Many doctors and nurses must be trying to understand what went on at War Memorial Hospital, Gosport, especially those who regularly look after patients who are approaching the end of life. Yet, reading the independent report, its magnitude, complexity and ugliness forced me to look away. With its chronological sweep (27 years), terrifying number (‘the lives of over 450 patients were shortened while in the hospital’) and interminable bureaucratic delays, it is very hard to comprehend. Easier to turn away, assume that such things could not happen in the ‘modern’ NHS, and spend time considering brighter things.
Yet we must all try to understand. If the report remains in the archives, its conclusions unseen by the general NHS workforce, nothing will have been gained. Hence this essay.
The report depicts a culture in which elderly and frail patients were regarded as burdensome individuals who could ‘talk themselves onto a syringe driver’; it relates how patients were transferred from squeezed medical or surgical wards for ‘rehabilitation’ while clearly at risk of further deterioration. It portrays an environment where expectations for recovery after transfer were so low, anticipatory prescriptions for diamorphine were written at doses sufficient to induce terminal sedation, sometimes without prior medical assessment. The report must undermine the public’s faith in how the NHS treats frail patients. It is likely to become a major piece of evidence in the argument against assisted dying.
This article explores two broad points – personal vs institutional culpability, and the concept of the ‘double effect’ – that came to mind as I read the report.
Murder, euthanasia, gross negligence or just bad medicine?
Many observers, including for example the Channel 4 political correspondent Michael Crick, have asked, ‘Why wasn’t this murder?’
The report presents a clear association between the use of diamorphine in syringe pumps and death, as illustrated in the graph below. Most patients died in the following 48 hours. The yellow bars show the proportions where opioid was given without clear clinical justification.
On the face of it, this looks like deliberate killing. Sir Liam Donaldson, Chief Medical Officer, in commissioning an interim investigation, invoked the case of Harold Shipman, whose crimes were contemporaneous with events in Gosport;
‘Sir Liam proposed that he should commission for this role Professor Richard Baker, who had carried out a similar audit of deaths attributable to Harold Shipman. Recognising that this “would clearly raise the temperature locally and nationally”, Sir Liam said: “he is very sound and we cannot risk a poorly conducted methodology”.’
Individual criminality was considered by the police (during 3 separate investigations), the Crown Prosecution Service and the coronial jury, but at no point was an arrest made. Dr Barton was interviewed by the police, but presented herself voluntarily. The emails, memos and transcripts show how difficult it was to attribute events on the wards to one person alone. Others were involved, responsibility appeared to be distributed, drawing an uninterrupted between one person’s actions and the patients’ deaths was impossible… the system as a whole required scrutiny. An early, internal opnion provided by a legal researcher in the Hampshire Constabulary illustrates this:
“From what little I know of the circumstances surrounding the case you are dealing with it seems unlikely that manslaughter would be appropriate for the following reasons: 1. The ‘neglect’ was more of a corporate issue than individual to one particular person. 2. The death occurred for a number of reasons and was not the direct and immediate result of ‘neglect’. 3. Were the actions of the hospital staff gross negligence or merely inadvertence?”
In the arena of criminal law where significant doubt means little likelihood of prosecution, the prospect of Dr Barton coming to trial faded.
Even if malign intent along the lines of Shipman could not be established, the shortening of lives must, surely, count as involuntary euthanasia. This potent word was openly considered by the GMC in their Fitness to Practise investigation.
“Routine use of opiate and sedative drug infusions without clear indications for their use would raise concerns that a culture of ‘involuntary euthanasia’ existed on the ward.”
But once again, the organisation as a whole came under scrutiny;
‘There is a possibility that prescriptions of subcutaneous infusions of diamorphine, midazolam and hyoscine may have been routinely written up for many older frail patients admitted to Daedalus and Dryad wards, which nurse then had the discretion to commence. This practice if present was highly inappropriate, hazardous to patients and suggests failure of the senior hospital medical and managerial staff to monitor and supervise care on the ward.’
Culpability is once again seen to lie across the clinical and managerial hierarchy.
At the inquest, which examined the treatment of 10 patients, diamorphine was felt to have significantly contributed to death in 5 cases, and to have been prescribed inappropriately in 3 of the those 5. The overall picture was not one of sustained or pre-meditated killing. The families were dissatisfied by this finding, regarding it as a whitewash. The Coroner’s instinct, illustrated in his words to the jury, was clearly to look at the ‘regime’ as a whole:
On Day 15 of the hearings, the Coroner gave an indication of the type of issues that he wanted the jury to deal with: “I think the areas of concern are the clinical regime at Gosport. I think that has got to be a concern to me and to the jury. The degree of supervision; the fact that it is a GP unit I think may have affected the regime in the hospital – the input of the consultants – I wonder if that was sufficient and whether there was enough involvement? … I think the question of appropriate opioids, whether the dosage was appropriate, whether the medication … played a material part in death … It seems fairly significant, being perhaps the most significant factor for the jury.”
Gross negligence manslaughter was also considered, especially by an external expert;
‘Professor Livesley also confirmed that he would support allegations of assault and “the unlawful killing of ————- by gross negligence” against nursing staff and Dr Barton, and suggested that the police undertake other enquiries to determine if other patients at the hospital had been similarly affected.’
