[2025] EWHC 2684 (KB)

Mr Graham continued;

“At all times during my time as an inspector I found that the staffing levels at Cawston Park were more than adequate for the number of patients they had taking into account the fact that they did not participate in the practice of “specialing” patients on the basis that they felt it was detrimental to good quality care, something I strongly agreed with. It was due to this different philosophical approach that I observed that Cawston Park had a higher ratio of staff to patients that other similar establishments I was inspecting.”

Mr Graham also recollected speaking to Mr Deveney on the subject of staffing and that he was informed by him that;

“He was perfectly satisfied with not only staffing levels but all other matters at the hospital…”

As for the provision of care Mr Graham stated:

“My observation of staff interactions with patients was that there were some patients who received much more input from staff than others due to the severity of their illness. This more intensive input would be in a variety of different ways, often changing from day-to-day so the varying level of need could be met by varying level of input that the patients received. Put simply, some got more input than others.”

As for charging Mr Graham stated;

“Another matter I could have assisted the police with was the charging mechanisms that were in operation at that time. It was standard industry practice, in private healthcare, to charge more for the more difficult patients. A lot of establishments did this by use of specialling patients, however Cawston Park made it clear that they did not use this nursing practice, but instead had put in a higher level of resource, compared to other establishments, for those more difficult patients to access as and when they required it…And I found it perfectly reasonable and something other hospitals were doing, for Cawston Park to have made an additional charge for those patients who had been identified as being more difficult to manage and presenting with a higher risk than others.”

Mr Graham stated that;

“I have been informed that the police did not take seriously my statement that I considered that the staffing levels at Cawston Park were perfectly adequate at all times by saying that “on inspection visits the hospital probably just upped the staff numbers just for that visit as the visit would have been announced. I find this statement to be complete nonsense and is a slight on HCC inspectors who carry out their responsibilities very seriously…”

Mr Graham did not set out the source of his information; specifically whether it was the Claimants, DLA Piper or some other person.

Mr Graham was, and is, undoubtedly strongly supportive of the Claimants and critical of the failure of the Police to take a statement from him, in my view with strong justification.

In the case summary DS Brownsell had a section relating to the Healthcare Commission and stated that following on from the formation of the Gold Group, the Health Care Commission were asked to inspect the hospital and they carried out an unannounced inspection on 19^th September 2006. DS Brownsell explained that the inspectors were aware that the concept of extra care was the subject of police investigation. He stated;

“(the Inspectors found that areas of the hospital were filthy particularly communal eating areas where the presence of dirt was obvious and longstanding…support staff were required to wash up after the meals leaving inspectors wondering who would be caring for the patients during this time. Given the behaviour of the patients the inspector's view was that there were not sufficient staff on duty…”

As a result of the inspection a statutory requirement notice was served on Andrew Breeze in relation to three areas one of which was.

“Failure to ensure at all times that there was an appropriate number of suitably qualified, skilled and experienced staff.”

On 1^st February 2008 DLA Piper wrote to Mr Tarrant expressing concerns about the conduct of the police investigation and in particular the failure to take statements from individuals who were able to give evidence in support of the claimants. The letter quoted passages from statements obtained from Mr Graham and Ms Smith and stated there may have been a failure to follow up all reasonable lines of inquiry.

The DLA Piper letter was forwarded to DS Brownsell who responded on 4^th February with the following comment (by e-mail) as regards Mr Graham:

“David Graham We had never heard of Graham until now. It would appear that he ceased working for the HCC in August 2005. Nevertheless, it would appear that Graham had no knowledge of the charging system. He has given opinion about the hospital and treatment given. His observation that the staffing levels at Cawston Park were higher than other similar establishments is of interest. One wonders whether his inspections were pre planned, if that was the case it is possible that staff numbers were ‘upped’ for his visit. His position is at odds with numerous statements from members of the work force we have taken that state that there was a low level of staff. You are in possession of these statements.”

In my judgement the failure to gain evidence from Mr Graham in relation to previous Healthcare Commission visits and reports was a mistake. I am also surprised that when alerted to the evidence of Mr Graham, Mr Tarrant did not suggest that a statement should be taken from him. DS Brownsell provided his comments but Mr Tarrant could have asked that a statement be obtained. As DS Brownsell stated he had ‘never heard’ of Mr Graham. I find as a fact that he had not been contacted as an oversight (simply not considered) as opposed to any deliberate decision to suppress evidence. DS Brownsell gave his honest overview to Mr Tarrant of Mr Graham’s importance as a witness. In my view it did not adequately reflect the potential significance of what he had to say (and I find that the standard of a reasonable investigating officer was breached). However the failure to do so was not due to malice.