Chapter 5: Hampshire Constabulary and the Crown Prosecution Service
Second police investigation: Phase Two
The briefing note concluding Phase One looked forward to the next phase of the investigation in these terms:
“Having achieved the aim of Phase One DCl BURT believes that there is now an imperative, with justification, to proceed to Stage Two which will require the declaration of Major Crime Enquiry status to Operation ‘ROCHESTER’ and the allocation of appropriate resources.
ACTION - DCI BURT to seek authority of DCS to initiate a Major Crime Enquiry.” (HCO003464, p12)
The briefing note lists the proposed Phase Two investigative steps:
“● Complete the investigation into the death of Gladys Mable RICHARDS.
● Research and investigate other cases which may involve a similar pattern of medical conduct at the Gosport War Memorial Hospital.
● Research and investigate the process of certifying deaths arising at the Gosport War Memorial Hospital and the procedures for authorising cremations.
● Research the background of the medical and nursing staff featuring in the case.
● Draw on expertise of Professor LIVESLEY when directing enquiry.
● Draw on expertise of SIO with experience in this form of enquiry.” (HCO003464, p13)
Det Ch Insp Burt proposed that the core personnel should include himself, Det Insp Shand, Detective Sergeant (Det Sgt) David Sackman, Detective Constable (Det Con) Philip Jupe, and an administrative officer. He identified other personnel who would be needed for the investigation, which included four detective constables and a detective superintendent, an enquiry team and a family liaison officer (HCO003464, pp13–14).
Given the widening scope of the investigation, the documents show concern over finding the necessary resources. The Panel notes that in an email on 13 April 2000 Det Ch Insp Burt told Supt Stogden:
“Apologies for involving you in the meeting yesterday. I must confess I was rather dismayed and surprised at the way it unfolded. We have got to sort out the issue of resourcing major crime – one way or the other. The current unseemly scramble is ridiculous, unprofessional and unsafe. It cannot be right that the burden arising from structural weaknesses in the organisation and the consequent tensions associated with them, rest on the shoulders of one man …” (HCO501820)
The documents do not show any consideration within Hampshire Constabulary of steps they might have taken to address any ongoing risk to patients at the hospital. The police did not take action to identify the other cases that might have been involved and they continued with a paper-based investigation rather than switching to a computer-based HOLMES account as proposed in the briefing note (HCO003464, p16). The papers do not show any consideration of establishing a Gold Group, through which the investigation could be effectively managed and coordinated.
Det Ch Insp Burt was to maintain the existing family liaison role with Mrs Richards’ daughters (HCO003464, p17). Separate family liaison officers were not appointed, despite the need having been identified in the briefing note (HCO003464, p14). Det Ch Insp Burt’s proposed number of hours of overtime and expert funding were approved (HCO001562, p2).
On 15 May, Det Ch Insp Burt informed Lesley Humphrey that the profile of the investigation was being raised (SOH100041, p68). A week later, Lesley Humphrey wrote to Mr Millett, Tony Horne (Chief Executive of East Hampshire Primary Care Trust), Mr Hooper, Fiona Cameron, Lorna Green, Dr Richard Ian Reid (Medical Director, Portsmouth HealthCare NHS Trust), Peter King (Personnel Director) and Yvonne Mills (PA to Chairman and Chief Executive at Trust Central Office) to inform them of the development:
“From 22 May additional officers will be joining the team and the investigation will move into a higher gear in gathering information - formal interviews will be held with potential witnesses [staff who had direct contact with Mrs Richards + staff who can explain policies/procedures etc]. Where appropriate, people like Jane Barton will be afforded some protection with regard to these interviews; presumably to help them avoid incriminating themselves. I will still act as the main contact for the police, in arranging staff interviews; but will need support from Yvonne. I told Ray we would be advising staff to be accompanied when interviewed - MDU/Union/Solicitor etc …” (NHE000831, p1)
She also asked that Dr Lord, Dr Barton and the staff should be informed, and confirmed that the police would liaise with the Trust to prepare a press release.
On 9 June, Det Ch Insp Burt recorded the decision that “all those persons who may have had a duty of care towards Mrs Richards from her transfer from the RHH [Royal Hospital Haslar] (17/8) until her death at the GWMH (21/8) will be interviewed under caution” (HCO000635, p87). There are no records showing why the interviews were to be restricted only to those involved in those five days. The interview plan consisted of a basic list of topics without any strategic aims.
