For a summary of the Inquiry Procedure please go to the opening statement
of the Chairman at the Preliminary
- PRELIMINARY OVERVIEW OF EXISTING DATA SOURCES RELEVENT TO THE INQUIRYS
Bristol Royal Infirmary Inquiry
Clinical Case Note Review Exercise
Formal Written Comments and Applications for Second Review
This note sets out the Inquirys process
for dealing with formal written comments on clinical case note review
(CCNR) forms and applications for Second Review.
The procedure for the CCNR exercise was outlined in
"The Inquirys approach to the Assessment of Adequacy of Paediatric
The exercise was a review of the case notes, as was emphasised
by the Chairman on the 9th December (transcript day 91, page
126-129 copies attached), and was not an attempt to determine
personal negligence, or otherwise, in the management of the particular
This procedure document explained that the purpose of
the CCNR exercise was to provide the Panel with a qualitative perspective
on the overall pattern of care, and to highlight areas where services
were adequate or less than adequate, according to the clinical notes;
the exercise was not designed to reach specific conclusions about individual
Any individual, however, with an interest in a particular
case was able to make a formal written comment on a review groups
conclusions and, further if they disagreed with the review findings on
a particular case, submit a reasoned explanation as to why the case should
be reviewed again. The Panel would then consider the matter.
Formal Written Comments on Clinical Case Note Review
Formal written comments on CCNR forms will be treated
in the following way:
- they will, as with all formal written comments, constitute evidence
- the Panel will consider all formal written comments (as evidence)
- the authors of the final CCNR have the task of reporting on that which
the clinical notes themselves appear to show. Accordingly, save in the
case of an ambiguity in the notes themselves which is addressed by any
comment, they will not have regard to the content of the formal written
comments. Where those comments seek to provide an explanation or gloss
which goes beyond the notes, this will be a matter for the Panel to
consider as part of the evidence, and will not affect the conclusions
of the authors of the CCNR report, who have the responsibility of summarising
what the notes show.
Second Review Process
The Panel has made it clear that when second reviews
take place they will be carried out in the same way as the first review.
That is to say, the Expert Review Teams will only consider the clinical
case notes. Specifically, they will not have sight of, nor be asked to
take into account, any formal written comments or the reasons surrounding
the request for a second review.
Where possible the experts invited to sit on Second Review
panels will be those who previously participated in the review exercise
but not in respect of the case in question. The expert group, as in the
first review, will have access to the clinical case notes and to other
investigations that are available: angiograms, echocardiograms, X-Rays,
ITU and Perfusion Charts.
The report of a Second Review will be circulated for
Only those CCNR Report Forms where the Inquiry has full
consent will be published, along with formal written comments on those
THE CONCLUSION OF PHASE
ONE ORAL EVIDENCE
The purpose of this note is to outline the processes
and deadlines by which the final oral evidence and presentations in Phase
One will be taken by the Inquiry.
- Phase One hearings will conclude on Thursday 16th December.
- Thereafter, and in accordance with the Chairmans Opening Statement,
those witnesses who choose to do so, by themselves or through their
legal representatives, may make a short final presentation in writing
or, at the discretion of the Chairman, orally.
- Any witness who has given oral evidence to the Inquiry in Phase One
may put in a short final presentation. These presentations must be received
by Friday 21st January 2000.
- Any witness who submits such a presentation and who wishes, additionally,
to make an oral presentation to the Inquiry should inform the Solicitor
to the Inquiry in writing at the time of submitting the written presentation.
- Such requests will be put before the Chairman for consideration. Those
from whom the Chairman considers it would assist the Inquiry to hear
orally will be informed by Friday 28th January and invited
to make their oral presentation on 9th or 10th February.
- The Inquiry Panel will reconvene in Bristol for the final oral presentations
of Phase One on 9th and 10th February 2000.
- All written presentations, whether or not oral presentation has been
invited, will be made public prior to 9th February.
- The length of the oral presentations will be time limited by the Chairman.
