Lucy Letby murders: Robert Francis’ and Bill Kirkup’s messaging supports government’s choice of a non-statutory inquiry

Dr Minh Alexander retired consultant psychiatrist 20 August 2023

The government has announced a non statutory inquiry into the Letby affair. Two of its regulars, Francis and Kirkup, have provided supportive messaging.

Robert Francis’ rise and failure to protect NHS whistleblowers

Robert Francis is a medical negligence lawyer who did well after chairing the public inquiry into the Mid Staffs hospital disaster.

In 2014 he was knighted and got a job as a Care Quality Commission non executive director.

In his poshed-up, high profile new persona, he was also asked in 2014 to conduct the Freedom To Speak Up review into NHS whistleblowing failures.

Francis proved himself to be a loyal servant of power.

He acknowledged the weakness of UK whistleblowing law which had failed UK whistleblowers and the public so badly since 1999 but refused to recommend law reform, on the grounds that it would take too long.

He claimed that a non evidence-based model of toothless local Guardians backed up by a toothless National Guardian would change culture more quickly.

When his wobbly model later did not meet expectations, Francis changed tack and argued instead that culture change required time.

That would be the precious time in which vital reform of UK whistleblowing law could have taken place, but did not, because of Francis’ inadequate recommendations.

Importantly, Francis also dropped his own recommendation from the Mid Staffs public inquiry to criminalise whistleblower reprisal.

In Francis’ report of the Freedom To Speak Up review, he did not even acknowledge that he had ever made such a recommendation. Rather, he appeared faintly derisive of contributors who asked for criminal sanctions. In his Freedom To Speak Up review he wrote:

“A small number even wanted to see criminal and custodial sentences.”

Another betrayal of the public interest is that Robert Francis expressly left the investigation of whistleblowers’ concerns entirely in the hands of NHS employers.

He made it clear that neither local Freedom to Speak Up Guardians nor the National Guardian could have any role in investigating whistleblowers’ concerns.

This is one of the most indefensible and dangerous outcomes of Francis’ Freedom To Speak Up review.

Francis covered his governance shame with the skimpiest fig leaf by adding that NHS employers could call in independent, external investigators sometimes, if they wanted to. Even then, he stressed that whistleblowers should not be entitled to such independent investigation in all cases.

Investigations controlled and paid for by employers are de facto tainted and cannot be claimed to be reliably independent.

It is of course reasonable in some circumstances for incidents to be locally investigated in the first instance. But the most serious incidents should always be fully independently externally investigated.

For example, in NHS mental health services, homicides by patients should always trigger an externally commissioned, external independent investigation under HSG (94) 27.

In the Letby case, the Countess of Chester Hospital NHS Foundation Trust wasted critically valuable time by bizarrely commissioning a review by the Royal College of Paediatricians which did not involve case note review of the affected babies who had collapsed and died.

This inexplicable omission helped the trust to suppress the scandal for a little longer, but at the cost of leaving Letby at large.

This is an example par excellence of why it was so dangerous that Francis left employers in sole control of investigating the most serious whistleblower disclosures.

When it became clear that Francis’ already weak and flawed Freedom To Speak Up model was being further diluted by both the regulators tasked with implementing it, and by the second National Guardian appointed, Henrietta Hughes, I raised concerns directly with Francis.

He showed his true self by sending my correspondence straight to Hughes without my knowledge or consent, and wrote to her that he would not meet with me because he did not think he could change my mind. In other words, Francis did the exact opposite of what one should do when faced with any sort of whistleblowing concern. He was hostile and dismissive, he refused to look into the matter and he showed little regard for any normal standards of confidentiality, sharing concerns with a party about whom concerns had been raised. I discovered Francis’ errant correspondence by subject access request. Years later, I mentioned to him that I knew. He did not acknowledge the matter nor did he apologise.

Never mind the decorative gong and the Department of Health’s carefully constructed branding. That is a true measure of the man.

The Daily Telegraph interview with Francis on Letby

On 19 August 2023 the Telegraph published a lamentable and most embarrassing article on Francis and his comments about the Letby killings.

