Chapter 5: Hampshire Constabulary and the Crown Prosecution Service

Between 2002 and 2006, the third investigation was undertaken.

The principal investigative steps undertaken between 2002 and 2006 were as follows:

• an investigation into the 1991 nurses’ concerns
  
• the collation of medical records and the instruction of a team of five medical experts (the Key Clinical Team) and a solicitor experienced in medical legal issues, to undertake a screening of 91 patient deaths
  
• the instruction of experts, who provided reports on some or all of the cases identified during the Key Clinical Team screening process and the case of Mrs Richards
  
• the collation of witness statements including statements from hospital staff and family members
  
• the interview under caution of various hospital staff, including senior executives, nurses and doctors
  
• the collation of other documents such as hospital protocols and Dr Barton’s job description
  
• the statements, interviews, documents and expert reports outlined above and in relation to those cases were sent to the CPS for review and a decision on prosecution.
  

The decisions on whether to prosecute were reached by the CPS in December 2006 and the families, relevant organisations and the public were informed.

The documents confirm that, during the third investigation, new complaints and concerns relating to patient care and deaths at the hospital were reported to the police, who considered the deaths of 91 patients.

From 20 September, the SHA operated a telephone helpline, which enabled people to call in with concerns and questions. On 2 October 2002, the line was closed following discussions between Dep Ch Const Readhead and Alan Pickering, the then Acting Chief Executive of Fareham and Gosport Primary Care Trust.

By the time the line was closed, 36 callers had made contact and had left their details. The line was subsequently replaced with an answerphone service (HCO501587).

Detective Inspector (Det Insp) Nigel Niven telephoned Mr Close on 18 December to explain that the SHA had proposed to undertake its own investigation, and CHI had proposed to undertake a second investigation. Det Insp Niven explained that he was concerned about a potential conflict of interest, prejudice and contamination arising in circumstances where the SHA and CHI were carrying out enquiries and investigations at the same time as Hampshire Constabulary and that there was “potential impact on any corporate liability” (CPS001007, p1).

Mr Close’s note of the conversation records that the “Hospital personnel involved appear to be anticipating potential culpability and possibility of being subject of police enquiry. Police want to discuss general issues and in particular those arising from points of reference in the other investigations” (CPS001007, p1).

Mr Close’s record of advice includes this reference:

The documents do not explicitly confirm that the reference to the “secret report” was intended to relate to the nurses’ dossier but this seems to be what was intended.

On 6 January 2003, Mr Close wrote to the police advising that the second investigation by CHI, or the SHA-commissioned management investigation (described in Chapter 4), would not itself cause any prejudice to the police enquiry but he highlighted a number of difficulties that may arise from the investigations (CPS001001, p1).

Due to the lack of clarity in Mr Close’s advice, the police sought further advice from Michael Forster, a barrister. Mr Forster advised, on 4 February, that the investigations were likely to prejudice the police investigation and the interests of justice, and that the police investigation should be conducted expeditiously so that the SHA and CHI enquiries could be conducted as soon as reasonably practical (HCO000637, p75).

Meanwhile, the records indicate that on 13 January 2003 Hampshire Constabulary held a meeting with Sir Liam Donaldson to discuss the issue of prejudice (HCO000637, p84).

Between October 2002 and August 2003, Hampshire Constabulary investigated the nurses’ dossier, taking statements from those who had been named in the 1991 documents (HCO502362, HCO110800, HCO110869, HCO110813, HCO110842, HCO110899, HCO110911, HCO110777, HCO004127, HCO111005, HCO110993, HCO004128, HCO111017, HCO006709, HCO111107, HCO111239, HCO111226, HCO111145, HCO111144, HCO111146, HCO111147, HCO004143, HCO006363, HCO004056, HCO004134, HCO004136, HCO004060, HCO110593, HCO004126, HCO004127, HCO004134).

The police also conducted interviews under caution with Ian Piper, Chief Executive of Fareham and Gosport Primary Care Trust, and Mr Horne, Chief Executive of East Hampshire Primary Care Trust (HCO109812, HCO109813, HCO109814). Statements were taken from a number of individuals holding managerial positions within the hospital, but not from Mr Hooper, Mr Millett, Dr Bob Logan (a consultant geriatrician) and Dr Barton. The police interviewed nursing staff but did not ask them to provide examples and details of patient cases that had caused concern. The nursing staff confirmed that the system was that Dr Barton would prescribe the use of the syringe driver and medication and a senior nurse would decide when to use a syringe driver and administer the drugs (HCO110869).

