A report was published on 20 June 2018 into the premature deaths of hundreds of elderly patients at Gosport War Memorial Hospital in Hampshire. The Gosport Independent Panel Report was an in-depth review into an ‘institutionalised regime’ of prescribing dangerous amounts of opiate painkillers in elderly patients, many of whom died, between 1989 and 2000.
Nick Haley, associate in Penningtons Manches’ clinical negligence team and a member of its specialist elderly and falls subteam, reviews the report, its findings, and the implications for the families and the trust.
In early 1991, a staff nurse in Gosport War Memorial Hospital expressed concerns on behalf of the nursing staff at Gosport about the use of syringe drivers administering diamorphine to patients on one particular ward. Gosport is a community hospital which meant that patients remained under the care of the hospital-based GPs with input from consultants and nursing staff as required.
Diamorphine is a potent opiate painkiller, and syringe drivers are automated devices designed to administer an ongoing dose of medication. While diamorphine is a very valuable painkiller, particularly for otherwise intractable pain, it can have a narrow therapeutic window, ie the difference between a therapeutic dose and a harmful dose is small. It is a controlled drug although it is widely used in hospitals across the world.
The elderly patients involved were in a ward isolated from the main unit of the hospital. The nurses’ concerns were that diamorphine was being administered to elderly patients who in many cases did not need such powerful painkillers. At times they felt the drugs were being used unnecessarily, at high doses to sedate patients rather than simply control pain, and that staff setting up the syringe drivers were not all trained to an adequate standard. Among other staff, the nurses named a clinical assistant, Dr Jane Barton, in their complaint.
Some families of patients also complained about the level and method of opiate administration. The complaints included patients being administered diamorphine when they were not in pain and doses being doubled without discussion. Several families were concerned about the sudden death of relatives without apparent explanation. Some of these patients were on the ward following routine operations, or otherwise uncomplicated conditions.
The nurses’ concerns were investigated, but it seems that the management team failed to deal with the complaint properly, instead shifting the tone of the investigation to that of ‘disruptive criticism’ by the nurses, who were then dismissed as ‘a small group making waves’ and whose complaint had ‘upset Dr Barton’. It seems that for some reason the management team felt that more harm would be done by ‘rocking the boat’ than by responding to the nurses’ concerns and putting in place more stringent protocols for use of diamorphine. One nurse was dismissed for breaching patient confidentiality when he wrote to his local MP to express his alarm.
What followed was, in the words of the report ‘a story of missed opportunity and unheeded warnings’.
In 1997, wide-ranging changes to the NHS were put in place, making NHS trusts formally accountable for their own clinical quality, including setting up monitoring systems to assure patient safety. However, the response of the various trusts to these changes was very varied, and it appears that Portsmouth HealthCare NHS Trust, which administered Gosport Hospital, was particularly slow on the uptake. It is clear from the report that the record keeping and auditing in relation to the use of diamorphine was poor at best, and non-existent in many cases.
In 1998, concerns started to be raised about the number of deaths at the hospital, and the family of one patient, Mrs Gladys Richards, approached the police after she died following a hip replacement, claiming that Mrs Richards had died after being prescribed too much morphine.
In 1999, a complaint by another family led to an external review of the use of morphine within the elderly care unit. The external reviewer wrote to the chief executive stating that the use of wide ranges of morphine doses on syringe pumps was ‘poor practice and could indeed lead to a serious problem’. In response, the trust produced a draft protocol for the use of opioids by syringe drivers, but there are no records of whether this was ever implemented.
The police investigation into the death of Gladys Richards was initially dropped and found that, while there had ‘been a great deal of neglect, and mistreatment’, inconsistencies in the family’s evidence made a prosecution difficult. Internal memos at Hampshire Constabulary suggest that the family were ‘stirring up trouble’, possibly because of their guilt at not nursing their mother themselves. After the case was dropped, the family made a number of complaints about the conduct of the investigating officers and a subsequent internal report found some failings in the investigation, including that there was no attempt by the investigating officer to secure witness statements or medical notes, consider any forensic evidence, or look at other patients’ records for similar issues.
The case was therefore reopened in August 1999 and on this occasion the police obtained evidence from Professor Brian Livesley, an expert in geriatric care. Professor Livesley’s report concluded that ‘It is most probable if not certain that the cause of Mrs Richards’ death was respiratory depression as a consequence of the large doses of drugs she continuously received by syringe driver…’. Hampshire Constabulary therefore opened a major enquiry under the name Operation Rochester to investigate.
In a follow up report into Mrs Richards’ death, Professor Livesley wrote ‘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…’.
Despite this report, however, Hampshire Constabulary did not open its enquiry further at this stage to investigate any other cases.