Interviews were conducted between June and December 2000 with Dr Lord, Dr Barton, some nurses, the pharmacist and the ambulance crew. There is little evidence of interview planning following the first progress review of 16 May (HCO000635, pp97–8). There is no evidence of any further interview strategy having been considered or adopted at the subsequent progress reviews (HCO000635, pp92–5, pp100–103).
Det Ch Insp Burt contacted the GMC and the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC) as the relevant regulatory bodies on 27 July and again on 18 September 2000 and informed them of the ongoing investigation (HCO000958). The papers do not explain why this step was not taken sooner or why, in the case of the UKCC, only one of the nurses was mentioned (Nurse Beed) (HCO003416).
On 1 September, Det Ch Insp Burt updated Lesley Humphrey (SOH100041, p69), who, in turn, wrote to Fiona Cameron, Mr Hooper, Mr Millett and Dr Reid, confirming that she had spoken to Det Ch Insp Burt. She wrote that he:
“… stressed that [the police] did not think there was any ‘individual’ with criminal intent. What they are exploring is whether institutional practices might constitute a breach of criminal law. He said this is not the only case in the country being explored in this way. Some cases have been taken out of the hands of the local CPS and passed on to London. It is thought, either by Professor Livesey, or by the CPS that there might be a basis for proceeding with a criminal case, they may want to consider if we had any other cases where death occurred in similar circumstances. We would obviously want to co-operate, but I suggest that Lorna checks out the situation with Wansboroughs, with regard to confidentiality etc. Sorry, but my gut feeling is that if there is the slightest whiff of a case, that this will go the distance as a test case …” (DOH604070, p1)
The Panel has seen no documents to explain why, on 1 September 2000, Det Ch Insp Burt told the Trust that Hampshire Constabulary did not think there had been individual criminal intent. The investigation was far from concluded and it is not clear why Hampshire Constabulary expressed this view at this early stage.
On 18 September, Det Ch Insp Burt asked Lesley Humphrey whether Dr Barton or Nurse Beed had been the subject of any complaints or allegations made to the Trust or any other body regarding issues of professional competence or standards of patient care (HCO000940).
The Trust sought advice from Beachcroft Wansbroughs, who replied on 20 September that, following a Court of Appeal decision in February 2000, the Trust could only be culpable for gross negligence manslaughter where the guilt of an individual had been established. Given that the police had now indicated that they did not consider any individual had committed a criminal offence, it was unclear as to what the police had in mind. The advice continued:
“I cannot see any reason why the Trust should be expected to provide the police with details of other similar cases (if indeed there have been any similar cases) in circumstances where no complaint has been made. Such a request would, as you rightly point out in your letter, raise issues of confidentiality. I consider that it would benefit all concerned if the police/CPS concluded this investigation and closed their files now …” (NHE000778, p2)
On 5 October, Beachcroft Wansbroughs added:
“If neither Dr Barton or Mr Beed have ever been the subject of any complaints then I see no harm in advising Mr Burt that this is the position. However, if either of them have been the subject of any previous complaints I do not consider that the Trust should provide Mr Burt with that information. Mrs Lack and Mrs Mackenzie made serious allegations to the police relating to their late mother’s care. The Trust and its staff have co-operated with the police with their enquiries. I can see no justification for providing the police with information about any entirely unrelated matters which have not been a subject of any complaint to police. Mr Burt now appears to be on a fishing expedition and as I indicated in my letter of 20 September 2000 it is not clear to me why the police inquiry is going in this direction. If the Trust provided any such information it would raise not only issues of patient confidentiality but also Mr Beed would no doubt take the view that the Trust had breached mutual respect and confidentiality as between employer and employee.” (NHE000775, p1)