OVERVIEW OF EXISTING DATA SOURCES RELEVENT TO THE INQUIRYS REMIT
The following consultation paper provides an overview of the
strengths, weaknesses and limitations of the key existing data sources
which the Inquiry considers to be relevant to paediatric cardiac surgery
at Bristol. Guided by the advice of experts, the Inquiry is conducting
a major review which includes the commissioning of analysis and research,
contacting those responsible for relevant data systems and taking written
The extensive work of the Inquirys analysis team has, to date,
highlighted six existing data sources which are of major relevance at
this stage relevant to the Inquirys terms of reference. Two of these,
Hospital Episode Statistics and the UK Cardiac Surgical Register, should
enable comparisons to be made between Bristol and other centres. Two new
databases have been created by the Inquiry using existing material from
Clinical Records and from Surgeons Logs. The six key data sources
Hospital Episode Statistics (HES) this system collected information
about activity in all NHS hospitals in England (a similar system existed
in Wales). Including over 50 million data records collected over a 5-year
period between 1991 and 1995. This is largely an administrative system,
and the Inquiry is examining retrospectively what it can reveal about
relative performance on paediatric cardiac surgery at different hospitals.
UK Cardiac Surgical Register established in 1977 by the UK Society
of Cardiothoracic Surgeons to provide information on the volume, type
and distribution of cardiac surgery, including paediatric cardiac surgery,
undertaken in the UK in order to aid future service planning and clinical
audit. Today, it is primarily used to track the development of the specialty,
to identify trends and track and benchmark mortality for different procedures.
South West Congenital Heart Register a computer register providing
a summary of essential information about patients kept by the consultant
cardiologists at the BRI throughout the period of the Inquiry.
United Bristol Healthcare NHS Trust Patient Administration System (PAS)
used to track hospital activity. It is an administrative system
containing demographic and clinically coded information about the vast
majority of patients who received treatment at the United Bristol Healthcare
NHS Trust (UBHT including Bristol Royal Infirmary and Bristol Childrens
Hospital) since 1988.
Clinical Records a selection of information about over 1800 children
treated at UBHT, collected from GPs, surgeons, anaesthetists, nurses and
pathologists including: name, date of birth, gender, hospital record numbers,
diagnoses, operative procedures and outcomes with dates and surgeons
names. This information has been collated into a new database.
Surgeons Logs the Inquiry has created a database from notes
made in the surgeons logs of Mr James Wisheart and Mr Janardan Dhasmana.
The information was recorded in the logs for reference purposes, for personal
audit of operations undertaken and for reporting and research purposes.
The Inquiry is aware of nearly twenty additional data sources
which may be potentially relevant to its remit, but its priority now is
to take forward analysis of the six data sources outlined above.
8 July 99
PROCEDURE TO BE FOLLOWED IN MAKING
AN APPLICATION FOR CROSS EXAMINATION
- The Inquiry has indicated that participants in the
Inquiry have the right to apply to cross examine a witness who gives
- This note provides a procedure which will normally be followed when
such applications are made.
- Applications should be made through legal representatives where the
participant making the application is legally represented.
- The Inquiry will expect such applications to be made orally, after
the witness has been examined by Counsel to the Inquiry and after any
questions have been put by the Panel and, where appropriate, by the
witnesss representative in re-examination.
- The person making the application (hereafter "the Applicant")
will first indicate to Counsel to the Inquiry that they wish to apply
for permission from the Panel to cross examine the witness.
- Counsel to the Inquiry will, after the witness has given evidence
as set out in paragraph 4 above, indicate to the Panel that an application
for permission to cross examine is to be made.
- The Panel will ask the witness whether he or she wishes to be present
while the application is made. If the witness expresses a desire to
be present, the Panel will ask the Applicant whether there is any objection
to this course. If not, the application will proceed (see below). If
there is such an objection, Inquiry will expect to accede to the witnesss
wish, unless the Applicant demonstrates exceptional reasons which justify
the exclusion of the witness (subject to paragraph 8 below).