In the end, the only sanction taken against Dr Barton was the GMC finding that her fitness to practise was impaired by serious professional misconduct, based on a Fitness to Practice (FtP) panel’s assessment of her treatment of 12 patients. This came after 5 Interim Orders Committee (IOC) meetings that were intended (after Shipman) to identify at an early stage if a doctor is a present danger to patients. The FtP investigation took place 6 years after it was initially scheduled, at the request of the police:
By accepting the police’s request, the GMC’s investigation effectively stalled. As a result, the hearing which had been set for April 2003 did not take place until June 2009. By the time of the sanctions hearing there had been a ten-year delay which in itself affected the sanction which was imposed. The Panel notes this as one of a number of examples of a process of accountability being undermined by deferring to another organisation.
Dr Barton was found deficient in nearly all areas of medical practise, including assessment of patients, note-keeping, prescribing, failing to consult with colleagues, failing to organise cover when off duty, failure to keep up to date, failings in communication and maintenance of trust… everything. Bad medicine, and nothing more.
The ‘double effect’, therapeutic nihilism and distinguishing right from wrong
The Gosport scandal revolves around the ‘double effect’, that is the unintended (we presume) consequence of shortening life while trying to alleviate suffering. The double effect is real, an accepted and acceptable phenomenon. Finding the balance between comfort and respiratory or neurological depression is a skill that requires experience, careful assessment, re-assessment and monitoring.
The [FtP] panel heard evidence from Professor Ford about the ‘double effect’ of drugs given to seriously ill patients to palliate symptoms (that is, to relieve symptoms without treating the cause). The panel highlighted that Professor Ford had said that these types of drugs “may lead to a shortening of life through adverse effects. That is well accepted as being a reasonable and appropriate aspect that may happen when one adequately palliates symptoms.”
Dr Barton openly accepted that the double effect was a ‘price’ that sometimes had to paid for relief;
The panel said that Dr Barton was “clearly aware of the principle of double effect” and when asked about the risk of her prescribing causing “respiratory depression or lowering [a patient’s] conscious level”, the panel highlighted that Dr Barton said: “I accepted that that was a price that we might have to pay in exchange for giving him adequate pain and symptom relief.”
Yet however wayward her practise had become, the senior doctors around her saw no problem. The GMC panel heard the following evidence;
“…at the time in question, the presence of Consultants on Dryad and Daedalus wards was extremely limited. Although the Consultants who gave evidence before the Panel were supportive of you, their evidence tended to suggest that they had not critically examined your prescribing practice, and in many instances had not appreciated your admitted prescribing failures. Had they done so, this should have resulted in appropriate changes being made to your prescribing practice.”
This makes it sound like a failure of supervision. But enhanced supervision occurs when clinical supervisors get a sense of sub-standard performance, or receive comments from others in the clinical area. That did not happen here. Why no sustained alarm bells? Why no correction? Could it be that on cursory review, nothing drastically outside accepted practice was observed? The grey area that is the double effect was too broad, too inviting of subjective interpretation, a zone of shadows where right merged too easily with wrong.
If we put criminality aside (many will not), we must ask whether Dr Barton simply became blinkered in an area of clinical medicine – end of life care – that requires continual self-analysis and reflection? Were the normal corrective influences (feedback from colleagues, mainly nurses in this case, or families) suppressed by a domineering and ‘brusque’ personality? Did her (unconscious) clinical leadership colour the attitude of the whole ward, the whole institution, such that therapeutic nihilism reigned. A patient had only to deviate slightly from an improving trajectory, or become ‘agitated’, to fulfil the profile of a frail, elderly person entering the terminal phase of life, and therefore a candidate for ‘comfort measures’/’TLC’ or any other number of euphemisms mentioned in the report.
Early on, deference was paid to Dr Barton’s position. A document nested in the report – the earliest one – contains an apology to Dr Barton for appearing to question her ‘clinical judgment’.
But isn’t this whole scandal about clinical judgement? A doctor’s incorrect judgement that her patients were dying. Fear of causing offence points to a traditional reverence for the doctor, a hierarchy that exists now and is likely to remain, based on respect for their deeper understanding of pathophysiology and clinical patterns. This hierarchy also assumes finer moral instincts, but there is no basis for this. Nurses have equally good instincts when it comes to sensing what is right and what is wrong. However, most healthcare workers will recall instances where a nurse’s misgivings have been quashed because they do not appear to understand the ‘bigger picture’.
There seems little point in forming our own judgement of Dr Barton, given the careful scrutiny afforded by detectives, a coroner, a jury, various professionals and experts, all specifically tasked to devote time and serious mental energy to the tragic issue. Yet judge we will, because we are human. More useful than judging though, is thinking. Could this, or a more subtle version, occur where we work? How sure are we that life is not becoming devalued in pressurised clinical areas where patients with an uncertain prognosis are admitted? Are deaths being counted and reviewed? Is training in end of life care provided? Is eccentric practice being highlighted by those who find it… odd? Are staff empowered to question ‘difficult’ clinicians? I draw a bleak picture, but our NHS is too massive for the assumption that all is well, all the time, to go unchallenged.