Chapter 5: Hampshire Constabulary and the Crown Prosecution Service
Second police investigation: Phase Three
On 21 May 2001, a strategy meeting was held to facilitate a handover of responsibility from Det Ch Insp Burt to Det Supt James (HCO000635, pp155–8). The handover briefing note said:
“A hand-over is a critical event in any investigation but it is now an appropriate time to undertake a change of SIO. It was originally agreed that this investigation would be placed ‘on hold’ and that the hand-over process would take place once the CPS had decided in the Richards’ case. However, given the changed circumstances arising from the recent media disclosure, there is a immediate need to progress both the hand-over and the enquiry without delay.” (HCO000635, p156)
In his handover briefing note, Det Ch Insp Burt also said that the “use of HOLMES may be considered appropriate” (HCO000635, p157). Det Supt James had recently returned to policing having taken a 12-month break (HCO502478, pp1–3). It is not clear to the Panel what steps he had taken to keep himself abreast of policing developments and investigation strategy or on what basis Hampshire Constabulary decided that Det Supt James was the most suitable person to take over this investigation.
The handover briefing note also set out a list of matters that would need to be considered as part of Phase Three, including: wider support mechanisms for families affected; corporate liability issues; GMC; Her Majesty’s Coroner; Professor Livesley; good practice with reference to the ‘Shipman’ case (HCO000635, pp157–8).
The Panel has not seen any documents to confirm that any of these tasks took place at the point of handover.
On 31 May, Mr Perry advised, in writing, that having considered the case of Gladys Richards the “evidence does not reveal the commission of any offence”. This advice consisted of a summary of: the case background, Professor Livesley’s report, the accounts from Dr Barton, Dr Lord, a number of nurses, the hospital pharmacist, Mrs Lack and Mrs Mackenzie, together with a summary of the law on gross negligence manslaughter and murder (CPS001872, p2). His advice appears to contain no rationale for this decision.
Det Supt James met with Professor Livesley on 31 May and wrote to him on 5 June, setting out the matters that they had discussed (HCO000906, pp2–5).
The first issue was “identifying the deaths we would want to examine in greater detail from the total deaths over an agreed period” (HCO000906, p2). The letter set out the strategy that had been discussed for approaching this issue. In particular:
- The population of deaths to be examined would be: “All those deaths in a period from twelve months before the commencement of the employment of Dr. Barton or Mr. Beed, dependent upon who was first appointed, through to the date of the notification to the Health Authority of the second investigation into the death of Gladys Richards” (HCO000906, p2).
- It was noted that the period of “twelve months before” would allow some scrutiny to identify “Whether the clinical practices you identify preceded the arrival of Dr. Barton and Mr. Beed” (HCO000906, p2).
- “Whether there is a need to widen the scale of the investigation, depending upon the outcome above. A control sample for comparative purposes if the examination of the pre-Beed/Barton regime reveals no irregularities in patient care practice” (HCO000906, p3).
- It was also noted that the cut-off date was “appropriate at this stage, given that the commencement of Ray Burt’s investigation precipitated a series of actions within the Health Trust and the hospital” (HCO000906, p3).
The second issue was “the process for examining the deaths on a case-by-case basis to identify: Those that may be categorised as unlawful. The criminal liability of any individual” (HCO000906, p3). A detailed proposed strategy was set out in the letter.
Professor Livesley responded and suggested that the police obtain the assistance of the statisticians who had been engaged in the Shipman case. He also set out the basic principles of gross negligence manslaughter by reference to an extract from a 2000 publication entitled Law for Doctors. Professor Livesley confirmed that in his assessment of the Gladys Richards case it met the legal criteria for gross negligence manslaughter and that he would apply the same principles to any other cases. He also suggested amending the ‘high risk, low risk criteria’ to a set of criteria that were more clearly associated with the patient’s condition, which included “obviously stable”, “obviously terminal” and “obviously unexpected” with explanations as to what each meant. He pointed out that in cases where patients had been classed as terminal there would still need to be comment on “whether their terminal management had been appropriate” (HCO000871, pp3–4).
