[2025] EWHC 2684 (KB)

DS Brownsell explained that on the 12th of March 2007 he noted that Dr Barker had been contacted the previous afternoon by Mark Deveney. Mr Deveney said that he had been contacted by Dr Simon Barker who wanted to meet him in a pub. DS Brownsell spoke with Dr Barker’s solicitor who told him that Dr Barker had suffered a minor stroke and was in hospital. DS Brownsell also stated that Mr Deveney said that Dr Barker had got very, very drunk and

“Dr Barker was reported to have told Mr Deveney about Mr Breeze and Mr. Wilson blaming him. Dr Barker said he was going to stand shoulder to shoulder with them and could go to prison for something he had not done. Mr Deveney reported that Dr Barker had not told the police the whole truth and that extra care “was a load of crap.”

In his witness statement DS Brownsell set out what he had explained to Dr Barker’s solicitor;

“When asked the question of what PCTs got for the extra money Mr Breeze and Mr. Wilson stated that they were demanding more clinical time and expertise and basically suggested the treatment and resources for patients were down to the senior clinician. I pointed out that when coupled with the fact that no one below Dr Barker's rank knew about extra care on the clinical side, Mr Breeze and Mr Wilson were firmly trying to position Dr Barker within the extra care situation.”

DS Brownsell stated that he liaised with Dr Barker’s solicitor who had said that he was in the process of writing up a prepared statement and that there was no evidence that Dr Barker was involved in a conspiracy to defraud and that;

“I pointed out, that in my opinion, and after speaking to other witnesses, extra care was ethereal, with no audit trail and noted that Dr Barker had stuck to the same mantra about the ethereal concept as Andrew Breeze and Dominic Wilson.”

Mr Metzer took DS Brownsell to the relevant extract in his rough books;

“…I point out that in my opinion, and after speaking to other witnesses etc-extra care is ethereal, non tangible “bollocks”. There is no audit trail. Barker has stuck to the same mantra about this ethereal concept as his Co Defendants/Co accused.”

DS Brownsell stated that his language was clumsy and inappropriate and accepted this was not an appropriate comment and could be viewed as pejorative. However he did not accept that he was dismissive or that anything that was said by Dr Barker which was “positive and aligned” (to the Claimants’ case) was disregarded. Given this allegation it is necessary to consider Dr Barker’s evidence in a little detail.

As regards alignment in his draft witness statement Dr Barker set out his differences with Claimants;

“I felt that up until August 2006 I had been in the situation that I was working at the hospital, trying to do my best for the patients but also looking forward to my retirement. I found myself being drawn more and more into being able to give explanations about extra care. This was something that really hadn't been on my radar until then. I felt that I could justify the concept of extra care as a clinical one, whether the name is correct or not I do not know. I became very confused by what the company were doing with regard to the charging and I think that this was deliberate by the company and I was wittingly used to allow this process to happen. I was used to justify this process clinically. I am really upset about this because at any stage the other people arrested could have said that I was not involved in the process. When I was first being interviewed I did not lie. My explanations were what I thought that I should be saying. I was advised that we should take a common line and not be contrary about anything. The DLA Piper lawyers portrayed themselves as the experts in the case but they didn't ever really sit me down and get my explanation. As time went on I felt that there was a conflict although they didn't agree with this saying that we were all in this together and should therefore stick together…I just felt that the matter was not right. It affected me hugely and I actually felt sick each time I went to those meetings. In the end I sought my own legal advice…When he heard what I had to say he felt that it was perfectly clear but there was a difference between me and Dominic and Andrew.”

Mr Metzer took DS Brownsell to Dr Barker’s draft statement within which Dr Barker referred to discussions with the Claimants about extra care in September/October 2006 and to a board meeting at which he was asked to clarify what extra care was from his perspective and that:

“I’d been asked to prepare these case vignettes to give a pen picture of what the patients were like. I had plenty of work to do and this was a real pain so I had only done a few. The idea was then I could explain to the lawyer, the sort of patient the charges being levy for. The ones that had been charged seemed all right but it's a grey area and I certainly hadn't looked at all the notes.”

Dr Barker then set out the initials of the patients in respect of whom he

Mr Metzer initially suggested to DS Brownsell that an extra charge was justified for “each and every one” of the patients identified by Dr Barker in his statement and then, when it was pointed out that this was simply wrong, refined it to the vast majority of the patients (so leaving aside the patients in respect of which it was not justified).