- The witnesss legal representatives will, in any event, have
the right to be present during the making of the application, as will
the witness, notwithstanding paragraph 7 above, if he or she is not
- The Applicant should succinctly and clearly:
- explain in outline the areas of evidence which the Applicant desires
to explore in cross examination;
- say why it would be helpful to the Inquiry for this to be done orally;
- why it might potentially be unfair to the Applicant to leave evidence
- explain whether or not the Applicant has previously indicated to
Counsel to the Inquiry that the Applicant would like questions to
be put pertaining to those areas;
- explain why, if the answer to (d) is no, that should have been the
- explain why, if the answer to (d) is yes, the Applicant considers
that the areas of evidence have not adequately been explored by Counsel
to the Inquiry and or the Panel in their questioning of the witness.
- After the application has been made, the witnesss representative
or, where he or she has no representative, the witness him or herself
will have the right to reply to the application. The reply should be
made orally as soon as practicable after the application has been made.
- Once the witness or the witnesss representative, as the case
may be, has replied to the application or indicates that no reply is
desired, Counsel to the Inquiry will be asked to address the Panel in
respect of the application. Counsel to the Inquiry will be expected
to be brief.
- The Applicant will be given the final right of reply, addressing only
those points made pursuant to paragraphs 10 and or 11 above rather than
rehearsing the original application. The Panel will normally withdraw
from the Hearing Chamber to consider its decision as to whether or not
to grant permission to cross examine.
- The Panel will have regard to the requirements of fairness, to whether
there is a need to resolve otherwise intractable disputes of fact to
assist the Panel in fulfilling its terms of reference, and to all the
circumstances of each application including those matters set out in
paragraph 9 above.
- Whenever practicable, the Panels decision will be given orally
after a short adjournment. Where fuller deliberation is required, the
Inquiry may adjourn overnight or may, exceptionally, proceed with the
next witness pending consideration of the application for permission
to cross examine.
- When permission is given, and where the timetable allows, cross examination
will proceed as soon as permission has been given.
- In any case where permission has been given, questioning in cross
examination will be confined to those areas outlined in paragraph 9(a)
above. The duration of the questioning may be limited by the Panel,
depending on the circumstances. The witnesss own representative
will have an opportunity to re-examine in relation to matters raised
in cross examination. The Panel may ask questions of the witness at
17 5 99
USE OF INQUIRY'S EXPERT GROUP
The BRI Inquiry Panel, as was announced by the
Chairman, Professor Ian Kennedy, at the Inquirys Preliminary Hearing
in October 1998, is setting up a single Expert Group to inform and support
the Inquiry. Individuals who are members of the Expert Group will be the
Inquirys experts rather than experts for any individual or organisation
which has an interest in the Inquirys work.
Only Counsel to the Inquiry will be able to call experts
to give evidence to the Inquiry.
A single Expert Group
The aim of this approach to the use of expert
evidence in a public inquiry is to move away from the model used in trials,
where expert evidence is presented in an adversarial setting. As experts
to the Inquiry, those invited will be asked to give their opinion in the
wider public interest, (indeed it will be published), rather than in support
of the case of one side or another. As Professor Kennedy has made clear,
there are no sides; there is no case. The Inquiry is there to inquire.
The Chairman is also mindful of the relative scarcity of expertise in
a number of areas of interest to the Inquiry. Thus, he wishes to gain
the greatest benefit for the Inquiry by harnessing that expertise within
one Expert Group.
How experts will assist the Inquiry
Experts may be asked to assist the Inquiry in
up to three ways, but involvement will be at the experts convenience
and depend on availability by providing (i) written opinions which will
be the norm; (ii) by attending oral hearings to give evidence in person,
and/or to be in attendance when another witness is appearing; (iii) by
providing information and background to Counsel and Solicitor to the Inquiry.
The extent to which any one expert actually assists in all three ways
will depend on the area of expertise, the role that area of expertise
may play in the Inquiry, and an individuals availability.
