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.
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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.
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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
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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
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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
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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?
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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,
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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
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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
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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, a