Dr Barker set out in his statement that;

“I learned that a service level agreement stated that extra care charging should be reviewed every week. But that never happened subsequent to Mark Deveney leaving. I don't even know if he was doing it before. There was no review mechanism that I could see and I don't know how you could justify patients like DMF and other long term ones being charged for extra care when the condition wasn't changing so the whole thing just carried on. This was a less defensible set of circumstances, you could argue clinically what this (sic) patients require and you could argue if it was a risk premium for what they might do or what might result but I'm finding it difficult to justify the charging for extra care for the long term patients where it can be seen how they are likely to need to be treated. I voiced those concerns with Andrew and Dominic and at a meeting with DLA Piper. My view was we should stop levying the charge but the view was that we should carry on. I even raised that DMF was going out on leave three nights a week and my report was saying he was doing pretty well at the time. This made the extra care charge untenable so his was actually stopped.”

In respect of the cohort of patients who were charged for extra care Dr Barker stated that “in general they were patients who were at the more challenging end of the scale”.

As for other specific patients he said that he was “quite surprised” that EC was the subject of an extra care charge (he was doing “quite nicely on an open unit”). DS Brownsell pointed to Dr Barker’s comment that:

“D jumped out of the page at me as someone who didn’t fit the criteria of what I understood extra care to be. In my discussions with DLA Piper. D still being charged for extra care didn’t equate with the concepts we’d discussed. I can’t say what the intent was with regard to this situation.”

Mr Metzer suggested that DS Brownsell had reached conclusions about charging in advance for extra care which were further evidence of “a closed mind” (a curious question given the Claimants’ case that he did not believe in the Claimants’ guilt”). In interview Dr Barker stated that he did not know until he was informed during his interview that extra care was charged for in advance. He stated;

“I just, I still can't really get my head around that, how, I mean that again is something that's just so, such a crazy thing to do…if I'd known a year ago I might have, I don't know things might have been different but you know you can't, it's just impossible to you know the philosophical thing that I've been talking about is fine but again that financial thing doesn't tie up to the philosophy if it's been charged in advance it's impossible, it's an impossibility to justify that from…you can't do that in advance, it's impossible…it just doesn't make any sense so I think if I had been told that I'd have said you know a year ago I'd say well that's just crazy that doesn't work that's not right I just can't understand it.”

Dr Barker also stated that extra care was not recorded in his notes (the clinical notes). In interview he discussed specific patients but DS Brownsell said that after a discussion with the Medical Defence Union he would not sign a statement containing the detail.

Dr Barker’s unsigned statement was sent to Mr Tarrant (with other statements) with a letter dated 25^th January 2008 which stated:

“This is the draft statement which Dr Barker has agreed. I've not precised it here as it really needs to be read and absorbed in its entirety. Dr Barker was on the cusp of signing it when he decided that he ought to submit it to the GMC as within the statement he names patients and gives clinical information which could be viewed as a breach of confidentiality…A copy of the signed statement will be forwarded to you immediately on receipt.”

At a conference on 2^nd April 2008 with Counsel and Mr Tarrant (attended by DS Brownsell) it was noted;

“Discussion on Dr Barker; we have draft witness statement from him. He has expressed reluctance to provide a detailed statement as he could be in trouble with the GMC for breaching patient confidentiality.”

Counsel advised:

“Dr Barker should be taken through each of the 24 patients. Counsel advises that we should serve the best evidence we have from Dr Barker…so defence know at the earliest opportunity we are using him as a witness. Mr Tarrant indicated that he was happy to speak to Mr Gentle, the solicitor who represented Dr Barker when he was being investigated, Mr Gentle has a good relationship with Dr Barker and could hopefully assist us in obtaining a full statement from him. Doctor Barker should be reassured that the court would not allow patients details to be reported.”

In my view the issue of patient confidentiality should have been immediately addressed by the enquiry team although this could also fairly be seen as a matter which Mr Tarrant should have addressed. As DS Brownsell stated the draft statement was of some assistance to the Prosecution case given the comments about his surprise certain patients were on an extra care charge; but it also needed to be carefully considered in respect of what was said about the other patients; which tended to support the Claimants’ assertions.

Mr Metzer raised an (unpleaded) allegation with DS Brownsell, on a basis that I did not follow, that there had been a further unsigned witness statement from Dr Barker that had been suppressed. After an exchange (Mr Warnock having objected to the allegation being put) Mr Metzer conceded that he did not have an evidential basis for this assertion. I am satisfied having heard all the relevant surrounding evidence that any such suggestion had no foundation in fact.