Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
Several inquiries have taken place over the years which have looked into the prescribing of opioids at the Hospital since the late 1980s. The Panel was set up in 2014. The remit of the Panel was to produce a fresh report addressing the concerns raised by a number of families regarding the care received by, and subsequent deaths of, their relatives at the hospital between 1989 and 2000. This independent review was led by the former Bishop of Liverpool, the Rt Rev James Jones, who also chaired the Hillsborough Independent Panel.
The report details “an institutionalised regime of prescribing and administering dangerous doses of a hazardous combination of medication”. The main opioid in question is diamorphine. In heavy doses, diamorphine carries the same risk of overdose as heroin. Elderly people are particularly vulnerable to the adverse effects of opioids. The report found that patients had been given diamorphine in doses which were not adjusted for their individual needs, and patients generally died within days of the drug being administered.
It is believed that some 456 patients died at the Hospital where opioids were prescribed “without appropriate clinical justification” over a 12 year period. This figure may be even higher due to another 200 patients who were similarly affected, but whose clinical notes could not be found. The doctor at the centre of the scandal, a GP, worked as a clinical assistant at the Hospital between 1988 and 2000. She was in charge of the practice of prescribing medicine on the wards, and it was found that she routinely overprescribed opioid drugs for her patients.
The police investigation was completed in 2001 and was passed on the CPS. The General Medical Council (GMC) then began its own investigation into the doctor and the deaths of 12 patients who were under her care. This investigation was halted between December 2002 and June 2009 however, due to a further police investigation into the deaths of elderly patients at the hospital. In June 2009, the GMC’s fitness to practise hearing finally took place and the GMC found her guilty of serious professional misconduct. A sanctions hearing took place in January 2010, where conditions were put on her registration. She retired and applied to come off the GMC’s register shortly afterwards. The report found that, “by the time of the sanctions hearing there had been a ten-year delay which in itself affected the sanction which was imposed…The documents show how Dr Barton benefitted from the delay before the fitness to practise process took place. The ten-year delay was interpreted as ten years of good practice to weigh in the balance.”
Similarly, the Nursing and Midwifery Council (NMC), (which was then called The United Kingdom Central Council for Nursing, Midwifery and Health Visiting) became involved in May 2001 when they informed Hampshire Constabulary that they were investigating three nurses regarding the care they provided to the same patient whilst she was at the Hospital. Various complaints were made to the NMC by concerned family members, as well as material provided by the police, which the report says the NMC dismissed. As with the GMC, there was an “excessive” delay in the Preliminary Proceedings Committee hearing into the nurses’ conduct taking place. The NMC were also criticised for not adequately communicating with the families during the investigation between August 2002 and June 2010.
On 3 October 2018, 3 months after the publication of the report, a petition containing over 100,000 signatures was delivered to Downing Street. The petition, organised by a granddaughter of one of the patients who died while in the care of the Hospital, calls for urgent action to be taken on the findings of the report and criticises the Attorney-General’s handling of the report’s findings.
In the petition, the Attorney-General is accused of “dragging his feet” as there have been no further prosecutions following the GMC’s fitness to practise hearing and sanction of Dr Barton in 2010.
The situation which prevailed at the hospital is tragic on a number of fronts. Patients died unnecessarily, bereaved families have been left bereft of answers as to what happened to their loved ones and the healthcare practitioners who worked at the hospital at the time in question (but were not directly involved in the deaths) were undoubtedly under huge pressure to reassure patients and their families of their clinical competency and integrity.
In the context of conduct in a clinical setting, such as a hospital, there is more than one avenue which can be considered to address the matters of concern. Kingsley Napley can assist clients in cases such as this by drafting a referral to the relevant regulator, providing the documentation to assist the regulator with the initial review of the concerns. We can also provide on-going support with any regulatory process following the initial referral. Alternatively, we are adept at challenging decisions by the CPS not to prosecute, and can assist clients with obtaining the answers they need in respect of their concerns.
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