Chapter 6: The General Medical Council
The GMC investigation: fitness to practise
On 18 January 2007, Hampshire Constabulary provided the first tranche of material arising from Operation Rochester (GMC100105, pp510–12). The GMC immediately began to work through it to prepare for the fitness to practise hearing. As noted above, the Coroner gave notice that simultaneous inquests would be heard into ten deaths at the hospital. These were the ten cases the police had categorised as “most serious” (GMC100947, pp352–3). The question then arose as to whether the fitness to practise proceedings could continue before the inquests were completed.
On 3 June 2008, Tom Kark, a barrister, advised the GMC that although there was no legal bar to the GMC hearing and the Coroner’s inquest taking place simultaneously, “serious practical and tactical problems … would arise”. He said there was no “legal bar” that one set of proceedings should take precedence over the other, but it was his advice that the “preferred course would undoubtedly be for the Coroner’s Inquest to take place first and the GMC case to follow”. He set out the reasons for this in his advice (GMC100110, pp17–18).
The inquest into the death of Mrs Richards was not joined to the other ten deaths, so the question arose as to whether the fitness to practise hearing could proceed in her case. Gillian Mackenzie asked the GMC not to hold the fitness to practise hearing in relation to her mother until after the inquest. The GMC refused. Mrs Mackenzie said in those circumstances she was not willing to give evidence at the fitness to practise hearing and did not do so (BLC003383). The hearing began on 8 June 2009. The inquest into the death of Mrs Richards would not be held until 2013.
On 8 June 2009, the fitness to practise hearing began in London (GMC100603, p5). The hearing was held in public and the families of the 12 patients (see paragraph 6.122) attended throughout. The panel Chair was Andrew Reid, LLB JP. The panel members were Joy Julien, Pamela Mansell, William Payne and Dr Roger Smith. The legal assessor was Francis Chamberlain.
The GMC was represented by FFW solicitors and two barristers (also referred to as Counsel), Mr Kark and Ben Fitzgerald.
Dr Barton was represented by solicitors from the Medical Defence Union and two barristers (also referred to as Counsel), Timothy Langdale QC and Alan Jenkins.
The purpose of the hearing was to determine whether or not the GMC had proved, to the criminal standard of proof (that is, so that the Fitness to Practise Panel was sure), the charges it had brought against Dr Barton (GMC100603, pp13–25).
Dr Barton’s barrister set out all the charges which were admitted by Dr Barton and these were immediately found proved by the panel because there was no dispute (GMC100603, pp26–30).
The identity of the patients referred to during the fitness to practise hearings were anonymised as follows:
- Patient A – Leslie Pittock
- Patient B – Elsie Lavender
- Patient C – Eva Page
- Patient D – Alice Wilkie
- Patient E – Gladys Richards
- Patient F – Ruby Lake
- Patient G – Arthur Cunningham
- Patient H – Robert Wilson
- Patient I – Enid Spurgin
- Patient J – Geoffrey Packman
- Patient K – Elsie Devine
- Patient L – Jean Stevens
The available documents show why it had been decided not to proceed with three further possible cases – Helena Service, Sheila Gregory and one other – despite the fact that the police had identified them as among the ten most serious cases (GMC101181, pp85–9; GMC101068, pp234, 249, 776; GMC100099, pp51–2; GMC100903, pp168–9; GMC100185, pp60–1).
The GMC presented its case first. It sought to ensure that all the evidence called concentrated on each allegation, which the GMC had to prove.
The GMC presented its case patient by patient, working through the evidence in relation to each patient, before concluding with the expert evidence of Professor Ford. When writing his expert reports, Professor Ford had seen all the relevant material. In addition, he had had the opportunity to read the transcripts of all witnesses who had given evidence. In the event, the Fitness to Practise Panel accepted his evidence.
After the conclusion of the GMC case, Dr Barton gave evidence in her own defence and then called a number of witnesses.
The defence relied upon the expert evidence of Professor Karol Sikora, a cancer specialist with experience of palliative care in that context, but, unlike Professor Ford, not a geriatrician. Professor Sikora had been provided with Dr Barton’s statements and the expert reports of Professor Ford but he had not been given the other statements or the patient notes. He had read some of the transcripts of evidence but not all. He was not able to comment on the treatment of any of the 12 patients (GMC100596, p201).