Although experts principle obligation will be to
serve the Inquiry direct, we should be grateful if experts could make
themselves available, at their convenience, to give occasional seminars
to the two groups whose costs are being met at public expense. Other organisations
with a direct interest in the Inquiry may also seek advice from individuals
on the Expert Group. All such requests for access to the Expert Group
will need to be made through the Inquiry Secretariat.
The Inquiry recognises that membership of the Expert
Group may involve a considerable commitment; to lighten the load on any
one individual, a number of experts will be invited to serve in each area
The following notes explain in more detail what is entailed
by involvement in the Expert Group.
- Expert witnesses will be asked, in response to invitations
from the Inquiry, to provide written opinions as follows:
- one, or possibly, a number of statements covering those aspects of
the Inquiry on which he /she is qualified to comment;
- comments upon the formal written statements and/or oral evidence of
- Where an expert comments in a way which the Inquiry considers critical
in a relevant respect upon the formal written statement or oral evidence
of a witness, those comments will be sent to that witness, and also
to those other participants who, in the Inquirys view, have a
particular interest in that witnesss evidence.
- Experts appointed to the Expert Group should understand that opinions
given under (a) and (b) above will be part of the Inquiry material.
They will be made public by the Inquiry, and published on the Inquirys
website, at a convenient date and time.
- Where appropriate, the membership of the Expert Group will take account
of schools of thought or differences in opinion within any particular
area of expertise. Although the Inquiry will not necessarily hear orally
from each expert where views differ, it will seek, in taking advice
and evidence, to reflect fairly any divergence of opinion and, where
it is important, to explore it.
ATTENDANCE AT ORAL HEARINGS
- Experts will not normally be called to give oral evidence
at the public hearings. They may be called, however, when there is some
dispute as to the facts to which their expert opinion relates. In this
case, the expert will be called as soon as possible after the witness,
to whose evidence his/her expert opinion relates, has been heard.
- Further, if Counsel to the Inquiry or the Inquiry Panel considers
it would be helpful to the Inquiry to have an expert in attendance at
the time that a witness gives oral evidence, the expert will be invited
- raise, by way of comment (during the course of the evidence) any
matter which is within his/her expertise and which he/she feels would
be useful for the Inquiry to consider.
- respond to specific requests made to him or her by Counsel or the
Inquiry Panel during the course of the witnesss evidence, with
a view to enabling an informed consideration or discussion of the
evidence being proffered by that witness.
- Further, an expert may be asked to give evidence at a time which is
convenient both to him/ her and to the Inquiry either:
- to interpret evidence, or
- where the substance of what the expert has to say may be controversial.
This may be either as a sole witness or as part of a
discussion to which two or three experts who apparently hold differing
views will be invited to contribute. In the latter case, each will give
evidence at the same time moderated, as it were, by Counsel, thus permitting
an open, panel-type discussion amongst the relevant experts, focused and
facilitated by Counsel.
- It follows that an expert, accepting an invitation to belong to the
Expert Group, must agree, if necessary, to give evidence not only as
a single witness, but also, if appropriate, as one of a small number
of experts giving evidence at the same time.
BACKGROUND INFORMATION TO COUNSEL AND SOLICITOR TO
- The purpose of providing such information to Counsel and Solicitor
to the Inquiry is to help the Inquirys Legal team to understand
and appreciate technical issues and detail of experts reports
with a view to their serving the Inquiry more effectively.
- Any such briefing is likely to be sought on an ad hoc basis, and will
respect the convenience of the expert, both in terms of the matter of
such briefing (eg telephone conversation, video link, actual meeting
etc), and its timing. Every effort will be made to arrange any meeting
at a place and at a time convenient to the expert.
BACKGROUND SEMINARS TO GROUPS RECEIVING PUBLIC FUNDING
TO ENABLE PARTICIPATION IN THE INQUIRY
- The Secretary of State, in agreeing funding for the Bristol
Heart Children Action Group (BHCAG) and the Surgeons Support Group,
granted each group a small sum to help meet the costs of seminars from
experts. The aim is to ensure that members of these Groups are better
able to follow and comment on the Inquirys proceedings. The protocol
for such seminars will emphasise:
- the purpose of any seminar is intended to be informative rather
- the timing of the seminar, if requested, will be such as to suit
the convenience of both those requesting the seminar and the expert
- arrangements for the seminar are to be made through the Inquiry
Secretariat, and not directly between members of the funded group
and the relevant expert;
- the expert will be expected not to, (and must not) comment upon
his or her view of any individual who may be asked to give evidence
to the Inquiry.