Seven months after Det Ch Insp Burt’s end of Phase One briefing, which reported that Professor Livesley’s opinion was supportive of an allegation of manslaughter, Professor Livesley completed his first report (CPS001688). In doing so, he made it clear that his report, dated 9 November 2000, was provided for discussion only and that he required a conference with the CPS and Counsel before finalising his report. He expressed serious concern about what appeared to be “a culture of inappropriate clinical practice” (p1). Professor Livesley said that he could find no evidence for Mrs Richards requiring the subcutaneous drugs that Dr Barton prescribed when Mrs Richards was first admitted to Daedalus Ward for rehabilitation. Similarly, as far as Mrs Richards’ readmission to Daedalus Ward was concerned, he could find no evidence to suggest that Mrs Richards had a condition requiring the continuous subcutaneous administration of diamorphine, midazolam, haloperidol and hyoscine, and the lack of appropriate fluid and food intake until she died. Professor Livesley summed up the position in these terms:
“It appears probable, therefore, that this has been an institutionalised practice that may have led to the premature and unlawful death of other elderly people admitted to Daedalus ward at Gosport War Memorial Hospital. I recommend that further enquiries be made to determine if other patients at the Gosport War Memorial Hospital have been affected in a manner similar to that of Mrs RICHARDS and particularly those who have been under the care of Dr BARTON.” (CPS001688, p1)
In his report, Professor Livesley concluded:
“Doctor Jane Barton prescribed the drugs Diamorphine, Haloperidol, Midazolam and Hyoscine for Mrs. Gladys Richards in a manner as to cause her death … Mr. Philip James Beed, Ms. Margaret Couchman and Ms. Christine Joice were also knowingly responsible for the administration of these drugs … As a result of being given these drugs, Mrs. Richards was unlawfully killed.” (CPS001688, p2)
On 11 November, Det Ch Insp Burt recorded in his Policy File that “The ‘Phase 2’ investigation is complete” (HCO000635, p104). A month later he referred the case to David Connor, at the CPS in Portsmouth, stating:
“Professor LIVESLEY is profoundly concerned by the circumstances of this case and it will be seen that he is quite clear in his opinion that Mrs RICHARDS was unlawfully killed. In addition to Dr BARTON he believes that certain members of the nursing staff, namely Philip BEED, Margaret COUCHMAN and Christine JOICE, may also be criminally culpable. Professor LIVESLEY has indicated that, in the event of proceedings being considered, it would be of considerable benefit if he could be afforded the opportunity of meeting a CPS representative or Counsel, familiar with the issues arising from this case, in order to discuss the detailed presentation of his evidence. In any event the Senior Investigating Officer, and the key members of his team, would welcome a conference with the reviewing lawyer at his or her earliest convenience. Such is the level of concern, felt by Professor LIVESLEY, about the facts of this case that he has recommended that further enquiries be carried out to determine if other patients at the War Memorial Hospital have been affected in a manner similar to that of Mrs RICHARDS.” (HCO003640, p3)
Despite Professor Livesley’s concerns about other patients, Hampshire Constabulary decided not to widen the investigation at this stage but rather decided to await the CPS decision in the case of Mrs Richards. This meant that the police did not take any steps to investigate any other cases at that time. This decision had the potential to undermine Hampshire Constabulary’s ability to secure best evidence and also overlooked any potential ongoing risk to patient safety (HCO000635, p106).
Det Ch Insp Burt sought the advice of the CPS regarding:
“… the criminal culpability of Dr BARTON and other persons whose actions are specifically commented upon by Professor LIVESLEY in his report. The Senior Investigating Officer would also welcome an opportunity to discuss any issues of corporate liability and the potential implications stemming from a further phase to this investigation which would be likely to evoke a substantial amount of local and national public and media interest.” (CPS001568, p4)
The police investigation was to be put on hold pending the CPS’s advice. There is no evidence of the police taking any action to pursue Professor Livesley’s recommendation in respect of other patients at the hospital or to consider issues of corporate liability.
The documents suggest that Hampshire Constabulary met with Mr Connor on 4 January 2001 (HCO000635, p115), but no record of what was discussed is available. There is also no record of how the CPS involvement was moved from the CPS locally to its national headquarters in Ludgate Hill in London, where Paul Close, a CPS lawyer, assumed responsibility. Some months earlier, Lesley Humphrey had noted that Hampshire Constabulary had said that “this is not the only case in the country being explored in this way. Some cases have been taken out of the hands of the local CPS and passed on to London” (DOH604070, p1).
