- When giving evidence to the Inquiry, Professor Bowers KC, an expert in employment law, explained the tensions that arise between the requirements of employment law and the interests of patient safety:
“[T]here’s a tendency to consider employment issues separate to the issues of patient safety so that we look as employment lawyers, for example, at whether the employee might have a potential claim for constructive dismissal or have a valid grievance and perhaps put issues of patient safety into another box.”1
He explained that “there’s usually not a right to suspend. So suspension would be a potential breach of contract, could lead to a constructive dismissal.”2 All of these elements featured in the discussions between the HR department and the solicitors representing the Countess in 2016.
- In my view, as a general principle, where safeguarding or other concerns about patient safety are raised in good faith, the balance to be struck by a responsible NHS employer between the risk of an employment claim and the risk to patient safety comes down firmly in favour of protecting the patient. In most cases within the NHS, deployment to another part of the organisation will be possible. Where suspension is the only option that will allow a fair investigation of concerns, while protecting other patients, that will be a defensible choice.
- As I have explained at length in Chapter 12, when safeguarding concerns are raised, there is a duty on a hospital (and the senior managers within it) to take action. In schools, there is a clear understanding of what to do when concerns about, or suspicions of, deliberate harm are raised against teachers. The most usual and correct response is to move the person about whom the concern has been expressed to a post where they can do no harm, or to exclude them from the school while the matter is investigated, either internally or by the police depending on the nature of the allegation. This is always described as a neutral act, and often the complaint or concern comes to nothing. I acknowledge that it is deeply unpleasant and distressing to be the subject of such a complaint, particularly when the complaint is unjustified, but that outcome is undoubtedly better than leaving in place a person about whom there are concerns or complaints who goes on to cause (further) harm. Teachers and head teachers understand that. Doctors, nurses, managers and all those who work in the NHS must understand it too.
- Professor Mary Dixon-Woods spoke about the lack of clarity in employment policies for handling serious concerns:
“I think there is an absence of clarity about what you do in — confronted with an unexpected series of highly transgressive events, particularly in those caring for children.
…
If somebody is suspected of fraud, there is a series of steps that the organisation knows what to take. I’m not sure that the same clarity is there in [the] event that somebody is suspected of murder, for example, or attempted murder, so what may happen is that patient safety incidents are handled through patient safety incident processes, they are … effectively are sequestered from issues to do with discipline and HR issues, so may enter a different process which remains confidential and those two systems don’t necessarily handle very well issues of highly transgressive behaviour.”3
- That is what happened at the Countess. There was an example of the separation of HR and safety processes when Ms Millward dismissed Ms Lawrence’s concerns about the repeated appearance of Letby’s name in the appendix to the Thematic Review (see Chapter 6). Ms Millward considered this was an HR matter. The RCPCH’s recommendation of an HR investigation into the concerns about Letby was, as I have explained elsewhere (see paragraph 20.103, Chapter 20), misguided – and was ignored by the Countess in any event.
- There is no step-by-step guidance on what to do if suspicions of deliberate harm or even killing have been raised in a hospital. This suggests there is only one thing to do when that point has been reached – contact the police. I reject the assertion of the senior managers that they did not know what to do. They knew they should contact the police and, after many months of delay, that is what they did. Their repeated request in submissions for guidance about what to do when there is no evidence is disingenuous. They were not in the position of having no evidence in support of the doctors’ concerns: there was a marked increase in the number of deaths; the deaths were preceded by collapses which were unexpected and unexplained; most of them occurred between midnight and 04:00; the same nurse, Letby, was on duty for all the deaths and most of the collapses; the babies did not respond to resuscitation as they should. The type and quality of the evidence was a matter for the police to investigate. The fact that the managers did not believe what they were being told is nothing to the point. Once suspicion of harm is reported in good faith, managers and leaders must act.
- There will be cases, as at the Countess in the early months, when there may not be sufficient information to lead to suspicion, but there is an emerging concern of harm by an individual. In that situation, the first step is to protect each child by moving the person who may be responsible. In the ordinary course of events, internal investigations, like those done by Dr Brearey, would reassure those with concerns that there is a clinical explanation, or they would have the opposite effect and lead to greater concern and suspicion. Since life is rarely neat, it is more likely that the internal investigation would not help one way or the other. In that situation, the ideal way forward would be to take the emerging concern to a suitable expert, or experts, from another hospital, who would review the case or cases and give their views. There would have to be full and frank disclosure to them of all the relevant background and any emerging concerns. Depending on the outcome of that review, either the matter would stay where it was or be reported to the police.