The article opened with adulation more suited to a matinée idol:

“Sir Robert is the kind of patrician grey-haired chap who gives the establishment a good name. A barrister, King’s Counsel and President of the Patients Association, he’s the man we trust to chair big enquiries when things go terribly wrong in the NHS. The lessons for the NHS that came out of his epic five-year inquiry into high numbers of deaths in elderly patients at Stafford hospital enshrined a “duty of candour” in the NHS. His lessons on accountability and culture are taught to all medical students. If ever there was a moment for his cool, experienced head, this is it.”

This is a word picture of the public relations shield that the Department of Health has been wielding to legitimise many things since 2013.

In case the above bludgeon was too subtle, the rest of the article is scattered with more Francis-worship:

“These insights are hard-won; not just from his decades as a leading medical negligence barrister, but from his epoch-defining inquiry and report of mid Staffordshire NHS Foundation Trust”.

“He made such a name for himself as a champion of patients’ safety with the report, that afterwards he became President of the Patients Association, Chair of Healthwatch England and also chaired an NHS review into protecting whistleblowers called the Freedom to Speak Up review”.

That last claim about “protecting” whistleblowers moves things into the realm of fiction.

Please see this 2018 summary for some of the evidence about Francis’ disastrous Freedom To Speak Up model:

A Serious Health Warning about the Freedom To Speak Up Project: What all NHS staff should know before they whistleblow

There has been only more evidence of its failure since then.

Shamelessly, in his interview with the Telegraph Francis reportedly stated:

“ I do hear that NHS workers now feel a protection in terms of speaking up when things go wrong.”

The article added “We saw this in the Letby case, when the neonatal consultants did raise the alarm.”

Breathtaking arrogance here from the Torygraph in the face of the horrific threats and smears that the consultant paediatricians subsequently faced, when they persisted with their concerns about Letby.

The fact that Francis’ shameful Freedom To Speak Up project took up only fourteen words of the Telegraph article says much about the fact that it is now widely recognised to be a failure.

If we listen carefully, can we hear any vicarious messages from Whitehall, transmitted through its representative on Earth?

How about this passage from the Telegraph piece:

“There needs to be a proper independent and transparent review of everything that happened, as swiftly as possible, but I would say not a public inquiry. We don’t need five years of looking at this to come to some conclusions about putting patient safety at the forefront.”

And what fine, ready-made, “patrician” pillar of the establishment might be called upon to conduct this?

And how about this little reported line from Francis?

“Fundamentally, many of the problems in the NHS are down to bad management. I don’t think there is anywhere in the private sector that would behave this badly”.

It is abundantly clear to many that the NHS is a full of dedicated frontline lions led mostly by self-serving senior management donkeys, with a number of clearly political appointments in recent years.

But to claim that the private sector is a paragon after all the terrible, terrible private sector care scandals due to profit mongering?

But we are after all talking about the Torygraph, and we are well into the Tories’ end game for the NHS.

Is Francis’ choice of media outlet significant?

Will we see the “patrician” in the House of Lords at some point?

Lastly, I leave the reader with this little gem. Francis wanted to be an actor, according to a tête-à-tête with the PHSO in 2017:

“…I rather wanted to be an actor….”

The “patrician” got his primary law degree at a provincial university, Exeter. He has to date chaired the following inquiries: Report of the independent inquiry into the care and treatment of Michael Stone South East Coast SHA 2006 Independent inquiry into the care and treatment of Peter Bryan and Richard Loudwell NHS London 2009 The first (non-statutory) inquiry into Mid Staffs Volume 1 DH 2010 and Volume 2 Midstaffs Public Inquiry DH 2013 Freedom To Speak Up Review DH 2015

Bill Kirkup hums a similar tune

Bill Kirkup is another government go-to guy. Some families seem satisfied with his investigations, some decidedly not.

In particular, the parents of Elizabeth Dixon were deeply concerned that allegedly, Kirkup did not conduct an appropriate investigation and that not all relevant evidence was weighed. Kirkup’s investigation into baby Lizzie’s death certainly seemed to have inexplicable gaps, in that criticism was focussed on frontline clinicians, but very little was discussed about corporate controlling minds.

But then examining the favoured management of Frimley Health NHS Foundation Trust, a much used icon in former Secretary of State Jeremy Hunt’s PR campaigns, would have trodden on powerful toes.

In various media interviews, Kirkup played down the need for a public inquiry into the Letby killings, stating that there could instead be “public involvement”.

