Direct Dial: 020 7650 1322
Email: rcurling@leighday.co.uk
Secretary of State for Health
Department of Health
Richmond House
79 Whitehall
London SW1A 2NS
Your Ref:
Our Ref: RS/ Mid Staffordshire
Date: 27 March 2009
By post and fax: 020 7210 5454
Dear Sir
Re: Mid Staffordshire NHS Foundation Trust
We are instructed by Julie Bailey of 3 Park Street, Stafford, ST17 4AH and
Christine Dalziel of 12 Moss Green, Rugeley, Staffordshire, WS15 2NU. Julie is
the founder of Cure the NHS and Christine a member. Julie tragically lost her
mother, Bella Bailey at Stafford Hospital and Chris lost her husband, George
Dalziel.
Cure the NHS was set up by and for individuals who have lost relatives or were
victims of poor care and support at Mid Staffordshire Foundation Trust Hospitals.
The organisation is of the view that the failures of the Trust are due to poor
management and lack of suitably trained and dedicated staff. It is committed to
changing the management and ethos of the Trust so people can feel safe and
secure if they are admitted to hospital. Many members of parliament have
expressed their view on the extraordinary and crucial work that Cure the NHS has
done to bring to light the appalling standards of care found at Stafford Hospital.
We write regarding what we understand to be a decision taken by the Secretary of
State for Health not to hold a public inquiry into the matters raised by the
Healthcare Commission’s investigation published on 17 March 2009.
That decision appears most clearly from answers given in Parliament on 18 March
2009, where amongst other things the Secretary of State stated (in answer to a
question from Norman Lamb (LD), that it would be “wrong to call for a public
inquiry” because of the fact that there had already been a “very good Healthcare
Commission report”, and further, in response to a question from Mr William Cash
(Con) that “to have a public inquiry on top of that would just delay moving forward
on the issue”.
It seems clear from the Secretary of State’s announcement in Parliament on that
day that rather than hold a public inquiry it is currently considered by the Secretary
of State that the publication of the Healthcare Commission Report in combination
with a series of intended reports and reviews is, or will be, sufficient to allay the
very serious public concerns arising out of the report. We understand those reports
and reviews to be as follows:
1. An independent review of a patient’s case notes if requested by their
relative(s) (although the detail of this review seems unclear to us, in
particular, who is intending to carry it out. Please clarify who you intend to
appoint to carry out this task.)
2. An independent review by George Alberti “of the trust’s procedures for
emergency admissions and treatment and its progress against the
recommendations” contained in the Healthcare Commission’s report. We
understand this review has now been expanded to include medical wards
10, 11 and 12.
3. A review by Dr David Colin-Thome into the circumstances surrounding the
Mid Staffordshire NHS Foundation Trust prior to the Healthcare
Commission’s investigation to learn about how the primary care trusts and
the strategic health authority, within the commission and performance
management systems that they operate, failed to expose what was
happening in this hospital. We understand that this review will look into
what happened between the years of 2002 and 2005.
4. An inquiry by the Care Quality Commission into what lessons can be
learned from what happened and standards of healthcare overall.
5. An analysis by the National Quality Board to “look at how…early signs that
something is going wrong [can be] picked up immediately, that the right
organisations are alerted and that action is taken quickly” and also that
6. The new interim Chief Executive of the Foundation Trust will “deal with any
disciplinary matters” that arise from the findings of the Commission.
While we do not doubt the Secretary of State’s intention is to properly investigate
what went wrong, we consider that this multiplicity of separate reviews will not be
an effective or adequate means of properly investigating the issues, and properly
allaying the serious public concerns raised by the Healthcare Commission report.
In particular, what is notable about all the above reviews, even those which are
intended independently to be carried out, is the absence of full or (it appears any)
public participation, and any public hearing in relation to the material facts which
led to the very serious and concerning findings of the Healthcare Commission.
This is in circumstances where we understand there to have been a refusal by HM
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Coroner for the area to hold inquests into deaths which may have been caused by
the systemic failures identified by the Healthcare Commission report, and where,
the Coroner has declined to provide the Healthcare Commission with any
information about the number or nature of inquests involving the Trust (see
Commission report at page11).
We consider that, notwithstanding the Healthcare Commission report, and the
intended reviews it has been stated will be carried out, the decision to refuse to
hold a public inquiry pursuant to s.1 of the Inquiries Act 2005 is irrational, and
contrary to Article 2 and Article 3 of the ECHR.
We say this for the following reasons:
(i)
(ii)
It is currently unclear how many patients died as a direct result of the
Trust’s systemic failures, but the Commission found that mortality
rates in emergency care were between 27 per cent and 45 per cent
higher than would be expected, equating to between 400 and 1,200
“excess” deaths. We consider the State has an investigative
obligation under Article 2 ECHR to investigate deaths which may
have been caused by systemic failures of the type which appear to
have occurred here.