BACKGROUND ADVICE TO OTHER ORGANISATIONS
Experts may also be asked occasionally, via the
Inquiry Secretariat, to provide advice or explanations to other organisations
with a direct interest in the Inquiry. A protocol will also be established
for these contacts.
APPOINTMENT OF EXPERTS
Appointment of experts to the Expert Group will
be by invitation only. The Inquiry has sought (and will continue to seek)
advice from experts as to those others whose expertise is well recognised,
with a view to ensuring that the Expert Group:
- as sufficient numerical strength to ensure that the demands outlined
above may be met with minimum inconvenience to any one individual;
- covers any principal differences of view or of emphasis within any
- is broadly based (both geographically and otherwise).
The Chairman will always be happy to listen to any suggestions
for additions to the Group where it is considered that this will strengthen
the ability of the Expert Group to be of assistance to the Inquiry, and
similarly to any offers of assistance from any individual who has expertise
It is not a disqualification for any given individual
to be, or to have been, involved in litigation concerning any child treated
at the Bristol hospitals between 1984 and 1995, nor for that individual
to have been involved in the hearings conducted by the General Medical
Council (GMC) which related to the care at Bristol of patients suffering
from congenital heart problems, but any expert so involved will be expected
to disclose his or her involvement. No expert will be asked to volunteer
any confidential information which s/he may have obtained in acting in
litigation or in relation to the GMC hearing.
Similarly, any expert who shares membership of any club
or society to which (so far as s/he knows), a witness or potential witness
belongs, will be expected to disclose that fact.
The Expert Group will include experts in the following
areas of expertise:
Paediatric Cardiac Surgery
Paediatric Cardiac Anaesthesia and Intensive Care
Nursing: General Paediatrics
Nursing: Paediatric Intensive Care
Medical education and training
Medical and clinical audit
Regulation of the medical profession
NHS Finance in the 1980s and 1990s
NHS Management in the 1980s and 1990s
- including the impact of the NHS reforms
Human Factors and Risk Management
Statistics and Epidemiology
BRI INQUIRY SECRETARIAT
THE INQUIRY'S APPROACH TO MAKING USE OF RELEVANT
The Bristol Royal Infirmary Inquiry intends to make full
and effective use of available sources of evidence to inform its task.
This includes making best use of available sources of data on childrens
heart surgery in Bristol and elsewhere, drawing on specialist statistical
and scientific expertise as required.
2. Relevant sources of data which may form the basis of statistical
A range of sources of data on childrens heart surgery
exists, at both national and local level.
2.1 At national level, there are two main sources of data . They are
(i) Hospital Episode Statistics, known as
This dataset aims to measure all hospital in-patient activity in
England. Returns from hospitals across the country have been collected
by the Department of Health since 1988. For some of the earlier years,
we may be able to call on the precursor to HES, the Hospital In-Patient
Enquiry, known as HIPE.
(ii) The UK Cardio-Thoracic Register data
These data have been collected since 1977 and include information
supplied voluntarily about cardiac surgery from each of the hospitals
undertaking such work. They are collected and analysed by the Society
of Cardio-Thoracic Surgeons.
2.2 At local level, the sources of information which could inform
statistical analysis include:
(i) The clinical records
These were compiled by UBHT clinicians on each child who received
heart surgery. The Inquiry has access to all relevant clinical records.
(ii) The UBHTs Patient Administration System, known as "PAS".
This originated back to 1988 and, as well as being a system for tracking
patients within the UBHT, it is the source of the UBHTs returns
for Hospital Episode Statistics, the national source mentioned earlier.