In my view, Kirkup also appeared to subtly deflect blame by suggesting that the paediatricians at Chester could have been more top of their clinical outcomes.

There is of course always room for improvement. However, as the doctors were reportedly raising concerns about Letby with trust executives from August 2015 onwards (two months after the first known killing by Letby), I find it hard to believe that the doctors were not acutely aware and anxious about outcomes on their unit at least from that point onwards.

The far greater issue was the reflexive reputation management by trust directors and their active suppression of the doctors’ concerns. That had nothing to do with outcome data.

These are Kirkup’s relevant comments, transcribed from a Channel 4 interview on 18 August 2023:

Guru-Murthy:  Dr Bill Kirkup has led a number of independent reviews into NHS failings. Most recently the baby death scandal at East Kent hospitals. I spoke to him earlier today and asked for his reaction to the ordering of an inquiry.

Kirkup: I think it’s absolutely essential. These are just awful events. We have to learn from them. We have to get better at detecting these kind of things much more quickly. I mean prevention would be ideal of course if we could do that, but at the very least we have to get better at spotting them rapidly. The first way to do that is to monitor outcomes as they happen and we could have picked this up much, much sooner than we did.

Guru-Murthy: Doctors did that but in their own, internal way I suppose, when they tried to raise the alarm.

Kirkup: They did, they had a feeling that er there was something wrong here because of the frequency these things were happening at and they were right. But it’s hard to persuade other people unless you have concrete evidence to base it on. If they had been able to say, look this is a proper analysis week by week of these events as they happened and this is so far off the scale we have to have a serious problem here. We have to put the resources into finding out what we [inaudible] now then we have to start thinking the unthinkable.

Guru-Murthy: Are you shocked by the reaction of the hospital management?

Kirkup: It’s so disappointing that clinicians were raising concerns. They were saying that we think there’s something wrong here and they do not appear to have been taken seriously by those running the unit. That’s very, very disappointing.

Guru-Murthy: Do you think there’s a more fundamental problem there about the relationship between doctors and management? I mean there seems to be a fundamental lack of trust in this case.

Kirkup: Yes, I think that can be the case in some places. Hopefully not the majority but I think in some cases it is. I think when very drastic events like these happen that can put the system under such strain that those gaps turn into gaping chasms.

Guru-Murthy: As somebody who’s done an inquiry and came up with recommendations, you’ve just cited one thing that could make this much easier to detect, which hasn’t yet been done. So how do you do an inquiry that will be listened to and acted upon?

Kirkup: Yeah, you have to persuade people that these are serious problems and that they can get better if we do it, and we have. It’s just that it took a little while to get going after the independent investigation into East Kent. But the initial reaction was disappointing and I said so at the time. But since then, we have begun to make real progress. We’re introducing a system that does monitor outcomes, what the results of care are, on a case by case basis. If we’d had that in the Countess of Chester Hospital I’ve got no doubt that we could have picked up that this way, way off the scale, much, much sooner that happened.

Guru-Murthy: Given that this will have ramifications for many patients in the NHS and parents who are in neonatal units, do you think an inquiry like this should be held in public?

Kirkup: I think that there should be public involvement in the investigation. At the moment I would call it an investigation rather than an inquiry, but that does depend on what the final format of the thing is. There are ways to do that, without again necessarily pushing everybody into a position where they have to be legally represented. We did that in the Morecambe Bay investigation for example. We had  representatives of families attended all the meetings that we had and attended all the, or at least they had the ability to attend all the interviews that we did. That’s all a way of discharging that obligation and to be transparent, and to have the families concerned assured that these things are being [inaudible] properly, without pushing for this to go down a very legal route that does complicate the issues enormously.

A BBC article of 19 August 2023 reported that Kirkup claimed that people would reliably cooperate with a non-statutory inquiry that had no power to compel evidence:

“Dr Bill Kirkup, who has led non-statutory reviews for other maternity units, said non-compliance had not been a problem in his experience and people were “ready and willing to cooperate”.

This is very interesting as in Kirkup’s report of his (non statutory) investigation about the death of baby Lizzie Dixon, he wrote:

“The most troubling aspect of compiling this report has been the clear evidence that some individuals have been persistently dishonest, both by omission and by commission, and that this extended to formal statements to police and regulatory bodies.”