On the basis of the Healthcare Commission report, some relatives
appear to be claiming that their relatives had been left, sometimes for
hours, in wet or soiled sheets putting them at increased risk of
infection and pressure sores. This, and certain other serious
deficiencies identified by the report may amount to a violation of
Article 3. A similar investigative obligation arises in respect of such
potential Article 3 violations.
We consider that the state’s investigative obligations under Article 2 and Article 3
are engaged and require the State (e.g. the Government) to provide or to institute
an effective official and public investigation, the purposes of which are clear, and
which should ensure that culpable and discreditable conduct is exposed and
brought to public notice; that suspicion of deliberate wrongdoing (if justified) is
allayed; that dangerous practices and procedures are rectified; and that those who
have lost their relatives may at least have the satisfaction of knowing that lessons
learned from his/her death may save the lives of others –see by analogy, R (Amin)
v. Home Secretary).
As we understand it, HM Coroner has no intention of carrying out any individual
inquests into deaths at the hospital in the relevant period. This obviously
strengthens the argument for a public investigation of the systemic failures that led
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to what appear from the Healthcare Commission report to have been a large
number of avoidable deaths.
Moreover, and even without reliance on Article 2 and Article 3 of the ECHR, we
consider there is a close analogy between the position in the present case, and
that in relation to the Shipman Inquiry, a case where initially the Secretary of State
refused to hold an inquiry in public. In a decision concerning that inquiry under the
name of Wagstaff v. Secretary of State for Health [2001] 1 WLR 292, the
Divisional Court (Kennedy LJ and Jackson J.) considered what were the material
considerations which the Secretary of State should have had regard to when
deciding not to hold an inquiry in public- see at page 319Gff: The following are
directly relevant in the present case:
First, the fact that when a major disaster occurs, involving the loss of many lives, it
has often been considered appropriate to hold a full public inquiry, and the case for
such an inquiry would seem to be enhanced where: (a) there is doubt as to how
many and which deaths are properly attributable to the known cause of many other
deaths; (b) the fact that deaths occurred over along period without detection is
suggestive of a breakdown in those checks and controls which should operate to
prevent such a tragedy; (c) as a result there is likely to be a widespread loss of
confidence in a critical part of the National Health Service which needs to be
addressed.
Second, there are positive known advantages to be gained from taking evidence in
public, namely: (a) witnesses are less likely to exaggerate or attempt to pass on
responsibility; (b) information becomes available as a result of others reading or
hearing what witnesses have said; (c) there is a perception of open dealing which
helps to restore confidence; (d) there is no significant risk of leaks leading to
distorted reporting.
Third, if the inquiry has been conducted in public, then the report which it produces
and the recommendations which it makes will command greater public confidence.
Since all members of the community, especially the elderly and vulnerable, have
been accustomed to place great trust in their [hospital], such restoration of
confidence is a matter of high public importance.
We do not consider that the reviews you have thus far announced are sufficient to
meet the very serious public concerns raised by the Healthcare Commission report
or the State’s obligations under Articles 2 and 3. We consider that the proper and
most effective way to proceed is by way of Public Inquiry. Amongst the concerns
which we think should be considered by any Public Inquiry are the following:
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1
Establish the extent of the impact of the failures at Stafford Hospital (SH)
a. Number of deaths
b. Number of cases of neglect/inadequate treatment
2
How did MS NHS FT (the Trust) achieve both 3 star rating and
foundation trust (FT) status during this period?
3
Did the pursuit of FT status contribute to the failures by the Trust? If so
how should these processes be changed to avoid repetition?
4
Did the imposition of NHS targets, including financial, contribute to the
failures by the Trust? If so how should these processes be changed to
avoid repetition?
5
What factors should have alerted regulators and others to the fact that
there was a serious crisis at SH? Which bodies should have been
alerted, when and what action should have been taken? Did all the
bodies have the relevant powers to be able to take timely & effective
action to limit/avert the crisis?
6
Was the NHS Complaints procedure adequate in ensuring that patients’
complaints were dealt with adequately? Do recent changes to the
process remedy any deficiencies?
7
Why did none of the clinicians either at SH or wider raise concerns about
failures at the Trust? Are there measures which need to be taken to
ensure this valuable safeguard is in place?
We formally ask the Secretary of State therefore to:
1. Reconsider his decision not to hold a public inquiry and confirm, in the light
of such reconsideration, whether he intends to hold a public inquiry, and if
so, the intended terms of reference or,
2. If following such reconsideration, he does not so intend, to provide us with
written reasons of the decision to refuse to hold such a public inquiry into
the matters arising from the Healthcare Commission report, that we may
consider those reasons and make a judicial review challenge if appropriate.
Please treat this letter as a pre-action protocol letter for judicial review.
We look forward to hearing from you within 14 days as suggested by the protocol.
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Yours faithfully
Leigh Day & Co
Cc:
Office of the Solicitor,
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