PROSECUTORS in Scotland "do not have a clue how to deal with suspicious deaths in healthcare", campaigners have warned after the Crown Office ruled out investigations into more than 40 avoidable patient deaths and injuries in Ayrshire.
They likened the decision to the failure to properly probe Gosport Memorial Hospital where 456 elderly patients died after being prescribed dangerous doses of painkiller, and warned that serial killing GP Harold Shipman "would be safe from detection here".
Campaign group Action for Safe and Accountable People's NHS (ASAP-NHS) has been pushing since 2015 for NHS Ayrshire and Arran to be prosecuted under health and safety law over dozens of patient deaths exposed by whistleblower and ASAP member Rab Wilson, a former psychiatric nurse at the health board.
Mr Wilson fought a five-year freedom of information battle to force NHS A&A to disclose its Serious Adverse Event Reviews (SAERs) into incidents of avoidable patient deaths and injuries, only succeeding when he eventually took his case to the Scottish Information Commissioner and won.
Since then ASAP-NHS, which is led by retired Health and Safety Executive inspector Roger Livermore, has obtained 86 serious incident reports covering a two-year period in Ayrshire and Arran.
They include at least 46 fatalities where the failures reported are believed to have contributed to the individuals' deaths.
In a letter to First Minister Nicola Sturgeon on behalf of ASAP-NHS, Mr Livermore said: "For the Lord Advocates to take no enforcement action on the systematic failings behind the 40 deaths is a repeat of the errors of the initial investigations into the Gosport Memorial Hospital deaths scandal.
"The law officers repeatedly demonstrate that they do not have a clue as to how to deal with suspicious deaths in healthcare. It is as if Dr Shipman would be safe from detection here."
The dossier includes cases where a patient died after missing 27 doses of medication over nine days; a cancer patient whose tumour was overlooked in a CT scan and only identified seven months later when the disease was terminal; and a psychiatric patient admitted to hospital after a suicide attempt who was left in a room with "self-harm items".
In many of the cases, staff shortages or inadequate training, communication breakdowns and poor record-keeping were blamed.
Only one case - where a patient killed themselves in an understaffed psychiatric facility while wrongly labelled not to be a suicide risk - led to a prosecution.
The health board was subsequently convicted of criminal breaches of health and safety.
Mr Livermore, from Bathgate in West Lothian, said that prosecution "seems only to have come about because the parents of the deceased repeatedly pressed the [Crown Office] for action".
In 2015, he submitted the dossier to former Lord Advocate Frank Mulholland but no action was taken.
A fresh review was commissioned in 2017, but the Crown Office has again declined to instruct further investigations.
Mr Livermore, who was also a lead safety inspector at the Office of Rail Regulation, said the law officers were failing in their responsibility to prosecute "systemic failures" affecting patient safety.
He added that SAERs data obtained from NHS Lothian and NHS Tayside pointed to similar issues in those regions, but stressed that problems "are endemic across all of NHS Scotland due to the failure to implement or comply with the UK-wide law on patient safety".
An OECD report in 2016 warned that Scotland's healthcare watchdog, Healthcare Improvement Scotland, risked "marking its own homework" because it is both responsible for improving and inspecting the NHS.
The international body also recommended the creation of a national system for reporting adverse events.
A spokesman for the Crown Office said the cases had been previously considered by its specialist Health and Safety Division and no criminal proceedings were raised "on the basis of the available evidence at that time".
He added: “Following review by a senior prosecutor, who had not previously been involved in the case, the Crown has concluded that there are no further investigations which should be instructed.
"The Crown reserves the right to reconsider its decision should further evidence become available."
Professor Hazel Borland, Nurse Director of the NHS Ayrshire & Arran said it would be "inappropriate to comment on a decision made by the Crown Office".
A spokesman for the Scottish Government said: "The Scottish Government has no involvement in decisions regarding the investigation and prosecution of alleged criminal activity.
"These are the operational independent responsibilities of Police Scotland, the Health and Safety Executive and the Crown Office and Procurator Fiscal Service.
"Safety for patients is our top priority and The Scottish Patient Safety Programme has led to unprecedented improvements in quality across the NHS."
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