Bristol Royal Infirmary Inquiry PRELIMINARY HEARING

Preliminary hearing

THE BRISTOL ROYAL INFIRMARY INQUIRY

(the Inquiry into the management of care of children

receiving complex heart surgery at

The Bristol Royal Infirmary)

PRELIMINARY HEARING

held at

The Council House

College Green

Bristol

on the

27th day of October 1998

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Chairman: Professor Ian Kennedy

Members: Mrs Mavis MacLean

Mrs Rebecca Howard

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T R A N S C R I P T O F P R O C E E D I N G S

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I N D E X

PAGE

Opening Address by the Chairman 4

Legal Discussion 25

Questions from the floor 44

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A T T E N D A N C E S

Brian Langstaff QC, Eleanor Grey, Alan Maclean for the

Inquiry

Simeon Maskrey QC and Nigel Godsmark, instructed by Tozers

and Toller Beattie, on behalf of the Bristol Heart

Children's Action Group

Stephen Miller QC and Gregory Chambers, instructed by

Wansbroughs Willey Hargave on behalf of the United Bristol

Healthcare NHS Trust

Simon Chen, Solicitor, from Le Brasseur J Tickle instructed

by the Medical Protection Society on behalf of Mr Wisheart

and Mr Dhasmana

Alison Troake, Solicitor, from Hempsons, and Simon Eastwood,

Solicitor, from Winckworth Sherwood both have "watching

briefs" on behalf of the Medical Defence Union to provide

representation for those of its members who need/want it.

Mark Wilson, Solicitor, from the Office of the Solicitor,

Department of Health

Michael Brooke QC instructed by Bevan Ashford on behalf of

Avon Health Authority

Philip Havers QC instructed by Parlett Kent on behalf of Mr

and Mrs Stewart

Andrew Sims, Solicitor, Sims, Cooke and Teague, is

instructed on behalf of the Surgeons' Support Group

Barry Cotter is instructed by the Royal College of Nurses

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Tuesday, 27 October 1998

The Inquiry opened at 10.30 a.m.

THE CHAIRMAN: Ladies and gentlemen, good morning, before I open

this preliminary hearing, it is well to remember what has

brought us to this room today. Given the rights and wrongs,

a number of children have died and a further number remain

very ill. I wonder whether I could ask you to stand with me

for a few moments of silent reflection.

(A moment's silence)

THE CHAIRMAN: Thank you, I am very grateful. Ladies and

gentlemen, good morning again. What I am going to do is read

out my opening statement as Chairman of this Public Inquiry.

It will last for about 45 minutes. Then I shall be happy to

hear from legal representatives on the matter of costs. Then

I am anxious to hear from anyone who wishes to address us

today, although, as you will hear, once this preliminary

hearing is over, the Inquiry team will be available at any

time, to anyone, who wants to assist the Inquiry in whatever

way. My intention is to adjourn at 1 o'clock at which point

I will be happy to speak to members of the Press and, if

necessary, we will reconvene at 2.

This is a preliminary hearing. It is the first formal

stage of the Public Inquiry into the tragic events arising

from complex paediatric cardiac surgical services at the

Bristol Royal Infirmary between 1984 and 1995. What I am

going to do today is to introduce the Inquiry team to

explain the nature of the Inquiry and its procedure and to

consider applications to be legally represented at public

cost. I should say at the outset copies of this opening

statement and details of how to contact the Inquiry are

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available to take away. So there is no need to try to catch

such things as names or addresses or telephone numbers.

May I also say that I intend to conduct the Inquiry as

sensitively and informally as I possibly can. For example,

if it is more comfortable, please feel free to remain seated

to address us.

I am acutely aware that we will be exploring matters

which, for many of you, are almost too painful to

contemplate. Just by looking into them, the pain will flood

back. Sometimes we will be looking at matters which are

harrowing. It will be a gruelling time for us. I cannot

banish the pain, nor can I avoid it being caused. What I can

do is give you, all of you, my assurance that I will do

everything in my power to make sure that the process and the

practical arrangements make it as bearable as possible.

I will spell out the details of some of the

arrangements later, but I will say here is that you must

feel free to contact the secretary of the Inquiry if you

think anything should be changed.

Now, let me introduce myself. My name is Ian Kennedy,

I am a Professor at the University College London. I

specialise in medical law and medical ethics and health

policy for nearly 30 years and have some experience of

public service in these areas. Sitting with me today are

Rebecca Howard and Mavis MacLean and perhaps you would like

to introduce yourselves.

MRS REBECCA HOWARD: Good morning. My name is Rebecca Howard.

I am the Executive Director of Nursing for the Manchester

Children's Hospitals. I am a registered sick children's

nurse and have worked exclusively with children for over

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20 years. I have previously contributed to national policy

on children's services and my special interest is paediatric

intensive care. Good morning again.

MRS MAVIS MACLEAN: Thank you. My name is Mavis MacLean and

I work as a Senior Research Fellow in the Faculty of Law in

the University of Oxford, but I am also qualified as a

sociologist so my field of expertise is socio-legal, that is

the way that legal rules work out in society. From this

perspective, I have studied or written about compensation

for accident victims, and I now work primarily in family law

where the best interests of children are primarily

concerned. So good morning.

THE CHAIRMAN: Thank you, I am very grateful to my colleagues

here for agreeing to serve on the Inquiry team. Clearly the

Inquiry team must also have a medically qualified member.

I am happy to say that the Secretary of State for Health

will be inviting such a person to serve on the Panel.

I expect an announcement to be made in due course.

We will be working together and our Report will be

produced jointly by us. All of us are independent of

Government. I should add that for the duration of the

Inquiry, the members of the Panel would not normally be

available to give interviews or to engage directly with

those taking part other than when we hold our oral hearings.

This will help to ensure fairness and protect our

independence.

We will have available to the Inquiry for the purposes

of consultation a team of experts qualified in a variety of

areas of expertise, such as paediatrics, cardiology,

surgery, intensive care, anaesthesia, epidemiology,

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statistics and management. Clearly their views will be made

public not least so as to allow them to be subject to

scrutiny by those with an interest in this Inquiry.

The Inquiry is supported by a Secretariat and a legal

team. The Secretariat is headed by Una O'Brien. She was

previously seconded to the Cabinet Office. As Secretary to

the Inquiry she is responsible for organising it and

generally for enabling the Inquiry to fulfill its terms of

reference.

The Treasury Solicitor has appointed Peter Whitehurst

from his Department as Solicitor to the Inquiry. He is

assisted by Charlotte Martin, also from the Treasury

Solicitor's Department. They will have a considerable

back-up staff. They are responsible for investigating the

documentary material and for liaising with witnesses. There

is a council to the Inquiry, Brian Langstaff QC. His role is

strictly impartial. It is to assist the Panel in its

investigation of the facts and its search for the truth. It

is not his role to prosecute nor to prove a particular case.

Instead, he is there to present all the evidence thoroughly

and rigorously, and to advise me and the Inquiry members on

matters of law and evidence. He is assisted by Eleanor Grey

and Alan MacLean, also of the independent Bar.

Now our Terms of Reference: on 18th June 1998, the

Secretary of State for Health announced to Parliament the

setting up of this Inquiry under Section 84 of the National

Health Service Act 1977. Our terms of reference, published

in August, are:

To inquire into the management of the

care of children receiving complex

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cardiac surgical services at the Bristol

Royal Infirmary between 1984 and 1995

and relevant related issues; to make

findings as to the adequacy of the

services provided; to establish what

action was taken both within and outside

the Hospital to deal with concern raised

about the surgery and to identify any

failure to take appropriate action

promptly; to reach conclusions from

these events and to make recommendations

which would help to secure high quality

care across the NHS.

As for the status of the Inquiry, the objective of the

Inquiry is to understand what happened in Bristol, why it

happened and what lessons can be learned for the benefit of

the National Health Service as a whole.

