Chapter 8: The inquests

Day one of the inquest hearings was 18 March 2009. The Panel notes that this was over two years after the Coroner took a provisional view in relation to the requirement for him to hold inquests into the ten deaths.

The hearings ran for 21 days (CPS000047). In total, 21 witnesses gave live evidence and 29 witness statements were read to the jury. The Coroner heard evidence from family members of the deceased patients, clinicians and nurses involved in their treatment at the hospital, and experts who had been instructed to consider the causes of the individual deaths.

When it was thought that the inquests would engage Article 2 of the Human Rights Act, the Coroner had proposed a format whereby the inquests would involve generic evidence being called, followed by evidence in relation to the individual deaths (HCO002440). Originally it was thought that the inquests would last between four and six weeks (PCO000736, p1) and the generic evidence would last two weeks (AMA000053). However, by the time of the second pre-inquest hearing in January 2009, and following discussions with the solicitor for the Trust, Mr Bradley had decided that Article 2 was not engaged. As a result, the format of the inquests changed significantly. At the pre-inquest hearing in January 2009, Mr Bradley determined that he would hold ten individual inquests and, while there would be some generic evidence heard in them (MRE000981, p1), this was likely to come from Professor Black, Dr Andrew Wilcock and Dr Barton (BLC001839, p2).

The Coroner allowed the scope of the inquests, and the evidence that the witnesses gave, to extend beyond examining only the medical cause of death of each of the ten deceased. Individual witnesses gave generic evidence relating to the administration of drugs through syringe drivers and the practice of anticipatory prescribing at the hospital (CPS000006, pp22–50). Evidence was also heard in relation to the poor record keeping by both Dr Barton and the nurses working at the hospital (CPS000004, p11). Dr Barton gave evidence relating to the difficult conditions she was working under. She described having too much to do at the hospital and too little time in which to do it (CPS000019, p24). The inquests also heard evidence in relation to the supervision of both Dr Barton and the nurses, and the involvement of the consultants in the day-to-day operation of the wards at the hospital.

The evidence touched upon certain issues relating to the administration of the hospital, such as pressures on bed numbers and the suggestion that some patients were transferred from surgical wards to Dryad Ward too soon (CPS000008, pp30–68). Nobody involved in the management of the hospital or any senior administrator gave evidence at the inquests.

 Mr Tom Leeper, Counsel for four of the families, wanted to explore the issue of the nurses’ concerns expressed in 1991. The Coroner determined that “If it is a question of there had been concerns in the past, I think that has got to be right; I would admit that. If we are talking specifically about meetings and other people who have died, I very specifically don’t want to do that” (CPS000010, p9). Mr Leeper explained that he wanted to explore the concerns that had been raised rather than any other deaths, but that non-compliance with the analgesic ladder in 1991 was of “central relevance” to the question of whether, when it was not complied with in 1998 and 1999 (p10), there might be evidence of gross negligence manslaughter. Despite objections from Counsel for Dr Barton and the Nursing and Midwifery Council, the Coroner allowed Mr Leeper to question Staff Nurse Anita Tubbritt on the subject of the 1991 concerns. Staff Nurse Tubbritt gave evidence that in 1991 there were concerns that the analgesic ladder guideline was not being complied with in relation to the administration of analgesia. There were also concerns about the amount of training the nurses had received, and the fact that syringe drivers were relatively new on the ward. Her evidence was that these concerns had already been addressed by 1996 (CPS000010, pp21–9). Nurse Beverley Turnbull gave evidence that there had been concerns raised in 1991 relating to the use of syringe drivers, but that these had been resolved by 1996/97 (CPS000019, pp4–29).

Dr Barton gave evidence over the course of three days, although not continuously. Prior to Dr Barton’s evidence, Mr Bradley had told her that she was not obliged to answer any questions “if they are going to compromise you in any future proceedings” (CPS000016, p22). Nevertheless, Dr Barton answered all the questions that were put to her.

Professor Black and Dr Wilcock gave expert evidence over the course of two days each. Both gave generic evidence on the use of drugs, and in particular opioids, in palliative care and end of life care (CPS000012, CPS000014, CPS000029, CPS000031). Both also gave evidence on the practice of anticipatory prescribing and the involvement of consultants in district hospitals. Dr Wilcock was asked to comment on the practice of having a GP acting as the clinical assistant for the ward. He said that it was something he had not come across before and that time constraints would be evident (CPS000029, pp15–16).

Professor Black and Dr Wilcock acknowledged in their evidence that they were hampered by the fact that they had not seen the patients before they died and so were reliant on the medical records that had been created at the time. It was recognised that such notes were often lacking in detail and that this created a problem for both experts in determining precisely what had happened (CPS000012, pp4–79; CPS000029, pp4–9).

