The Age of the Inquiry

Learning and Blaming in Health and Social Care

Jill Manthorpe, Nicky Stanley, Jill Manthorpe, Nicky Stanley

• Publisher: Routledge
• Year: 2004
• ISBN:
  9781134456642
• Edition: 1
• Topic: Medicine
• Subtopic: Health Care Delivery

The plethora of inquiry reports published in the fields of health and welfare in the 1990s covered the full range of user groups, individuals and institutions. What similarities or differences were there between these inquiries? How effective were they in bringing about change? Whose interest did they best serve?These are some of the questions The Age of the Inquiry explores in detail, bringing together distinguished contributors with personal experience of chairing or providing evidence to inquiries to consider: the participant's view of inquiries
the purpose of inquiries
the impact of inquiries on health and social policy
inquiries into: child abuse and death; homicides by mental health service users; the abuse of adults with
learning disabilities; the abuse of older people. Wide-ranging in scope, The Age of the Inquiry focuses on service and policy development. It provides an invaluable text for students, teachers and professionals from a wide range of disciplines and professional groups.

Part I

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Participating in inquiries

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Chapter I

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Mental health inquiries —‘Cui Bono?’¹

Herschel Prins

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Introduction

This chapter concerns itself with mental health inquiries, mainly those into homicides committed by persons known to the mental health services both in the NHS and related agencies such as social services, probation and prisons. My own experience embraces chairmanship of three rather different mental health inquiries; first, that into the death of Orville Blackwood at Broadmoor Hospital (Prins et al. 1993); second, that into the absconsion from day leave of a medium-secure unit offender-patient during a visit to a zoo and theme park (Prins et al. 1997); third, that into a homicide committed by a patient known to the mental health services (Prins et al. 1998). Although these inquiries were somewhat different in nature they all involved a common theme — the assessment and management of risk. In the Blackwood case, the risk of dangerous behaviour was somewhat over-emphasised (a rather unusual finding), in the Holland and Patel Inquiries the risks of future problematic behaviour were under-estimated (for a detailed presentation and discussion of these three cases see Prins 1999, Chapter 4). Each threw up problems relating to chairmanship. However, my views deriving from these experiences could well be seen as highly idiosyncratic; in order to offset this probability I addressed a letter of inquiry to thirteen persons who had chaired mental health inquiries, almost exclusively those into homicides. Following reminders, nine chairmen/women replied to my letter and I am most grateful to them for their assistance. Anonymity was guaranteed so that their views have been expressed in composite fashion later in this chapter. My choice of respondents was based largely on those I could contact comparatively easily. Because of this, the sample cannot be regarded as strongly representative; for this reason, the views I have collated should therefore be regarded with a degree of caution. Before proceeding to an analysis of my respondents' views, it may be useful to provide a degree of context-setting.

Inquiries have a long and honourable history. Social problems requiring subsequent legislative action have nearly always been investigated by inquiries. For example, the Gowers Commission into Capital Punishment provided the spur for the introduction of the Homicide Act of 1957 with its provision for Diminished Responsibility. Two inquiries of forensic-psychiatric importance were the inquiry into the circumstances under which Graham Young was released from Broadmoor only to kill by means of poison within a few months of such release (Aarvold et al. 1973), and the wide-ranging review of the law and practice relating to mentally abnormal offenders under the chairmanship of Lord Butler of Saffron Walden that followed it (Home Office and DHSS 1975). Today, the tradition of inquiries seems well entrenched. Whenever ‘ill’ befalls, there are calls for an inquiry — whether these ‘ills’ consist of disasters at sea, in the air or on land, the mass murder of children, defaulting doctors, their murder of their patients or the alleged illicit activities of our democratic representatives. The social and political climate in which the urge to seek redress takes place is very important in relation to criminal justice and psychiatry (particularly forensic-psychiatry). Concerns about public protection have become central to much criminal justice and forensic-psychiatric thinking and practice. Such concerns were very well summed up by Faulkner, a former senior civil servant with extensive Home Office experience. He stated:

The 1990s have been characterized by an ‘exclusive’ view of society which distinguishes between the ‘deserving majority’ which needs to be protected from the undeserving, feckless minority, who must be excluded and, in many cases incarcerated.

Faulkner identified:

an ideological battle taking place between the exclusionists who dominated the last Parliament's programme of criminal punishments, demonization of children, hostility to single parents and refugees, and [the] inclusionists who are talking increasingly of citizenship and civic responsibility.

