June 21, 2018

The Gosport Hospital scandal – how did the ‘Dr Opiate’ case even happen, and what can be done about it?

The inquiry into the Gosport War Memorial Hospital scandal has found that 456 patients had their lives tragically cut short by the inappropriate prescription of painkillers.

However, the panel concluded it was not for them to attribute criminal or civil responsibility. Instead, recommendations have been made to the health secretary, the home secretary, the attorney general and the chief constable of Hampshire to act on the findings of the investigation.

I followed this inquiry closely before the findings were released yesterday, but hearing in such black and white terms the clear catalogue of failings is truly shocking, even for when it occurred. I deal with civil claims against hospitals on a daily basis and I have rarely, if ever, seen families treated in such an appalling and inhumane way.

I think it is right the inquiry does not lead directly to criminal prosecutions; this is wholly outside their remit. However, it is clear a fresh police inquiry needs to be opened up to ensure the failings of the past are not repeated.

How did this happen?

Whilst, clearly, the individual actions of one doctor have been inexcusable, my concern here is the intuitional and systemic failures across the board. This links in with my colleague’s recent article about the Bawa-Garba case, as here nurses have also been held responsible, in part, for failing to challenge the actions of Dr Barton, and it seems senior consultant doctors were aware, but did nothing to intervene. Not only this, but the police, the CPS, GMC and the hospital authorities failed to act; all resulting in a complete lack of culpability.

This is not just the actions of one rogue doctor; over the space of 10 years, there was no scrutiny or assessment by the hospital authorities. Whilst I do not always agree with the views of Mr Hunt, I am entirely of the view there seems to have been an institutional desire to protect reputations rather than address widespread systemic failures.

What happens now?

Prosecutors are currently deciding whether further action should be taken against individuals such as Dr Barton. I presume the charge is likely to be for gross negligence manslaughter (i.e. an individual caused a death, but lacks the intent of a murder charge).

In my view, the charge of manslaughter is going to be extremely difficult to prove. You must show the act is considered “grossly negligent” and this must have caused or significantly contributed to the death. This goes far beyond a lack of care and skill, it is recklessness with a conscious violation of other peoples safety. For many of the families involved in this inquiry, there will also be other contributing factors to their loved one's death such as their pre-existing illness. Each case would need to be looked at on its own facts.

What about making a claim?

Generally speaking, you have three years from the date of death to bring a claim in the civil court so a judge would have to rule on whether such a claim can proceed. In any event, in this instance, I do not think this would achieve any peace or resolution for the families involved. It will not hold an individual responsible, and will simply award a nominal amount of compensation.

The civil process can be used as an excellent tool to help families gain answers to how and why a loved one has died, but, clearly, there has now already been an extremely thorough investigation of all the evidence so I don’t see what else could be achieved through further reports and evidence.

20 years on and we need to move away from the blame culture that has become entrenched in the medical profession. Staff in hospitals must feel free and able to come forward with concerns, and these must then be robustly investigated. Fears should not simply be “silenced”. This investigation should have occurred 20 years ago. Families should have received an apology and full explanation of how the deaths had come about, and what was being done to prevent this in the future. If this had happened, I suspect the last two decades of money, time & resources could have been better used to improve the NHS.

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