THE CROWN Office is reconsidering whether to sanction an investigation into 40 "avoidable" deaths within a health board.

It comes five months after Kate Frame, the police investigations and review commissioner (Pirc), demanded to know why no proper investigation was conducted after a whistleblower raised concerns over multiple deaths in Ayrshire and Arran.

It also comes as it emerged the Scottish Police Authority rejected allegations of misconduct against force chiefs over a failure to properly investigate.

That decision by Scottish Police Authority was described as a "cover up" by the whistleblower Rab Wilson, a former nurse with Ayrshire and Arran.


Now the Crown Office and Procurator Fiscal Office is giving further consideration to a possible investigation having been accused by Mr Wilson of  "appearing to pervert the course of justice" by previously concluding that "no further investigation" by Police Scotland was required.

A Crown Office spokesman said: “All of the reported evidence was previously reviewed and considered by our specialist Health and Safety Division.

“No criminal proceedings were raised on the basis of the available evidence at that time.

“Further consideration is being given to the matters raised by Mr Wilson together with the available evidence following the publication of the PIRC report.

“COPFS will then decide whether to instruct further investigations and will liaise with Police Scotland as appropriate.”


A PIRC report showed that police and prosecutors decided there had been no crime after examining two reports, one carried by the NHS watchdog and another commissioned by the health board itself and that detectives did not seek independent evidence following the report of potential criminality at NHS Ayrshire and Arran.

Mr Wilson first raised issued five years ago, saying there a scandal involving the health board involving 56 critical incidents and including 40 deaths was being kept quiet.

It is understood that the "avoidable" incidents uncovered by Mr Wilson in 2012 included three missed chances to diagnose cancers, the death of a patient who was trapped in a faulty lift, a death which followed inadequate treatment of a leg wound, and two cases where psychiatric patients "murdered or attempted to murder" a relative.

The SPA, in brief findings, rejected misconduct allegations against Chief Constable Phil Gormley and Deputy Chief Constable Iain Livingtone over claims of a failure and refusal to investigate the deaths.


And its report says that Kenneth Hogg, the authority's interim chief officer "following careful consideration of all relevant information available...determined that it could not reasonably be inferred that the alleged conduct by CC Gormley and DCC Livingstone may amount to misconduct or gross misconduct".

This came after an initial local police complaint by Detective Chief Inspector John Hogg revealed that while the Crown Office noted "the undoubted failings by Ayrshire and Arran Health Board" they determined that there was "no evidence that the actions of the board amounted to a criminal offence".

Mr Hogg had said he was satisfied that there was a "sufficiency of information" presented to the COPFS to allow them to make an informed decision on the matter.

Mr Wilson, who is expected to take the complaint to the watchdog, the Police Investigations and Review Commissioner (PIRC) has now written to Susan Deacon, chairman of the SPA calling for a meeting saying: "This is almost certainly the worst scandal in UK policing".


He said: Considering the poor recent history of the SPA, including a critical PIRC report on how SPA handles complaint it is surprising that your office turns out a prize example of how to get it all wrong."

Fellow NHS whistleblower Roger Livermore, once a top health and safety regulator in England has told Justice Secretary Michael Matheson that "the scandal in policing terms is Scotland's Hillsborough".

A Police Scotland spokesman said: "It remains our position that relevant reports and documents were submitted to COPFS for direction. The COPFS response outlined that no further investigation was instructed."

In 2013, Mr Wilson reported his concerns to the police and six months later, officers passed a report to the Crown Office and the health and safety executive but no further action was taken.

Mr Wilson made further reports to the police in an effort to make sure something was done and eventually lodged an official complaint.

Ms Frame in August, last year decided that Police Scotland failed to look into the case properly and was particularly critical of the original report submitted to the Crown Office by the police.

Her report stated: "The report doesn't appear to have been designed to convey the findings of an investigation."


The police did not interview any of the people directly involved and the only supporting documents sent to the Crown Office was a DVD produced by Mr Wilson, a copy of the health board's improvement plan and a report by Healthcare Improvement Scotland.

In December PIRC said that the SPA took too long to handle complaints and cases of possible misconduct, and then made decisions on them that lacked clarity and transparency and were in many cases not properly explained.

Mr Wilson said neither Mr Gormley or Mr Livingstone could produce evidence that they had carried out a thorough investigation "or even anything which could be considered a criminal law investigation".

And he complained that "not a single shred of independent evidence was sought or gathered by police in regard to this case".

"There were no witness statements by NHS staff involved, the families, the senior management at the NHS, or at NHS Scotland," he said.

"That is definitely a failure of policing, and of policing standards, they are sanctioning criminal activity on an unprecedented scale, they are misleading the public, the Scottish Government and Holyrood," he told Ms Deacon.

He added: "We would not normally venture into ‘resigning matters’ preferring to deal with the law and competence. However we cannot see how the management of SPA can continue with this scandal.

"Police had no evidence on which to base any decision on the deaths.


"COPFS similarly had no evidence. In stopping any further investigation, it appears that COPFS is perverting the course of justice on these 40 plus deaths..."

The health board has been at the centre of criticism over six so-called "avoidable deaths" over an eight year period at Crosshouse hospital in Kilmarnock which triggered Health Secretary Shona Robison to order a review by Healthcare Improvement Scotland in November 2016.

It found that NHS Ayrshire and Arran had investigated serious incidents via its own Directorate Adverse Event Review (DAER) system rather than under the label of a Significant Adverse Event Review (SAER).

As a result it was able to claim that there had only been four SAERS involving stillbirth between 2008 and 2016.