The documents suggest that Hampshire Constabulary met with the CPS on 14 June (HCO000869).
Following the meeting, Det Supt James recorded:
“Make arrangements to identify and consult with a practising Geriatric Consultant at a hospital outside Portsmouth Health Authority area to determine: i) Whether or not Professor Livesley’s observations concerning pre-prescription to patients on admission are reflected in practise. ii) Whether or not Professor Livesley’s observations concerning continuous administration via syringe driver (as Richards) without review are reflected in practise.” (HCO000636, p19)
His reasoning for this was: “Issues raised are central to Livesley’s conclusion. Senior counsel requests that practicing consultant’s interim view is sought to assist decision making process” (HCO000636, p19).
On 18 June, Det Supt James recorded the decision to brief Dr Keith Mundy, consultant geriatrician, on Mrs Richards’ case for a view on the circumstances (HCO000636, p21).
On 19 June, and in preparation for the meeting that would take place later that day with Professor Livesley, Det Sgt Sackman faxed two briefing notes and a copy of Professor Livesley’s letter of 18 June to Mr Close and requested that the documents be forwarded to Mr Perry (CPS001894).
The first briefing note set out a summary of two other cases in which Professor Livesley had been involved. One case related to deaths in a nursing home. The allegations related to residents who had been subjected to a regime of excessive fluids leading to heart failure and death. The note reported that seven deaths had resulted in gross negligence manslaughter charges and proceedings against staff. The other case involved deaths in an intensive care unit at Basildon Hospital. The deaths were alleged to be the result of doctors prescribing larger than appropriate quantities of morphine-based drugs to patients whose medical support had been withdrawn, thereby shortening the lives of terminally ill patients. This case was still under investigation. Professor Livesley’s report in this case was said to be unambiguous and unequivocal, as were the reports of a toxicologist and intensive care unit specialist (CPS001894, p2).
The second briefing note confirmed that Hampshire Constabulary had consulted with Dr Mundy, a practising consultant geriatrician who was based at a hospital in Surrey (HCO000869, p2). The briefing note explained that Dr Mundy had been briefed on the general chronology of events preceding Mrs Richards’ death and that he had, in turn, expressed concerns about this case. The Panel has seen no documents to show that the views of Dr Mundy were acted upon in relation to the Gladys Richards investigation. In particular, Dr Mundy was not asked to provide a full written report nor has the Panel seen any document to confirm that the CPS or Mr Perry took Dr Mundy’s views into consideration (CPS001894, p3).
Professor Livesley attended a conference on 19 June with Mr Perry, Det Supt James and Mr Close, and subsequently described the two-hour meeting in the following terms: “I was verbally abused, bullied, and attacked by Mr Perry so much so that I complained loudly that this was not professional” (BLI000035, p1).
The documents examined by the Panel raise important issues about the treatment of Professor Livesley as an expert witness, exemplified by the conference on 19 June, and these are considered later in this chapter and in the Conclusions to this Report in Chapter 12.
On the same day, Professor Livesley wrote to Det Supt James withdrawing his letter of 18 June 2001 and the letter and report of 9 November 2000, which he pointed out had been initially provided for discussion only (HCO002251).
On 2 July, Mr Perry provided updated advice:
“After reading the papers with some care, my preliminary analysis was that the accounts given by Doctor Barton and others involved in the care of Mrs. Richards supported the following findings of fact:
(i) that on 11th August 1998 Mrs. Richards was very frail
(ii) by 17th August 1998 Mrs. Richards’ condition had deteriorated and she was in pain
(iii) that the decision to administer drugs by way of a syringe driver was a decision made by Doctor Barton on clinical grounds and this decision was supported by the evidence of Philip Beed and Doctor Lord;
(iv) that the drugs administered to Mrs. Richards were used routinely in palliative care.” (CPS001399, pp36–7)
As noted by Mr Perry in his advice: “These findings were of course subject to the views contained in Professor Livesley’s report dated 1st November 2000” (CPS001399, p37).