In addition the Inquiry intends o draw on information collected and
collated by the UBHT clinicians themselves. These sources include:
(iii) The log-books of the Bristol cardiac surgeons
(iv) The information collected by Bristol cardiologists, including
their South West Congenital Heart Register computer system.
(v) The Patient Analysis and Tracing System - a system used in the
UBHT cardiac surgery department from 1992.
(vi) We shall also draw on relevant clinical audit information, on
statistics and tables used by UBHT clinicians at the time.
We may also draw on any other of the hospitals available clinical
specialty systems and sources of information as necessary.
3. Issues of data quality
In seeking to make effective and appropriate use of statistical
data sources, the Inquiry intends to take account of crucial issues such
as coverage, quality, relevance, comparability, and interpretation. We
also want to understand the strengths, weaknesses and limitations of each
of these sources. To this end, and as a broad framework within which to
work, the Inquiry intends to adopt as a phased approach to making best
use of available data.
4. A phased approach to making use of available data sources
4.1 The first phase will be to commission a preliminary
critical overview of the sources outlined above. The aim of this overview,
which we intend to publish, is to address key questions about the
coverage and quality of each source, how the data were collected and validated,
and the potential comparability of data sources. This overview will provide
a context for subsequent statistical analysis, and will help to
ensure that any conclusions reached, if indeed they can be reached from
the data, are sound and capable of standing up to scientific and public
4.2 The second phase will be an exploratory phase. Here
we will look at what each data source national and local - reveals
about performance at Bristol. This will be a considerable undertaking,
and will include:
- an exercise to look at every single childs
clinical record, to capture information about each childs diagnosis,
the surgical procedure performed, and the outcome. This exercise will
allow the Inquiry to take a sample for more detailed study;
- independent assessment of the sources of national data to see what
they can tell us about comparative performance as between Bristol
and other centres performing paediatric cardiac surgery.
Where appropriate, we will cross-validate sources of data.
4.3 At the end of this phase, the Inquiry, with the assistance
of expert advice, will be in a position to determine whether the evidence
suggests that Bristol had consistently or sporadically divergent performance,
and if so in which aspects of childrens heart surgery. We will then
know which areas warrant further detailed study. But it must be emphasised
that all that would be known at this stage is whether variations in performance
existed. The data themselves would tell us nothing about what caused any
4.4 The third phase will be a confirmatory phase. Here
the main interest lies in establishing whether there are any inherent
technical biases in the data, both with regard to Bristol and to other
centres, concentrating on those areas which are shown in the exploratory
phase to merit special attention, e.g. particularly strong or weak areas
of practice where lessons may be learnt.
4.5 If any divergence in performance between Bristol and
other centres were confirmed in Phase Three, a fourth explanatory phase
will be taken forward. We will seek expert advice on possible explanations
and will undertake further investigations, including, potentially, more
detailed assessment of clinical notes. This may also involve the collection
of new data.
The Inquiry is determined to make full and appropriate
use of relevant sources of statistical data to inform its task, but this
must be done with an awareness of the limitations on the quality of the
available sources of data. We aim to make public during the course of
the year, a critical review of the sources of data and, subsequently,
both analyses of Bristols performance and expert opinion on what
conclusions may reasonably be drawn from the data.
Bristol Royal Infirmary Inquiry
FORMAL WRITTEN COMMENT PROTOCOL
- Each witness statement received will be scrutinised
by one of the Legal Team to the Inquiry within a target time of two
working days of receipt.
- If that scrutiny reveals that the witness statement contains material
(eg defamatory or scandalous matter) which cannot reasonably assist
the Inquiry in its task, that material will be redacted prior to publication
of the statement to any person outside the Inquiry Secretariat or Legal
- If the scrutiny reveals matters of fact or opinion which are critical
of any other person or body in a regard which the scrutineer considers
relates to the issues before the Inquiry and which the scrutineer considers
to be of more than minimal importance then:
- the witness statement will be sent for comment to the person or
body criticised, providing that person or a duly authorised officer
of the body (as the case may be) undertakes to keep confidential the
text and substance of the statement at all times prior to its general
publication by the Inquiry;
- the person or body criticised will be invited to respond to the
criticism(s) contained in the statement. This may be either by reference
to one or more specific criticisms or, more generally, to the statement
as a whole.