Both experts were able to give causes of death but disagreed on a number of the ten cases. While neither expert gave as the cause of death any form of drug overdose caused by the administration of drugs at the hospital, in a number of cases Professor Black raised concerns about the administration of drugs as follows:

• In respect of Leslie Pittock, the starting doses of diamorphine in the syringe driver were higher than he would normally have expected (CPS000012, p7).
  
• In respect of Elsie Lavender, the dose of diamorphine that she was given was “significantly higher” than the conventional dose, and he could not explain why it had been chosen. Professor Black went on to state: “I obviously cannot say that that dose of diamorphine might not have slightly hastened death” (CPS000012, p40).
  
• In respect of Ruby Lake, he could not understand the need for a syringe driver at all (CPS000012, p43).
  
• In respect of Helena Service, he would have started her on a lower dosage of diamorphine than she was given, but said that he found it “difficult to criticise 20mg without having been in a position to actually examine her” (CPS000012, p48).
  
• In respect of Arthur Cunningham, he could find no explanation or justification for the increases in the dosages of midazolam and diamorphine given, and concluded that it was “possible” that Mr Cunningham’s life had been shortened by the doses of drugs given (CPS000012, pp72–3).
  
• In respect of Geoffrey Packman, he found no explanation for the jumps in the dosage of diamorphine that was given, and said that it was “possible” that the dose was excessive (CPS000014, p15).
  
• In respect of Elsie Devine, he was not clear why a fentanyl patch was started as it was an unusual drug to start with (CPS000014, p22). Professor Black also agreed with the proposition that there had been a “substantial overdose” from the combined effect of the administration of diamorphine and the morphine from the fentanyl patch (p30).
  
• In respect of Robert Wilson, he could find “no clear justification” for the use of morphine oral solution, and stated that the dose of analgesia “formed a major contribution to the clinical deterioration that occurred over 15 and 16 October … [which] more than minimally contributed to the death of Mr Wilson” (CPS000014, p71).
  
• In respect of Enid Spurgin, he could find no reason why her dosage of analgesia was increased (CPS000014, p79).
  

In commenting on his own evidence when questioned about the residual effects of fentanyl, Professor Black said: “I am not an expert, I will say now in the pharmacodynamics of drugs and I think you need further advice on that I would get it from an expert on pharmacodynamics” (CPS000014, p23 D). When questioned about the effects of a concentration of drugs in the body, Professor Black said: “I am certain that a pharmacologist expert would be able to do that for you” (p51 E).

Dr Wilcock also gave evidence criticising the administration of drugs in a number of cases in the following terms:

• In respect of Mr Pittock, doses of diamorphine were administered that were excessive to his requirements (CPS000029, p5 A). Whether the dosage of diamorphine had a negative impact was difficult to judge, but if it did, it led to a shortening of Mr Pittock’s life by a matter of hours or a small number of days (p5 B).
  
• Mrs Lavender was prescribed doses of diamorphine and midazolam that were excessive for her needs (CPS000029, p13 D).
  
• Mrs Service was not given thioridazine, a drug previously prescribed at Queen Alexandra Hospital to help settle her at night: “it seems at odds [to me] that the response to that was to start Midazolam 20mgs in a syringe driver” (CPS000029, p19 E).
  
• Mr Cunningham had been prescribed a large dose of diamorphine that was excessive to his needs, and it was hard to know how to justify the increased dosage used in the syringe driver (CPS000029, p29).
  
• Mrs Spurgin had been commenced on a syringe driver of diamorphine and midazolam that was likely to have been excessive for her needs, and the doses of diamorphine and midazolam would have contributed more than minimally to her death (CPS000029, p43).
  
• The inappropriate management of Mr Packman’s gastrointestinal haemorrhage, together with his exposure to unjustified and inappropriate doses of diamorphine and midazolam, contributed more than minimally or negligibly to his death (CPS000029, pp48–9).
  
• In respect of Sheila Gregory, in the absence of a thorough medical assessment it was unclear if the use of opioids was justified (CPS000029, p70).
  
• In respect of Mrs Devine, the fentanyl patch that was used far exceeded the recommended dose for a frail woman and there was no justifiable reason for its use (CPS000031, p17). However, Dr Wilcock also said that it would have been difficult to separate out the impact it would have had on her situation.
  
• In respect of Mr Wilson, the doses of morphine oral solution that were administered were four times higher than recommended and could not be justified. Dr Wilcock did not consider the pre-emptive prescription of diamorphine, hyoscine and midazolam to be appropriate. However, in his view it was difficult to say with any degree of certainty that the doses of oral morphine or diamorphine that Mr Wilson received had contributed more than negligibly to his death (CPS000031, p38).
  