The Panel notes that in his advice and in relation to Mrs Richards’ condition on 11 August 1998, Mr Perry also observed that Dr Barton asserted in her police statement (dated 25 July 2000) that “upon admission on the 11 August 1998 Doctor Barton was of the opinion that because of her dementia, her hip fracture and her recent major surgery, Mrs Richards was close to death. She scored 2 on the Bartel” (CPS001399, p12).
In her police interview statement, Dr Barton stated:
“In my view Mrs Richards was probably near to death in terms of weeks and months from her dementia before the hip fracture supervened. Given her transfer from nursing home to acute hospital and then to continuing care and the fact that she had recently undergone major surgery in addition to her frailty and dementia, I appreciated that there was a possibility that she might die sooner rather than later.” (CPS001691, p4)
On 11 August 1998, Dr Barton had recorded in the medical records that Mrs Richards was a “frail demented lady not obviously in pain … please make comfortable … I am happy for nursing staff to confirm death” (CPS001691, pp3–4).
The Panel has seen no documents to explain why Dr Barton considered Mrs Richards was near to death by weeks or months before she suffered her hip fracture. It is also not clear from Dr Barton’s police statement or from the records she made at the time why, on 11 August 1998, she considered that there was a possibility Mrs Richards might die sooner rather than later. The Panel has seen no documents to confirm that Mrs Richards was in any pain on 11 or 12 August and no documents that explain why, therefore, having assessed Mrs Richards as “not obviously in pain”, Dr Barton instructed staff to “make [her] comfortable” and that she was “happy for nursing staff to confirm death” (CPS001691, p4).
In his advice and in relation to Mrs Richards’ condition on 17 August 1998, Mr Perry observed that, in her police statement Dr Barton had stated that, on 17 August, “Mrs Richards had been on intravenous morphine until shortly before her transfer [back to the hospital] … [which] explains Mrs Richards apparent peacefulness upon transfer” (CPS001399, p13). In his report, Professor Livesley had observed that the medical records confirmed that: on 14 August, Mrs Richards’ dislocated hip had been corrected at the Haslar Hospital “under sedation using 2mg of midazolam”; that, after the procedure, she had “gradually become more responsive” and that, “apart from two tablets of co-codamol on the 15th August 1998 she did not need to be given any pain relief following the reduction of her hip dislocation” (BLC003926, pp7–8). The records confirm that on her arrival at Gosport War Memorial Hospital, Mrs Richards was noted to be in pain and distress and was not peaceful. The records also show that, following her arrival at the hospital, morphine oral solution was administered to Mrs Richards. The records confirm that Haslar Hospital staff had noted on the transfer letter to Gosport War Memorial Hospital “no follow up unless complications”.
In relation to Mrs Richards’ condition on 18 August 1998, in her statement to the police, Dr Barton said:
“… when I examined Mrs Richards there was a lot of swelling and tenderness around the area of the prosthesis. There was no evidence of infection at that time and it was my assessment that she had developed a haematoma or large collection of bruising around the area where the prosthesis had been lying while dislocated. This was in all probability the cause of Mrs Richards’ significant pain and unfortunately a not uncommon sequel to a further manipulation required to reduce the dislocation. This complication would not have been amenable to any surgical intervention and again further transfer of such a frail and unwell elderly lady was not in her best interest and was inappropriate.” (CPS001691, pp7–8)
The Panel has not seen any document that shows that Dr Barton made any record of any detail relating to a haematoma in the medical records at any point. The Panel has seen no document that confirms that any investigation of the presence or nature of the haematoma was carried out by Dr Barton. The Panel has not seen any document that shows that Dr Barton consulted with the clinicians at the Haslar Hospital about the haematoma and any possible treatment. In her police interview, Dr Lord was asked whether, having read the clinical notes, she could indicate any particular “thing” that Mrs Richards was dying of, and she answered “no” (CPS001053, p35).
