CARELESS WHISPERS
An analysis of the conviction of Barbara Salisbury by Mike Mackey,
her solicitor (Burton, Copeland Solicitors, Manchester).
The paparazzi have gone. The tabloids had their say and now there should be some
sober reflection on what it was Barbara Salisbury allegedly did and how those allegations
might impact on nursing consciousness, not to mention those feeble elderly patients,
whose exit from life is neither dignified, nor free of stress or pain. Forget the
tabloids. Essentially, the trial focussed on questions usually found in academic
debate or criminal law exams. How was it that she was acquitted of two counts of
attempted murder, whilst failing to be convicted of the other two?
In relation to
the first two counts, on which she was acquitted, the jury had to decide between
two versions of fact.
For example, in Count 2, the Crown alleged that she had withdrawn vital oxygen, laid
a patient flat and had told another nurse what she had done. All this was said to
have happened on an unspecified late afternoon shift. The defence was it simply didn’t
happen.
Once we proved; firstly, that the patient didn’t need, let alone wasn’t being
given oxygen, and secondly that the alleged conversation hadn’t taken place, (the
witness telling the jury that he didn’t understand how it had appeared in his police
statement) and, finally, that a nurse, who supposedly witnessed the incident and
its consequences, had never worked an afternoon with Salisbury at the relevant times,
it’s simple enough to conclude that acquittal was because the jury weren’t convinced
of the facts, alleged by the Crown. Salisbury said she never did what was alleged,
the jury were prepared to accept her account.
On the next two counts, where convictions
followed, the question for the jury was one of interpretation of broadly agreed facts.
Whilst certain allegations were in issue, Salisbury accepted that she had put up
a diamorphine graseby infusion for May Taylor and that she gave two injections of
diamorphine, each 2.5 mgs, to Frank Owen. So, how was she convicted?
There’s a simple and a complex answer.
The simple explanation is that she talked herself into it. “Inappropriate” remarks
aren’t usually crimes in themselves, but in the hands of a skilled prosecutor, they
can be fashioned into indicators of criminal intent. For example, faced with 88 year
old May Taylor, a victim of a severe parietal haemorrhage, Salisbury was heard to
remark, “well she’s not going anywhere”. It may be that the jury accepted the Crown’s
suggestion that Salisbury had decided that May “wasn’t going anywhere”, because she’d
decided the time had come and intended no delay in the “departure lounge”, the hospital
side room, once the Ferryman was waiting. Of course, it’s glib and fatuous in the
extreme to suppose that that’s all there was. There was much more and some of it
takes wisdom to work out.
This was no nursing Shipman.
Doctors had prescribed all the diamorphine given. Hospital records confirmed the
prescriptions. Drug records on the ward tallied. Doses weren’t exceeded, nor were
repeat doses given at wildly inappropriate times. In themselves, Salisbury’s actions
weren’t illegal. Only criminal intent could make them crimes. The jury had to assess
what was in her mind. This jury accepted the Crown’s suggestion that this nurse made
no secret of what was on her mind. She told everyone. That’s a point we’ll look at
again, after all, most would be killers don’t broadcast their murderous intent.
How
can we establish what her intention was?
The starting point is the concept of “double effect”, an area in which philosophy,
the law and medical ethics share common conundrums. How to proceed, when a course
of action might have an intended salutary effect and an unintended, though possible
or indeed probable, secondary deleterious effect? The situation is immediately recognisable,
as it was in this case, in palliative care of the elderly terminally ill. Classified
“DNR” (do not resuscitate), these are patients for whom medical treatment could bring
comfort, but never cure. They were for “TLC” (tender loving care). Ward round notes
detailed the need for them to be kept “comfortable”. Where should the line be drawn,
when, say, it’s probable that a patient is in pain or distress, but opiate drugs
are known to have side effects? More so, what if probability is not established,
but the real possibility of pain exists in the final hours?
