Seven years ago last Saturday, 8th November 2007 Bella Bailey died in Stafford Hospital. We wish to state that we respect at all times her memory and the right of her friends and family to grieve for her. Bella’s daughter Julie had concerns about the care her mother, and others, had received at Stafford Hospital and launched a campaign to “cure the NHS”.
Six years on, there have been four Inquiries / Reviews following from Bella Bailey’s death:
- Francis 1 (2010)
- Francis 2 (2013)
- Keogh (2013)
- Berwick (2013)
On 23rd October 2013, Julie Bailey appeared as a witness before the House of Lords Select Committee into the Inquiries Act 2005. We contend that her evidence was demonstrably inaccurate, to her knowledge, and that at best Ms Bailey reveals herself to be an entirely unreliable witness. At worst, she could be considered to have misled Parliament.
We present here three examples of inaccuracy:
(i) about a specific allegation that patients drank water from vases;
(ii) concerning allegations about the leaking of data by the Healthcare Commission;
(iii) relating to the existence of a Judicial Review into decision by the Secretary of State not to hold a Public Inquiry.
(i) The “myth” of patients drinking water from vases
While at first sight trivial, our first example is deeply troubling. Julie Bailey campaigned for an Inquiry into events at Stafford Hospital. At the very first non-statutory Inquiry testimony was presented that thirsty patients resorted to drinking water from vases on the ward.
In the Report from the Inquiry, Robert Francis QC concluded
To us, it seems that this allegation had been considered in full and remains unproven. Yet at the Select Committee into the Inquiries Act 2005 Julie Bailey repeated this story as though it is fact yet with no new evidence.As it happened I did not hear any direct evidence about any incident involving vases. Such an incident is not directly reported in the Healthcare Commission (HCC) report. There was, however, much reference to patients drinking out of vases in the press. I am therefore unable to express a conclusion about whether this occurred or not.
In short, Julie Bailey willfully ignored the findings of an Inquiry that she had campaigned for while presenting evidence in Parliament.Patients were drinking out of flower vases, they were that desperate for fluids.
(ii) A misrepresented “leak” from the Healthcare Commission
During her Evidence (2013) to the Select Committee, Julie Bailey made the following statement:
The truth is that the leak showed that the Healthcare Commission had excised the section of their report dealing with these figures, because they, rightly as we see here, worried that people would misunderstand the data.I think there are times when a smaller inquiry is needed but the Healthcare Commission, it was leaked, has estimated that 400 to 1,200 people may have lost their lives unnecessarily.
BMJ (formerly British Medical Journal) http://www.bmj.com/content/342/bmj.d2900" onclick="window.open(this.href);return false;The last chairman of the Healthcare Commission removed figures showing that Stafford Hospital had between 400 and 1200 excess deaths between 2005 and 2008 from the commission’s final report into the hospital’s “appalling” standards of care, against the wishes of its author.
Ian Kennedy, who chaired the commission from its beginning until it was abolished in 2009, told the public inquiry into failings at Mid Staffordshire NHS Foundation Trust that he decided to excise the figures because people did not understand the statistical concept of “excess deaths.”
The two quotes below from Francis 1 (2010) and Francis 2 (2013), respectively, are also revealing
and"...it is in my view misleading and a potential misuse of the figures to extrapolate from them a conclusion that any particular number, or range of numbers of deaths were caused or contributed to by inadequate care."
(iii) The Judicial Review that never was"it would be unsafe to infer from the figures that there was any particular number or range of numbers of avoidable or unnecessary deaths at the Trust."
The following are extracts from the transcript of the Select Committee session.
We can find no evidence of there having been a judicial review.Julie Bailey:
“We had tried a judicial review. We tried to judicially review the Secretary of State to give us the public inquiry. What the non-statutory inquiry did by giving it to us was that it stopped our judicial review. That is why we were given the non-statutory inquiry.”
Lord Trefgarne: By the time you were pressing for the first time, to which he eventually agreed the non-statutory inquiry, there was already a judicial review process going on.
Julie Bailey: That is correct.
Lord Trefgarne: To review the decision not to hold a public inquiry.
Julie Bailey: That is correct.
Lord Trefgarne: Which you had initiated.
Julie Bailey: That is correct, but what the non-statutory inquiry did was it stopped our judicial review.
Lord Trefgarne: You say that that is why he agreed to it.
Julie Bailey: Yes, I believe so. Why did we need another look into the hospital? We needed the regulatory bodies looking into. That is what we needed.
Lord Trefgarne: You would say that Mr Burnham frustrated the process towards a public inquiry.