No-one is on trial in this Inquiry; it is not a trial

nor a court, nor a disciplinary hearing. It is not a law

suit in which one party wins and another loses. There will

be no parties. It is not the same as the legal process in a

criminal or civil court. We are a team of independent

persons working within our terms of reference which involve,

as I have said, trying to discover first what happened,

secondly why it happened, and thirdly, what lessons can be

learned and recommendations made.

One of our functions, inevitably, will be to offer

constructive criticism. If criticisms are levelled at

organisations or individuals which are relevant to these

issues, we shall of course consider them and make any

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necessary finding. It is not our purpose, not the purpose of

the Inquiry to sit in judgment.

I hope, therefore, that everyone concerned both at the

Inquiry and outside it will play their parts responsibly and

without rancour. We want to find the facts and learn from

them and, as the Secretary of State told Parliament, to do

so with all reasonable speed.

It follows from this that, as befits an Inquiry such as

this, an inquisitorial rather than adversarial approach is

most suited to our purpose and is the one we shall adopt.

Finally, while the Inquiry was set up by the Secretary

of State for Health, it is independent of the Department of

Health and of any Health Authority or medical organisation.

The Department of Health, the various organisations and

individuals involved and others who have an interest in the

events we are concerned with, will be included amongst those

who we shall invite to assist us in our Inquiry.

I turn now to the structure of the Inquiry. At this

point we see the Inquiry as having two phases. In the first

phase we will focus on services provided at the BRI between

1984 and 1995 for the care of children with complex cardiac

problems. We will be concerned with the full range of

services including, for example, how the children were

referred for surgery, interactions with parents and the

management of post-operative care. We will also examine how

concerns about surgery were raised and handled, both within

the Hospital and elsewhere. For this phase, which is already

underway and is likely to last for most of 1999, we will

draw on written statements and oral hearings. Hearings will

be held in public unless, and I do not foresee this, it is

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inappropriate to do so.

As we begin to draw conclusions from the Bristol

experience, and so as to enable us to formulate

recommendations, we will begin the second phase of the

Inquiry. This will involve an examination of relevant wider

issues so as to ensure that our recommendations fulfill the

requirement in our terms of reference: "to help secure high

quality care across the NHS". This phase will also help us

to make sure that our recommendations are relevant and

appropriate to the NHS as it will then be, not as it

currently is.

It is likely to last a period of months and will be

based both on written and published submissions and public

seminars and may also involve a range of visits by the

Inquiry team.

May I say a final word about our terms of reference?

First the dates: while it is not our intention actively to

seek information about paediatric cardiac surgical services

before 1984 and after 1995, clearly if information comes to

light about events before or after those dates which is

relevant to our terms of reference, then we shall consider

it. Secondly, we have also been asked whether the terms of

reference extend to adult cardiac surgery and to other

surgical procedures. The answer to that is much the same:

if, in the course of our investigation, we judge it relevant

to fulfilling our terms of reference to consider other

services then we shall do so.

Now, I turn to call for papers, issues of

confidentiality and an "Issues List". We made an initial

request for papers in September and we are grateful to those

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individuals and organisations who have already responded.

This has allowed us to begin the process of collecting

papers and files which may be relevant to our work. We will

continue to need full cooperation to ensure that the

collection of relevant documentation can be conducted as

fully and efficiently as possible. Section 84 of the

1997 (sic) Act gives me the power to order the production of

documents. I trust I will not have to use this power, but I

will, of course, if it is necessary for the efficient and

effective running of the Inquiry.

We are very conscious of the issue of medical

confidentiality. We recognise the families' concerns over

the protection of their privacy and the wider public

interest in respecting and maintaining medical

confidentiality. However, we also recognise the competing

public interest in ascertaining the facts and learning

lessons from what occurred at the Bristol Royal Infirmary.

Consequently, my team will be discussing with all of those

who have legitimate interests in this area how best to deal

with matters of medical confidentiality so that the wishes

of the families are respected.

At this juncture, all of those who have relevant

documents should forward them to the Inquiry for our use,

without seeking to edit them in any way. No document will be

disseminated further by the Inquiry team until issues of

confidentiality have been fully resolved. In the meantime,

we must have the full picture in order to prepare for the

public hearings; only unfettered access to all documents

will suffice. I, therefore, urge all those who have not yet

forwarded documents because of their concerns over

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confidentiality to do so immediately.

Lastly, early in 1999, I published an "Issues List" for

consultation. This will outline main issues as we understand

them at that point and will serve as a guide to those to

whom we are looking to assist us in the Inquiry.

I turn now to our procedure. The methods which the

Inquiry will adopt will be those best suited to enable the

truth to emerge. We have a duty to act with due concern for

fairness and thus to adopt procedures which are fair and

impartial. We also have a duty to proceed with all due speed

so that we can complete our task within a reasonable period

of time. This is crucial so that those affected by these

tragic events can find a place for them and be helped to get

on with their lives. It is also important that any lessons

which are learned to be translated into action within the

National Health Service as soon as possible.

If people have suggestions for the improvement of the

proposals I am about to describe -- and I stress this -- I

would be pleased to hear from you. They should write to the

Secretary to the Inquiry.

The main elements of the procedure are as follows: as

I mentioned earlier, the Inquiry will be conducted using a

combination of evidence handed in, documents, written

statements and oral hearings. I will now describe the

procedure in some detail, as I must. It is somewhat

technical in places, I am afraid.

Written evidence: the written evidence will be gathered

in a number of ways. Initially, anyone -- and I stress

anyone -- who considers that he or she may have information

or evidence of relevance to this Inquiry should write to the

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Secretary of the Inquiry at this address:

Room LG07 Wellington House

135-155 Waterloo Road

London SE1 8UG

There is also a special local rate telephone number:

0845 3000 613 and an e-mail address.

These and other contact details are in information

packs which have been made available.

I should make it clear it is not necessary to engage a

solicitor in order to write an initial letter to the

Inquiry. Anyone who has anything to say should feel free to

make one. Equally, we would be most grateful to hear from

those who believe they could identify people who have

expertise or knowledge of events in such that they should be

invited to make a statement to this Inquiry.

Anonymous information is unlikely to be acted upon, but

anyone coming forward may request their identity not to be

disclosed publicly (that is, beyond the Inquiry team) and I

shall give consideration to any such requests. Where it will

assist the Inquiry, those who contact the Inquiry may be

invited to make a formal written statement.

Additionally, from our analysis of the documentation

supplied by the main organisations involved, we will

identify individuals who we consider have a contribution to

make to the Inquiry, either because of their involvement

with children's cardiac surgery at the Bristol Royal

Infirmary during the relevant period, or because their

expertise could be of assistance. We will make contact with

these people and ask them to make a formal written statement

to the Inquiry. In doing so, we will indicate the main areas

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we wish their statement to address. The Inquiry legal team

will assist with this as required.

In certain circumstances, it may be appropriate for

individuals to have independent legal advice, other than the

advice of the Inquiry solicitors, in preparing their formal

written statement.

All formal written statements will be reviewed by the

Inquiry legal team. Where a formal written statement makes

any reference to an individual which the Inquiry team judge

to be critical of that individual, the person will be shown

a copy of the reference or be made aware of the substance

and be given an opportunity to comment formally in writing.

All these formal written statements, and formal comments on

them made by those persons referred to critically in them,

will be made public, whether or not individuals are called

to give oral evidence.

The timing of the publication of these formal written

statements will be as follows: expert evidence will be

published as soon as possible after it has been received. As

to factual evidence, the following procedure will be

adopted: where we decide it will not be necessary to call a

witness to give oral evidence, then that witness's statement

will be made in public once that decision is made. Where

witnesses are to be called to give oral evidence, their

formal written statements will be made public at the time

they give their oral evidence. However, in advance of

publication, these formal statements will be made available,

confidentially, to the legal representatives of others with

an interest in the Inquiry who will, therefore, have an

opportunity to comment in writing.

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Now a word about oral evidence. I have said that with

the assistance of my advisors, I will decide (from amongst

all those who have submitted formal written statements) from

whom we wish to hear further in public hearing. No witnesses

will normally be called to give evidence in oral hearings

unless they have first given a formal written statement.

