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Gosport Independent Panel

Chapter 8: The inquests

The treatment of expert evidence


The file of documents provided to Mr Horsley on 11 April 2007 made him aware of a number of expert reports. These included Professor Brian Livesley’s reports into the death of Mrs Richards, reports from Professor Ford and Dr Keith Mundy, a consultant physician and geriatrician, and Professor Baker’s statistical report. The file also included Dr Wilcock’s draft report on common features of the ten cases, including extracts from the reports of Professor Black.


Mr Horsley was aware that there had been other expert evidence. He told the Ministry of Justice that there were “39 experts’ reports”. He expressed his concern “about the large number of expert witnesses” and “that the size and complexity of the evidence was likely to go beyond the comprehension of a jury” (PCO000058, p3; PCO000128, p3).


In anticipation of the first pre-inquest hearing, Harriet Jerram’s written submissions stated that among the evidence that was “likely to be of assistance” was “generic expert evidence regarding the prescribing and administration of opiates. Disclosure is invited of the expert evidence obtained by Hampshire Constabulary as part of its investigations. Alternatively, the Coroner is invited to obtain such evidence. There was also “in individual cases, expert evidence on the use of opiates in the deceased’s case and whether that caused or materially contributed to the deceased’s death” and “where appropriate in any case, expert evidence on any other matter relating to the care of the deceased at the hospital which may have caused or materially contributed to the deceased’s death” (BLC000648, pp5–6).


At the first pre-inquest hearing it was determined that Dr Wilcock and Professor Black, the two experts instructed by the police, would give live expert evidence (PCO000736, p1).


The Coroner’s decision to include in the advance disclosure, and subsequently to rely upon, the evidence of Dr Wilcock and Professor Black was met with criticism from both the families and the Trust, for different reasons. At the second pre-inquest hearing, Mr Bradley said that he had chosen the two experts “that he liked” (BLC001839, p3). He does not appear to have given consideration at any stage to instructing a new independent expert to look at the deaths purely from a coronial perspective.


In a report prepared for the Trust in December 2008, the solicitor for the Trust noted that “the experts were originally instructed by the police to consider any criminal actions and that is not the purpose of the inquest. They should be asked to be clearer in their view as to how these patients met their death” (MRE000283, p3).


Clearly perturbed by the criticism contained in Dr Wilcock’s report, Dr Reid wrote to the solicitor for the Trust questioning Dr Wilcock’s expertise:

“… how much experience has [he] in managing elderly patients who have sustained a fractured hip with complications and elderly patients with gross obesity, immobility and extensive pressure sores … his lack of experience in elderly medicine, would lead me to question his suitability as an expert witness at an inquest, the primary purpose of which is to determine cause of death.” (MRE000988, p4)


Thereafter, the solicitor for the Trust attempted to steer Mr Bradley away from relying on Dr Wilcock and instead to rely solely on Professor Black. At the second pre-inquest hearing, the solicitor for the Trust raised the issue of Dr Wilcock’s suitability. He referred to the report on Mrs Spurgin, claiming that it was inaccurate and displayed a lack of understanding of end of life care. He asked whether, on the basis of his CV, Dr Wilcock was an appropriate expert and said that he might be embarrassed by questioning during the inquest. The Coroner, however, thought that Dr Wilcock was appropriate and had experience in rehabilitation of the elderly (MRE000981, p3).


The solicitor for the Trust followed up this issue after the pre-inquest hearing by writing to the Coroner again, stating:

“… it would not be our intention to embarrass or discredit Dr Wilcock but would respectfully request that you confirm with him, in advance, that he feels he is able and an appropriate person to deal with questions concerning the management of those on ‘end of life care’. His CV suggests experience in acute medicine and rehabilitation and I am concerned that that is not the same thing.” (MRE000964, p2)


Mr Bradley wrote to Dr Wilcock setting out that, at the pre-inquest hearing, questions had been asked about Dr Wilcock’s areas of expertise and whether they extended to geriatric end of life care. Mr Bradley stated that the issue for the inquests would be the appropriateness and suitability of the care of the ten deceased who were the subject of the proceedings: “could I trouble you to provide your thoughts as to whether you are ‘the right man for the job’ to give this particular type of evidence” (PCO000614, p1).


