Medics ‘should be charged’ over 10 year-old’s negligent death

Martin Shipton

Those involved in causing the death through medical negligence of a 10-year-old-boy in 1990 should still be prosecuted, a report from a former chief police officer has concluded.

Robbie Powell, who lived with his parents in Ystradgynlais, died of Addison’s disease, a rare illness that stops the adrenal glands pumping vital hormones.

Doctors did not act on a suspicion that he had the condition and he did not receive the treatment that would have saved his life.

The Crown Prosecution Service concluded that too much time had passed since Robbie’s death to make a prosecution feasible and fair.

But a report from former Hampshire Police assistant chief constable Dr Steve Watts has concluded that a prosecution could still go ahead.

Now acting as a consultant on complex criminal cases, Dr Watts’ report states: “The investigation into the circumstances of Robbie’s death by DCI [Robert] Poole [of West Midlands Police in 2000] was professional and thorough. Given that he was following two incompetent investigations and that a significant period had passed, he is to be commended for the thoroughness of his work. I do not think that he could have done more.

“I am of the view that the Crown Prosecution Service (CPS) should have preferred charges against all five doctors, based upon the prosecution file prepared by DCI Poole. In my opinion, both statutory tests for prosecution were met. There was, and there remains, sufficient reliable, admissible, and credible evidence to provide a realistic prospect of conviction. Given the seriousness of the offences and their impact upon public confidence in the medical profession, there was, and there remains, an overriding public interest imperative to prosecute.

“ I note that the CPS, in respect of the proposed charge of manslaughter, take the view that there is insufficient evidence to link the negligent acts or omissions of any doctor with Robbie’s death. It appears that their key concern is the diversity of the available expert medical opinion. It seems to me that the evidential difficulties arise from attempts to identify gross negligence substantially contributing to Robbie’s death on the part of individual doctors.

“ It is not clear to me whether, and to what extent, consideration was given to ‘Corporate’ or ‘Joint’ culpability. It occurs to me that the grossly negligent acts and omissions that led to Robbie’s death began with his admission to hospital on 5 December 1989, and that they were cumulatively negligent. The evidence is clear that if one of the doctors had behaved professionally and competently at any stage up to 17 April 1990, then Robbie would not have died.

“It occurs to me that the forgeries and the conspiracy by the doctors to pervert the course of justice are not only offences in themselves, but may also provide evidence that the doctors realised that Robbie’s death had been caused by their gross negligence. This significant inference does not appear to have been made by the CPS.

Corporate Gross Negligence Manslaughter

“ I take the view that the CPS should have considered the potential for Corporate Gross Negligence Manslaughter on the part of the NHS Trust and/or the surgery. At the same time, they should have considered Joint enterprise culpability in respect of Gross Negligence Manslaughter in respect of all the doctors who failed to care for Robbie properly.

“ Healthcare locations, including hospitals and surgeries, and, when on an outcall, patients’ homes, are, I understand, deemed ‘workplaces’ within the meaning of the Health and Safety at Work, etc. Act, 1974. The Police, the Health and Safety Executive (HSE), and the Healthcare Inspectorate Wales (HIW) can prosecute health trusts and doctor partnerships for failing to ensure the health and safety of employees and non-employees, including patients. Indeed, an MoU exists between the HSE and HIW in this regard. It does not appear that there was any consideration of the liability of the NHS trust and the doctors as a legal partnership in this regard, despite these matters being drawn to the attention of HIW by Mr William Powell. They chose not to take any action. It is still open to the Police, HSE and HIW to act in this regard.

“Further, Section 7 (a) of the Health and Safety at Work etc, Act, 1974 places an obligation on employees (which may include doctors in a partnership, and certainly includes doctors in hospitals) ‘…to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work’. It does not appear that there was any consideration of the liability of doctors who attended Robbie between 5/12/89 and 17/4/90 in respect of failures to take reasonable care for his health and safety. It does not appear that there was any consideration of the liability of the individual doctors in this regard, despite these matters being drawn to the attention of HIW by Mr William Powell [Robbie’s father] They chose not to take any action. It is still open to the Police, HSE and HIW to act in this regard.