If called to give oral evidence, witnesses will be told

in advance of the areas which their oral evidence should be

expected to address. If, in the course of giving oral

evidence, a witness refers to an individual in a way which

we regard as critical of that individual, that person will

be invited to comment on what was said in the hearing,

normally by submitting a formal written comment or,

exceptionally, and at my discretion, by appearing before the

Inquiry to give oral evidence with a legal representative

should they so wish. Any formal written comment will also be

made public.

Let me now deal with the conduct of the oral hearings.

The procedure which we shall adopt at the oral hearings will

be as follows: each witness called to give evidence may be

accompanied by a legal representative. The witness will be

questioned by Counsel to the Inquiry whose job, as I said,

is to ensure all the evidence is before the Inquiry and all

the facts are investigated thoroughly. This questioning will

be supplemented by questions from me and from members of the

Panel. At the end of this questioning, the witness's legal

representative will have an opportunity to put questions to

the witness by way of re-examination. The purpose of this is

to clarify any area which the legal representative feels may

have been left unclear and to enable the legal

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representative to ensure that the witness has given a proper

account of him or herself. It is not intended as an

opportunity merely to repeat that which has already been put

to the Inquiry, whether orally or in a formal written

statement.

For that reason, we would expect it to be rare for any

such re-examination, if taken advantage of, to exceed 15 or

20 minutes.

In addition, the witness's legal representative may

make a short submission to the Panel on the day following

the end of that witness's evidence, ordinarily in writing

but exceptionally, and at my discretion, orally. Where the

submission is made in writing and it raises a matter, in the

Panel's view, that is unclear, we will seek clarification.

Furthermore, any such written submission will be made

public.

The main examination of witnesses, known as examination

in chief, will, therefore, be carried out by Counsel to the

Inquiry. There will not normally be cross-examination by

others, except where demanded by the requirements of

fairness or by the need to resolve otherwise intractable

disputes of fact to assist us in fulfilling our terms of

reference.

Finally, once the process of gathering the evidence is

complete, those witnesses who choose to do so, by themselves

or through their legal representative, may make a short

final presentation in writing or, at my discretion, orally.

As before, any presentation in writing will be made public.

So much for our procedure. I turn now to the Inquiry

Report. Our task, as I have said, is not to conduct a trial

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of those associated with the events under scrutiny but to

inquire, make findings and draw lessons. For this reason,

and because there is no appeal against that Report, it is

clearly fair that those who may be criticised should be

aware of our concerns. The approach we intend to adopt,

therefore is as follows:

(i) where, at the time a witness is questioned, there is

already evidence which we feel may prompt us to criticise

him or her, and it is convenient to do so, we may put the

substance of that evidence and potential criticisms during

the questioning. If the Inquiry has formed a provisional

view critical of the witness, then that may be put to the

witness for comment at the conclusion of the witness's

evidence as to fact.

(ii) Additionally, once we have prepared a first draft of

the Report, we will write to the witnesses, briefly setting

out intended criticisms with notice of the evidence on which

they are based, giving them a fixed period of 21 days to

respond, subject to an appropriate undertaking as to

confidentiality.

(iii) Where the Panel considers it appropriate to do so, in

fairness to the witness, a statement or representation by a

witness in response to proposed criticism may be included in

the Report, either wholly or in part in the text or as an

appendix.

Legal advisors will need to understand from what I have

just said that the procedure to be adopted is not that of a

trial. I say again, this is a Public Inquiry, there are no

parties, no witnesses to be called by one side or another.

Indeed, there are no sides. The Inquiry is here to inquire.

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All may make representations to it. Witnesses are the

Inquiry's witnesses. Experts are the Inquiry's experts. The

Inquiry seeks to discover the truth and identify the lessons

to be learned. It is not here to find in favour of any side.

We expect to start public hearings in the Spring. The

general pattern we intend is to sit on four days a week,

Mondays to Thursdays. We will use the Fridays for all the

necessary preparation and planning. We will hear evidence in

blocks of time according to the issues, with intermittent

breaks to assemble papers and prepare for subsequent

evidence. The first set of oral hearings will be in Bristol.

Some hearings will be held in London, but as you will see

when I explain the use we intend to make of information

technology, our aim is to make arrangements for those who

are interested to follow the hearings at other locations so

as to reduce the need to travel to Bristol or to London as

the case may be.

When we hold the hearings in Bristol, they will not be

held here. We have identified suitable premises in both the

centre of Bristol and in London which will meet our

requirements. Obviously, I will keep everyone informed of

progress and of the facilities which will be available. It

will be possible for witnesses who are to give oral evidence

to visit in advance of the day on which they are going to

give evidence, if they wish, to familiarise themselves with

the hearing room. The Inquiry staff will be available to

assist with the practical arrangement for all those giving

oral evidence, both before and on the day that they are

attending the hearing.

As far as possible, and I have been told it is not

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completely possible, I want to make this a paper-free

Inquiry. We will use the latest available technology to

manage documents and to capture each day's proceedings

electronically. As I just mentioned, we are also

investigating the possibility of making the hearings

accessible to as many people as possible by, for example,

using live video links to a number of dedicated locations in

the South West and in Wales, and between Bristol and London.

It should be possible to maintain a bank of transcripts also

at these locations, so that those who are interested may

refer to the transcripts of previous days' hearings should

they wish. We have set up a website for the Inquiry on the

Internet and we will also place the daily transcript on the

Internet each evening.

Thus while everyone who wishes is, of course, welcome

to attend the public hearings in person, I hope these

measures will mean that people who live a long way from

Bristol or London will be able to follow proceedings without

regularly having to travel long distances, and that as many

people as wish will be able to follow the Inquiry as it

progresses. It may also mean that legal representatives may

not regard it as necessary to attend each day's hearing in

person.

Turning now to our handling of cases. All cases of

children receiving complex cardiac surgery at the Bristol

Royal Infirmary between 1984 and 1995 will be taken into

account in the Inquiry. We will write to as many families as

we can trace, and will encourage them to take part, where

they are willing and it is relevant to do so, by writing

letters, making formal written statements and giving oral

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evidence.

Whilst part of our work will necessarily involve

looking at the quality of clinical decision making and care

of children receiving complex cardiac surgery at the BRI,

I need to make it clear at the outset that it is not our

role, nor would it be possible, to make a judgment about the

standard of care in each and every case. We are not in the

same position as a judge deciding claims for compensation in

medical negligence cases. Our role and our focus are much

wider than that; they are to seek out what we can learn

about cardiac surgical services as they were organised in

Bristol. In looking at the services provided as a whole

during the period of 1984 to 1995, we will necessarily take

into account every child's case. Where it is necessary for

us to choose a case to look at in more detail, then the

reason for choosing that case will be open and transparent.

I hope that this description of our role will reassure

families that all cases will be taken into account. We will

do our very best to get to the bottom of things and suggest

a way forward.

I must now say a word about legal costs. Here, again,

some of the matters are, I am afraid, rather technical.

Under Section 85 of the 1977 Act, the Secretary of State for

Health has the power to order the payment of costs out of

the public purse, if we so recommend. He has prepared, on my

recommendation, to make awards out of the public funds

towards the reasonable legal costs of anyone from whom the

Inquiry wishes to hear, who, in our view, would otherwise be

unable to take part. The Secretary of State has also

authorised me to say that he will order the payment out of

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public funds of the reasonable travel and subsistence

expenses of all witnesses who have to travel to give oral

evidence to the Inquiry.

In keeping with the established conventions in

Inquiries of this sort, public bodies, commercial

organisations, trade unions and other bodies with

substantial funds will themselves, or on behalf of those

whom they support, have to meet their own costs unless there

are special circumstances.

Where costs are to be met at public expense, they will

be paid on the standard basis, subject to advice agreement

of hourly rates, brief fees, refreshers and so on. Prior

approval of disbursements including any expert's fee, above

a minimal level, will also be necessary. Any unresolved

disputes will be subject to the process known as "taxation".

Full details of these matters and other points such as

periodic reviews, capping and regularity of submissions of

accounts, will be regulated in a separate, detailed note

which shortly will be published by the Inquiry's Solicitor.