However, in April 2001, details of the police investigation was leaked to journalists, and a local newspaper article stated that up to 600 deaths could be reviewed as part of the investigation. Having read the article, a nursing auxiliary who had been working in the elderly care unit approached the police to give her recollection of another elderly patient who had died shortly after being put onto a syringe driver. She alleged that the hospital had a ‘culture of euthanasia’ and that 'troublesome patients were given overdoses of diamorphine'.
By this stage, nine families had approached the police with concerns over the death of a relative. With the potential for further deaths to be investigated, Professor Livesley suggested that the statisticians involved with the Shipman case should be asked to assist. Following further investigations, the police submitted 10 cases to the CPS for consideration. Despite Professor Livesley’s assertions, and the multiple complaints from families, and the investigation that had been carried out, the CPS concluded in 2006 that there was not sufficient evidence to bring any charges of unlawful killing, and Hampshire Constabulary felt that ‘further investigation would not be appropriate…[it] would necessitate the investigation of up to 600 deaths. A considerable number, raising massive public concern with no certainty of outcomes in respect of criminal investigations’.
The families were not satisfied, and after further complaints about the police investigation, an internal report by Hampshire Constabulary again admitted that the second police investigation was inadequate. Between 2002 and 2006 a third police investigation was undertaken. This considered the death of 91 patients.
Public concern and complaints from families continued, and the Commission for Health Improvement, the NHS body set up to improve clinical outcomes, was approached to investigate. The review of the previous internal investigations concluded that there were a number of failings, and that poor prescribing practice had not been identified due to the lack of supervision. The routine high levels of prescribing opiates were for some reason not being questioned. The Chief Medical Officer at the time responded to this report by saying that he was concerned that Dr Barton’s practice and the wider team had not been investigated thoroughly.
By this stage, the GMC was asked by Mrs Richards’ daughter to investigate Dr Barton’s practice. An initial review did not find that Dr Barton’s fitness to practise was impaired. A second investigation was carried out when the police informed the GMC that further complaints had been made by families in August 2001. By then, Dr Barton had resigned her position at the hospital and had voluntarily agreed with the local authorities to a restriction on her ability to prescribe opiates. Therefore, the GMC again did not impose any restrictions or order upon her ability to practise.
By 2003, the GMC had received the police reports into 62 cases, which concluded that in a number of cases, Dr Barton’s care had been negligent (although not necessarily criminal). The GMC investigated again, and on this occasion, because Dr Barton had voluntarily agreed not to prescribe opiates, the investigating committee found that no restriction was necessary. In 2008, a fifth investigation by the GMC did impose an interim order, preventing Dr Barton from prescribing diamorphine or diazepam.
At a final hearing by the GMC in 2009, 12 cases, including that of Mrs Richards, were considered. The evidence was heard for 37 days and included 195 testimonials, many of which were in support of Dr Barton’s current ability and prescribing practice. In the hearing, Dr Reid, another doctor who had worked on the ward was asked “Can you recall a single instance in your year on Dryad Ward where a patient was put on a mix of opiates or syringe driver who did not die?” His response was “No, I cannot.”
At this hearing, the GMC regarded Dr Barton’s position as presenting a continuing danger to patients and found her guilty of serious professional misconduct. However, she was not struck off but allowed to continue to practise with a number of restrictions imposed. The case was referred and on appeal, the Council for Healthcare Regulatory Excellence (CHRE) found that Dr Barton should have been erased from the medical register. Dr Barton subsequently retired.
Further investigations were carried out into the actions of nurses involved in the care of various patients, and the investigation was critical of some for failing to challenge Dr Barton’s inappropriate prescribing. The Gosport Independent Panel Report found that the NMC was ‘extremely cautious’ in seeking not to undermine the other investigations that were taking place, and is clearly critical of the NMC’s failure to follow up the concerns of other nurses that were raised at various stages.
Between 2002 and 2006 Hampshire Constabulary updated the coroner into its investigations. An inquest took place into the deaths of ten patients after the CPS cleared the way. The families, several of the lawyers and even the coroner had been pushing for a public inquiry rather than an inquest, so that their concerns could be fully investigated, but the Department of Health, on the advice of the Ministry of Justice did not agree to this, initially concluding that there had been ‘no evidence of foul play’.
The inquest, opened in 2008, eventually heard 21 days of evidence, and while the experts involved were very critical of the management of patients overall in the unit, and the over-prescribing of opiates, the limited scope of the inquest process meant that blame could not be attributed to any particular party. The coroner hinted at dissatisfaction at the failure of the Government to hold a public inquiry in his verdict. Action against Medical Accidents (AvMA), a charity which supported a number of families through the process, issued a statement saying that the verdicts had ‘failed to satisfy the families’. Clearly, AvMA felt that the refusal to hold a public inquiry was another failure. At this stage, however, the Department of Health maintained its stance that a public inquiry was not necessary.
