Why wasn’t Lucy Letby stopped sooner? This is the burning question that the families of her victims, and the public, are now asking. Steve Barclay, the Health Secretary, has decided that the best means of answering it is a ‘non-statutory public inquiry’. But what is such an inquiry, and will it be better than a full-blown statutory public inquiry?
Non-statutory inquiries can be set up by anyone, at any time, to investigate anything. They proceed in private and have no legal powers to demand the disclosure of documents or to call witnesses to give evidence. But they have the twin merits of speed and informality. The former may be very valuable, particularly where urgent changes are needed. The latter can facilitate a greater degree of candour about errors that have been made, as witnesses feel less pressure than they do in the full glare of public scrutiny. But such inquiries are entirely reliant on organisations and individuals to assist them. This cannot be guaranteed, particularly where livelihoods, reputations, and even freedoms, are at stake. So they may fail where this doesn’t happen.
Non-statutory inquiries also don’t always give victims, their families, and the public, the assurances they need that the Government understands the gravity of what has happened. An example of this is non-statutory inquiry into the horrific abuse perpetrated by David Fuller – who sexually assaulted many dead bodies that were supposedly safe in a hospital mortuary. Ordered by the then Health Secretary, Sajid Javid, on 8th November 2021, its proceedings have been entirely behind closed doors and it has yet to report almost two years on.
Statutory inquiries, by contrast, usually do enjoy a greater degree of public confidence – at least at the start. They proceed openly and in public, often with their proceedings broadcast on the internet for all to see. And they have the necessary powers to compel the disclosure of documents and to call witnesses to give evidence. So they are better equipped to find the truth and to root out misconduct, mistakes, and cover-ups. In many cases, there are also better placed to look more deeply and widely at any systemic problems with the institutions under investigation. They can then develop recommendations for reform that are more robust and have greater political capital with the Government.
However, statutory inquiries can take a notoriously extravagant amount of time, effort, and money to complete their work. This can be the result of bad decisions by those chairing them, expanding the issues being examined, or getting distracted by protracted procedural issues. But it is also a baked-in problem. Inquiries held under the Inquiries Act 2005 are obliged to hold public hearings in which long opening and closing speeches are made by the inquiry’s counsel and its participants. Advocates then spend days questioning witnesses about the events under investigation, as is presently occurring (of necessity) in the UK Covid-19 Inquiry. This is not always an efficient or proportionate means of finding facts or developing recommendations – much of which can be done in writing, privately, without the pomp and theatre of public hearings. Thus a small non-statutory inquiry, such as the Baroness Casey Review into the Metropolitan Police Service, may proceed far more nimbly than a larger, clunkier, statutory inquiry.
In the present case, despite the virtues of a non-statutory inquiry, the arguments for a full statutory inquiry are compelling and already appear to be gathering political momentum. First, the issues could not be more serious: allegations of repeated failures to protect vulnerable children from assault and murder in an NHS hospital. The public will need to be reassured that the full facts are uncovered and that such events are never allowed to happen again. Second it must be doubted that the relevant healthcare professionals and managers will remain fully cooperative with a non-statutory inquiry as the accusations against them mount in the media and eventually the courts.
In either case, the choice of chair and any supporting panel members will be critical. They will need to be smart, decisive, and rapidly able to get to grips with what happened at the Countess of Chester Hospital and how the existing local and national procedures for protecting patients failed so badly. They will also need to complete the inquiry as swiftly as possible. Not so quickly as to risk missing key issues, but not so slowly as to allow confidence in the inquiry itself to ebb away. Finally, they will need to engage directly with the public and, most importantly, with the families of Lucy Letby’s victims, whose experiences and unimaginable losses must remain at the forefront of any inquiry, whatever form it takes.
22nd August 2023 by Peter Skelton KC