There may be some risk of duplication in the

representation of those who wish to take part. Legal

representatives are here to assist the Inquiry in

elucidating the facts and to safeguard both those with an

interest and those against whom criticism is levelled. Where

there are no significant conflicts of interest or other

justification, the appearance of multiple teams of lawyers

(solicitors and counsel) will be unnecessary and,

consequently, it would be difficult to justify any

recommendations that the cost of such duplication be met

from public funds.

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Thus, it may be appropriate for a small number of

solicitors to ensure that focused legal representation is

available on an appropriate geographical or otherwise basis.

Solicitors should join together to instruct the same

counsel, as far as possible, in order to minimise costs,

while achieving the maximum efficiency.

On the matter of the relationship of this Inquiry to

other proceedings, may I emphasise again that this is not a

medical negligence trial, nor a disciplinary hearing, nor a

criminal court trial. It is not the purpose of this Inquiry

to determine whether anyone is entitled to compensation, or

to act as a professional disciplinary body, or to consider

issues of criminal liability.

What other bodies have done, or may do, is a matter for

them and has no bearing on how we proceed and what we

conclude.

May I say a word now about the Press. I have said that

I intend this Inquiry to be open, accessible and inclusive,

as inclusive as possible. I am aware that the issues will

attract considerable attention in the media. We recognise

the legitimate interest which the media have in reporting,

on behalf of the public, what takes place at the Inquiry. It

is my intention and desire to extend every assistance that

can properly be given to the media to aid them in their

role. To that end, I propose, except in exceptional

circumstances, for copies of formal statements made by a

witness to be made available to the media at the time they

are made public and, as I outlined earlier, to provide daily

transcripts of evidence. As I have already said, we also

intend to place the day's transcript on the Internet each

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evening.

There will also be practical arrangements including a

dedicated seating area in the hearing room and a media room

in the building with facilities which will help journalists

to do their job. We will also keep the news media regularly

updated with relevant information about the Inquiry and the

timetable.

That said, some of the evidence to be given will be on

a very delicate and sensitive nature. Many involved with the

subject matter of this Inquiry have suffered and continue to

suffer. In particular, I would ask the media to respect the

dignity and the privacy of the families -- both inside and

away from the Inquiry chamber.

I have powers under Section 84 of the 1977 Act to take

evidence on oath or affirmation. In accordance with the

usual procedures, the media should not seek to interview any

witness who has started to give evidence until that evidence

is completed.

Turning to the question of whether oral proceedings

should be broadcast, I have already spoken about the

particular need to respect the privacy of the families and

other individuals involved. I have also taken into account

the sensitive nature of much of the evidence. These

considerations have led me to decide not to allow any

photographer or broadcasting, either by radio or television,

of the proceedings during the hearings.

May I offer some concluding comments? Let me end this

Statement by drawing together, very briefly, some of the

themes which I have tried to stress. First, this Inquiry is

independent of Government, The Department of Health, any

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Trust or Health Authority or any other organisation or body.

Second, we recognise the need to respect and be sensitive to

the feelings of those who have suffered and whose suffering

goes on. We will do our best in the procedure we adopt, the

way in which we conduct the hearings and in the various

practical arrangements which we make to reflect this need.

Third, the Inquiry will be open, inclusive and fair. Fourth,

this is a Public Inquiry with specific terms of reference.

It is not, nor is it a substitute for, a trial or

disciplinary hearing. Its goals are much broader; nothing

less than an examination of the state of affairs which could

lead to such tragedy in Bristol, indeed, an examination of

the very culture in which health care in the NHS operated in

the relevant period.

From this examination, we must then distill proposals

and recommendations which will aim to see to it that there

is never another Bristol, nor anything like it.

That, ladies and gentlemen, is the end of my opening

statement. As I indicated, what I intend to do now is turn

to the question of payment of legal representation out of

public funds. Then, as I have indicated, when I finish my

conversations with legal representatives, there may be some

who would wish to say something and they should feel free to

do so. Anyone who takes part in the Inquiry may appear with

legal representation, should they so wish.

My concern here is with those who wish to apply to have

their legal costs paid from the public purse, and I

understand that there are a number of legal representatives

who wish to be heard today.

Once I have heard them all, I propose to consider their

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applications and to communicate my decisions in writing and

make them public by 20th November. If there is anyone who is

not yet ready to make an oral application, I will consider

an application in writing if received by 13th November and,

likewise, a decision will be communicated in writing and

public.

I recognise that application for costs may also arise

during the course of the Inquiry. These will be dealt with

as they occur. All subsequent responses for application for

costs will equally be communicated in writing and public.

My purpose today is to deal with as many applications

as possible in these early stages.

You will recall that my responsibility is only to make

recommendations to the Secretary of State, but I am sure he

will pay due attention to them.

May I call on representatives of the various legal

representatives in turn as I have them before me. If you

will allow me, I will sit and allow them to sit or stand.

First, Simeon Maskrey.

MR SIMEON MASKREY QC: Good morning, sir. Good morning, Panel.

I appear today representing those parents who are the

members of the Bristol Heart Children's Action Group. This

is a Group that represents and coordinates the interests of

something in the order of 300 families. It is a Group that

is open, without charge, to any parent of any child who

underwent paediatric cardiac surgery at Bristol. The Group

is not funded by Government or any other institution, and,

sir, you will appreciate that its members are ordinary

people with the ordinary calls among their resources that

ordinary people have.

. 25

Sir, they have already, as you will appreciate, spent

an enormous degree of time, energy and money in engaging

upon a desire to seek to help the Public Inquiry, and also

in dealing with the interests of parents, both emotional and

practical, who have been devastated by what has occurred in

Bristol.

I seek your recommendation that the costs of their

representation at this Inquiry, and the costs of the Action

Group itself in assisting the Inquiry, be met from public

funds.

In brief, I am requesting that representation by two

firms of solicitors. The Action Group has taken on board

what you, sir, have said concerning duplication of legal

representation and feel that it would be appropriate if you

so recommend that there should be a lead firm, namely

Messrs Tozers of Exeter, lead by Mr Laurence Vick, supported

by Messrs Toller Beattie of Barnstable headed by

Mr Mervyn Fudge. The two firms, it is hoped, working

together will be able to provide the local assistance and

advice that is necessary speedily and, as I say, locally.

I am also requesting that the costs of representation

by counsel, including Queen's Counsel, be recommended by

you, sir.

Finally, I am asking that you recommend that the Action

Group's solicitors be able to obtain the advice and

assistance of experts, again, funded from public funds. The

experts would assist to explain and interpret the material

which became available, advise upon what material had not

been made available, and help identify and formulate issues

for investigation and challenge.

. 26

Sir, may I stand back for a moment from the dry request

for the costs of representation and simply reiterate a point

that you, yourself, have already made? The death and serious

injury of so many children at the Bristol Royal Infirmary

has had a profound impact upon a great number of families.

There has been an emotional effect which has been intense

and, at times, catastrophic. To these families, the children

concerned were not, and are not, simply names, statistics or

case studies. They were, and are, individuals with their own

personalities and they were precious. They have been taken

away; even those who have survived have been taken away in

the sense that they will never be the same children as they

were.

Brain damage, unexpected and unexplained, has destroyed

the lives of the children concerned and often the lives of

their families. For these parents, for these families, the

death or profound injury of their children has brought

grief, despair, frustration and anger. They have had no

explanation. They still do not know how it was that they

were let down by so many professionals in so many positions

of trust and authority.

The Action Group, therefore, hope that through this

Inquiry the parents will have the opportunity first to find

out what actually happened at Bristol, not simply in the

theatre or in the intensive therapy unit, but in the

committee rooms, in the sitting rooms and beyond. They want

to find out what happened and why death and serious injury

occurred over and over again, year upon year.

They hope, through this Inquiry, to have an opportunity

to challenge those who they feel they were let down by or

. 27

mislead by, sidelined or ignored. They hope to be able to

explain what they were told, how they were mislead, how they

have been ignored and, at times, patronised by those who had

a responsibility to listen and to help.

