1999, Detective Superintendent (Det Supt) Andrew Longman produced a highly critical report in relation to Det Con Maddison’s investigation. Among the criticisms were:

Documents seen by the Panel include accounts by Charles Stewart-Farthing (IMI000466, pp2–3), who stated that, following the death of his stepfather Arthur Cunningham at the hospital on 26 September 1998, he made a complaint to Mr Millett on 2 October 1998. Mr Stewart-Farthing attended Gosport Police Station during October 1998, and was told by the police that the matter would be looked into. Mr Farthing indicated that he had not heard from the police at that time. The Panel has seen no police documents relating to Mr Stewart-Farthing’s complaint in October 1998 nor has the Panel seen any document that indicates that any investigation into the death of Mr Cunningham took place at that time.