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Judicial reviews and the Mid Staffordshire inquiries

12 May 2010

Following the publication of the Healthcare Commission report, Richard Stein and Rosa Curling of Leigh Day & Co solicitors were instructed by Julie Bailey and Chris Dalziel, supported by Cure the NHS, to write a letter before action challenging the refusal by the Secretary of State for Health to hold a full public inquiry into why things had gone so tragically wrong at Stafford Hospital.

The Secretary of State had announced to Parliament on 18 March 2009 that it would be “wrong to call for a public inquiry” because of the fact that there had already been a “very good Healthcare Commission report”, and further that “to have a public inquiry on top of that would just delay moving forward on the issue”.

Leigh Day & Co advised Ms Bailey and Ms Dalziel that the Secretary of State’s decision was unlawful under Article 2 and 3 of the Human Rights Act. Article 2 and 3 requires the state to properly investigate, with public involvement, any deaths/ incidents of inhumane or treatment that occur in NHS hospitals such as Stafford. A copy of the letter before action is here.

Following lengthy correspondence between Leigh Day and the Secretary of State’s lawyers the Secretary of State conceded the claim in part and announced on 21 July 2009 that an Independent Inquiry into the appalling standards of care found at Stafford Hospital would take place.

The terms of the first Mid Staffordshire Independent Inquiry were:

1.    To investigate any individual case relating to the care provided by Mid Staffordshire NHS trust between 2005 and March 2008 that, in its opinion, causes concern and to the extent that it considers appropriate;
2.    In light of such investigation, to consider whether any additional lessons are to be learned beyond those identified by prior inquiries and if so;
3.    To consider what additional action is necessary for the new hospital management to ensure the Trust is delivering a sustainably good service to its local population; and
4.    To prepare and deliver to the Secretary of State a report of its findings.

The Inquiry was launched on 15 September 2009, chaired by Robert Francis QC and it asked for both oral and written evidence from former patients and their relatives as well as from staff and management at the Hospital about why such “appalling” standards of care had been found and allowed to continue for so long.

Leigh Day & Co was instructed by around 100 individuals and the organisation Cure the NHS to prepare evidence for the Inquiry on their behalf and a copy of those documents which we are allowed to publish can be found here. Transcripts from the oral evidence published by the Inquiry can be found here.

In the meantime, instructed by Ms Bailey and Ms Dalziel, Richard Stein and Rosa Curling wrote a second letter before action to the Secretary of State, stating that although they welcomed the Inquiry by Robert Francis QC it was not sufficient to discharge the Secretary of State’s duty under the Human Rights Act. Two grounds of challenge were raised in particular (a) the Inquiry was not being held in public and (2) it was only going to investigate and analyse the role played by management and staff at Mid Staffordshire NHS Trust. The role played by the other bodies, including those with responsibility for supervising and regulating the Trust, was going to be left unconsidered as too was the effect of central government initiatives such as the pursuit of foundation trust status, budget constraints and targets. A copy of the letter before action is here along with a copy of the grounds of challenge lodged at the Administrative Court.

In the meantime, on 24 February 2010 Robert Francis QC published his final report which included a list of recommendations, a copy of which is here. One of these recommendations was that a second inquiry “to examine the operation of the commissioning, supervisory and regulatory organizations and systems in relation to their monitoring role at Mid Staffordshire NHS Foundation Trust”. On the same day, the Secretary of State announced that he had accepted this recommendation and published draft terms. He confirmed Robert Francis QC would chair the second Inquiry.

The draft terms of the second Inquiry are:

1.    To examine the operation of commissioning, supervisory and regulatory organizations in relation to their role at Mid Staffordshire NHS Foundation Trust between those times. The Inquiry should consider the lessons to be drawn from that examination as to how in the future the NHS and the bodies which regulate it can ensure that failing and potentially failing hospitals are identified and action take as soon as is practicable;

2.    In order for lessons learned to be relevant, the Inquiry needs to recognize that the supervisory and regulatory systems differ significantly from those in place previously and will need to consider the situation both then and now; and

3.    To make recommendations to the Secretary of State for Health based on the lessons learned from the events at Mid Staffordshire; and to issue a Report to him during 2010.

Leigh Day, on behalf of Cure the NHS, has written to the Secretary of State with representations on these draft terms and also on the procedure which it views as necessary for the second inquiry. A copy of both these documents are here. Publication of the final terms and procedure for the second inquiry are due shortly and the judicial review application has been put on hold pending their release.

For further information about the judicial review and or either inquiry, please contact Rosa Curling on 020 7650 1200.

Information was correct at time of publishing. See terms and conditions for further details.

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