Contractual duty to report safeguarding concerns
- Professor Bowers KC was supportive of including in employment contracts a term requiring the employee to make safeguarding referrals whenever appropriate: “[Y]ou could put it in the employment contract as a duty. That would be another mechanism because, as you say, not everybody even within the health service would be under professional duties.”4 There can be no reasonable objection to this.
- All staff who may come into contact with vulnerable patients (nearly everyone) should receive safeguarding training which includes the fact that it is a term of their employment contract that they make a safeguarding referral where they (or someone who has confided in them) have concerns that a member of staff has harmed a child. In that situation, the person complained about is moved from their role while the matter is investigated.
- For safeguarding referrals involving babies and young children, the investigation could be done by the Maternity and Newborn Safety Investigations programme (assuming it is properly resourced). Alternatively, it would go to the police through the safeguarding route.
Changes to HR policies in Trusts
- Most witnesses agreed that HR policies need to be rebalanced in favour of patient safety. For reference, the Countess’s current policies are: the Disciplinary Policy, the Grievance Policy and the Freedom to Speak Up Policy.
- All employment policies should include a clearly stated overriding objective, which is the safety of patients.
- Grievance policies should be amended to make it clear that, where a grievance is raised after disciplinary procedures have been started, the grievance will be considered either after the conclusion of the disciplinary process, or at the time of the disciplinary process.
Contractual duty upon managers
- The suggestion of a contractual duty upon managers to take seriously, and to respond to honestly held concerns and act upon them, ought to be uncontroversial.
- Professor Bowers KC supports such a duty:
“[I]t would be very useful to have a duty on the employer to consider the disclosures because at the moment, there’s no obligation to do that. There’s protection for the whistleblower in whistleblowing, but there’s nothing of a duty on the employer to follow up on the disclosed and I think that is an important thing; that actually would give succour to or support to whistleblowers who often feel extremely beleaguered that they have gone out of their way, sometimes lost their careers, to make information available and then nothing is done with it.”5
Suspicion of Deliberate Harm Protocol and guidance
- Professor Bowers KC, Professor Dixon-Woods and Sir Robert Francis agreed about the need for a protocol that sets out the actions to take when “transgressive behaviour” is suspected.6 I agree. Safeguarding requirements are instructive in this regard. Organisations must ensure that individuals know what to do when they suspect a member of staff (or anyone else) is harming children (or other patients).
- Sir Robert Francis underlined that:
“[I]t must be a system which makes it clear that raising a concern of that serious nature obviously needs to be done in good faith but you — it doesn’t matter if you turn out to be wrong, you are raising something that requires investigation and you are entitled and indeed it is your duty to do that. But then people need to know what to do after that and naturally it is probably a protocol that needs to be agreed, not only within the health service, but also with other agencies. You know, something similar to the Child Death Review, you need a multi-agency response and you need to know whether you should be reporting to the police or whether if you do report it to the police you can be carrying on some other investigation of your own and so on. These are all difficult issues and often time is at a premium in doing the right thing quickly. So absolutely, you need clear guidance which needs a little bit of training but it also needs to be sufficiently clear that even if you are untrained, you can pick it off the internet or wherever and use it [emphasis added].
So, you know, a little like the sort — of it was mentioned I think last week, the sort of checklist a pilot would have to deal with a crisis. Checklists do work in emergencies much as they do in less certain situations.”7
- Trusts should be required to embed the Suspicion of Deliberate Harm Protocol and guidance (see Recommendation 9) within their hospital. No member of staff, clinical or managerial, should be in any doubt about what to do when suspicions are raised that a member of staff (or any other person) has caused harm to a child. If the suspicions are obviously unfounded or malicious, the Trust should document precisely why it has considered the concern to be malicious or unfounded, and why it is not going to take any further action. It should be completely understood that there is no evidential requirement before action is taken.