- Where the witness statement is that of a person whom the Inquiry has
decided should give oral evidence, that fact will be indicated to the
person criticised at the time the witness statement is sent to her or
The fact that no indication is given is, however, no guarantee that
the author of the original formal written statement will not be called
to give oral evidence.
- Where a witness who has made a formal written statement is to be called
to give oral evidence then:
- any written comment which seeks to endorse, rebut or explain any
criticism in, or to comment on, the statement must be received by
the Inquiry at least 7 days prior to the start of that evidence if
it is to be made public contemporaneously with the statement itself;
- where time does not permit 7 clear days, then the person commenting
may telephone, fax or email the Solicitor to the Inquiry to
give reasons why, notwithstanding the shortage of time, it is nonetheless
important that contemporaneous publication should occur. Provided
good reasons are given for it the Inquiry will then do what it reasonably
can to ensure contemporaneous publication does take place.
- Every comment received in writing will be published with specific
reference to the formal written statement to which it relates (subject
to redaction as in paragraph 2. above). Except where paragraph 5(a)
applies, the timing of publication will be at the discretion of the
Inquiry although it is normally to be expected that comments will be
published contemporaneously with the document(s) to which they relate.
- Irrespective of whether or not a statement has been submitted to them
for comments, where a person or body regards any part of it as critical
in the sense described in paragraph 3., they may send written comment
to the Inquiry, and it will be published, unless the Legal Team consider
it insufficiently relevant.
- Any written comment must clearly indicate that it is intended as such
if it is to be published and considered by the Inquiry Panel.
- Oral comments made other than when giving evidence and comment not
clearly identified as such will not be published and will not be considered
by the Inquiry Panel.
- Upon receipt of any written comment a member of the Legal Team will
consider whether any further detail is required in relation to that
comment, and may contact the commentator with a view to asking for her/him
to provide it.
CLARIFICATION OF RE-EXAMINATION
Professor Ian Kennedy, Inquiry Chairman.
18th March 1999
On Wednesday 17th
March 1999, Mr Lissack QC invited me to clarify what the Inquiry expected
in terms of re-examination of witnesses. I am happy to provide, below,
the clarification which Mr Lissack QC sought.
At the opening of the Inquiry last autumn I said that
"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 witnesss
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 representative to ensure that the witness
has given a proper account of him or herself." (emphasis added)
I also emphasised that after a witness had given evidence,
there would be an opportunity for a short submission to be made the following
day on that witnesss behalf. I made plain that, save in exceptional
circumstances, submissions will be expected to be committed to writing.
That remains our expectation. All that I said at the opening of the Inquiry
I hope that, in the opening statement and since we started
taking oral evidence this week, I have made clear the general position,
namely that anything that reasonably can be expressed in the formal written
statement, or, if that is not possible, can be channelled through Counsel
to the Inquiry, should be. Therefore, where a matter has arisen since
a witness statement was submitted which, had it arisen beforehand, the
witness would have dealt with in that statement, then the Inquiry expects
that a short supplemental statement, dealing only with the new point,
will. be submitted as soon as possible. Where the witness is to be called
to give oral evidence, the supplemental statement should, if at all possible,
be submitted before the witness gives oral evidence. In the rare circumstances
when this is genuinely not possible, the representatives of the witness
should indicate to Counsel to the Inquiry that a fresh point has arisen,
and invite Counsel to the Inquiry to lead the relevant evidence from the
What we do not expect is that a witness will be questioned
by Counsel to the Inquiry and the Panel and only then be asked to deal,
for the first time, with a fresh point not previously raised in the witnesss
evidence. For one thing, no-one would have been in a position to consider
whether the fresh point should be accepted or could be rebutted or commented
upon. Those who have already commented on the witness statement are generally
entitled to expect that they have seen the essentials of the intended
evidence. The Inquiry recognises that there may be exceptional circumstances
demanding a departure from the procedure I have set out. If such circumstances
were to arise, the Panel will require to be persuaded that it would be
helpful for the fresh point to be raised orally at that stage. In particular,
the Inquiry will need to be persuaded that the point is not one that can
be dealt with by a short written statement submitted on the following
day, in accordance with the procedure I outlined at the opening of the
Inquiry and to which I refer above.