Dr Wilcock responded that he believed he had been approached “because of the extensive experience of the use of opioids and other symptom relieving drugs in palliative care, particularly in those patients who are dying”. He said that if the Coroner wanted a “real world/coal face” view rather than the ideal treatment, it might be that the geriatrician called as a witness could provide better evidence (PCO000983). It is perhaps as a result of this email that Mr Bradley saw fit to refer to Dr Wilcock, during the course of the inquests, as “the drugs man”.


Mr Bradley wrote to the solicitor for the Trust indicating that he would be relying on both Dr Wilcock and Professor Black as he felt they were “complementary” (PCO000597).


While members of the Trust may not have been entirely satisfied with the expert reports of Dr Wilcock, family members expressed their own concerns about Professor Black. Ann Reeves, Elsie Devine’s daughter, wrote to Mr Bradley asking for a review of his opinion to identify “inaccuracies and bias”. She suggested that, as a former employee of Portsmouth HealthCare NHS Trust, Professor Black could not remain independent (PCO000873).


The Coroner refused to allow the reports of Dr Wilcock and Professor Black to be put before the jury in their entirety, as they had been prepared for a different purpose from an inquest, and potentially contained material that was unsuitable to go before an inquest jury. Instead, the jury would be allowed to listen to the live evidence of each of the experts (PCO000597).


While there were concerns relating to the experts the Coroner had chosen to give evidence at the inquests, some family members were even more concerned that not all the expert reports had been included in the advance disclosure. On 20 November 2008, Mr Stewart-Farthing wrote to Mr Horsley, copying in Mr Bradley (PCO000664). Mr Stewart-Farthing questioned why only the reports of Dr Wilcock and Professor Black had been included in his stepfather’s file and requested that the reports of Dr Mundy and Professor Ford be released, “as they formed the basis for the aborted prosecution in 2002 and therefore are likely to contain significant information relating to this case”. Mr Stewart-Farthing also expressed his concern that:

“… the Chief Medical Officer continues to withhold Professor Baker’s 2002 audit of this hospital, and also a report by Professor Forrest which categorises the various cases by degree of seriousness with a view to proceeding with prosecution, as these too will have a direct bearing on the regime that existed at the time.” (PCO000664, p1)


On 21 November, Mrs Reeves wrote to Mr Bradley, copying in Mr Horsley, to set out the documents that she considered were missing. These included “Professor Forrest’s expert medical opinion and his team, bearing in mind he was the first expert the police took advice from”“Professor Richard Baker’s audit re GWH”; and “Mr Matthew Lohn expert opinion” (PCO000666, p1).


Mr Bradley responded to both Mr Stewart-Farthing and Mrs Reeves on 21 November. He was not conducting a public inquiry and the ambit of the proceedings was limited. Mr Bradley said that it was for him to decide the evidence and to consider how much of it would enable the jury to answer questions raised by the inquisition. He also stated that the purpose of the inquest was not to apportion blame (PCO000667).


In response, Mr Stewart-Farthing stated that “the information provided thus far is incomplete, inadequate and could very well be misleading if the full picture is not visible” (PCO000003, p3).


Mrs Reeves wrote to Mr Bradley on 13 January 2009 expressing her concern that Professor Forrest’s “expert opinion” had not been released. The opinions that she had reviewed were “incomplete, contradictory and misinformed” (PCO000628, p1).


At the second pre-inquest hearing, Mr Iain Wilson raised the issue of the reports of Professor Ford and Dr Mundy that had not been disclosed, which were relevant to his father’s death. The Coroner ordered that these reports be disclosed. Professor Ford’s report was significant because he was a professor of pharmacology and had provided expert opinion in relation to the treatment of two of the subjects of the inquests: Mr Cunningham and Mr Wilson. In respect of Mr Cunningham, Professor Ford said:

“… the initial prescription of subcutaneous diamorphine, midazolam and hyoscine by Dr Barton was in my view reckless. The dose increases undertaken by nursing staff were inappropriate if not undertaken after medical assessment and review of Mr Cunningham. I consider it highly likely that Mr Cunningham experienced respiratory depression and profound depression of conscious level due to the infusion of diamorphine and midazolam. I consider the doses of these drugs prescribed and administered were inappropriate and that these drugs most likely contributed to his death through pneumonia and/or respiratory depression.” (BLC002635, pp10–11)


In respect of Mr Wilson, Professor Ford said that he was “inappropriately treated with high doses of opiate and sedative drugs. These drugs are likely to have produced respiratory depression and/or the development of bronchopneumonia and may have contributed to his death” (FAM100459, p16). Professor Ford also raised more general concerns, based on his review of the five cases, about the clinical management of elderly patients at the hospital.