Most important, sir, this Action Group wishes to have

the opportunity to assist in the formulation of regulations

that will ensure that the ethical and clinical standards of

the medical profession and those who oversee the profession

are raised and maintained, and it is in order to achieve

these aims that the Action Group will need representation,

advice and assistance.

Sir, it is hoped you will agree that the team should be

of sufficient size and experience to be able to cope with

the anticipated workload efficiently and effectively, and

for counsel to have time -- and this is most important --

to have conferences with parents both on a group basis and

individually.

It is anticipated that there should be as little

duplication of work or attendances as possible and, perhaps,

it could be put in this way: the conflicts that exist within

the Group should be managed rather than avoided so again, a

cohesive and coherent approach is put before the tribunal.

Sir, this is an important Inquiry; it is not merely a

retrospective analysis of what went wrong at the Hospital.

It is anticipation that recommendations will be made that

will effect the organisation and authority of Royal

Colleges, University departments, the GMC, Trusts, Health

Authorities, The Department of Health.

Whilst it is accepted that the Inquiry team would carry

out the investigation, the lawyers representing the parents

. 28

must be able to assimilate the information that the Inquiry

team intend to place before the tribunal, and it must be in

a position to consider unused material in order to make

representations, if need be, as to the adequacy of the

material intended to be placed before you.

They need to be sufficiently equipped to be able to

question witnesses effectively on matters that are of

particular concern to the parents, and to do so

expeditiously. They need to be able to assist the Inquiry

team in identifying relevant issues and they need to be in a

position to make positive proposals for change.

This Inquiry is of great concern to the parents. In

previous hearings, they have, effectively, been sidelined.

At the GMC, they were not permitted to see, let alone assist

in, the formulation of charges, and they were prohibited

from having any input into the evidence led on behalf of the

GMC or in the questioning of witnesses. Whether as a matter

of law or practice that was appropriate is not a matter to

investigate at this stage. Suffice it to say that having

been sidelined once, my submission is that it should not

happen again.

The appointment of a sufficient team of experienced

solicitors and counsel and the funding of those lawyers

should ensure that the parents' concerns are laid to rest.

Sir, in determining the size of the parents' team, it

is submitted that one should not make comparisons with other

Inquiries where single participants, whether corporate,

Group or individual have been represented. It cannot be

overemphasised that even within the Action Group there is a

wide diversity of views and approaches. The team will have

. 29

much to do in terms of conciliation and management of those

views and approaches. This is not a case where there will be

a single set of instructions or a single goal or where the

size of the group that is represented is an irrelevance. All

those who intend to give evidence, whether orally or in

writing, are entitled to speak with their solicitors and

counsel.

Furthermore, I cannot overstate the technical

complexity of the evidence that will be given. Much of it

concerns complex surgical procedures and statistical

material. The evidence will have to be assimilated and

understood and it will be necessary for the lawyers to come

to grips with that material.

Sir, finally this: I appreciate that this Inquiry is an

attempt to discover what happened and why. I appreciate that

the Inquiry should not be turned into a witch-hunt or a

labourious forensic display of advocates' abilities.

I appreciate that time is important and there should be no

unnecessary delay. I appreciate that the approach should not

be adversarial.

The Action Group intends to assist the tribunal in

whatever way it can. It, too, wishes to discover the truth.

It is to be hoped that with such an assurance, the tribunal

will feel able to assist the Action Group to play a central

role in this Inquiry. The Action Group hopes to be granted

the resources and opportunities that will enable it to make

a contribution that, in the end, would be invaluable.

Sir, those are my submissions to you.

THE CHAIRMAN: Thank you, Mr Maskrey. I will, of course, let you

have my response to the application for costs in due course,

. 30

as I indicated. I think it is already clear, and I make it

clear, that this will be an inclusive Inquiry which we would

allow you the input of the Group you represent; that must be

clear. There is no question of anyone being excluded.

Indeed, we would greatly appreciate the assistance that you

have offered and I know it will be of great help.

It will be a matter for discussion as to the scope and

extent of the legal representation you may need and the

funding you may need for that and I would intend to have

such discussions with you prior to the date on which we

reach our final conclusion, but thank you.

Now I will hear from Steven Miller.

MR STEPHEN MILLER QC: Sir, I do not have an application for

costs to be paid. I have three matters I want to raise. It

is a question whether I do it now or at the conclusion of

the other applications. I am in your hands.

THE CHAIRMAN: Mr Miller, you are very kind. I confess I cannot

hear and that is my problem because I am a little deaf.

Please -----

MR STEPHEN MILLER QC: Sir, I don't have any application for

costs for legal representation. Gregory Chambers and I have

been asked to advise and represent the United Bristol

Healthcare NHS Trust. We shall share that responsibility

over this long Inquiry and we will not duplicate that

responsibility. I have put in a short document simply

identifying matters which we wish to raise at this

preliminary hearing and I can deal with them quite shortly.

The three items which are in that document are

documents itself, confidentiality and witnesses. Can I deal

with the last one first because it is very simple?

. 31

THE CHAIRMAN: Please.

MR STEPHEN MILLER QC: We are a long way, obviously, from

identifying who will be asked to give statements to assist

the Inquiry. I have spoken to Mr Langstaff and we will help

the Secretariat in preparing witness statements and make

those available for any decision as to whether or not people

will be called forward to give their evidence before the

Inquiry.

So far as the documents are concerned, unfortunately

there are probably hundreds of thousands of potential

documents that have come into existence over the period

between 1984 and 1995 and they are held, principally, at the

premises of the Trust. We are, as we have made clear before

today, anxious to cooperate with the Inquiry team to devise

an efficient method of collating those documents, the

relevant ones and useful ones, and a method of presenting

that documentary evidence.

Sir, may we leave it in this way: the doors are open,

so far as the Trust are concerned, to anybody who wishes to

inspect the original documents. It is much more sensible

to, perhaps, deal with it that way rather than copying in

advance, particularly if you are to use computer scanning

rather than photocopying. But we will deal with the Inquiry

team and the Secretariat to find some sort of method of

dealing with the copying and production of those documents.

The third issue or the third matter which I wish to

raise and have given notice that I want to raise at this

stage, is patient confidentiality which you touched on in

your opening statement. We acknowledge that the Inquiry team

is entitled to access to all patient records and, of course,

. 32

access will be freely given to the Inquiry team. We are

obviously happy to leave to the Inquiry itself the

responsibility of preserving that confidentiality unless it

is waived by any individual patients. It is a matter for the

Inquiry itself how it uses...(inaudible)..., patients

records, but, sir, you will know that proceedings for

damages have started in some cases and applications for

preliminary discovery of documents have also been made in

some cases and orders have been made by a High Court Judge

in one case for disclosure of records outside the particular

patient's records for the purpose of that litigation.

I think I am correct in saying that all those involved

in that litigation have given undertakings to the High Court

not to use documents produced or information derived from

those documents for any other purpose apart from the High

Court proceedings. That clearly, on the face of it, will

have the effect of preventing those parties contacting the

Inquiry and telling their side of events as it effects them

and their families. Of course, we have no wish to prevent

families and patients from contacting and discussing matters

with the Inquiry team. We do not wish to prevent access of

any person to this Inquiry.

We have contacted the solicitors acting for the Group

and, in some cases, individual solicitors acting for

individual patients in that litigation, releasing them from

those undertakings given to the Court, save as to the

confidentiality of other patients and the details of other

patients' medical records which may have been disclosed in

that litigation.

So, rightly or wrongly, we saw, and I see, a

. 33

distinction between, on the one hand, legal proceedings in

which there are two opposing parties and a plaintiff has to

prove his or her case on the evidence and the documents made

available, and a Public Inquiry where all of the records

will have been made available to the Inquiry and counsel for

the Inquiry, Mr Langstaff, will be able to explore any issue

that arises from those records.

So for that reason we have limited the release from the

undertaking to individual patients, individual plaintiffs,

and their records in the course of the litigation. In the

end, obviously it is a matter for you, sir, to decide what

you see the reference of patients, and our only concern in

raising the matter at this stage is they are or were

patients, some of whom may not wish to play any part in the

Inquiry, and for that reason we feel that we should put the

matter up at the earliest possible opportunity so you can

see that question at this time.