The documents suggest that Mr Close updated the police. On 1 March, Det Ch Insp Burt replied seeking a “pre-opinion conference” with the CPS and with David Perry QC, a barrister whose advice had been sought by the CPS (CPS001886, pp2–3). Det Ch Insp Burt added:
“I am certain that both you and Mr PERRY would find it helpful to meet Professor LIVESLEY and the discuss the case with him … if it is felt the Professor’s opinions require validating then perhaps consideration should be given by the CPS to engaging a person who is suitably medically qualified to review the opinions tendered which appear to be remarkably clear and unequivocal. It is clear that Professor LIVESLEY is likely to be strongly challenged in court and this is a further reason for an early, informed, assessment to be made of his potential as a witness by those responsible for deciding upon and conducting any future proceeding. Clearly the facts and issues surrounding this case are sensitive and topical. I think I would be failing in my responsibility, therefore, if I did not draw your attention to concerns, openly expressed to me on more than one occasion by persons directly involved in this case, that the decision to prosecute, or not, might be subject to ‘political’ influence given the perceived plight of the National Health Service and the forthcoming General Election. (You will have seen Professor LIVESLEY’s recommendation so far as the option to search for other, potential, cases is concerned.)” (CPS001886, pp2–3)
The documents do not show what Det Ch Insp Burt had in mind when suggesting that this case might be subject to “political influence” but he concluded his letter by confirming his intent to dispel such concerns.
On 16 March, Mr Close sent formal written instructions to Mr Perry, and asked for advice on whether there was evidence to charge Dr Barton, Nurse Beed, Staff Nurse Margaret Couchman or Nurse Christine Joice with the unlawful killing of Mrs Richards (CPS001882).
At the end of March, Det Ch Insp Burt wrote to Mr Close again, informing him that Mrs Mackenzie had been in contact with the Portsmouth News. Det Ch Insp Burt stressed his frustration at the press interest as he had “gone to great pains to avoid any sort of disclosure to the media” (CPS001882, p4). The Policy File records that “an updated media release was prepared … in consultation with PHCT [Portsmouth HealthCare NHS Trust] and RHH” (HCO000635, p123).
On 3 April, the police investigation was reported in the Portsmouth News. The article stated: “One Source told The News the deaths of as many as 600 elderly people could be re-examined. It is thought the use of the pain-killing drug diamorphine might form a part of any future inquiry” (HCO000849, p2). There are no documents available to the Panel to show whether or not the police were the “Source” or the basis for the reference to 600 deaths.
On the same day, Det Sgt Sackman reported that Pauline Spilka, a nursing auxiliary on Daedalus Ward, had been in touch following the newspaper article. She had been “off sick with stress during our investigation last summer and you may recall refused to make herself available for interview” (HCO003576, p1). Det Sgt Sackman stated:
“She describes the ward at the ‘Dead Loss’ ward as opposed to Daedlus. She describes the regime of [the nurse] as being geared towards euthanasia. Although not specifically recalling the Gladys Richards case (she is aware of it) she recalls coming into conflict with [the nurse] over the death of an elderly cancer patient who was put onto a syringe driver and subsequently died. The patient was always making demands and was considered a nuisance. In her estimation he was some way from death when the driver was introduced. He quickly lapsed into unconsciousness and died after 4-5 days. She also recalls an elderly lady brought onto the ward very ill and immediately put onto a driver. Her family insisted that she be allowed to die naturally without a syringe driver being used. Following the withdrawal she recovered sufficiently to be discharged home to her daughter …
The can has been opened!!!!!” (HCO003576)
Det Sgt Sackman said that Pauline Spilka was prepared to make a detailed statement (HCO000905, pp3–11) highlighting her concerns. In her statement Pauline Spilka said that the:
“Indiscriminate use of Syringe Drivers on Patients in the Daedalus Ward at Gosport War Memorial Hospital is my main concern. It appeared to me then and more so now that euthanasia was practised by the nursing staff. I cannot offer an explanation as to why I did not challenge what I saw at that time.” (HCO000905, p4)
Pauline Spilka described how, on the arrival of each patient, the doctor would write up a prescription for the use of a syringe driver. This would allow nurses to use it without further reference to a doctor and that there had been abnormally high mortality rates on the ward. Pauline Spilka also went into detail about the two patients referred to in Det Sgt Sackman’s email above.