On 11 September 2003, the police held a Family Group meeting where the 1991 nurses’ concerns were raised. Det Ch Supt Watts provided a PowerPoint presentation to the families (HCO000638, p93; HCO005295). The presentation included:

The Panel has not seen any document to confirm on what basis the police determined that no offences had been committed in respect of the 1991 events. The Panel notes that the investigation into the 1991 events was incomplete in that the police had not sought to establish the specific details of the nurses’ concerns, the chain of command on the wards and the hospital, and the persons responsible for implementing the use of syringe drivers and diamorphine. The police also did not enquire into staff training and senior-level knowledge and involvement in the response to the nurses’ concerns. In addition, Hampshire Constabulary did not enquire into the result of the SHA-commissioned management investigation. Following the decision that no offences had been committed in respect of the 1991 documents, the police did not invite the SHA or CHI to reinstate their investigation.

Following their consideration of the 1991 documents, the police engaged experts in the following two stages:

• Stage one: The Key Clinical Team was a team of five medical experts in varying disciplines, led by Professor Robert Forrest, Professor of Forensic Toxicology at the University of Sheffield, whose role was to provide a preliminary assessment referred to as a ‘screening’ of all 91 cases. The Key Clinical Team’s conclusions were then reviewed by Matthew Lohn, a solicitor who was experienced in GMC proceedings. (As described in Chapter 6, Mr Lohn was also engaged by the GMC to advise on its investigations. The potential conflict of interest was highlighted in September 2003, and Mr Lohn subsequently withdrew the provision of his services to the GMC.) The purpose of the screening exercise was to assess and allocate cases into categories: Category A (natural deaths), Category B (unclear deaths) or Category C (deaths unexplained by illness which “meant that the treatment had killed the patient and there was no explanation for that treatment”) and Category 1 (optimal care), Category 2 (suboptimal care), Category 3 (negligent care) or Category 4 (where the care was intended to cause harm) (HCO000638, p48). The process of assessment adopted by the Key Clinical Team is set out in the Key Clinical Team Table on this website. The documents viewed by the Panel show that the Key Clinical Team members independently assessed each case and reached their own views on categorisation. The documents also show that their views were not unified; however, the Key Clinical Team later reached a collective and final view on each case. It is not clear from the documents by what criteria each category was assessed, or on what basis the Key Clinical Team reached its final and collective view. After the Key Clinical Team’s final categorisation, Mr Lohn performed a review of the cases and advised Hampshire Constabulary on the next stage of the investigation.
  
• Stage two: It was decided that 14 Category 3 cases would be the subject of a criminal investigation. The case of Mrs Richards, although not deemed to be a Category 3 case, was also the subject of further expert assessment and opinion, making 15 cases in total. It is not clear from the documents why those 15 cases were chosen and others were not. As part of the further investigation, Hampshire Constabulary commissioned a number of experts to carry out a full analysis of and provide an opinion on the standard of treatment and care, and the cause of death in those cases. Hampshire Constabulary engaged two principal experts: Professor David Black, consultant geriatrician, and Dr Andrew Wilcock, lecturer and reader in palliative care and medical oncology at Nottingham University; and in some cases other experts were asked to provide assessment and opinion on discrete medical issues pertaining to that patient.
  

Between 2004 and 2006, the following patient deaths were the subject of further expert assessment and reports:

A detailed summary of the expert involvement in the police investigations can be found in the Expert Overview on this website.

As outlined in paragraph 5.209, during this period, in addition to engaging the experts, Hampshire Constabulary also carried out other investigative steps such as taking witness statements and conducting interviews under caution.

On 28 September 2005, the police met with Mr Perry and the CPS in conference to discuss the cases that had been reviewed thus far (HCO000041). The police investigation continued.

On 7 June 2006, the police updated the CPS (HCO000643, pp142–3). In early August, the police met again with Mr Perry and the CPS. The note of the meeting recorded Mr Perry’s views on five of the investigation files as follows:

On 14 September 2006, the police provided the final submission of additional papers and representations to the CPS (HCO000643, pp200–3). The submission highlighted the strengths in the expert evidence in the cases of Enid Spurgin, Geoffrey Packman and Elsie Lavender, and stressed that the experts had said that these patients were suffering from reversible conditions and that it was unlikely that they had entered a “natural irreversible terminal decline” (HCO000643, p202).

