Robbie Powell: the failures of UK political and legal systems in the death of a 10-year-old boy [PART TWO]

Steve Topple

The death of a 10-year-old boy more than 26 years ago is once again being investigated amid claims of a cover-up by medical professionals, the NHS, the Welsh Office, police, the Crown Prosecution Service (CPS), the Independent Police Complaints Commission (IPCC), the General Medical Council (GMC) and other public bodies. Robbie Powell, from Ystradgynlais, Powys, died a preventable death in 1990. Original investigations by Dyfed Powys police and the CPS, between 1994 and 2000, claimed that there was no evidence of any criminal offences committed. But following an independent investigation between 2000 and 2002, and 35 suggested criminal charges, the CPS agreed that numerous individuals could be charged. But they never were. So now, his grieving father is once again fighting for justice.

Note: All evidence cited in this article has been seen by The Canary.

You can read Part One of this article here.

The UK courts

In April 1993, Mr Powell took civil action against West Glamorgan Health Authority with regards to Morriston Hospital’s alleged negligence, and personally against the five GPs. Allegations of post-death dishonesty, conspiracy and the falsification of medical records against all parties were set out in the particulars of claim.

Following the conclusion of the first police investigation in May 1996, which found that Robbie’s death had not been caused by Morriston Hospital, West Glamorgan Health Authority still admitted negligence and causation and paid £80,000 into court. But it was claimed in the admission letter that no individual doctor was to blame, which is a contradiction when medical negligence has being accepted. The GPs also approached the Powells’ solicitor offering to settle the case out of court with a gagging clause – the Powells’ compensation was estimated in excess of £300,000.

But the Powells refused to settle. They wanted the events of Robbie’s negligent death and the alleged post-death cover up exposed in open court to prevent any other family having to suffer, as they had, as a consequence of medical dishonesty.

The defendants then made an application to the Legal Aid Board in an attempt to have the Powells’ public funding withdrawn because of the admission of liability. But their application failed.

A staggering ruling

The trial was set to be heard at Cardiff Crown Court for a period of six weeks in June 1996. But the GPs made an application to the court to have the case struck out, which the judge agreed to after a four-day private hearing. Essentially, it was ruled that doctors could be untruthful to parents of a child who had died as a consequence of medical negligence. That they could provide false statements and documents in civil proceedings to defeat a claim for that negligence, and do so with impunity.

The Powells were given leave to appeal, but were forced by the restrictions of public funding to settle the negligence claim with West Glamorgan Health Authority and accept the £80,000 compensation that was secured by the court pending the outcome of the appeal. The case was heard by the Court of Appeal in 1997, but the previous ruling was upheld and the £80,000 compensation was totally absorbed in legal costs with an order for costs against Mr Powell for the deficit. Lord Justice Stuart Smith, presiding over the case in 1997, said:

I readily understand that the knowledge that the death would have been avoidable if proper care had been taken by the Health Authority and those from whom they are vicariously liable is likely to add keenly to their grief… I can only express the hope that Mr. and Mrs. Powell will now take the view that there is little to be gained in seeking to take the matter further.

Lord Justice Stuart Smith refused the Powells’ application for leave to appeal to the House of Lords.

Glossing over a death

Dr Brian Goss of the British Medical Association (BMA) General Medical Services Committee stated regarding the ruling that “GPs could now put a gloss on the cause of death without fear of litigation”. But Stuart Smith also presided over the systematically flawed 1997 Hillsborough inquiry, set up by then-Home Secretary Jack Straw. It was at this inquiry where, even though damning evidence was presented that a cover-up had taken place, Stuart Smith dismissed any notion of wrongdoing.

With public funding and legal representation, the Powells petitioned the House of Lords for leave to appeal, which was refused in 1998. However, in 2008 the House of Lords overruled significant parts of the 1997 Court of Appeal ruling in Robbie’s case. The decision is not retrospective, though, and the Powells’ £80,000 in legal costs was not reimbursed. It is Mr Powell’s view that, had the Lords granted leave to appeal in 1998, the outcome would have been the very same as it was in 2008. This in turn would have resulted in the facts of Robbie’s case and the apparent cover-up being determined by the court.

The European Court of Human Rights (ECtHR)

Following the refusal by the House of Lords to grant an appeal in 1998, the Powells took Robbie’s case to the ECtHR. In May 2000 the case was found inadmissible. However, one positive aspect of the ECtHR’s ruling was that it clearly and unambiguously set out the law with regards to UK doctors’ obligations regarding candour with bereaved parents and relatives. The ECtHR stated:

Whilst it is arguable that doctors had a duty not to falsify medical records under the common law (“duty of candour”), before (Robbie’s case) there was no binding decision of the courts as to the existence of such a duty. As the law stands now, however, doctors have no duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records.

The ECtHR’s inadmissible ruling in Robbie’s case was, in Mr Powell’s eyes, erroneous. He believes that the ECtHR not only got the facts of Robbie’s case wrong, but it also misinterpreted its own case law. It was claimed that there had been no breach, under Article 2 of the European Convention on Human Rights (the Right to Life), because the Powells had accepted compensation in civil proceedings. In fact, they had no other option but to do so, as a consequence of the admission of liability by West Glamorgan Health Authority in 1996.

Breaches of human rights?

