Fluid deaths inquiry raises questions about trust "burying" evidence

The Hyponatraemia Inquiry is being heard at Banbridge court house

The Hyponatraemia Inquiry is being heard at Banbridge court house

By Niall McCracken

THE inquiry into the deaths of children through fluid mismanagement here has reopened, raising questions about why one of the trusts involved kept back a critical report from the coroner and why it has never admitted liability a decade on.

The Inquiry into Hyponatraemia-Related Deaths launched into a new phase exploring the governance issues: essentially how the trust corporately and structurally managed after the medical disaster of the death of a child – nine year-old Raychel Ferguson at Altnagelvin Hospital in 2001.

For more background information on the issues being examined by the Hyponatraemia Inquiry please click here.

In her address today, Counsel to the Inquiry, Monye Anyadike-Danes QC, said that a report commissioned by the then Altnagelvin Trust (now the Western Trust) from a medical expert in Dublin, Dr Declan Warde, raised serious concerns about the care received by nine-year-old Raychel but that this was never sent to the coroner who investigated her death; nor to Raychel’s family; nor was it used in any internal investigations into Raychel’s death which were supposed to establish what could be learnt from it.

It had only come to the inquiry following an issue on discovery and a relinquishment of privilege, she said.

The chairman of the Inquiry, Mr Justice O’Hara, agreed with counsel for the trust, Mr Michael Stitt QC that under existing legal parameters there was no duty of disclosure to a coroner of such material but he added:

Mr Justice O’Hara: “I think there might be a distinction here between what lawyers see as our world and what the public sees, and the difference might be summarised as this: if a member of the public, for instance Mr and Mrs Ferguson, know, as they now do, that Altnagelvin Trust received an expert’s report in preparation for the inquest which was critical of Raychel’s care and buried that, as they might see it, they might find it very hard to reconcile that with the same hospital saying, ’We’re telling you what we know, we’re being open with you about what we know and we will learn the lessons from this disaster’.”

Mr Stitt said any change to the rules governing disclosure would require a statute and “certainly would drive a coach and horses through the law as it currently stands and as it stood in 2001”.

Mr Justice O’Hara: “And the public might think that if a hospital who has treated a child who has died then receives a report, preparing for an inquest, which says that the hospital’s treatment was defective and contributed to the child’s death, then since the public has paid for that report and since the public is paying for the hospital services in the first place, then the public is entitled to know what the contents of that report are. That’s the issue, Mr Stitt. I’m not disagreeing with you, but there’s also another point about whether the trust or a trust, any trust for that matter, should then be allowed to run a line at the inquest which is inconsistent with its own expert report.”

The Inquiry also heard Ms Anyadike-Danes speak of the refusal to date of the Directorate of Legal Services (DLS), which manages all health and social services’ legal cases, to concede liability for Raychel’s death more than a decade after her parents had lodged civil proceedings against it.

Ms Anyadike-Danes QC : The trust’s denial of liability was comprehensive, and the DLS wrote to Mr and Mrs Ferguson’s solicitors to emphasise that the trust does not accept that it or its staff were negligent or that if there was any failure to apply appropriate standards that the failure caused or contributed to the death of Raychel Ferguson and, therefore, liability is denied.Well, given the verdict at inquest, the experts’ opinions and the findings at the review, it’s not immediately apparent, even now, why liability was not admitted then and has not yet been admitted. It has remained the trust’s position throughout all those intervening years and the PSNI investigation and these deliberations at the inquiry that there was no negligence on its part.

“The depth of the feelings of Raychel’s parents about the trust’s failure to concede liability for their daughter’s death is reflected in the opening submissions that were delivered by their senior counsel and indeed their own testimony.”

“Any unjustified denial of liability is not only a clinical governance matter and an issue touching upon public confidence in and respect for the health service but as you might find, Mr Chairman, is of concern because of any additional and unnecessary hurt and distress that might be caused to the family by such a failure to admit fault.”

“But also it impedes open investigation and, therefore, from the point of view of this inquiry, and governance, learning lessons and disseminating those lessons, but it will be a matter for you to determine, Mr Chairman, in the light of all of this, the appropriateness of the trust’s conduct towards the family.”

Mr Stitt QC acknowledged that the findings of the coroner had been known since 2003 but said “there are and there were certain technical issues” which remained.

He said that since the inquiry was set up in 2005, the trust had stated that “if it was found to be at fault in any way, then we make it absolutely clear that it would be deeply apologetic for its failings”.

Mr Stitt QC: “The position is that the trust has maintained its position since the inception of the inquiry that liability has not been admitted, but it will read the findings of the inquiry carefully and will respond appropriately to the details of your findings, sir, when they are made. That has been the position which has been articulated more than once in correspondence and more than once in the High Court.”

Mr Justice O’Hara: “I’m sorry, does that mean the trust’s position on the High Court litigation is pending while I finish the inquiry and write the report?”

Mr Stitt QC: “Yes.”

Mr Justice O’Hara: “The trust has heard a run of witnesses go through the witness box, one after another, and admit in different ways failing after failing after failing, and it can’t make a decision on what to do in the High Court until I write a report about that? I’m sorry, Mr Stitt, that’s almost unbelievable.”

Mr Stitt QC: “Well, I’m sorry that it is, sir, but the decision was taken that if this matter is going to inquiry, it will be thoroughly examined and all of the relevant factors will be looked at. It’s quite clear that everyone in this inquiry, this section of the inquiry,has learnt a lot since February of this year and will continue to learn more in the next week or two.”

The Chairman and Mr Stitt also had an exchange over comments which have been made about statement-taking within trusts in preparation for inquests with Mr Stitt raising concerns about “implied criticism that there’s a conspiracy to make sure that everything tallies”.

Mr Stitt said it was his “firm instructions” from the Directorate of Legal Services “that they would never instruct a witness what to put, the details of what to put in a statement”.

He said witnesses might be asked to correct spelling or grammatical errors or to provide important information they had failed to in the original statement.

He said: “In my submission, it would be wrong to simply infer that because statements are sent back or because there are discussions with witnesses, or there is a discussion about their statements, that there’s an implication that they have been got at.”

The chairman said these were legitimate examples but that, unfortunately, he had examples at the inquiry of something being done which did not fit into those categories – and he gave an example from earlier evidence about the death of another child, Claire Roberts, also nine years years old, in 1996, by one of the doctors who treated her.

Mr Justice O’Hara: "I think he at least regretted that before he left duty on a particular evening, he had not ensured that Claire was admitted into paediatric intensive care. He put that into his statement and he was advised that it was inappropriate for that to be in the statement and that it might be removed. The person who advised him of that was hugely senior to him in the Health Service and he took the advice of a much more senior person. So what was in fact removed from the information forwarded to the coroner in that instance was at least a regret, if not an acknowledgement, by a doctor that the doctor had made a mistake.

“And the advice that was given to Dr [David] Webb as he explained it to the inquiry was that it’s not for you to say what mistakes you made or what went wrong, it’s for the coroner to find. Now, that’s not a typo, that’s not correcting grammar, that’s not a failure to address an issue, that’s something which goes centrally to the role of the coroner. If I understood that the referring back of statements was only along the lines that you have set out, I would not have a concern at all. Not one concern, Mr Stitt. My concern, as I’m sure is understood by DLS and by the Royal, goes much deeper than that.”

© The Detail 2013

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