It did however publish a clinical audit, carried out by Dr Richard Baker in 2003, which concluded that ‘a practice of almost routine use of opiates before death had been followed in the care of patients of the Department of Medicine for Elderly People at Gosport Hospital ... The practice almost certainly had shortened the lives of some patients, and it cannot be ruled out that a small number of these would otherwise have been eventually discharged from hospital alive’.
Following the publication of this report, after the unsatisfactory inquest, the decision by the CPS not to bring any prosecutions, and the GMC decision not to strike Dr Barton off the register, local and national press coverage increased, and after consistent lobbying by the families involved, the Gosport Independent Panel was formed in 2014, to investigate the deaths in Gosport War Memorial Hospital, with a ‘families first’ approach. This was funded by the Department of Health and panel members included a QC, investigators, journalists, accident investigators, medical and nursing experts.
The panel identified some 750 questions that the families still wanted answering, and these form the basis of the report. Over 140,000 documents were collected, from over 2000 patients, from as early as 1987.
In summary the panel found that:
- there was a disregard for human life and a culture of shortening the lives of a large number of patients;
- there was an institutionalised regime of prescribing and administering ‘dangerous doses’ of a hazardous combination of medication not clinically indicated or justified, with patients and relatives powerless in their relationship with professional staff;
- when the relatives complained about the safety of patients and the appropriateness of their care, they were consistently let down by those in authority – both individuals and institutions;
- the senior management of the hospital, healthcare organisations, Hampshire Constabulary, local politicians, the coronial system, the Crown Prosecution Service, the General Medical Council (GMC) and the Nursing and Midwifery Council (NMC) all failed to act in ways that would have better protected patients and relatives, whose interests some subordinated to the reputation of the hospital and the professions involved.
This article is a summary of some of the key findings of the report, which is over 370 pages long. However, the findings are unambiguous and the failings on behalf of the public bodies have unsurprisingly brought anger from families and their representatives. Some records have been lost over time and the report identifies up to 450 patients whose lives could have been cut short by the prescribing practices at Gosport.
From a legal perspective the case raises a number of significant questions. Clearly, it seems likely that many of these cases would be considered negligent. Could they form the basis of a claim? Unquestionably, although families are likely to face significant stumbling blocks if they choose to do so.
- The first issue is the limit to what could be achieved through a clinical negligence claim. Ultimately, it seems that most of the families involved in this process want answers, apologies, and some assurance that these events cannot happen again to other families. The only guaranteed result with a successful clinical negligence claim is damages, and as below, these can be at a very low level in the case of an elderly patient.
- The next issue is one of limitation. In general, patients, or their personal representatives, have three years in which to bring a claim after the date of negligence. If a person’s date of knowledge of that negligence is later on, then that three year ‘clock’ will not start ticking until the person became aware (or should have become aware) of the potential for negligence. In a series of cases dating back as far as 1998, some limitation periods will undoubtedly have expired. Can anything be done in those cases? Potentially. The Limitation Act of 1980 does contain provision for the court to have discretion if there are good reasons to do so. The court would consider the reasons for any delay, the length of the delay, and the extent to which a failure to bring a claim before now would be considered reasonable. It is conceivable that, particularly given the failings of public bodies to this point, a court might look favourably towards an application by families to bring a claim out of time.
- The standard of proof would remain the balance of probabilities, as with all clinical negligence claims. It is apparent from the report that several sets of medical records are missing, and unlikely to be located. Without an admission from the trust, it may be impossible to produce sufficient evidence for a claimant to meet this standard. Witness evidence can potentially counter some of these problems and precedent cases will allow the court to draw its own conclusions from missing evidence, but clearly the risk would increase for a claimant proceeding towards a trial with a case that was defended, and no medical notes.
- A further question is one of value. While this would no doubt not be top of any claimant’s list of priorities in this scenario, the court would consider whether the costs of bringing a claim would be proportionate, so any solicitor taking on a claim would have to assess the cost of doing so when set against any damages received, or risk criticism by the court. In the case of the death of a person who does not leave behind a spouse or dependants, damages would be limited in large part to ‘pain, suffering and loss of amenity’, which can be of a derisory level. If a spouse is left behind, they would be entitled to a bereavement award of some £12,980. Still a fairly paltry sum, although it would give lawyers some scope to investigate while keeping costs proportionate. It is conceivable that the case may lend itself to a class action, and it remains to be seen whether families will receive any compensation from the trust, but it is certainly our experience that unrepresented claimants are rarely offered a suitable figure by NHS Resolution, the body set up to deal with clinical negligence claims for the NHS.
This is a tragic series of failings by almost every public body involved in the case and the scale of the deaths is unlikely ever to be certain. Families have faced delays, incompetence and obfuscation and it is only now, over 15 years after these deaths that they have received the answers that they deserve. These public bodies are in place to protect the public but they have failed at every turn.