(Faulkner 1997: 26)

The constitution of inquiries

Inquiries take many forms. Peay has provided a useful summary of their infinite variety — from full-scale public Tribunals of Inquiry to fairly informal investigations (see also Walshe 2002). She categorises them as follows:

• Statutory Tribunals and Inquiries.
• Statutory Inquiries.
• Tribunals of Inquiry.
• Non-statutory Inquiries.
• Inquiries after Homicides. (Peay 1996a: 12–18), these can be invested with statutory powers by the Secretary of State under Section 125 of the Mental Health Act 1983.

Membership will of course vary according to the inquiry's remit. However, some surprising formats have appeared in the past. The so-called ‘Profumo’ affair, which one would have thought might have called for a full-scale ‘public inquiry’ was in the hands of a single judge — the late Lord Denning; he conducted his investigation in private and has been said to have acted as ‘detective, solicitor, counsel and judge’ (Royal Commission on Tribunals of Inquiry, Chairman Salmon, L.J. 1966, Cmnd. 3121 at p. 44. Quoted in Peay 1996a: 14). Most mental health inquiries will have at least three to four members representing, for example, the disciplines of psychiatry, social services, nursing and the law. Occasionally, there have been five or six member panels (as in the Jason Mitchell Inquiry, Blom-Cooper et al. 1996).

At the outset of an inquiry a decision will need to be reached as to whether the inquiry will be held in private or in public, a dichotomy which fails to embrace any sense of a mid-way position. Sir Cecil Clothier QC, who has extensive experience of inquiries in various forms, provides thoughtful comments on this aspect:

It is thus a fundamentally important decision to be made at the outset of any inquiry whether to hold it entirely in public, entirely in private, or partly in each. Whatever decision is made about this, it will not satisfy everyone. [Emphasis added.] The media will always be in favour of a public inquiry, piously exclaiming that the sole purpose is to inform an anxious readership. But of course a public inquiry affords exciting copy and often readymade headlines, sometimes for months on end.

(Clothier 1996: 51)

He continues:

A tiresome cliche has been invented, namely a ‘full public inquiry’, as if there was some sort of half-baked inquiry which might suffice on occasion … they are hoping that someone or other close to the events in question, whom they often believe they have already identified, will have to appear publicly to be suitably chastised.

(Clothier 1996: 51)

In our inquiry into Orville Blackwood's death at Broadmoor Special Hospital we were placed under some pressure:

… by both the POA and Orville Blackwood's family to conduct a public inquiry, to let all parties have the right to hear oral evidence put before us and to cross-examine witnesses. We resisted those pressures. We were under pressure to concentrate on particular issues and to reach particular conclusions, and we were very aware of the public expectations that were raised (or diminished) by the establishment of this Inquiry.

(Prins et al. 1993: 3)

At the time we were conducting our inquiry at Broadmoor, my colleague and friend Sir Louis Blom-Cooper QC was conducting his wide-ranging inquiry into complaints about patient ill-treatment at Ashworth Hospital. Although the two inquiries had some aspects in common, there were major differences. For example, our inquiry was concerned specifically with policy and procedures within Broadmoor Hospital. ‘Our criticisms, where we had them [were] aimed more at practice and custom than at individuals’ (p. 3) (but the media sometimes erroneously linked the two). Sir Louis is an advocate of public inquiries and, indeed, has much experience of them. However, he has acknowledged that expense is an important factor since public inquiries involve substantial legal representation for all parties concerned; such representation may also lengthen the proceedings considerably (arguments for and against public inquiries were cogently set out in Blom-Cooper 1993 and 1999). The extent of his considerable experience in this field is described in some detail by Feldman (1999).

Of course, the decision whether or not to hold an inquiry in public or in private is a matter for the sponsoring body and not the inquiry team. It is my impression that a non-lawyer asked to chair a public inquiry would be reluctant to do so unless counsel to the inquiry had been appointed or a lawyer had been appointed to act as adviser/secretary to the inquiry panel. I would have been very reluctant to hold the Blackwood Inquiry in public without considerable legal advice and support.

Most homicide inquiries have been held in private — wisely in my view. In public inquiries, the proceedings tend inevitably to operate on an adversarial as opposed to an inquisitorial basis. Decisions to hold them in private or in public seem somewhat arbitrary. For example, the inquiry into the care and treatment of Christopher Clunis chose to sit in private, as did the inquiry into the death of the young volunteer, Jonathan Newby (Davies et al. 1995). The inquiries into the Robinson and Mitchell cases were held in public (Blom-Cooper et al. 1995, 1996). I can find no evidence that either of these latter inquiries would have been hampered in any way had they been held in private. There are good reasons for believing that private hearings allow witnesses to give sensitive and often emotive evidence and to feel less constrained and stressed. At a conference on the future of inquiries, the Responsible Medical Officer in the Mitchell case gave a moving account of the impact of the inquiry on himself and his family; for him it was clearly a traumatic experience, for even if no blame attaches, professionals are likely to feel, perhaps quite irrationally, that they may be to blame. In some way this is more likely to be the case if the hearings are in the full glare of public scrutiny. It may well be that future inquiries will tend to be held in public as a result of the implementation of the Human Rights Act, 1998, and the recent ruling of the European Court that the Edwards/Linford inquiry should have been held in public (case of Paul and Audrey Edwards v. the United Kingdom application no. 46477/99, 14 March 2002, see Chapter 3 in this volume).

