HSE criticised for ‘arbitrary’ decision not to intervene at Morecambe Bay

James Titcombe, whose son Joshua died at the trust in October 2008, has criticised what he called an “arbitrary policy decision” by the HSE not to bring prosecutions over poor care at the trust’s Furness General Hospital between 2004 and 2013.

However, he praised Cumbria Constabulary for its decision to investigate poor care at the trust. He said: “Without the police investigating, other families would not have come forward and the wider pieces of the jigsaw would never have been put together. We are very grateful to the police.”

Mr Titcombe made his comments after both the police and the HSE confirmed last week there would be no prosecutions over deaths at the trust, despite an independent inquiry led by Bill Kirkup finding there had been avoidable deaths of at least 11 babies and one mother.

Mr Titcombe criticised the HSE for not pursuing a prosecution earlier. He argued that health and safety law made it clear that NHS trusts must take steps to protect people from harm.

He told HSJ: “Under health and safety legislation, the HSE do have the power to investigate and prosecute NHS organisations that fail to take ‘reasonably practicable’ steps to prevent exposing patients to serious risks of harm. It’s a lower threshold than the police but the HSE have chosen not to apply it. They have taken an arbitrary policy decision not to apply the law. The HSE could have done a lot more, sooner, and events wouldn’t have cascaded into what happened.”

In a letter to Mr Titcombe sent in March, Mark Dawson, principal investigator for the HSE, said “whilst clinical and organisational failings were identified, none of these cases satisfied the criteria to be selected for investigation by HSE”.

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In his 2013 report into poor care at Mid Staffordshire Foundation Trust, Sir Robert Francis QC criticised the HSE’s policy on healthcare incidents as having the “appearance of looking for reasons for not taking action”. He said a focus on resources “has led to the unacceptable position that the more serious and widespread a failure is, the less likely it is that HSE will decide to intervene”.

From this month the Care Quality Commission also has powers, under the fundamental standards, to prosecute healthcare providers for failings in care. These are designed to close what the Francis report called a “regulatory gap”. These powers will not be applied retrospectively.

Cumbria Constabulary said in a statement last week that proving a crime beyond all reasonable doubt was always going to be difficult but detective inspector Doug Marshall, who led the investigation, said he believed going into Furness General had been the right thing to do.

He said: “Our investigation meant that other agencies also began looking at what was happening at Furness General Hospital, and it assisted families in getting the independent investigation that they deserved. I share the hope that lessons have been learnt and the necessary improvements made.”

Mr Titcombe said the fact other bodies had not seen what was happening at Morecambe Bay proved the need for a new national patient safety body which could lead on clinical incident investigations. He added “such a body was recommended by MPs last month and I hope will be established as a priority by the next government”.

After the publication of the Kirkup inquiry, health secretary Jeremy Hunt backed the establishment of an independent patient safety investigation unit similar to the Air Accidents Investigations Branch.

An HSE spokesman said: “The HSE has been liaising with Cumbria Constabulary on its major investigation into events at Furness General Hospital maternity unit. This was to determine if an investigation by HSE was also appropriate.

“Upon reviewing information held by the police it was found that the relevant standards that applied were clinical in nature and were therefore outside HSE’s remit.

“HSE will not be conducting an investigation, but is communicating the findings of its review to other regulators and relevant parties which may be better placed to act.”