Mrs Lack stated that, on 18 August 1998, Mrs Richards was still unconscious from the effects of the morphine oral solution and that Nurse Beed explained that a syringe driver was going to be used to ensure that Mrs Richards was pain free at all times. Mrs Lack also stated that Dr Barton had arrived afterwards and confirmed the presence of a haematoma and that the use of a syringe driver was the kindest way to treat Mrs Richards (CPS001688, p27). The medical records confirm that at 11:45 the administration of diamorphine 40 mg, haloperidol 5 mg and midazolam 20 mg was commenced by syringe driver. Thereafter the drugs were administered by syringe driver daily until 21 August 1998, when Mrs Richards died.
In relation to Professor Livesley, the advice stated:
“In his summary of the relevant facts Professor Livesley draws attention to the following matters.
(i) On 11th August 1998 Doctor Barton prescribed oramorph [morphine oral solution] and large dose ranges of diamorphine, hyoscine and midazolam. These were to be given subcutaneously and continuously over periods of twenty-four hours for an undetermined number of days.
(ii) On 17th August 1998 there is no evidence that Mrs Richards, although in pain, had any specific life-threatening and terminal illness that was not amenable to treatment and from which she could not be expected to recover. Despite this on 18th August 1998, Doctor Barton, who did not seek any other medical opinion, prescribed diamorphine, midazolam, haloperidal and hyoscine to be given subcutaneously and continuously over periods of twenty-four hours.
(iii) Neither midazolam nor haloperidal is licensed for subcutaneous administration.
(iv) When the syringe driver was being used to administer the subcutaneous drugs, there is no evidence that Mrs Richards was given fluids or food in any appropriate manner.
(v) There is no evidence that in fulfilling her duty of care Doctor Barton reviewed appropriately Mrs Richards’ condition from 18th August 1998 to determine if any reduction in the drug treatment being given was indicated.
(vi) There is no evidence that in fulfilling their duty of care Mr. Philip Beed, Ms. Margaret Couchman and Ms. Christine Joice reviewed appropriately Mrs Richards’ condition to determine if any reduction in the drug treatment they were administering was indicated.
(vii) There is, however, indisputable evidence that the subcutaneous administration of drugs by syringe driver continued without modification from 18th August 1998 until Mrs Richards died on 21st August 1998.
(viii) Although Doctor Barton recorded that death was due to bronchopneumonia there is no clinical pathological evidence that this was correct.
(ix) It is beyond reasonable doubt that the death of Mrs Richards was the result of continuous subcutanous administration of diamorphine haloperidol midazolam and hyoscine in the dosages given.” (CPS001399, pp10–11)
Professor Livesley’s opinion, as reported by Mr Perry, was that:
“Mrs Richards was unlawfully killed, by the continuous administration of drugs actively prescribed by Doctor Barton. He further concludes that Philip Beed, Margaret Couchman and Christine Joice knowingly and continuously administered diamorphine, haloperidal, midazolam and hyoscine to Mrs Richards when they should have recognised the fatal consequences of so doing.” (CPS001399, pp10–11)
In relation to the conference with Professor Livesley on 19 June 2001, Mr Perry’s advice stated:
“In the course of the conference the following matters emerged:
(i) although Professor Livesley had concluded in his initial medical report that Mrs Richards had been unlawfully killed, he was not entirely clear of the legal ingredients of gross negligence manslaughter;
(ii) that Doctor Barton’s decisions were entitled to be afforded some respect because she was involved in Mrs. Richards’ care as the ‘front line’ clinician
(iii) Doctor Barton’s decisions could find support among a responsible body of medical opinion
(iv) bronchopneumonia as cause of death could not be contradicted
(v) it is not possible, in the absence of any post-mortem finding, to exclude a heart attack as a possible cause of death.” (CPS001399, p37–8)
The five issues listed above led Mr Perry to conclude that Professor Livesley’s position was untenable and that he could not be relied upon as an expert witness in this case.