Some feel that fairness also demands that the perpetrator of the homicide (who at the time of the inquiry will have been convicted and sentenced) should be asked to consent to all the personal documentation of their case being made available to the inquiry team; in a number of instances this has been done and consent obtained. An opposing view is that in such ‘public interest’ cases, consent is not required, the view being that difficulties would arise if consent was withheld. The Mitchell and the Ms B (Blom-Cooper et al. 1996 and the Dimond et al. 1997) inquiry teams suggested that central government should give clearer direction in this matter; namely that disclosure in the public interest should be seen to include disclosure to an inquiry.

Homicide inquiries

Inquiries into serious incidents are not new phenomena in the UK, and there have been numerous inquiries into the care (more frequently lack of care) of the mentally ill and people with mental illness or learning disabilities in institutions (Stanley et al. 1999). The focus of such inquiries has changed over the past decade or so to an examination of apparent defects in care in community settings. An important policy development has taken place, namely the introduction of the National Confidential Inquiry into Homicides and Suicides by Mentally Ill People (Appleby et al. 1997). This was set up under the aegis of the Department of Health and with the co-operation of the Royal College of Psychiatrists, the objectives being to inquire into, and collect overall data on, homicides and suicides committed by people under the care of, or recently discharged into, the community by mental health services. A number of recommendations have emerged from the reports of this inquiry; these have included the need for improved assessment techniques, better contact with patients, better communication between professionals and better liaison between psychiatric professionals and those in close contact with the family carers of patients. The inquiry, now re-named The National Confidential Inquiry into Suicide and Homicide by People with Mental Illness, is currently located at the University of Manchester. It is important to note that this inquiry is not concerned with investigating individual cases (see Appleby et al. 1997). For a very useful discussion of common themes in individual cases see Reith (1998) and also Prins (1998).

It is important to remember that a number of homicide inquiries pre-dated the central government requirement to hold them from 1994 onwards (Department of Health, NHS Executive 1994). Reference has already been made to the inquiry into the homicides committed by Graham Young (Aarvold et al. 1973 discussed by Bowden 1996) and the cases of Simcox in the 1960s and Illiffe (see Prins 1999). Later significant cases were those of Sharon Campbell, who stabbed to death her former social worker, Isabel Schwarz (Spokes et al. 1988) and Carol Barratt, a young woman who stabbed to death an 11-year-old girl in a shopping mall following detention under Section 2 of the Mental Health Act 1983. A Mental Health Review Tribunal had ruled firmly against discharge but the Responsible Medical Officer (RMO) discharged her following representations by the patient's mother (Unwin et al. 1991). Kim Kirkman was a patient with a long history of psychiatric secure hospital care; he killed a neighbour, but committed suicide before he could come to trial. The inquiry held into his case concluded that there was no way in which Kirkman's homicidal behaviour could have been predicted, but the team did recommend that in future more use might be made by practitioners of actuarial devices and research findings (Dick et al. 1991). Michael Buchanan beat to death a complete stranger (a retired police officer) in an underground car park. Buchanan had a long history of both residential child care and psychiatric treatment (Heginbotham et al. 1994). Andrew Robinson's and Jason Mitchell's cases were the subject of public inquiries, both chaired by Sir Louis Blom-Cooper and, amongst other matters, both revealed serious deficiencies in risk assessment and management (Blom-Cooper et al. 1995, 1996). Finally, the case of Christopher Clunis, probably the best known of all homicide inquiries, has served very much as a pattern to be followed in all the subsequent homicide inquiries mandated by the government instruction of 1994 (Ritchie et al. 1994). With a succession of such high profile cases (though minute in relation to the numbers of homicides committed annually overall) and the activities of intruders such as Michael Fagin in Royal Palaces, and Ben Silcock's intrusion into the lions' enclosure at London Zoo, it is not altogether surprising that the politicians decided that more formal procedures should be established for reviewing such cases. However, central government direction was doubtless fuelled by media ‘hype’.

Governmental preoccupation is with those who have a history of involvement with mental health services. Although homicides and other serious instances of violence against the person will be the subject of internal inquiries into those known to other services (such as probation or social services), there is no mandate for an independent external inquiry in such cases, though there is nothing to prevent a health au...