Dr Mundy had provided the police with an opinion in relation to the treatment of Mr Cunningham in which he said that “morphine was started prematurely, the switch to a syringe driver was made without any clear reason and the dose was increased without any clear indication” (DOH603309, p4).


Neither Professor Ford nor Dr Mundy were called to give evidence in person.


In addition, there appears to have been no mention of either Professor Forrest’s report or Professor Baker’s statistical report at the second pre-inquest hearing (PCO000501). Mrs Reeves emailed Mr Bradley on 3 February 2009 to ask if he would release “Professor Forrest’s expert opinion … He is the ‘top man’ who the police called upon from the beginning … I find it extraordinary that his opinion is not being included” (PCO000592, p3). Mr Bradley responded: “The reason I am not calling Prof Forrest is precisely because he was instructed to look at the matter from the point of view of prosecution and I cannot do that” (p2).


Mrs Reeves responded to the Coroner as follows:

“This is the first time that I have heard that Prof Forrest was instructed to look at the matter from the point of view of prosecution. Please can you elaborate further. All experts must remain non bias and purely factual in their area of specialisation … We are looking towards unlawfully killing, are you excluding Prof Forrest Report if you say his opinion was from the point of prosecution because you are looking at a verdict of system neglect?” (PCO000592, p2)


Mr Bradley responded:

“Professor Forrest was instructed by the police to look at this situation from the point of view of criminal proceedings and that is why I do not want to take a partisan opinion to put before a jury. What you want is irrelevant to me in my enquiry … My job is to complete an inquisition and not to enter any kind of judgment. The jury will give a conclusion after they have heard all the evidence that I believe is impartial and will enable them to do the job they are empanelled to do.” (PCO000592, p2)


On 23 February 2009, Blake Lapthorn solicitors wrote to Mr Bradley requesting disclosure of a number of items, including Professor Forrest’s opinions, the 1991/92 nurses’ dossier of concerns and Professor Baker’s report from 2002 (PCO000576, p2). Mr Bradley passed their letter to Detective Sergeant (Det Sgt) Roy Stephenson and said: “I cannot find any report from Professor Forrest in any of the paperwork that I have nor do I have the 1991 document or Professor Richard Baker’s report” (HCO001220). In an email response on 3 March, the officer said that “this matter [Professor Forrest’s report] has already been dealt with by email to you dated 27/02/09” (PCO000563, p1). There is no email dated 27 February 2009 dealing with these documents in the papers provided to the Panel.


Mr Stewart-Farthing and Mrs Reeves both continued to ask Mr Bradley for Professor Forrest’s report (PCO000871, PCO000160). On 9 March, Mr Bradley told Mrs Reeves that “I do not have Professor Forrest’s opinion and I do not believe it was ever reduced to writing” (PCO000873, p2).


On the first day of the inquests, Mr Leeper, Counsel instructed by a number of the families, raised the issue of Professor Forrest’s report. Mr Bradley said:

“There is not a report from Professor Forrest. As I understand it, this again does not form part of it because Professor Forrest was instructed for another purpose. I think I am right in saying that there is not a report from Dr Forrest. I think the police consulted Dr Forrest but there is not a report from him. I have not got one; I have never seen one.” (CPS000004, p6)


Following this, Mr Leeper asked the Coroner to consider calling Professor Forrest as a witness in the course of proceedings, on the grounds that “he is clearly an eminent toxicologist and we are not going to be hearing from anybody with the same area of expertise” (CPS000004, p8). Mr Bradley expressed his concern about taking toxicological evidence when only one of the ten deceased had had a post mortem. He also questioned “what has toxicology got to tell us … after 20 years” (CPS000004, p9). The Coroner concluded that he would not hear from Professor Forrest without a report.