It’s not that often that
medics and lawyers agree, but they do on this one. We have to establish what is the
“primary intention”. In any procedure, if the primary intention is the provision
of comfort, it’s unobjectionable, even if death follows. But, if the primary intention
is that the supposedly unintended, secondary effect should occur, that’s a crime
against medical ethics. If the secondary effect is to hasten death, (in this case
supposedly to clear hospital beds), then it’s a murder or attempted murder, dependent
on whether death can be shown to have been caused by the procedure. “To everything
there is a season. And a time to every purpose under Heaven”. The decision rests
with the Almighty.
This case was all about intention.
So far, so good, but more esoteric issues were floated for the jury’s consideration.
When should diamorphine be prescribed? We all know that opiate drugs have an effect
on pain. They also bring a sense of calm and, finally, may suppress the cough reflex.
The medical use of daimorphine is prohibited in Germany and, whatever the “official”
view, it’s plain there’s a divergence of practise here in the UK.
Some say that diamorphine
is a last resort. Its use limited to those cases, where patients are in pain and
no other drug is available. Some say that its use is appropriate, not only for pain,
but also where there’s “agitation”. Yet others seem to think “discomfort” is enough.
Already, we’re in a morass, subjective words such as “pain” or “discomfort” mean
different things to different people. Following Shipman, anything to do with drugs
is clouded in concerned unease. When does one man’s diagnosis of “discomfort” become
another’s assessment of “agitation” or even “pain”?
The Crown’s experts had it that,
in most cases, the prescription of diamorphine was unjustified. That raised a problem,
because responsibility for prescription rests with doctors, some of whom were to
be called by the Crown. They were there to prove the history of medical and nursing
events. The jury were confronted with Crown experts saying that diamorphine wasn’t
justified, whilst the doctors who did the prescribing, called as witnesses of truth
by the Crown, told the jury why prescriptions justifiably had been written.
This
apparent dilemma: the possibility that there may be two villains in the piece, the
killer nurse aided by negligently homicidal doctors, led to three strata of allegations.
As ward sister, Salisbury often accompanied consultants on ward rounds. The jury
were urged to conclude that she “engineered” the prescription of diamorphine, by
describing pain that wasn’t there. Once the prescription had been secured, she administered
the drug, when she knew it wasn’t needed. The third stratum was that she told junior
colleagues to lie patients flat, knowing it was, in that PC buzz word, “inappropriate”
and possibly dangerous.
Let’s look briefly at the facts, as they came out. Of necessity,
the outline has to be fairly shorthand.
Salisbury was convicted of the attempted murder of May Taylor. Remember, no one alleged
she had actually murdered her. No one could conclude that her death, or that of Frank
Owen, (the other patient, in respect of whom a guilty verdict was entered), was other
than natural. Even Crown experts couldn’t say the drug had killed or actually hastened
death. On anybody’s view, these were patients within hours or perhaps a day of the
Ultimate Meeting with their Maker.
May Taylor was discovered collapsed and calling
for help, she became unconscious and was admitted to hospital. The suspicion was
that she’d had a stroke. On the medical admissions unit, she was assessed as being
pain free and appeared unconscious. Transferred to the ward, after a CT scan had
confirmed a massive parietal haemorrhage, she was designated “DNR” and, on her second
day was prescribed a diamorphine infusion, at an appropriate dose. In justification
of the prescription, the doctor concerned said that nursing staff had said May was
in pain. “Nursing staff” was, of course, Salisbury. In addition, there was the question
of a large parietal haemorrhage, which in his view would almost certainly have painful
sequelae.
The pump wasn’t set up.
For the next twenty four hours, nurses assessed that May was pain free. But the following
day, after a ward round, Salisbury approached a colleague telling her that May was
“written up” for a graseby, they hadn’t got round to putting it up, so would she
do it? That nurse refused. She said that May wasn’t in pain and didn’t need it. Unconscious,
May couldn’t resolve the issue. Following some argument, Salisbury decided to do
it and enlisted the help of nurse A, who told the jury that she did see May flinch
and, at the time, had thought the graseby was appropriate. By the time of trial,
she’d re-assessed her position and wasn’t now so sure.