On 14 April, Pauline Spilka’s statement was sent to the CPS by Det Ch Insp Burt, who also confirmed that five other people had come forward to express concern over the treatment and death of family members at the hospital. The letter stated:
“Our current policy is to await the outcome of the decision concerning Mrs Richards deceased before considering our position regarding the scrutiny of other cases. I’m sure you will appreciate that this development, and the problem caused by the unwelcome media disclosure, is placing us under considerable pressure.” (HCO000905, p2)
There are no documents available to the Panel to explain the reference to “considerable pressure”. Nor are there any documents to suggest that the CPS considered the statement made by Pauline Spilka.
On 17 April, Det Ch Supt Akerman wrote to the CPS (HCO003143) and expressed the view that he had been “disturbed by the unequivocal nature” of Professor Livesley’s evidence. He also asked for priority attention to be given to the case, in light of its significance and the possible widening of the investigation. Det Ch Insp Burt spoke with and then wrote to Lesley Humphrey regarding the further complaints that had been received by Hampshire Constabulary. The patients’ family members had been informed that a police officer would be in contact in due course to establish the details of their concerns. He would not seek disclosure of the records relating to other patients because he was satisfied with Mr Millett’s assurances (regarding the securing of records) in his letter of 27 November 2000 (HCO000896). Lesley Humphrey confirmed that she did not seek disclosure of the other patient names as she wished to maintain the integrity of the Trust’s position. The letter concluded with acknowledgement that Det Ch Insp Burt and Lesley Humphrey had agreed to continue to work closely together in the interests of resolving this issue in a fair and timely way and with the interests of all parties in mind (HCO000864).
On 2 May 2001, the police held a confidential briefing with the GMC, which indicated that the recent publicity, and the fact that other people had recently come forward, had prompted them to reconsider the position over the possible suspension of Dr Barton (HCO000635, p138). The GMC made a formal request for disclosure (HCO005424). Similarly, the UKCC contacted the police about Nurse Beed and disclosure (HCO005424, p3). A meeting was held with the UKCC and a letter requesting disclosure was later received (HCO000635, p143).
On 12 May, Det Ch Insp Burt circulated a management briefing note suggesting that:
“… recent events justify a change in the current policy of awaiting the outcome of the CPS’s deliberations over the Gladys Richards’ allegation before deciding the way forward in terms of a widening of the investigation … It was always recognised, however, that Professor Livesley’s comments would require careful reflection whatever the outcome. However, recent developments following the unexpected publicity have significantly altered the position: Nine persons have come forward expressing ‘concerns’ over relatives that have died at the GWMH and a former nurse (whistle blower) has made a statement which points to the possible existence of a ‘culture of euthanasia’ and the role played by the ward manager Philip Beed … I believe that Phase 3 of Operation ‘Rochester’ should be commenced as soon as possible on the basis that the situation has changed significantly thereby raising the level of risk substantially. We should not await the outcome of the CPS’s decision before doing this. The statement recently provided by the nurse has been passed to the CPS lawyer who is also aware of the other persons who have expressed concern … I understand that, given the change of circumstances, there is now a need to act positively and quickly. The potential of the case has always been recognised. There is also, however, a need to act with care given the highly sensitive nature of this case. The new SIO must be fully briefed, asap, and enabled to freely make policy that will take the enquiry forward – I believe I could usefully contribute to this process.” (HCO000635, pp140–1)
The documents available to the Panel do not clearly indicate why Det Ch Insp Burt could no longer perform the role of SIO.
In response to a request for information about other cases elsewhere, where Professor Livesley had provided expert evidence, Det Sgt Sackman identified a case of attempted murder which had been successfully prosecuted in 1998–99. He had spoken with the case officer, who confirmed that Professor Livesley had been similarly unequivocal in his view of that case but, in other cases where he was not convinced that a criminal act had taken place, he had said so. The case officer also confirmed that Professor Livesley’s evidence had been presented to the jury in layman’s terms and that he had withstood cross examination from the defence. Det Sgt Sackman concluded that the case officer was “obviously impressed” (HCO000873).
On 15 May, Det Ch Insp Burt telephoned Mr Close and asked that a conference that was due to be held on 23 May be postponed while the investigation was reviewed, as a result of further persons coming forward following the recent publicity (HCO003541).