Sir, that is all I want to say, except to say we don't

consider it appropriate to make any opening statement to the

Inquiry at this stage. We do not have issues or any

framework to address you upon but we hope that we may be

given the opportunity to address the Inquiry when it begins

to hear evidence in the Spring of next year.

THE CHAIRMAN: Mr Miller, thank you very much. Thank you for

that. I find that very helpful, particularly taking the

point you made. I am grateful for the offer as regards

witnesses and, of course, we will try to coordinate it so as

not to put the Trust at a disadvantage with the staff and

staffing levels and so forth. Thank you for those.

As regards documents, I understand informal contact has

. 34

already been made between the various legal representatives.

We have the resources and we have the personnel to look at

and classify every document, at some point to scan, as you

suggest. So what I would suggest is that I leave it to my

solicitor to liaise with your legal advisors so as to carry

that particular process forward.

On the third matter of confidentiality, I am grateful

for the release of undertaking, as I understand it, having

been made, but I am led to believe that there is still, as

you adverted to here, matters which may need further

clarification. It would be unwise for me here, as it were,

to issue particular guidelines. I would prefer if there

could be further consultation between your instructing

solicitors and my solicitor and all those others who may be

involved, so that we can sort what needs to be sorted out

and do it as soon as possible to the mutual advantage of

all, then a framework can be put to me which I will decide

upon and issue directions accordingly. I hope that is

satisfactory.

MR STEPHEN MILLER QC: Yes, that is.

THE CHAIRMAN: I now call on Simon Chen.

MR SIMON CHEN: Good morning, sir. I make no application on

behalf of James Wisheart for legal costs in this matter. My

role today is merely to keep a watch.

THE CHAIRMAN: Thank you. I now call on Alison Troake.

MS ALISON TROAKE: Good morning, sir. I am here this morning on

instructions from the Medical Defence Union on behalf of

Dr Roylance. Having heard your opening statement, I will

take further instructions in relation to any application for

costs, but it is not my intention to make that application

. 35

this morning.

THE CHAIRMAN: Thank you very much. Should I also hear Simon

Eastwood?

MR SIMON EASTWOOD: Good morning, sir. I am here this morning

under general instructions from the Medical Defence Union,

not in regard to any specific members of the Medical Defence

Union. My view of your comments this morning, particularly

as to individuals who may be invited to assist later and in

the context of what you said about legal costs and matters

that may arise at a later time, I have no specific

representation or application to make today.

THE CHAIRMAN: Thank you. Mark Wilson. Is Mark Wilson for The

Department of Health here?

MR MARK WILSON: Yes, sir, we have no representations or

applications.

THE CHAIRMAN: I am grateful. Michael Brooke?

MR MICHAEL BROOKE QC: Good morning, sir, members of the Panel.

I appear for the Avon Health Authority instructed by Bevan

Ashford where it is Bill Broadford and

Joanne...(inaudible)... May I say, Avon Health Authority is

also the successor entitled to the preceding District Health

Authorities. I am instructed to tell the Inquiry Panel that

they may count on the Health Authority's full cooperation in

the enormous task ahead of you. I have no further

representations to make.

THE CHAIRMAN: I am grateful, Mr Brooke. Thank you very much. Now

Phillip Havers.

MR PHILIP HAVERS QC: Good morning, sir. Sir, I represent

Mr and Mrs Stewart and I apply, on their behalf, for public

funds for legal representation for them and for their son;

. 36

representation, that is, by solicitors and one counsel and

for such expert assistance as may be necessary and

appropriate.

You already have our letter of 13th October setting out

the application in writing. May I say that briefly now,

orally, to you. As you know, Ian Stewart was born in May of

1993, and some four months after he was born he underwent

surgery for a condition known as trunkusarteriosis

(phonetically spelled).

In the course of that surgery, he underwent and he

sustained profound and permanent brain damage.

Mr and Mrs Stewart have been so concerned about the outcome

of that operation that they have been, I think it is fair to

say, at the forefront of bringing the events which you are

now to investigate into the public domain.

They both gave evidence at the GMC investigation and

they are very anxious to assist your Inquiry and to make

representations to you as appropriate and submit material to

you, as appropriate, which they hope and believe you will

find to be of value to them.

The detailed grounds of the application I can summarise

in this way: firstly, the operation which their son

underwent under the hands of Mr Wisheart was one that very

few children underwent. It is different from most of the

other operations. It was scarcely put at all at the GMC

investigation. As we understand it, there may be only one or

two other children whose cases you are likely to consider,

in any detail at any rate, who underwent the same operation,

and it may well be that Mr and Mrs Stewart are the only

parents who will wish to play an active part in your

. 37

Inquiry, and thus they are, it seems, to be fairly

distinguished from the other parents who have already

applied for legal representation or funding for legal

representation through Mr Maskrey.

As I say, the GMC didn't consider this operation at all

ultimately, and didn't consider many of the issues that

arise from it.

Those issues, and this is the second ground that I come

to briefly, cover a wide range from questions of consent to

questions of audit. Of course those are issues which are

likely to rise in many, if not most, of the other cases, but

what, perhaps, can be said to distinguish Ian's case from

those other cases is the different consideration which may

need to be given to those issues in the context of the very

different heart operation which he underwent.

Thirdly, Ian's parents believe, as do we, that they can

make a contribution to the Inquiry, especially -- and I

stress this -- in connection with the particular operation;

for example, they have already discovered a fair amount of

detailed analysis into the detail of the operation and

previous operations for the condition which they would hope

to submit to you at an appropriate time for your attention.

Fourthly, I ought to say this: they used to be

represented by one of the two firms of solicitors who have

applied to you today through Mr Maskrey, and indeed by

Mr Maskrey himself, but from their standpoint, their

relationship with them broke down and as a result they

withdrew their instructions and transferred them to their

present solicitors. For, I hope, obvious reasons I don't

propose to say anymore than that other than to add this, for

. 38

what it is worth: I am satisfied that those views are

genuinely held by Mr and Mrs Stewart and it is clear to me

that it would be hopeless to expect them, in reality, to

revert again to their previous legal team. They are not

minded to do so and, indeed, they would not now contemplate

doing so.

Sir, that is to say Mrs and Mrs Stewart do not have the

funds to pay for legal representation themselves, nor do

they have the expertise or experience to provide the sort of

service which they believe experienced lawyers would be able

to provide, and it is for those reasons that the application

is made.

Can I stress this, particularly in the light of the

role that you have outlined you would expect the lawyers to

play on the Inquiry: it is clear that any lawyers for whom

they were to receive public funding would have a limited

role to play which may be relevant to the application itself

because it may be relevant to the costs that will be

incurred. Obviously, they would be likely to wish to be

present when Mr and Mrs Stewart give their evidence, if you

invite them to give evidence. They may wish to be present

when some of the most important other witnesses, for example

Mr Wisheart, give evidence, and, no doubt, they may wish to

be present at submissions at the end of the Inquiry, but it

is difficult to see that there would be an ongoing role for

the lawyers instructed on their behalf during the whole part

of the Inquiry. They will be able to download the transcript

on the Internet, like everyone else, and keep abreast of the

progress of the Inquiry in that way.

So that is all I wish to say in support of the

. 39

application. May I, while I am here, just say something very

briefly on the question of confidentiality since Mr Miller

has raised it on behalf of the Trust? Mr Stewart is one of

the sets of parents who have given undertakings in separate

legal proceedings. As they understand the present position,

the Trust proposed to release them from that undertaking

insofar as it will enable them to refer to the documents

which they have received when discussing their son's case

with the Inquiry, when putting material relevant to their

son's case to the Inquiry. But the release of the

undertaking does not extend to enable them to discuss the

fact of any other child's case to the Inquiry or to put

material to the Inquiry derived from an analysis, for

example, of any of the other cases, and particularly any of

the other operations for this rather rare condition from

which their son suffered. That is a point that concerns them

deeply because without being released from that part of the

undertaking there is the necessary limit to the assistance

that they think they can give to the Inquiry.