May’s pump actually took 36
hours to deliver a twenty-four hour dose, but it was re-primed the next day. Salisbury
wasn’t there when it was re-primed, or when May died about 90 minutes later. The
jury were told she had died with dignity, whilst comfortable and pain free.
Let’s
look again at the Crown’s allegations: Was the diamorphine justifiably prescribed
or had Salisbury reported pain that wasn’t there? Remember, no-one else saw her in
pain. Three consultants said it was justified. One had carried out the ward round
preceding the infusion. Supported in evidence by his two colleagues, he told the
jury that strokes arising from haemorrhage cause menningeal irritation, which can
cause pain, even at May’s level of consciousness. Indeed, one consultant opined that
it was “almost inevitable” that the old lady was in pain.
Those briefly are the facts.
So, how does a nurse find herself incarcerated for five years, for giving properly
prescribed drugs, in the amount prescribed, to a patient who needs them? Answer;
it’s all to do with intention. The question is the principle of double effect, which
we looked at before. But, this old lady was almost certainly in pain, if the unchallenged
evidence of three consultants is accepted. How could the jury conclude that Salisbury’s
primary intention was to clear beds by hastening death, rather than giving relief
from the pain, which was “almost inevitably” there?
She talked herself into it.
Giving
evidence, her memory depleted by courses of ECT, (consequent on a breakdown, which
followed press revelations of her suspension), Salisbury denied making comments attributed
to her. If the jury concluded that she did make the remarks alleged, she was at best
politically incorrect, at worst, she felt so relaxed about her intentions, that she
didn’t mind airing them to colleagues, who, in turn, didn’t think them significant
at the time.
Go back to the argument.
She said, “she’s not going anywhere” and, worse,
when proclaiming that she would put up the pump, “why prolong (or prevent) the inevitable?”
The first remark was no more than a statement of fact, however bluntly put. The second
was much more damaging. What else could it mean, other than “why prolong or indeed
prevent the inevitable – death”?
There was an explanation, given by one of the witnesses.
May was certain to need the graseby at some point, due to her condition and the irritation
caused by the mass of blood lying on the brain surface. Her evidence was that she
took Salisbury to mean that the need for and setting up of the graseby, was inevitable,
not death. May had been about to undergo re-catheterisation. If the graseby was inevitable,
perhaps immediately prior to any procedure was an appropriate time to put it up.
Clearly,
the jury didn’t accept that.
Despite unchallenged medical evidence that May would
almost certainly be in pain, they took a thoughtless remark, badly phrased and in
the wrong company, to be one indication of an intention to hasten death. Put directly,
an assertion of an intention to kill.
There’s the clear basis for saying that Salisbury’s
actions were clinically justifiable. There was a clear medical basis for her assertion
that the patient was in pain, even if cautious colleagues were not persuaded. Had
there been reference to a doctor to resolve the issue, it’s beyond doubt that it
would have been resolved in Salisbury’s favour, at that time, on that ward.
There
was no reference to any higher authority, instead, an unpopular, head strong but
competent nurse decided to do things her way. Had she explained herself fully, perhaps,
she might not have been in the dock. The sentence “why prevent the inevitable”, capable
of more than one meaning, dropped from her lips as an inevitable sentence of five
years. It helped the jury to the conclusion that her primary intention was to hasten
death. Once that was established, any number of medical reasons, which totally justified
the infusion were of no consequence.
The second conviction depended on even more
complicated scenarios.
In Frank Owen, again the question was primary intention when
giving diamorphine, but there was more. We need to dwell on a number of controversial
nursing issues.
Do experienced nurses instinctively know when death is nigh? It’s
not just a case of the infamous “death rattle”, when breathing becomes uneven, shallow,
then deep, with precipice peering interruptions. More than that, is it possible that
with decades of nursing experience, sometimes intuition gives an insight as to when
“the moving finger” no longer will write and move on?
Some say they do.