In the later police conduct investigation, Hampshire Constabulary observed that “it is not known precisely why the meeting with Treasury Counsel [appears to have been] so catastrophic in its outcome. No documentation of the precise nature and detail of the discussion has been found”, despite the statement of Det Supt James (HCO502145, p6). Following this finding, Det Supt James provided a witness statement in which he detailed the discussion that had taken place during the meeting with Counsel. He recollected that, during the meeting, Professor Livesley conceded that he was unable to substantiate several of the medical conclusions in his report (HCO501911). The lack of any formal record of the meeting was not surprising. According to Deputy Chief Constable (Dep Ch Const) Ian Readhead, who was asked about the position in September 2003 during a PCA investigation, there appeared to have been a rule that no notes of such a meeting were to be taken (HCO005270, pp12–13).
The Panel notes that Mr Perry was instructed to consider whether there was any evidence to charge Dr Barton, Nurse Beed, Staff Nurse Couchman and Nurse Joice with the unlawful killing of Mrs Richards (CPS001882). In the event, the issue of potential culpability was not examined on a person-by-person basis.
The advice confirmed that the offences to be considered by Mr Perry were gross negligence manslaughter and murder (CPS001399, p2). However, it is clear from the documentation seen by the Panel that the police had considered the possibility of corporate liability as early as 15 October 1998 (CPS001657). This issue appeared on a number of occasions, in correspondence and in the Policy File (HCO000635, p61). The question of corporate liability had been raised by Det Ch Insp Burt as a matter requiring advice in his letter to the CPS (HCO501545, p3). This letter was sent to Mr Perry for consideration in April 2001 (CPS001886).
The documents provide no explanation as to why consideration of corporate offences did not feature as part of Mr Perry’s instructions from the CPS (CPS001882).
Mr Perry refers to a thorough investigation having been carried out by Hampshire Constabulary (CPS001399, p1).
The documents show that the following matters were not addressed in Mr Perry’s advice. He raised no concerns about the inadequacies of Det Con Maddison’s investigation as noted by Det Supt Longman in his investigation report dated 16 August 1999 (HCO000635, pp14–15). There was no reference to Dr Mundy’s provisional views, which expressed concern about the case, despite this second opinion being obtained at Mr Perry’s request. The advice contained no reference to the evidence of the nursing auxiliary Pauline Spilka, which may or may not have been provided to Mr Perry.
On 10 July, Professor Livesley produced an amended report (BLC003926). Contrary to the account given by Det Supt James of the conference with Mr Perry, Professor Livesley remained committed to his earlier views and simply removed the reference to Mrs Richards being ‘unlawfully killed’.
The Panel has seen no evidence that Professor Livesley’s amended report was provided to or considered by the CPS or given to Mr Perry for consideration. Notwithstanding the outcome of the conference between Professor Livesley and Mr Perry, Hampshire Constabulary continued to use Professor Livesley’s November 2000 report, by circulating it to the regulatory bodies. Professor Livesley would subsequently complain about the handling of his report (BLI000021, p1; BLI000018).
By this stage allegations had been made to Hampshire Constabulary regarding the deaths of nine patients (HCO000635, p140) and Det Sgt Sackman was asked to identify those that were similar to the case of Mrs Richards. He selected the cases that he assessed as having the following features: “non life threatening condition on admission, syringe driver used to administer drugs, death within a short period of admission unexpectedly” (HCO000636, p28, decision 21). He selected Eva Page, Arthur Cunningham, Robert Wilson and Alice Wilkie (HCO000636, p28). The Panel has seen no documents explaining why the other five cases were not further investigated at this stage. It is not clear to the Panel why Hampshire Constabulary did not instruct Professor Livesley to comment on all nine cases.