When there is an admission of liability, in UK civil proceedings the merits of the case cannot, and will not, be heard by the court. The Powells are of the view that the UK has denied them an effective, independent and official inquiry into Robbie’s death, which is their right under Article 2, which is clearly demonstrated by the fact that the Powells’ NHS complaint was not concluded because of the Welsh Office’s maladministration and apparent cover-up. As well as this, there have been other instances where the ECtHR have ruled that civil proceedings do not fulfil the State’s obligation under Article 2.

A month before the ECtHR considered Robbie’s case, the same judges, bar one, considered the admissibility decision or otherwise regarding the case of Jordan v UK (PDF), which was found to be admissible. During the case, it was noted that Mr Jordan’s father, the applicant, had initiated civil proceedings. But unlike in Robbie’s case, the judges ruled, with specific regards to Article 2, that “the Government cannot rely on civil proceedings either, as this depends on the initiative of the deceased’s family”. Essentially, they deemed in the Jordan case that there should have been a public inquiry – and there subsequently was one.

The Welsh Senedd

In July 2012, a Welsh government report was released into Robbie’s case and its implications for the NHS. The then-Health Minister Lesley Griffiths said there had been a “catalogue of failures and missed opportunities” in Robbie’s case. Griffiths told the Welsh Senedd:

The pain has been made all the worse for his (Robbie’s) family by subsequent events and investigations, none of which have brought satisfactory answers for them.

She said thousands of people received excellent healthcare from the NHS every day, but when things go wrong the service “must take every opportunity to learn from those mistakes”. The report recommended changes to the way medical records are accessed and stored. Previously, GPs have up to a month to send medical records to a local health board (LHB) after they are told a patient has died. Records must be sent within 14 days if the GP is informed of the death by the LHB. But the report stated that records must be “locked down” when a complaint against a GP is made following a death. Mr Powell believes this appeared to be a blatant acknowledgment from the Welsh government that Robbie’s medical records had been falsified.

A parliamentary debate

In March 2013, the Powells’ then MP, Jonathan Evans, tabled a debate in parliament over Robbie’s case. Evans highlighted that:

The case of Robbie Powell has become notorious as an example of the failure of multiple individuals and agencies. The satirical magazine Private Eye has described it as one of the most shocking and astonishing stories in the history of the NHS. The multiple failures even affected how the case was dealt with by Welsh Office officials, which led to two Cabinet Ministers (Redwood and Hague) giving parliamentary answers that later proved to be untrue.

Evans went on to describe how every institution or organisation involved in Robbie’s case had either “blocked, impeded or even falsified” the evidence. He accused the Welsh Office of providing “false information” to Cabinet Ministers. He criticised the original CPS investigation in 1996 as “simplistic”. Evans was scathing about the initial police investigations by Dyfed Powys police. He described the later CPS investigation in 2003 as “self-serving”. He was especially critical of the “unqualified assurances” from Dyfed Powys police to the GPs that they would never be prosecuted. And he surmised that:

I cannot imagine for one moment that an argument of that sort would cut much ice in the considerations that Parliament has given to the issues surrounding the deaths at Hillsborough in 1989, more than a year before the death of Robert Powell. Accordingly, the passage of time in itself surely should never be relied upon by the prosecuting authorities as a reason why no prosecution should be taken forward, and I can imagine the outcry if such a claim were to be made in the Hillsborough case.

An establishment cover-up?

Sadly, Evans has been one of only a few politicians to maintain a constant stance over Robbie’s case. Mr Powell has written jointly to every MP on three occasions, with little support. Rhodri Morgan, Shadow Health Spokesperson for the Labour Party from 1993-97 and subsequent First Minister, is a case in point. Morgan vocally and publicly supported the Powells’ case during his time as Shadow Health Spokesperson. He said the Powells had been “treated abominably”; that the official routes Mr Powell had gone down regarding his complaints amounted to “a stitch-up from start to finish”; that Robbie’s case was “one of the worst… of maladministration or deliberate cover-up that may have stained the record of the Welsh Office in its thirty years plus history.”

Crucially, he said that:

It just seems completely unlikely that the Welsh Office officials would have, just out of sheer incompetence, misled (Mr Powell) and us two MPs about the GP records. It is only common sense to say that it is far more likely that they would have done it for a reason, namely in order to bias the inquiry against the plaintiff (Mr Powell).

He also stated that:

I think the history of the Powell case is so serious now, in terms of the cover-up that was involved afterwards, that I think nothing less than an independent inquiry is probably ever going to really get to the truth.

It is this public inquiry, which Mr Powell wanted and is still pursuing, that Morgan had repeatedly backed. But as soon as he became First Minister he backtracked on this pledge and didn’t do anything, handing the matter over to his successor in 2009 after almost a decade in office.

Morgan’s ‘flip-flopping’ perhaps best sums up the whole, terrible case of Robbie’s untimely death. The fact that the GPs involved also worked for Dyfed Powys police, who investigated them. The so-called “independent” police force having “mates” in Dyfed Powys police, who it was investigating. False statements from Cabinet ministers, secret meetings between those involved and the people responsible for their possible prosecutions, and the wholly ineffective and complicit CPS. If there was ever a case that felt, looked and sounded like an establishment cover-up, it is the case of the tragic and needless death of Robbie Powell.

All evidence cited in this article has been seen by The Canary.

The Canary will be working with the Powell family on a further investigation into Robbie’s tragic death. You can read Part One of this article here, Part 3 here and all other articles in The Canary’s series here.

Get Involved

– Read more on Robbie’s tragic story.

– Write to your MP, asking them to intervene in the case.

– Support the family on Facebook.

Featured image via the Powell family

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