And Kirkup complained that some individuals would not cooperate with his investigation into the Dixon death:

“It is, however, greatly regrettable that some of those who were contacted refused to take part in interviews” [my emphasis]

Kirkup underlined the importance of failure to cooperate:

“Cooperating with an investigation into a public service is not optional for those involved, and professionally registered doctors and nurses are under a duty to do so. Dereliction of this duty, without even the offer of an excuse, is seriously detrimental to the conduct of investigations, and contrary to the requirement for candour and transparency. The professional regulatory bodies must consider whether those who elected to withhold cooperation were in breach of their professional responsibilities.”

Perhaps great men, once loftily elevated by the Department of Health, feel less obligation to fact check even their own pronouncements.

But that quality may in fact recommend one to power.

I have written to Kirkup about the apparent discordance between his report on failure of witness cooperation during the Dixon death investigation and his current, reported claim that he has experienced no difficulties with witness compliance during non statutory inquiries. The letter is copied to the relevant BBC and Channel 4 journalists and editors:

Letter to Bill Kirkup 21 August about witness cooperation with non statutory inquiries and failure of witness cooperation in Kirkup’s investigation of Elizabeth Dixon’s death under care of Frimley Health NHS Foundation Trust

I have also pointed out that the non statutory inquiry into Essex mental health deaths failed due to uncooperative witnesses and had to be converted to a statutory public inquiry:

Department of Health announcement 28 June 2023 of a statutory public inquiry into Essex mental health deaths

UPDATE

The families of Letby’s victims are pressing for a full public inquiry and for the Duty of Candour arrangements to be replaced by mandatory reporting. Their lawyers have made a statement on their behalf:

Samantha Dixon MP City of Chester issued this statement in favour of public inquiry on 18 August 2023, after the verdict

UPDATE 23 AUGUST 2023

The Telegraph reported yesterday that the PM was wavering on the government’s initial decision to call a non statutory inquiry, as trenchant calls for a statutory public inquiry have accumulated:

The “patrician” also seemed to sway with public opinion:

“Sir Robert Francis KC, who chaired the inquiry into serious care failings at Mid Staffordshire NHS Foundation Trust, said that the families of Letby’s victims should decide on whether the inquiry into her crimes should be statutory”

Pity he did not seem to consider the families’ wishes when he initially recommended a non statutory inquiry.

UPDATE 24 AUGUST 2023

Bill Kirkup acknowledged that key witnesses did not cooperate in his investigation of baby Lizzie Dixon’s death, but he maintained it did not affect his investigation. He stated that only three witnesses had ever refused him, out of hundreds of interviewees. Kirkup did not reply when asked about evidence that four NHS directors did not appear to have cooperated with his investigation into serious failings Liverpool Community Health NHS Trust (LCH). A letter deposited in parliament from Steve Barclay to NHS regulators in 2018 gave further evidence of the failure of witness cooperation at LCH. I have asked William Vineall Department of Health for definitive confirmation, as it begs the question of why would government pursue a non statutory inquiry when it has evidence of serious past failures of witness cooperation? The further details are provided in this post of 23 August 2023:

Lucy Letby murders: “Ready and willing” Follow up on Bill Kirkup’s comments to the BBC about his experience of witness cooperation with non statutory inquiries

RELATED ITEMS

Despite Francis’ best attempts to disavow his former recommendation on criminal liability for NHS managers who suppress and victimise whistleblowers and who cover up, there are now understandable calls for consideration of corporate manslaughter with regard to the gross mismanagement that allowed Letby to continue killing and abusing babies.

This is the Crown Prosecution Services’ guidance on the offence of Corporate Manslaughter, which relates to serious failures by a body corporate, through its senior staff:

CPS legal guidance corporate manslaughter

The guidance states:

“The offence applies only to certain organisations, as defined by the Act. They include private bodies such as limited companies and partnerships. Public bodies such as local authorities and NHS Trusts can also be held liable, on the grounds that they are bodies incorporated by statute (see section 25 and para 15 of the explanatory notes). Specified government departments and police forces can also be held liable. Individuals cannot be prosecuted for the offence, whether as an accessory or otherwise.”