I stress again they believe that they have a

considerable amount of assistance that they can give. They

certainly would not wish to identify any of the other

patients, and it is all too easy to anonymise those other

patients in order to protect their identity, as I

appreciate, but you cannot direct the Trust to waive any

obligation of confidentiality in what are separate

proceedings, but we will be inviting you, sir, to invite the

Trust strongly to waive the balance of the parents's

undertaking so that they can assist the Inquiry by referring

to the details of other patients in the way that I have

. 40

indicated.

I won't say anymore because you have indicated how you

would like this matter to be dealt with by way of discussion

later on.

THE CHAIRMAN: Thank you, Mr Havers. I am particularly grateful

to you for raising the issue of confidentiality. Again,

clearly there still remains something to be sorted out. I

will say no more than that, save that it would be really

most unfortunate if the needs of the Inquiry were frustrated

by anything happening elsewhere.

May I just respond very quickly to your points. It is

obvious that one would be most anxious to hear from your

client, as from anyone else, who has something to help us

with. This is our intention; to be as open and inclusive as

possible. Thus I will give very careful consideration to

your application. We may need to discuss, as you intimated,

the extent and scope of it in time. Thank you very much.

May I identify Andrew Simms, please?

MR ANDREW SIMS: Good morning, sir. Sir, I represent the Bristol

Surgeons' Support Group and I apply that it be legally

represented at this Inquiry at public cost, both in respect

of counsel and solicitors.

By way of background, the Group was formed shortly

after the outcome of the General Medical Council Inquiry, an

outcome considered by many, and those in my Group, to be

unjust and influenced by the media.

As the name suggests, the Group's aim is to support

surgeons who are kind, caring, conscientious and dedicated.

The Group represents some 459 families; some having suffered

bereavement themselves when their children died following

. 41

operations at this hospital. It does have over 500 members.

The thread that binds everyone together is the good

care received by them or their loved ones from two surgeons.

Membership covers a wide geographical area, virtually the

whole of the southwest from Cornwall to Oxfordshire, parts

of South Wales and one or two from abroad.

Now, in respect to the application, sir, I understand

there are two questions that I might address first; whether

we have any separate funding and the answer to that is no,

there is no agency or union or other group behind this

organisation which relies purely upon donations from the

families.

Secondly, it may be suggested the Group, perhaps, does

not have an interest sufficiently different to other Group

or Groups who are represented here. For example, I said

initially that the aim was to support surgeons. The question

may be said, should our Support Group's efforts be

channelled through the surgeons themselves? If that question

is asked, my answer to it is a firm "no". The Group is an

independent body, sir, not formed by or through the

surgeons. It is galvanised by people who wish to be heard at

this Inquiry and having an independent voice.

In my submission, it may well be best for the Inquiry,

both in terms of speed, costs and its effective running, to

have a coordinated representation from this Group rather

than many individuals all seeking to be heard, although, of

course, we can't guarantee that some will wish to speak

independently of our Group.

The Group and its members can and wish to be heard

independently on such issues as management of the care of

. 42

children and the adequacy of the services provided, matters

within the terms of reference and which are wide. You,

yourself, mentioned this morning the terms of reference are

very wide indeed, not simply limited to the matters of the

surgeons and here, members of our Group can help dealing

with care and service of the whole hospital. The Group can

assist this Inquiry.

The Secretary of State and yourself this morning invite

all parents to have their say and the Group represents a

reasonable number of them. It is important this Group

continues to have an independent voice and that will be

greatly assisted by help from the public purse and for legal

costs.

As, sir, we are at the preliminary stage, I wonder

whether I can please reserve the right within your timescale

of 13th November to make further representations on top of

those I have made today, but I do ask for your favourable

consideration.

THE CHAIRMAN: I am grateful, Mr Simms. I ask you to put forward

an application which will set out as fully as you wish, by

13th November, if you so choose, and then, of course, we

will give it appropriate consideration. Thank you.

Now, may I call on Barry Cotter?

MR BARRY COTTER: Sir, I appear on behalf of the Royal College

of Nurses. The role of the Royal College is hoped to be

assisting your Inquiry and that is twofold. Firstly, to

represent any individual nurses, rather than a specific case

and that you should consider, outstandingly and on a broader

generic basis, looking at the wider issues within the remit

of your Inquiry.

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Sir, my application today is for consideration of the

recommendation to the Secretary of State for Health in

regard to costs. Sir, the RCN at the College, is not a

government-funded body. It is a charity principally Trade

Union with reliance totally, solely upon members and

subscriptions. So to use a topic analogy, they are

professional 'think cats'. Sir, they have all the usual

correspondence sources.

In seeking assistance, sir, we now have to bear in mind

what you say in relation to established convention but, sir,

I can add little to the submissions we have now sent to your

legal team last night.

I hope that comprehensively covers the arguments that

we would urge upon you in seeking that recommendation. So

I can really add little at this stage unless you have any

specific questions that you would wish to put.

THE CHAIRMAN: I have no questions and I am very grateful to you

for that submission. We will let you know our decision when

we reach it. Thank you.

The last organisation on my list who may have legal

representation today is the General Medical Council. Do I

have anyone appearing for them? No.

Are there any other legal representatives whom I have

not called whom I should have called? I am grateful.

We have now dealt with the technical but very important

matter of legal costs and now it is really a matter for me

and my colleagues to listen and hear what anyone has to say

to us. Although, as I have said in my statement, hereafter

the Inquiry team will be available at more reasonable times

to anyone on any matter, and you should feel free to

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identify them today if you have not already done so, and to

ensure that you learn how you can make contact.

Should anyone now wish to say anything, I would be

happy to hear them. May I ask one thing only and that is you

wait for a microphone which will appear, and then hold it

away from your body and tell me who you are and if you

represent anyone or any organisation, please tell me that as

well.

MR JOHN McLORINAN: Thank you. My son was twice operated on

successfully by Mr Wisheart and I thank you for the comments

you made to the Press about confidentiality and sensitivity.

I was sitting at home a couple of months ago watching a

programme and to my horror I saw my son's name flicked up on

the screen in some papers the doctor was going through.

With the greatest of respect, on page three, I think,

in this paragraph you seem a bit vague where it says you

will be discussing legitimate interests to deal with this

matter of medical confidentiality. I presume people will be

saying things to you and you will have to go back to check

records and that.

I was just wondering who would have access to my son's

records and to what extent they might be made in the public

domain?

THE CHAIRMAN: I can give you the assurance or repeat the

assurance that I have made already: no document will be

released into the public domain without the permission of

the family and the consultation of the family. Now,

documents may be made available to the Inquiry team, but not

go in.

MR McLORINAN: So this will just remain within the domain of the

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team?

THE CHAIRMAN: While the necessary negotiations take place as to

how to protect confidentiality, that is the case.

MR McLORINAN: Thank you, sir.

THE CHAIRMAN: Yes, over here.

MR IAN HAM: Sir, ladies and gentlemen, my name is Ian Ham. My

daughter was operated on in 1976 by James Wisheart. She

died. On Friday last I received my daughter's medical

records and was very surprised to see that Janarden

Dhasmana's name was on the operating list as one of the

surgeons.

Over the last 22 years, we thought that James Wisheart

operated on our daughter. Now, I don't know the surgeon who

operated on my daughter. James Wisheart and

Janarden Dhasmana have been a team since 1976. I believe

that the team should be investigated from the very

beginning. I am perfectly happy with my daughter's case to

be fully investigated. Thank you, sir.

THE CHAIRMAN: Thank you. There were two or three people there.

FROM THE FLOOR: I am a member of the Surgeons' Support Group and

I would just like reassurance, really, that this Inquiry is

going to be unbiased. The Action Group were filmed this

morning in the Council Chamber about 6.30. We were told we

were not allowed in here until quarter to ten. It does not

indicate non-bias and we would like reassurance, really,

this will be non-biased and you will hear all sides before

any decision is made.

