Chapter 11: The Panel’s work
How the Panel reviewed material
Families in contact with the Panel, some of whom had provided documents, were asked to formulate questions that would help to focus and inform the Panel’s work. The Panel’s work was shaped but not defined by receiving and understanding these questions. They helped the Panel to approach its work through a series of themes, reflecting the nature of the unanswered questions rather than responding to each individual case.
The following themes emerged from the Panel’s approach:
- clinical care and practice
- clinical governance
- scrutiny – focusing on police investigations
- regulatory – focusing on the role of regulatory bodies
- the role of the media
- the role of the local MP.
As is noted in paragraph 2.96, the Panel’s analysis was formulated through privileged access to medical records and supporting documentation granted to the Panel alone. As such, the process has not involved any other party.
How organisations and individuals helped the Panel's analysis
No organisation or individual approached by the Panel who held material refused to disclose it unredacted to the Panel for review, with the exception of Dr Jane Barton, whose solicitor told the Panel that a box of documents would not be disclosed on the basis that it attracted legal professional privilege.
A number of organisations and individuals who did disclose material to the Panel argued that some of it could not be disclosed publicly because to do so would amount to a breach of legal professional privilege. In these cases, the Panel sought to encourage the relevant authority to waive privilege in the public interest and to enable the Panel to deliver maximum possible public disclosure, in line with its Terms of Reference. The Panel is grateful to a number of authorities, including Portsmouth Hospitals NHS Trust, who have agreed to do so.
In the case of documents regarded by the Department of Health and Social Care as attracting legal professional privilege, agreement was eventually reached that privilege should be waived exceptionally on relevant documentation, in order to give the families and the public an opportunity to understand the Department's involvement in the aftermath of events at the hospital. The Panel notes that this does not set a precedent for future waiver of legal and professional privilege by the Department of Health and Social Care. The Panel was concerned, however, that this agreement was reached close to the date of publication of the Panel’s Report. More generally, the Panel notes that organisations tend to approach the issue of legal and professional privilege on the basis of considering whether it could be applied, rather than whether it should be applied, having regard to the public interest. The Panel believes that there are lessons from this experience for future inquiries.
In one or two other cases, there have been shortcomings in the assistance given to the Panel by relevant organisations. In particular, the Panel's experience with the General Medical Council suggests that there are lessons to be learnt in ensuring that organisations understand the guidance issued by the Panel on redactions and the process to be followed, including how it is interpreted and managed by the organisation concerned.
In the case of Hampshire Constabulary, the Panel was concerned to discover that there were gaps in the material it had expected to find relating to major investigations. For example, Hampshire Constabulary was unable to provide the minutes from Gold Group meetings that should and would have taken place throughout all the police investigations.
The Panel is of the view that these minutes must have existed at some time and it is unable to understand what happened to these documents. Despite repeated requests and reportedly exhaustive searches, they have not been found nor has any record of their destruction been established.
The Panel’s work has also identified other gaps in the material provided. Most significantly, it is inexplicable that the Panel should not have been provided with three boxes of Portsmouth HealthCare NHS Trust Board papers and related documents. Chapter 4 highlights the gap.
Chapter 3 refers to another gap. From 1989, there is evidence of complaints that relate to four key areas of concern: hydration and nutrition; general nursing care; medical care; and use of opioid analgesia at a dose that made patients drowsy. The Panel has established that a box of documents relating to complaints received by Portsmouth HealthCare NHS Trust was destroyed in 2013 ahead of its scheduled review date. That material could not therefore be assessed by the Panel.
The Panel is concerned about both these sets of missing material: the three boxes of Trust Board papers and the further box of documents covering complaints. The Panel does not consider it acceptable to leave this situation unresolved. The Panel looks to the Department of Health and Social Care to investigate further and to report publicly on its findings.
The work of the Panel has revealed a poor level of record keeping and information management in a number of organisations, including Hampshire Constabulary. Even where those organisations have sought to be helpful, it is apparent that they do not know the documents they hold and where they are housed. As a result, locating these documents has been a significant challenge for the Panel. More importantly, the Panel’s experience demonstrates that there is a need for higher standards of information management across the public sector. This is not just a matter of good housekeeping. In reality, public bodies cannot be accountable in the way they should be if their records cannot be readily accessed or, in some cases, cannot even be found. The Panel therefore looks to the Government to recognise this as a crucial element of governance and accountability, and to take action accordingly.
The Panel looked to a number of organisations and individuals who had provided documents for review to help with a process of factual accuracy checking. Those involved were provided with sections of text, describing their documents, in a confidential reading room and were not given hard copy or electronic access outside the room. The organisations and individuals were not shown the Panel’s Report because the Panel’s Terms of Reference require the Panel to manage disclosure initially to the affected families. The Panel invited and considered written comments based on factual accuracy.
Over and above the factual accuracy checking process, the Department of Health and Social Care raised the issue of any further representation process. In fact, the Panel had considered this issue at a very early stage. The Panel is a non-statutory inquiry, whose Terms of Reference were agreed by the Department of Health and Social Care. The Panel has held no public hearings, gathered no evidence and conducted no interviews. This has been a purely document-based review. Stakeholder organisations have been asked to certify that they have provided the Panel with all relevant material. On this basis, the Panel has been able to consider all material on each issue pertinent to its Terms of Reference and to demonstrate what the documents disclose in each case. The Panel is not empowered to determine issues and, thereafter, to direct any level of explicit criticism towards any individual. The Panel’s Report engages in a demonstration of what the documents show. As such, it is not engaging in ‘explicit or significant’ criticism. The Panel has followed the precedent devised by the Hillsborough Independent Panel. The Panel would like to place on record its appreciation of the efforts made by organisations and individuals who have assisted the Panel as described in this chapter, particularly those who were cooperative from the outset, understood the environment in which the Panel was working and sought to support it with openness and transparency. These include the Portsmouth Coroner, the General Register Office for England and Wales, the Care Quality Commission, Professor Richard Baker and Professor Brian Livesley.
By contrast, the Panel asks a number of organisations and individuals to reflect on their conduct in relation to the Panel’s work. Although not a statutory inquiry, Ministers announced the Gosport Independent Panel to Parliament. In so doing, the Government made it clear that there remained unanswered questions for the families about the care of their relatives, their treatment and death and the progress of the various investigations. The Panel encountered some cases where those involved wished to engage on their own terms rather than the Terms of Reference announced to Parliament; for example, the solicitor instructed by Portsmouth Hospitals NHS Trust.