The jury also heard written evidence from a range of experts. These were Dr Michael Petch, a cardiologist, in respect of Mr Pittock (CPS000010, p36); Dr Christopher Dudley, a nephrologist, in respect of Mrs Devine (CPS000223, pp52–3; CPS000031, pp4–6, pp31–7); and Professor Richard Baker in respect of Mr Wilson. Professor Baker gave his opinion that Mr Wilson might have left hospital alive if he had not been started on opioids (CPS000023, p12).

On the first day of the hearing, Mr Leeper invited the Coroner to call Professor Gary Ford, a professor of pharmacology at Newcastle University, as a witness concerning the death of Mr Cunningham. However, despite having knowledge of the extent of Professor Ford’s potential to assist, the Coroner refused to allow him to give evidence, or his evidence to be read, on the basis that he was covering the same ground as Dr Wilcock and Professor Black (CPS000004, p27).

Concern was raised during the inquests as to what evidence had been given to the experts prior to them writing their reports. For example, Dr Wilcock had not seen the witness statement from Mr Wilson’s son, in which he described his father as being drowsy after he was prescribed morphine oral solution (CPS000031, p66). Also, Dr Dudley was not given all the medical records but was instead provided with Dr Barton’s written witness statement and an incorrect summary from the police (p31).

 Following the conclusion of the evidence, the Coroner invited submissions as to which verdicts should be left to the jury.

Mr Leeper invited the Coroner to leave open to the jury a verdict of unlawful killing in respect of Mr Cunningham, Mr Packman and Mrs Devine on the basis of gross negligence by Dr Barton (PCO000841, PCO000842, PCO000844). Patrick Sadd, Counsel for the Wilson family, also asked for unlawful killing to be left to the jury in respect of Mr Wilson (PCO000848). The Coroner rejected these submissions on the basis that there was not before the jury evidence of unlawful killing to satisfy the standard of proof required; that is, beyond reasonable doubt. The Coroner also noted that the issue of causation could not be satisfied and that the jury did not have evidence of one cause of death that was suggestive of drug overdose. The evidence of all the experts suggested natural causes of death (CPS000039, p45).

Both Mr Leeper and Mr Sadd raised the issue of ‘missing’ evidence. Mr Leeper stated that the Coroner had raised the issue of the absence of evidence in relation to opioid toxicity: “[if] … there is a lacuna in the evidence which has been given, that is something which could easily be remedied by calling an appropriate expert and if … sir feels that there is a lacuna … sir is under a duty to do so”. In the event, the Coroner refused to adjourn the inquests to obtain such evidence (CPS000039, p17).

The Coroner also refused to leave available to the jury the possibility of verdicts of neglect or an open verdict, telling the jury that an open verdict “is not going to help anyone” (CPS000039, p16).

At an early stage of the inquests, the Coroner had indicated that he was considering obtaining narrative verdicts from the jury by asking them to answer a series of questions (CPS000010, pp42–3). On Day 15 of the hearings, the Coroner gave an indication of the type of issues that he wanted the jury to deal with:

Various interested parties to the inquest raised objections to the Coroner inviting the jury to answer questions in relation to much of the clinical regime at the hospital, on the basis that the inquests were not being conducted under Article 2. Inviting the jury to make determinations on such matters would be beyond the lawful scope of the inquests (PCO000849, CPS000039, p44). Ultimately the Coroner did not frame any questions for the jury on these matters, stating that he felt this was a “separate issue and that is something that the Government chose not to do” (CPS000039, p44).

The Panel presumes that this is a reference to the decision not to hold a public inquiry into the events at the hospital. The Panel notes that, had the inquests been conducted under Article 2 (which, if they were held today, they almost certainly would be), answers to these questions could well have formed part of the jury’s narrative verdict.

The Coroner did, however, leave questions to be answered by the jury in relation to the administration of medication: specifically, whether that medication more than minimally or negligibly contributed to the patients’ deaths, and whether it was given appropriately. Both Counsel who represented family members had made submissions suggesting that the Coroner should set out questions for the jury in a narrative verdict on these matters (PCO000841, PCO000842, PCO000844, PCO000848).

 In an oral submission, Mr Leeper said:

The documents show the Coroner’s opinion on those verdicts that would have reflected the families’ concerns: “trite Home office category verdicts are not going to answer people’s questions. You can walk away with an open verdict, you can walk away with unlawful killing, but it actually does not answer the questions that people want to have answered” (CPS000039, p24).

The Coroner proposed another question for the jury: whether the medication was given for a therapeutic purpose (CPS000039, p46). The documents give no indication as to the origin of this question; nor are there any signs of objection to its inclusion.