Next, consider
this: if a patient is so advanced in the downward spiral, is it right to continue
with treatment, which doesn’t enhance quality of life and has no prospect of achieving
cure. Should that treatment continue?
Some would say that this is the question posed
when “the machine is switched off”. Surely death will follow, but, the electron flow
in copper wire isn’t the same as the spirit flow of the reactive discharges of synopses
in the brain. In an intensive care mode, there’s usually no issue.
What if we apply
the test to other treatment? What about subcutaneous fluids? They’re never going
to achieve a cure. In the last few hours, when consciousness has all but ebbed away,
are relatives and the patient better passing the last few moments without intrusive
tubes and the paraphernalia of failed medicine?
Of course, there’s a divergence of
opinion.
On the one hand, there are those who say that, once it’s established that
treatment won’t cure or enhance quality of life, it should be stopped.
On the other,
the politically correct view may be that, if treatment is available, it should continue,
because it’s the patient’s right to receive it. It may seem strange that this viewpoint
would say that the patient has a right to decline medication, he has a right to decline
to eat or drink, even though he knows the consequences. It seems, however, that the
patient is not to be allowed the ultimate right, that is, the right to die.
Think
about that.
A man can decline active treatment by medication, he can be told, and
understand that if he doesn’t eat or drink, he’ll become dehydrated and eventually
die. If that’s his choice, he’s entitled to make it. However, having allowed the
choice to be made, nursing staff then put up fluids, which, in effect, deny or delay
the implementation of his choice.
How does that arise? Is it the case that no one
expects nurses to coerce the man to feed, but, if there are no fluids, someone may
criticise?
At this hospital, the two schools of thought co existed with some friction.
On
a similar vein, there’s the issue of lying patients flat. The defence understood
that the “text book” instruction, in most cases is to nurse patients in an upright
or semi upright position. But what if the semi conscious patient appears to be awkward
in that position? Is there a need then to nurse the patient as he or she is most
comfortable, particularly in the last stage of terminal illness?
Frank Owen was 92.
He had a number of complaints and a history including stroke. He’d been a long term
patient, from time to time certified medically fit, but never actually discharged.
From time to time he refused both medication and food. Doctors spoke with the relatives,
saying they didn’t feel it appropriate to force feed him. Some would say his notes
depicted an old man trying to die.
Towards the end of March, his condition deteriorated.
Salisbury conducted a swallow test and found that he had difficulty. On 25th March,
having referred him to SALT, she herself became ill and was admitted for observation.
She returned on the 31st, Easter Sunday, by which time Frank’s condition had deteriorated.
In
the intervening week a sacral abcess had required intervention. He had contracted
MRSA. In view of apparent agitation and pain, on 28th/29th March, he was given two
injections of diamorphine, each 2.5mgs, prescribed on an “as required basis”. He
continued to be agitated, pulling out his catheter with the balloon still inflated.
Bleeding and trauma to his penis didn’t merit any pain relief. His right hand, clawed,
as sometimes occurs in strokes, was said by relatives to be sore when touched.
By
31st March, despite everything, nursing notes indicated that he was pain free. That
morning Salisbury came on duty. At about 8:30, she gave an injection of 2.5mgs. The
accompanying nurse, B, agreed the injection was well justified. At about 12:30, the
same two nurses gave a second injection. At trial, Salisbury explained they should
give it, as the effect of the first dose would be wearing off. This time, nurse B
said that, as the needle went in, she thought to herself, “He doesn’t need this”.
At the time, she said nothing, raised no objection or query. On writing up the notes,
Salisbury entered “please assess every shift ?? graseby”. Frank died that afternoon.
Once
again, on the face of it, what was wrong?
On the morning handover, a nurse said she
had taken care to impress on Salisbury that Frank was pain free. She said Salisbury’s
first remark was “what’s he still doing here?” She then allegedly asked if he’d had
any pain relief, (whereas, at that time, as the defence pointed out, she had no way
of knowing of the diamorpine prescribed whilst she had been off sick).