“It is of note that in 2015, the HIW conducted a thematic analysis of General Practitioner arrangements in Wales. This was in response to a report published by the Welsh Government in 2012 in respect of the death of Robbie Powell. It is, therefore, clear that the HIW were aware of the issues in the Robbie Powell case and the potential breaches of the Health and Safety at Work etc. Act 1974. It is concerning that this thematic analysis, which examined several GP practices, did not include the Ystraddgynlais GP practice, which had been responsible for Robbie’s care in the lead-up to his death.

“The CPS has indicated that there was sufficient evidence to prosecute the doctors for forgery and perverting the course of justice. The first test for prosecution was, therefore, met. They then move on to the public interest test and conclude that due to the passage of time, and their being provided with an ‘unqualified’ assurance that they would not be prosecuted. These issues are also cited in respect of proposed manslaughter charges. “In my view, these arguments are specious.

Failings in the justice system

“The delays referred to by the CPS were caused by failings in the justice system and relate to two incompetent police investigations and the CPS’s admitted failings. The first two police investigations into the death of Robbie Powell by Dyfed Powys Police were professionally incompetent and not conducted in accordance with best practice. In particular, the investigations were not professionally led or structured.

“They failed to follow all lines of enquiry and, in doing so, failed to obtain the available evidence. In addition, the flawed investigations significantly delayed an effective investigation. The CPS’s consideration of the evidence provided by the police was flawed in many ways, not least in considering potential charges without the benefit of s9 Witness statements, which they failed to request from the police before deciding upon charges with inadequate information.

“An ‘unqualified’ assurance regarding prosecution, which has also been referred to in the papers as a letter of immunity, is cited as a bar to prosecution. This is a reference to a letter sent by D. Ch Supt Thomas to the doctors who had been arrested and interviewed in the second Dyfed Powys Police investigation. This is clearly not a letter, either providing or intended to provide immunity. D. Ch. Supt. was not able to and did not have the authority to offer immunity. “Secondly, the letter does not state that any immunity is conferred. This is a routine letter sent by the police at the conclusion of an investigation to persons who have been arrested and/or interviewed under caution and are on police bail or awaiting the outcome of the investigation. The letter indicates merely that there will be ‘no further action’. Unfortunately, the author of the letter did not include the phrase ‘…unless further information comes to light’, or a similar clause.

“I have written numerous such letters, as have countless other SIOs [senior investigating officers]. In no way are such letters intended to confer immunity, nor are they taken as such by recipients. They are merely a notification that an investigation involving that person has concluded and that, at that stage, no further police action will be taken.

‘Astonishing’

“To suggest that this letter is a bar to prosecution is, in my view, astonishing and a complete misunderstanding of its intention and effect. I do not doubt that if charges were now laid against the doctors, any defence would raise a strong argument for abuse of process. A competent prosecution would be able to successfully argue against that assertion. The decision on whether an abuse of process arises is for the presiding judge.

“There has been a significant passage of time since the proposed offences were committed, and the Crown Prosecution Service has taken a firm position on charging. However, in my view, the doctors should have been charged with the offences proposed by DCI Poole in his prosecution brief. I see no bar to prosecutions now being undertaken if the CPS were to amend its position.

“If a decision is made to pursue prosecutions at this time, in that eventuality, my suggestions would be;

* That a panel of experts from relevant professional disciplines are asked to review the medical records, they should be asked to initially provide their individual views on the standard of treatment for each doctor and on the overall treatment of Robbie between 5/12/89 and 17/4/25.

“They should then come together in a moderation conference, which should be video-recorded for its entire duration, to hear the views of all and to consider their conclusions in that light.”