It is important for the Inquiry to progress efficiently
and effectively. There is a risk that it might not do so if re-examination
is to be free-ranging. There is much to do. The Inquiry is determined
to adopt fair but also expeditious procedures. I appreciate that the Inquirys
procedures differ from those of the courtroom; but we are not a court.
I hope that that clarifies the situation.
PROCEDURES FOR ASSESSMENT
OF COSTS OF PARTICIPANTS AT PUBLIC EXPENSE
- The Secretary of State accepted the recommendations of the Chairman
that the reasonable and appropriate legal costs of the Bristol Heart
Children Action Group and the Bristol Surgeons` Support Group be met
from public funds on the terms as set out in letters dated 20 November
1998. The relevant statutory provisions with regard to these costs may
be found in Section 84 (5) and (6) of the National Health Service Act
1977, as amended.
- In the first instance costs will be assessed by the Costs Branch of
Treasury Solicitor on the standard basis at an agreed hourly rate subject
to a capping mechanism as to total hours worked. Where agreement can
be reached those costs will be paid through the Treasury Solicitor.
So far as the format of bills of costs is concerned these should be
in the form of fully drawn bills along the lines of an inter partes
bill of costs or as agreed with the Costs Branch. Counsels fees should
be in the usual fee note form with clear indications of time spent.
Counsel should be aware that they will be asked to provide details of
the work undertaken and how it was generated. Bills should be presented
on a monthly basis for consideration. All bills and fee notes will be
subject to an audit procedure carried by the Costs Branch and/or the
Internal Audit Service of the Treasury Solicitors Department.
This may involve periodic visits to Solicitors offices.
- General disbursements above £200.00 are liable to be disallowed unless
they have received prior approval from the Solicitor to the Inquiry.
- The Inquiry reserves the right to disallow any costs for good reason:
examples of the circumstances in which costs may be disallowed are set
out in Paragraph 61 of the Report of the Royal Commission on Tribunals
of Inquiry (1966 Cmnd 3121).
- In the event of a bill not being agreed, in full or in part, payment
will be made on account of costs pending resolution at the end of the
Inquiry, possibly by means of taxation.
- All claims for costs should be sent to Mr D Houghton, Head of Costs,
Treasury Solicitors Office at Queen Annes Chambers, 28 Broadway,
London SW1H 9JS. Tel: 0171 210 3192. Fax: 0171 210 3141.
on the disclosure of potential criticism
In his Opening Statement the Chairman announced
that those who became the subject of potential criticism would be informed
in writing and given 21 days to respond, subject to a prior undertaking
as to confidentiality.
Consequently, the Inquiry is proceeding as follows:
- The Panel is currently considering those who may be subject to formal
criticism on matters of material importance related to the subject matter
of the Inquiry.
- The Solicitor to the Inquiry is contacting all legal representatives
and relevant witnesses requesting an undertaking as to confidentiality,
in the event that it is necessary.
- Subsequently in appropriate cases, on receipt of these undertakings,
a letter will be sent briefly setting out the potential criticisms and
identifying the evidence on which they are based.
- The Solicitor must receive any response at the Bristol Office (details
below) within 21 days; only in exceptional circumstances will this time
be extended.Any application for extension must be made in writing, with
reasons, before the end of the original period.
- The Panel will consider the responses, taking them into account in
the final formulation of the Report.
Bristol Royal Infirmary Inquiry
2/10 Temple Way
Bristol BS2 OBY
Tel: 0117 938 8735
Fax: 0117 938 8790
Solicitor to the Inquiry