All the witnesses who gave evidence either swore an oath or affirmed that they would tell the truth. The witness statements and expert reports of witnesses were provided to the Fitness to Practise Panel. Witnesses were asked whether or not they still stood by what was in their statements; upon saying they did, those statements formed the basis of their evidence and there was no need for the contents to be repeated. Counsel who had called the witnesses then asked further questions (referred to as ‘examination in chief’).
Counsel for the opposing side then asked questions in cross-examination. Following this, the barrister who had examined in chief could re-examine the witness about any matters arising from that cross-examination. The Fitness to Practise Panel asked any questions it had. Following this, first the barrister cross-examining and then the barrister examining in chief could ask further questions arising from the answers given to the Fitness to Practise Panel’s questions.
The legal assessor provided legal advice to the Fitness to Practise Panel on a continuing basis. He also provided advice if he felt any errors were being made. For example, following questions from the panel to Dr Reid, the legal assessor gave advice about the sort of questions panel members should ask and the way they should do this.
During questions from the Fitness to Practise Panel, Mr Payne, a lay panel member, had the following exchange with Dr Reid:
Mr Payne: “You have said to us that if you would have seen the prescriptions for 20 to 200, that wide range, you would have done something about that.”
Dr Reid: “Yes. It was my responsibility to do something about it.”
Mr Payne – referring to the only instance before the fitness to practise hearing where Dr Reid had reduced a prescription written by Dr Barton: “When you saw that – and you reduced one from 80 to 40.”
Dr Reid: “I did not recollect seeing prescriptions for 20 to 200mg until the police interviewed me and produced a prescription sheet which demonstrated that.”
Mr Payne: “With the greatest of respect, doctor, I have difficulty accepting that, because you told me that the sheets are there, you are reviewing the patients, you are on a ward round with people that you say have more experience in this than you and, before you can make a judgment, you must review all the facts.” (GMC100605, p302)
During questions from the panel, the Chair had the following exchange with Dr Reid:
Chair: “Can you recall a single instance in your year on Dryad Ward where a patient was put on a mix of opiates or syringe driver who did not die?”
Dr Reid: “No, I cannot.”
...
Chair: “Before you get to there, somebody in effect has to sign the death warrant, somebody has to prescribe that?”
Dr Reid: “Someone has to make a decision that this patient is for palliation.” (GMC100605, p318)
In re-examination by GMC Counsel, this terminology was explored. The phrase “death warrant” had not been used by any of the witnesses. Dr Reid confirmed it was not the sort of expression he would use with relatives, “Because I think that would be inhumane” (GMC100605, p335).
Following the conclusion of Dr Reid’s evidence, the legal assessor gave advice “as to the questioning of witnesses by a Panel." He reminded the Fitness to Practise Panel it should “ask any questions in a fair, impartial and judicial spirit”. It was inappropriate for a panel member to engage in any form of cross-examination “which might be interpreted as being intended to support a point of view already held by a panelist”. He said that this was because panel members should not make up their minds about any of the evidence until they had heard all the evidence. The panel “must keep an open mind about the evidence until it begins its deliberations and it must make it apparent to all that that is what it is doing”. The legal assessor highlighted the use of the phrase “I have difficulty accepting that” as potentially giving the impression that a decision had been reached. Both Counsel were asked if they were content with this legal direction. They were. The Chair thanked the legal assessor for his advice (GMC100605, p358).
The Fitness to Practise Panel experienced the same difficulties as the police and the Coroner in relation to lack of notes and fading memories, given the amount of time that had passed. In its determination, the panel said:
“The process has been hampered by the very considerable passage of time since the events in question, the inevitable dimming of memories over that period, the equally inevitable unavailability of some witnesses, and the admitted deficiencies in your own notes, and to some extent those of the nursing staff.” (GMC100948, p208)
The charges faced by Dr Barton included the role of consultants, nurses, other doctors and hospital management in the events at Gosport War Memorial Hospital. However, nobody else faced charges, nobody else was represented, no one had had full disclosure of all the material, and no one had a right to reply to any allegations or aspersions made against them. Any allegations or aspersions were made in the context of a hearing dealing only with Dr Barton.
The evidence was heard over 37 days. The transcripts are available on the website accompanying the Gosport Independent Panel Report as follows.
Table 4: Witness evidence