THE CHAIRMAN: Should you require, after what I have said, some

reassurance about impartiality, I am happy to give it.

MR DAVID YOUNG: My name is David Young. I was operated on twice

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by Mr Wisheart, successfully I may add, and repeating points

about children operated on by these surgeons and I belong to

the Surgeons' Support Group. I am very concerned that they

get a fair hearing, these surgeons. I am sure you are aware

that the media, television, newspapers, while the GMC

Inquiry was going on, the distorted picture that was painted

of these surgeons was disgraceful and it was certainly bias.

I would like to redress that balance and I hope your Inquiry

comes to that conclusion, and even when what you said this

morning has indicated that there was a lot of things wrong

at Bristol Royal Infirmary, there are a lot of people who

actually say that Bristol Royal Infirmary is an excellent

hospital and it suits the Health Service very, very well.

That needs to be recognised because the BRI has had

tremendous damage done to it.

I know when I was referred to the Bristol Royal

Infirmary, my doctor, Mr Wisheart, and his colleagues in

surgery were regarded as some of the finest in the country,

but the adverse comments and the way it has been presented

in the Press has been very, very damaging to these surgeons,

and even the Health Minister, I think, personally, with his

comments on television, led to the dismissal of the other

surgeon last week. So I do think that when we look at this,

my heart goes out to the parents who have lost children and

I think anybody would feel that, but I do think it is wrong

to suggest that every hospital that has undertaken

operations on infants, that there is 100% success rate. That

simply is not true. It is a very, very complex operation.

The last thing I would add, if surgeons undertake major

heart surgery on infants as young as two days old, that

. 47

infant is dying and they fail to save the lives of those

children.

I am a supporter of Mr Wisheart. I think he is a fine,

caring man as well as a surgeon who has a very good track

record and we need to look at all the operations that he

undertook and how many were successful. Thank you.

THE CHAIRMAN: I am grateful, thank you.

FROM THE FLOOR: I am a member of the Bristol Support Group as

well. My husband had a five way by-pass in 1996 performed by

James Wisheart. The reason Mr Wisheart performed on my

husband was that he was a high risk case. I feel, with my

colleague here, that there has been so much bias in this

entire case.

I would like to ask one question: the terms of

reference state that the appointment will be -----

THE CHAIRMAN: I am afraid I can't hear you.

FROM THE FLOOR: The terms of reference state that there will be

a medically qualified member added to the Panel. Can I have

an assurance that the further member appointed to the Panel

will have relevant specialist knowledge of paediatric

cardiac surgery, please?

THE CHAIRMAN: I can't give you any assurance of that. The

fourth member of the Panel will be invited by the Secretary

of State and I am sure he will take appropriate advice and

what background is appropriate to help us on the Panel.

I have also made it clear that the Inquiry team will have

available to it a panel of experts in a wide range of

various expertise.

That is important and as we have heard from various

legal representatives, they also would wish us to hear from

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other experts. This is an inclusive Inquiry. We want to hear

whatever others who wish to tell us. We have no view now. We

reach views after the evidence rather than before.

FROM THE FLOOR: My daughter was successfully operated on by

Mr Wisheart. We live in Cornwall so it is a long way to

travel to listen to what is going on. If live video links

are established, are applications to be made for the site of

locations of these links, for example in Cornwall?

THE CHAIRMAN: Thank you. If I heard you correctly -- please

forgive me, the acoustics are very poor here for my

hearing. You asked will there be a possibility of video

links in Cornwall?

FROM THE FLOOR: Or Devon or South Wales?

THE CHAIRMAN: That is certainly being looked into. There is

every intention to make the Inquiry as accessible to as many

people as possible so as to obviate the need to come to

Bristol or London, and appropriate sites are being

identified and those will be provided, with facilities and

transcripts or whatever. Though I can't say specifically yes

or no because I am not aware of the arrangements, I am sure

what you have just said will be taken into account.

FROM THE FLOOR: My concern is -----

THE CHAIRMAN: May I ask you to identify yourself?

FROM THE FLOOR: I belong to the Surgeons' Support Group. My

concern is that you are not opening the Inquiry beyond the

years that you are doing. My son was operated on in 1978 by

Mr Wisheart. He had a very complex open heart operation

which Mr Wisheart had not performed before on a child.

Richard was only eight weeks old, was only given four months

to live and because you are not enlarging the Inquiry for

. 49

those years, I feel I don't get the chance to have support

in what is said.

I want to know whether there is any chance that anybody

from '76 onwards will have a chance to say anything?

THE CHAIRMAN: You may recall that when I read out what I had

put into the preliminary statement, and you will have a copy

of it and can see it, it says as regards dates that although

we will not specifically be seeking information about

services before 1984 or after 1995 -- may I repeat again

what I said -- that clearly if information comes to light

about events before or after those dates which is relevant

to our terms of reference, then we shall consider it.

Therefore, it is open to you to seek to persuade us to look

at that, if so persuaded.

JENNY TURVEY: My name is Jenny Turvey. My daughter Katie Newby

was operated on in 1984 and she died four days after her

operation. I just want to say how really grateful I am that

we are having this Inquiry because all I want is the truth

and I am sure that must be the same for every parent I have

spoken to. We are not after a witch-hunt, we just want the

truth.

THE CHAIRMAN: May I say how grateful I am for that.

FROM THE FLOOR: I am a Vicar in Bristol and have close

connections with a child who was operated on by

James Wisheart. My question for the Panel is this: it seems

to be giving a great deal of legal support. Is it under the

terms of reference to the Panel to provide pastoral support

to families who have found their own inquiries really

distressing and are dealing with the pain?

THE CHAIRMAN: I am grateful to you for raising that point. We

. 50

have had already discussion within the Panel and with some

representatives as to what is the most appropriate way of

meeting what is undoubtedly a very real need. We will

continue to have those discussions so as to come up with

what we think will fit the bill, and you have my assurance

that I am very conscious of that and that I will do whatever

I can to make appropriate arrangements. Thank you again.

PATRICIA MOTTON: Hello, my name is Patricia Motton. My son and

daughter died in 1979. I would like to say Mr Wisheart

performed the operations and he said it was straightforward

operations, a very slight chance of them dying. I believe

that put precious children's lives in his hands and both

died. My daughter died six weeks after my son. I had to

reopen my son's grave which Mr Wisheart put my other

daughter into. That is all I would like to say.

THE CHAIRMAN: Thank you. Yes?

FROM THE FLOOR: Bristol Surgeon's Support Group. I would like

you to explain the great emphasis on the family who are very

independent as an Inquiry yet you have been brought in by

Mr Frank Dobson. It makes it very strange to find that you

are actually independent of the Government given that they

appointed all of you.

THE CHAIRMAN: I can only repeat that we are independent and we

will remain independent.

If there aren't any other contributions from the floor,

may I -- madam, please.

FROM THE FLOOR: I am with the Surgeons' Support Group and I

would just like to say hearing the statements today, I am

concerned about the unbiased approach that you mention when

there are phrases like "lessons we must learn", "the way to

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go forward", "that Bristol will never happen again". I don't

know if I am mistaken, but it does not sound unbiased.

THE CHAIRMAN: I can understand your point, I think. I think it

is fair to say that in the views of many of what transpired

was appropriate to describe as a tragedy, for some at least.

In those circumstances, if there is a tragedy there are

lessons to be learned so as to avoid them again. It might

not have been a tragedy for others and that is a matter of

rejoicing. It still does not take away from the fact that it

was a tragedy for some. I hope that helps you.

If there are no other formal comments from the floor

that this brings to an end the preliminary hearing. We will

now adjourn until we reconvene to begin our public hearing,

oral hearing stages which will be, as I already said, in the

Spring. May I thank you very, very much, all of you, for

coming. May I thank the legal representatives for helping me

in the way they have and for those of you who spoke. We

have listened. Thank you very much again.

The Inquiry concluded at 12.10 p.m.

--------------------------

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Published by the Bristol Royal Infirmary Inquiry, July 2001 © Crown Copyright 2001

Published by the Bristol Royal Infirmary Inquiry, July 2001
© Crown Copyright 2001