Chapter 8: The inquests

Mills & Reeve LLP was instructed to represent Portsmouth Hospitals NHS Trust. Weightmans LLP was instructed to represent Hampshire Primary Care Trust. The organisations jointly instructed Counsel, Briony Ballard, to represent their collective interests at the inquests. It is clear that the solicitors representing the Trust were keen to ensure, as far as was possible, that the Coroner did not issue a Rule 43 letter. Rule 43 of the Coroners Rules 1984 provided that:

In their instructions to Counsel in January 2009, Mills & Reeve LLP, in considering what material the Trust should supply to the Coroner, stated:

The Trust sought to deal with the possibility that Mr Bradley might issue a Rule 43 letter and set about preparing evidence. In October 2008, Lesley Humphrey, the Trust’s Director of Quality, started to prepare a chronological account of events and management responsibility. This document, which appears to have received input from a number of stakeholders, eventually became a draft witness statement to deal with any potential Rule 43 issues (MRE000707, MRE001098).

In advance of the second pre-inquest hearing, the solicitor for the Trust rang Mr Bradley and told him that he was intending to forward a statement and documentation from the manager of the service. His aim was “to put the management of the service into context so that he understood what was happening and also demonstrate the level and provision of service today in order to avoid a potential Rule 43 letter” (MRE001052).

Mr Bradley indicated that he “would rather not receive any additional information from the NHS because he does not want to examine post event issues and changes. He does not want to promote others to make such an investigation.” Mr Bradley also indicated that “he had already excluded investigation material from the police and other sources which he was under pressure from the family to accept. He had told family members of his decision and that if they didn’t like it they could JR him.” The Coroner also said that any documents that were disclosed to him would need to be disclosed to the other parties, “and he wants to avoid that if at all possible” (MRE001052).

The solicitor for the Trust passed on the message to the Trust that there would “almost certainly be no Rule 43 letters because the events were 10 years ago” (MRE001037). Both he and Mr Mellor were slightly surprised by the “robust” view that the Coroner was taking, but considered this to be “a good result for the NHS”.

Despite hoping that the Coroner would not issue a Rule 43 letter, the Trust was keen to ensure that, pursuant to Rule 43, some evidence was heard during the course of the inquests about the present state of the hospital and how things had improved. In July 2008, an inquest ‘steering group’ was set up with the aim of managing the “Coroner’s inquests effectively in order to maintain the continuity, quality and confidence of local people in health services in Gosport” (MRE000260, p1). The steering group met on a number of occasions and received input from the solicitor for the Trust. The topics discussed at meetings included the approach of the Coroner to the inquests (MRE000647, p2), the communication strategy (MRE000244, pp1–2) and the best approach to addressing, through evidence, any potential Rule 43 issues (MRE000244).

At the second pre-inquest hearing, the solicitor for the Trust raised the issue of Rule 43 and asked whether the Coroner would allow “evidence under Rule 43 which may go some way to helping the families with their issue and would certainly offer reassurance to the wider public”. The Coroner replied that “he will not hear evidence under Rule 43 as this was 10 years ago and that he cannot address history” (MRE000981, p4). Furthermore, Mr Bradley questioned what purpose a Rule 43 letter would have at that point in time: under Rule 43, concerns can be reported to a public body, but in the present case there was “no point” as the public body in question was no longer in existence (BLC001839, p3).

Following the second pre-inquest hearing, the solicitor for the Trust spoke to Mr Mellor. He expressed his concern that, although the inquest would not engage Article 2, the Coroner would allow wider questions from the families. However, there was nobody to answer those questions. The solicitor for the Trust felt that he had offered the Coroner a “way out” by suggesting that he call or present evidence, but the Coroner had declined to take that route. The solicitor for the Trust expressed the opinion that, although the matters in question were ten years old, the Coroner should still address them in case there was evidence to suggest similar fatalities might occur in the future (MRE000980, p1).

Counsel instructed by the Trust appeared to agree that the Coroner “really should take note of Rule 43” (MRE000967, p1). At a conference with Counsel, it was stated that the Coroner had “a statutory requirement to look into issues under Rule 43 though it appears he is not going to do so” (MRE001459, p2). The Trust appeared to want to have certain evidence adduced during the course of the inquests in respect of the changes that had taken place, which it felt had led to improvements. As set out above, Lesley Humphrey was identified as an appropriate witness to “put the matter into context” and “provide evidence” of the “factual changes and explain the current situation within the service” (p3).

In the event, consideration was given as to what other evidence the Trust wanted to place before the Coroner in relation to the state of the service as it then was (MRE001353).

Persuading the Coroner to hear the inquests with a jury appears to have been one of the priorities of the families who instructed Blake Lapthorn solicitors to represent them during the course of proceedings. Counsel instructed to represent the families at the pre-inquest hearing was specifically instructed to make submissions seeking a jury inquest (BLC000657, pp4–5). In her written submissions, Harriet Jerram suggested that the inquests should be heard by a jury pursuant to section 8(3)(d) of the Coroners Act 1988, namely that “the death[s] occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public” (BLC000652, p4). At the first pre-inquest hearing on 14 August 2008, Mr Bradley determined that the inquests into the ten Category 3 deaths would proceed as one inquest and that the case would be determined by a jury (PCO000736, p1). Mr White for the families considered this to be “an excellent outcome” (PCO000736, p2).

By contrast, the Coroner ruled that he was not going to call a jury to consider the inquest into the death of Mrs Richards because “I don’t feel that it fulfils the criteria under section 8 of the Coroners Act” (PCO001778, p8). Mr Mehigan argued that “this may well fall into 8(3)(d)”; that is, “the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public”. Mr Horsley took the view that the previous ten inquests had determined the issue under section 8(3)(d) and that “it would [not] be in the public interest to have a jury in this case. I think it would be quite legitimate for me to determine this inquest on my own” (p9).