Julie Bailey: Very much so.
Lord Woolf: I think, if I am right in following that, Ms Bailey, you also understood that there was this ability to use judicial review and, indeed, you and your group took proceedings for judicial review and that did the trick, so to speak.
Julie Bailey: Not at all, no. It stopped. By giving us the non-statutory inquiry, it stopped our judicial review for a public inquiry.
Lord Woolf: Yes, but what I am suggesting to you is that if you had not brought the judicial review proceedings you would not have got the inquiry you did.
Julie Bailey: The non-statutory inquiry?
Lord Woolf: Yes.
Julie Bailey: But we did not need the non-statutory inquiry. That is what I am saying. It was a waste of public money. We should have gone straight for the public inquiry, to the statutory inquiry.
Baroness Buscombe: Just to be cynical for a moment, going back to the question of judicial review, would I be right in saying that the difficulty with judicial review was that it was probably seen by a Minister as a useful way of stifling an open inquiry or a public inquiry? If you say to somebody, “Right, we will give a small non-statutory inquiry” the Minister will know in saying that that he is probably killing off a rather uncomfortable judicial review.
Julie Bailey: Very much so. I read every piece of evidence that went through the public inquiry and that is what I read.
Baroness Buscombe: That is really the weakness of judicial review in that it only survives if it has a clear run. As soon as a Minister has an opportunity to offer something outwith the Inquiries Act, any form of non-statutory inquiry, that will then diminish the chance of a judicial review succeeding.
Julie Bailey: That is correct.
Lord Trefgarne: It is the other way around, or should be.
Julie Bailey: How many of the public would go for a judicial review?
Lord Trefgarne: That is the point, yes.
Julie Bailey: It is only because we were determined that we had to stop others suffering.
Lord Trefgarne: In other cases of which I am aware, it is the parliamentary procedures and the informal inquiry procedures that have to stop if there is a judicial review going on because the issue is then sub judice. Why did that not happen in your case?
Julie Bailey: We were advised to withdraw our judicial review and go ahead with the non- statutory inquiry because we would have never got it through. That was the advice that the Department of Health gave—
Lord Trefgarne: Do you think the judicial review process would have failed?
Julie Bailey: Yes. Well, that is what we were told. By giving us the non-statutory inquiry, our judicial review would have failed.
Lord Trefgarne: Do you mean that the judges conducting the judicial review are easily persuaded by such things?
Baroness Buscombe: No, that was the advice they were given.
Here is what Francis 1 (2010) says about this episode:
And what Bailey's lawyers say about itI understand that this decision may be the subject of judicial review proceedings, but this has not prevented me from proceeding with the Inquiry as established to address the terms of reference set by the Secretary of State.
We have asked CuretheNHS, via Twitter, whether there was in fact a judicial review and have had no reply.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 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.
In short, we contend that Julie Bailey in front of the Select Committee discussed at length a judicial review that she knew had never occurred.
Julie Bailey is an influential campaigner on NHS matters, whose voice is heard widely in the media. We of course support her right to speak on issues she cares about. But facts matter. While giving evidence to a Select Committee of the House of Lords, Julie Bailey has:
(i) restated an allegation judged as unproven by Robert Francis QC;
(ii) misrepresented the Healthcare Commission; and
(iii) described at length a judicial review that did not occur.
Julie Bailey must be aware of the full facts in each of these cases and has willfully presented inaccurate information to Parliament.
Francis 1 (2010) ‘Robert Francis Inquiry report into Mid-Staffordshire NHS Foundation Trust’ http://webarchive.nationalarchives.gov. ... /DH_113018" onclick="window.open(this.href);return false;
Francis 2 (2013) ‘The Mid Staffordshire NHS Foundation Trust Public Inquiry’, Robert Francis QC, http://www.midstaffspublicinquiry.com" onclick="window.open(this.href);return false;.
Keogh (2013) ‘Review into the quality of care and treatment provided by 14 hospital trusts in England: overview report’, Professor Sir Bruce Keogh KBE, http://www.nhs.uk/NHSEngland/bruce-keog ... report.pdf" onclick="window.open(this.href);return false;
Berwick (2013) ‘Berwick review into patient safety’, Don Berwick, https://www.gov.uk/government/publicati ... ent-safety" onclick="window.open(this.href);return false;
Evidence (2013) ‘SELECT COMMITTEE ON THE INQUIRIES ACT 2005 Written and corrected oral evidence’ http://www.parliament.uk/documents/lord ... ncevol.pdf" onclick="window.open(this.href);return false;