One of the family members who attended the first day of the inquest forwarded the transcript of the hearing to Professor Forrest. On 19 March, Professor Forrest emailed Mr Bradley and said:

“… the report that my team produced … was never intended to be evidential but was rather a screening exercise designed to identify those cases that gave rise to particular concern … those cases to then be reviewed by other experts who would produce reports on individual cases in detail that the CPS would eventually consider and which, absent prosecution, would be eventually passed on to you.” (PCO000973, p1)


In resisting requests to widen the expert evidence, for example to include that of Professor Forrest, the records show the Coroner to have used reasons based on his own view as to why some reports were inadmissible and should not be relied upon. As a result of the approach taken, the records show that no expert evidence from a toxicologist or pharmacologist was sought, despite the central issue of the prescribing of diamorphine.


By contrast with the formal relationship Mr Bradley had with the legal representatives of the families, for example over expert evidence, the Panel has seen a different and closer relationship with the solicitor for the Trust. For example, on 27 January 2009 the solicitor for the Trust wrote to Mr Bradley and asked if he was intending to write to the experts:

“… to brief them before they give evidence on the relevant questions and considerations you will require them to comment on to the jury? I wonder if that might be helpful so the experts are clear as to what is expected of them in terms of how and by what means these patients met their deaths? If you could copy me in on any correspondence that would be extremely helpful.” (PCO000595, p1)


The documents show how the issue of expert evidence arose again in the inquest into the death of Mrs Richards. On 18 August 2010, Blake Lapthorn solicitors wrote to the Coroner asking “to be able to make representations in relation to medical expert evidence” (PCO002127, p1). Mr Horsley responded that he was “considering myself calling expert medical evidence” (PCO002126, p1) and later indicated that he would be “instructing an independent medical expert to give me an opinion on the appropriateness of the hospital treatment Mrs Richards received and whether it might have made a significant contribution to her death” (PCO002119, p1). Blake Lapthorn solicitors requested disclosure of the reports prepared by Professor Ford, Professor Livesley and Dr Mundy (BLC003233, p1).


In the event, Mr Horsley chose Professor Black as his “independent medical expert”. This was despite the fact that Professor Black had given evidence at the previous inquests, had been instructed by the police to prepare reports in relation to deaths at the hospital, and had originally prepared a report on Mrs Richards.


Meanwhile, Blake Lapthorn solicitors continued to press the Coroner to disclose the reports of Professors Livesley, Ford and Baker (PCO002103). The matter was raised again at the first pre-inquest hearing, when Counsel for Mrs Mackenzie said that Professors Livesley and Baker had both produced reports on Mrs Richards’ death that the family had not been able to see. Mr Horsley quickly shut down this issue:

“You are not going to see them via me because I commissioned my own independent expert, Dr Black, to look at things fresh from the point of view of what I had to do at the inquest so I am not interested in those reports.” (PCO001778, p15)


Blake Lapthorn solicitors continued, unsuccessfully, to seek disclosure of the reports from Professors Ford and Livesley (PCO002086, pp1–2) and eventually obtained them from the GMC (BLC004727). However, the Coroner continued to refuse to allow those experts to give evidence and suggested that Mrs Mackenzie obtain her own expert if she did not accept the conclusions set out in Professor Black’s report (BLC004727). Blake Lapthorn solicitors, therefore, sought to instruct Professor Forrest to prepare a report (BLC004735).


Blake Lapthorn solicitors encountered some difficulties in obtaining a report from Professor Forrest, so instructed Professor Ferner instead (BLC004551). Professor Ferner’s report noted that, as part of the KCT, he had considered the case of Mrs Richards, as one of 91, to determine whether, for the purposes of a criminal prosecution, he could be satisfied beyond reasonable doubt that negligence caused death, and that this negligence could be categorised as ‘gross’. He had not considered it possible to demonstrate to the required standard that Mrs Richards’ death was anything other than natural, or that there had been negligence. He believed that the prescribing had been sub-optimal (BLC004232).


However, in his report for Mrs Richards’ inquest, Professor Ferner stated that “it is therefore very likely that the administration of subcutaneous diamorphine, and the concurrent administration of midazolam and haloperidol, rendered Mrs Richards too drowsy to take oral fluids, increased the risk of her developing renal failure, and hastened her demise” (BLC004232, p16). Professor Ferner also prepared a supplementary report, responding to the points raised by Professor Black (PCO001889). Professor Ferner agreed with much of what Professor Black said but disagreed with the assertion that “40 milligrams of diamorphine by subcutaneous infusion was a suitable dose in a woman whose pain was evidently controlled by oral morphine” (PCO001889, p2). Significantly, Professor Ferner said: “I am clear that, on the balance of probabilities, the administration hastened death” (p3).