This is the CPS guidance on Gross Negligence Manslaughter, which is committed by individuals:

CPS legal guidance Gross Negligence Manslaughter

In a healthcare context, the CPS guidance states: “Death following medical treatment or care; the offence can be committed by any healthcare professional, including but not exclusively doctors, nurses, pharmacists, and ambulance personnel”

The CPS guidance also indicates that individuals can also be prosecuted for negligence in the workplace: “Deaths in the workplace the offence can be committed by anyone who is connected in some way to a workplace of any nature.”

There is also of course the offence of Misconduct in Public Office.

Statement by the Letby victims’ families

The victims’ families have been given anonymity by the Court, and there seems to have been limited coverage of their views. This is a transcription of a statement by the families, read out by a family liaison officer at Cheshire Constabulary after the verdict:

“Words cannot effectively explain how we are feeling at this moment in time.  We are quite simply stunned. To lose a baby is a heart breaking experience that no parent should ever have to go through. But to lose a baby or have a baby harmed in these particular circumstances is unimaginable. Over the past seven to eight years, we’ve had to go through a long, tortuous and emotional journey. From losing our precious newborns and grieving their loss, seeing our children who survived, some of whom are still suffering today. To be told years later that their death or collapse might be suspicious. Nothing can prepare you for that news. Today, justice has been served and a nurse who should have been caring for our babies has been found guilty of harming them. But this justice will not take away from the extreme hurt, anger and distress that we’ve all had to experience. Some families have not received the verdict they expected and therefore it is a bittersweet result. We are heartbroken, devastated, angry and feel numb. We may never truly know why this happened. Words cannot express our gratitude to the jury who have had to sit through 145 days of gruelling evidence which led to today’s verdict. We recognise that this has not been an easy task for them. And we will forever be grateful for their patience and their resilience throughout this incredibly difficult process. The police investigation began in 2017 and we’ve been supported from the very beginning by a team of very experienced and dedicated family liaison officers. We want to thank these officers for everything that they’ve done for us. Medical experts, consultants, doctors and nursing staff have all given evidence at court, which at times has been extremely harrowing and distressing for us to listen to. However, we recognise the determination and commitment that each witness has shown in ensuring that the truth was told. We acknowledge that the evidence given by each of them has been key in securing today’s verdict. Finally, we would like to acknowledge and thank the investigation team and more recently, the prosecution team who have led the trial to a successful conclusion. The search for the truth has remained at the forefront of everyone’s mind and we will forever be grateful for this. We would now ask for time and peace to process what has happened as we come to terms with today’s verdict.”

The police liaison officers paid tribute to the affected families and also to Court staff for facilitating proceedings: “On behalf of our team of dedicated liaison officers I would like to thank all our families for the immense fortitude and extreme resilience that they have shown over the years. They have acted with dignity and reservedness during a very long trial, hearing the most horrendous evidence. We are all extremely humbled by them.”

Lack of learning from the 1994 Beverly Allitt inquiry

The inquiry into Allitt’s killings on a children’s ward criticised failures to be alert to abuse and to piece clues together in a methodical way. It also criticised managers who did not take concerns seriously. The Letby case represents a failure by the NHS as an organisation to learn from Allitt and other similar cases, and to protect the public from avoidable risk. Notes from the Allitt inquiry can be found here.

Robert Francis’ claim that nowhere in the private sector do managers behave as badly as they do in the NHS

This claim is a pile of steaming proverbial and a great, great insult to all victims of bad care by private healthcare providers and their notorious cover ups.

The profit motive drives a lot of bad care in the private sector, and the managers there can be as cut-throat as any you might find in the NHS.

There is a long trail of injured and dead patients, and seriously harmed whistleblowers to prove it.

Here are a few of many related items:

Winterbourne View Serious Case Review report 2012

Pinned down, force-fed and drugged into ‘zombie-like’ state: ‘Systemic abuse’ at children’s hospitals revealed

Mapped: All the mental health hospitals rated inadequate

St. Andrews Healthcare, Whistleblowing, Safeguarding and Public Protection

The spreading CQC Whorlton Hall scandal – emerging allegations at ‘Outstanding’ Newbus Grange. Another CQC deception?

Employment Tribunal describes a Cygnet medical director’s email to the GMC about a whistleblower as “venomous and dishonest”. Dr Ambreen Malik wins her whistleblowing case.

Cygnet Health Care has Fit and Proper leaders according to the CQC, despite gross whistleblower reprisal