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For example, in Count 2, the Crown alleged that she had withdrawn vital oxygen, laid a patient flat and had told another nurse what she had done.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.