The Panel has undertaken a MADS (Messages Actions Documents Statements) review of the third investigation. (A MADS review is simply a review of all the documents generated by an investigation that are logged on the HOLMES police computer system.) This review shows that the third investigation consisted of, among other things, taking witness statements, obtaining medical records, instructing experts, and conducting interviews under caution with suspects. The MADS review showed that the investigation was a process of collation but not exploration or analysis of the evidence that had been gathered.

 As acknowledged by Dep Ch Const Readhead, when an allegation was made to Hampshire Constabulary then it was necessary for the police to comply with the National Crime Reporting Standards (NCRS) (HCO501872). The Panel has not seen any documents to confirm that any of the allegations relating to the hospital were recorded in accordance with the NCRS.

On 27 October 2006, Mr Perry provided a written advice on each of the following cases: Elsie Devine (DPR100008), Leslie Pittock (DPR100009), Elsie Lavender (DPR100010), Ruby Lake (DPR100011), Arthur Cunningham (DPR100012), Enid Spurgin (DPR100013), Robert Wilson (DPR100014), Geoffrey Packman (DPR100002), Helena Service (DPR100003) and Sheila Gregory (DPR100004), together with a general note on the investigation (DPR100007).

In each case, Mr Perry determined that the evidence did not indicate the commission of the offence of gross negligence manslaughter. In doing so, he considered the essential questions below with reliance upon the opinions and conclusions of the medical experts, as well as other evidence. The essential questions were as follows:

These questions can be summarised in the following way: (i) did Dr Barton cause the drugs to be administered to the patient in a manner that was a breach of her duty of care (i.e. negligent); (ii) did the administration of those drugs more than minimally cause the patient’s death; and iii) if so, could the breach of duty be characterised as grossly negligent. Answers in the affirmative to each of these questions would have suggested that Dr Barton was guilty of gross negligence manslaughter.

It is clear from Mr Perry’s analysis that the experts’ views were seen as presenting an equivocal picture, which meant that the evidence in each case fell below the evidential threshold for a charge of gross negligence manslaughter, as set by the Code for Crown Prosecutors. If a jury could not be sure that Dr Barton had caused drugs to be administered to patients in a manner that was a breach of her duty of care, had more than minimally caused the patient’s death by the administration of those drugs, and had breached her duty of care in a way that could be characterised as grossly negligent, then a prosecution should not be commenced.

The Panel notes the evidential difficulty that arose from the nature of the expert opinions in the ten cases referred to the CPS and Mr Perry. The Panel understands the reasoning for Mr Perry’s conclusions in respect of offences of gross negligence manslaughter. The challenging nature of the expert evidence was a recurring issue in the investigation. While the preponderance of advice favoured there being a significant problem at the hospital, there was a lack of unanimity around the precise cause and effect. Professor Livesley had provided unequivocal expert evidence during the second police investigation but his evidence was considered to have been undermined during a conference with Mr Perry, as described earlier in this chapter.

Mr Perry’s advice did not extend to the possibility that offences may have been committed by Dr Barton and others, including the Trust, under health and safety legislation. The Panel has seen no evidence to indicate that full consideration was given to whether such offences had been committed.

The Panel has seen no documents that confirm that a copy of Mr Perry’s advice was provided to the police nor to explain the refusal to do so. The documents indicate that Mr Close provided a CPS determination to Hampshire Constabulary, which was based on the advice he had received from Mr Perry. This marked the end of the third investigation.

After the conclusion of the third investigation, Hampshire Constabulary provided evidence collated during the investigation to the Portsmouth Coroner, the GMC and the Nursing and Midwifery Council. In 2009, the Coroner held ten inquests into the deaths of the ten patients, as described in Chapter 8, and the GMC held Fitness to Practise proceedings in relation to Dr Barton as described in Chapter 6.

Following the conclusion of the ten inquests and the GMC proceedings in 2009, the families sought a review of the decisions on prosecution. The police provided the transcripts of those proceedings to the CPS which in turn instructed Mr Perry to review this evidence and the decisions on prosecution.

In his further advice of 31 March 2010, Mr Perry concluded that his overall view on prosecution had not altered. He also observed that “in the case of each … the essential balance of the expert evidence remains the same”. He also observed:

Mr Perry also pointed out that the focus of the inquests and the GMC proceedings was different to what would take precedence in a criminal trial, and that the standard of proof in both proceedings was lower than that which applies in a criminal trial.