On 6 July, Det Supt James wrote to Lesley Humphrey requesting the records in these cases and said:
“It would be my aim to complete the analysis as soon as possible and then determine whether or not any circumstances give cause for further investigation once the advice is received. I hope you will appreciate that we are not pre-judging the situation but simply endeavouring to maximise the information available to us to decide clearly and rationally whether or not the police investigation should proceed further.” (HCO005653, p2)
On 20 July, Det Supt James noted:
“Meeting arranged with CHI [Commission for Health Improvement] Assistant Director operations and investigations manager for today’s date. Brief on all relevant issues concerning GWMH including concerns Prof Livesley and others and potential type of deaths where there may be concerns, i.e. in region of 600.” (HCO000636, p35)
His reasoning was recorded as:
“Important to share all relevant information to ensure CHI can make informed decisions about continuing investigation in accordance with their terms of reference. Important they are encouraged to become involved given (??)(=current / uncertain) nature of future police investigations.” (HCO000636, p35)
The police note of 20 July is the first reference to the figure of 600 potential deaths. The note does not explain how this figure was calculated or by whom.
On the same day, Mr Close met with Mr Wheeler, the local CPS branch prosecutor, and Hampshire Constabulary. During this meeting, the police indicated that they would be looking at other cases (CPS000985, p4).
On 7 August, Mr Close wrote to the police about Mrs Richards’ death. He referred to a phone call with Det Ch Insp Clarke four days earlier and the meeting with the police at the CPS Headquarters on 20 July 2001. Mr Close added that “the police requested that the CPS took no action pending confirmation from the police as to what steps it proposed to take with regard to the other associated complainants” (HCO501896, p1). He continued:
“I confirm that having considered this matter, I am not satisfied that there is sufficient evidence to provide a realistic prospect of a conviction, against anyone, in respect of any criminal offence alleged in the papers. I have, therefore, advised that criminal proceedings should not be instituted.” (HCO501896, p1)
Mr Close went on to provide a list of evidential observations to assist the police. This marked the end of the case in relation to Mrs Richards (HCO501896).
Despite the additional investigations and expert reports that were obtained by Hampshire Constabulary, this appears to be the very last time that the CPS reviewed or considered the death of Mrs Richards with a view to prosecution.
Both experts raised concerns about inappropriate and excessive prescribing contributing to and hastening death. Professor Ford raised serious concerns about general management of older people and recommended that further enquiries and police interviews should be carried out.
The Policy File shows that, between 20 July and 31 October 2001, the main steps taken by the police related to the provision of information to the Commission for Health Improvement (CHI). Aside from engaging Professor Ford and Dr Mundy to comment on four cases only, no other investigation steps were taken and no investigation strategy was formulated during this period (HCO000636).
The end of the second investigation
Despite the concerns that had been raised by Professor Livesley, Dr Mundy and Professor Ford, on 28 January 2002 Det Supt James took the decision to end the police investigation, which he recorded as follows: “SIO’s decision re wider police investigation into deaths at Gosport War Memorial Hospital is that further investigation would not be appropriate” (HCO000636, p49). The reasons given for reaching this decision were the lapse of time since Det Con Maddison’s initial report from 5 October 1998, the lack of evidence of any unlawfulness having occurred, conflict between experts, the lack of certainty of any particular outcome and the fact that other agencies (such as the GMC) had a role. Finally, Det Supt James stated that “To proceed on basis of current information would necessitate investigating up to 600 deaths. A considerable number raising massive public concerns with no certainty of outcomes in respect of criminal investigations” (p49).
The Panel has seen no documents providing details of meetings, briefings or other considerations leading to the decision to close the second investigation. No closure report has been disclosed. Moreover, the documents indicate that the decision to end the investigation was not discussed with the CPS.
After the decision to end the investigation, Det Supt James took steps to inform the Portsmouth HealthCare NHS Trust, the Portsmouth and South East Hampshire Health Authority, the Director of Public Health, the UKCC, the GMC, the Medical Defence Union and the families of the outcome and to provide copies of the expert reports (HCO000636, p51). This was effectively a handover to those organisations. His last entry was on 15 April 2002 regarding the Medical Defence Union’s objection to the disclosure of expert reports to the families whose relatives had been the subject of those reports (p55).