At around 7:30,
two nurses were bed bathing Frank. Salisbury entered the side room and said “Why
is this man still being nursed sat up, when you’ve finished bathing him lie him flat.”
Callously, she was said to have added, “With any luck his lungs will fill and he’ll
get pneumonia”. Whilst administering eye drops, she was said to have noted, “Look
he’s going stiff already”.
Salisbury denied these remarks, though she accepted that
she couldn’t actually remember the incident. One student nurse, despite some years
working as a health care assistant, was so upset by the remarks that she made a note.
Instructions to “lie him flat” weren’t followed, the nurses lay him in a more reclined
position with two pillows.
The Crown had it that Salisbury wanted him to be laid completely
flat. She said that such instruction would mean “in the recovery position” or “flatter”.
The jury appear to have accepted the Crown’s version, even though, when she gave
the two injections, Salisbury didn’t remove the pillows, or comment on Frank’s position.
A
few days later, during normal ward conversation, Salisbury was asked if Frank had
died peacefully. Her reply was said to be an admission of guilt: “Yes, thanks to
me, I gave him an injection in the morning and one at lunchtime. It did the trick,
he died that afternoon”. Giving evidence, the Crown’s witness said that she had understood
Salisbury to be saying that the injections had ensured that death, imminent in the
morning, was peaceful when it came. But the jury were invited to conclude that “the
trick” was death, not death in comfort.
There’s an adage in the law: “things will
always “go wrong” when you’re on holiday”. Salisbury went on holiday. In her absence
two nurses set the ball rolling. They had a number of complaints, not being allowed
to wear jewellery, difficulty getting time off, Salisbury’s “sergeant major” attitude
and, finally, there was the issue of patient care.
Other nurses were invited to express
concerns, if they had them. Concerns included allegations, which were to form the
basis of three allegations of attempted murder, of all of which she was acquitted.
Remarkably, one centred on Salisbury being described by a patient as the “nurse in
the blue dress”. She hadn’t worn a dress in years, but the police were told she was
the only nursing sister who did.
Police enquiries were thorough. They revealed that
a number of allegations were no more than ward gossip, (they never got to a jury),
others were demonstrated to be plain wrong.
As lawyers, we have defended many nurses
under investigation. Each is different and it may be that, as lawyers, laymen in
clinical matters, we just don’t understand the shades of ethical opinion or divergence
of practice. Perhaps we’re cynical to suggest this nurse of 30 years standing “talked
herself into it”. Perhaps the “front” of seemingly uncaring comment, black humour
and talk of side room “departure lounges” is outdated and just unacceptable. Perhaps
the “old timers” will just have to observe “appropriate behaviour” at all times.
Was
Salisbury innocent, as she claimed? Did her careless whispers convict her? You decide,
but this may help you.
Remember that Frank Owen was given diamorphine whilst Salisbury
was off sick. One of the nurses, who did that, was supportive of Salisbury when the
investigation began. It was reported to the police that, in what the witness took
to be an obvious joke, albeit in bad taste, the nurse had supposed people would say
that Salisbury “bumped them off on days and I bumped them off by night”.
Neither the
nurse who gave the injection with her, nor those, who gave the next injection were
questioned as suspects, but that nurse was. She was interviewed under caution, the
allegation being conspiracy with Salisbury, to murder Frank Owen.
Work on the appeal
is ongoing.
Editors note: I once came into social contact with a man who worked for a funeral parlour. Up to that point I had always viewed people who did this job as humourless, sober individuals. I found him exactly the opposite. I remember one of his remarks was that "the funeral business was anything but a dying trade". Jollity in front of grieving relatives would have given offence but in private amongst colleagues a funny remark eased the seriousness of their business. Surely the medical profession is very similar, how else do you cope with the tragedy of inevitable death. Judge people not on the words spoken that can easily be "spun" - but by their deeds. Barbara Salisbury had spent 30 years looking after the sick, do you really think she would have lasted so long and been made a ward sister if she did not care? Has the medical profession become so dangerous that these people who look after us dare not open their mouths? If so me - and you - are likely to die in agony.
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