Home Page Search Final Report Interim Report Evidence - Transcripts - Witness Statements - Submissions - CCNR Report and associated documents - Statistical Reports and associated documents - Background Papers - Expert Papers Inquiry Seminars About the Inquiry Help		Daily transcripts Hearing summary 20 July 1999   Today the Inquiry heard evidence from retired Medical Director and Cardiothoracic Consultant Surgeon at United Bristol Healthcare NHS Trust (UBHT), Mr James Wisheart. Mr Wisheart answered questions about his responsibilities as the Associate Clinical Director for Cardiac Surgery, to the quality of service, the development of standards and the achievement of service contracts within the Directorate. He then discussed Mr Janardan Dhasmana’s period as Clinical Director at UBHT, during which time tensions between clinical colleagues were an issue, and went on to discuss how different members of the clinical team could raise concerns. He also covered questions on his role as Deputy Chief Executive and his working relationship with Dr John Roylance (Chief Executive, UBHT). Mr Wisheart talked about audit and accountability and the involvement of clinical colleagues in paediatric cardiac surgical audit and pathology meetings following the death of a patient. He then discussed Parsonnet Scoring, the system used to assess operative mortality. The issue of the retention of tissue and post-mortems was then addressed with Mr Wisheart explaining his understanding of informed consent and listing the information passed to the coroner following a death in hospital. He concluded by discussing the Supra-regional status of Bristol for infant and neo-natal cardiac surgery, its funding, activity and applications for capital funding for developments.   Mr Wisheart will return tomorrow morning at 9.30 a.m. for re-examination from his legal representatives and to answer questions from the Inquiry Panel.

FULL TRANSCRIPT

   1                      Day 41, 20th July 1999
   2   (9.30 am)
   3   THE CHAIRMAN: Good morning, everyone. Good morning,
   4     Mr Langstaff.
   5   MR LANGSTAFF: Good morning, sir.
   6            MR JAMES WISHEART (RECALLED):
   7            EXAMINED BY MR LANGSTAFF (CONTINUED):
   8   Q. Mr Wisheart, once the Trust began in April 1991, was
   9     the quality of service provided in each directorate
  10     a matter for the Clinical Director of that directorate?
  11   A. He had a responsibility for audit. He had
  12     a responsibility to see that audit was carried out
  13     within his directorate. He had a responsibility for the
  14     organisation of the clinical work. He would clearly
  15     have had a responsibility if there had been complaints
  16     of any sort to deal with those. It is not my belief
  17     that he was responsible for the individual work of an
  18     individual clinician.
  19   Q. May we have on the screen, please, UBHT 60, and since
  20     it begins at 1, I will show you what it is, UBHT 60/1:
  21     it speaks for itself. And page 41(UBHT 60/41), please.
  22        Can we scroll down to "Quality of service", the
  23     opening sentence underneath the three bullet points:
  24        "Within the Trust, each contract will be the
  25     personal responsibility of a Clinical Director supported

   1     by a manager. Quality of service will therefore be
   2     their responsibility."
   3        What you are saying, is it, is that the quality of
   4     service was not so much their responsibility as audit,
   5     the organisation of the services, and -- I have
   6     forgotten the third point that you mentioned?
   7   A. I mentioned complaints of any sort.
   8   Q. And dealing with complaints?
   9   A. Yes.
  10   Q. So that is what this sentence means.
  11   A. I think that this sentence is more a general statement
  12     of principle and what I was saying was trying to address
  13     it at a more practical level, if you like.
  14   Q. Principle has to be translated into practice?
  15   A. Indeed.
  16   Q. How can one translate a high-sounding principle such
  17     as this under the bold heading "Quality of service" into
  18     practice?
  19   A. Through audit. I mean, I am not saying that I was
  20     saying something totally different, but it was on
  21     a slightly different wavelength. One has to ask what
  22     the "quality of service" means. There are two broad
  23     areas under which it could be considered there. There
  24     is the area of quality in the sense of the management of
  25     the organisation, the waiting times, the promptness with

   1     which letters were sent out, the adequacy of the food
   2     and so forth and so on. Then secondly, there is the
   3     quality of the clinical service, which would be dealt
   4     with in a general way within the directorate, within
   5     additionally medical audit and later clinical audit.
   6   Q. If we look at the next sentence:
   7        "They will continue the development of standards
   8     already set within the Trust's hospitals for many years,
   9     particularly in clinical care."
  10        The mechanism that both the Manager and the
  11     Clinical Director had, in your understanding, was audit,
  12     organisation and response to complaints. That was how
  13     the development of standards was to be achieved, was
  14     it?
  15   A. I think that the development of standards involves
  16     much more fundamental activity than that; it involves
  17     training, it involves study, it involves planning
  18     services together. There is all the positive side. The
  19     audit, if you like, without wishing to get into what
  20     audit is or is not, it is much more a monitoring of what
  21     you do, but the actual positive and constructive side is
  22     to do with, as I say, education, training, planning,
  23     development, you know, a whole tranche of important
  24     fundamental activities.
  25   Q. I will come back to audit, if I may, and deal with that

   1     as something of a discrete issue, but for the moment,
   2     just focusing on the management role of the Clinical
   3     Director, the Clinical Director also had a role, did he
   4     not, of making sure that the directorate remained within
   5     budget?
   6   A. Yes. His role was to deliver the service, remain in the
   7     black and to maintain the quality, in a nutshell.
   8   Q. To negotiate, maintain and deliver the contracts, in
   9     effect?
  10   A. Yes.
  11   Q. In a service which we heard yesterday was
  12     under-resourced and under pressure, was there not
  13     a conflict between the responsibility that the Clinical
  14     Director had for quality of service, however that was to
  15     be achieved, and his responsibility for ensuring that
  16     everything fell within the budgeted finance?
  17   A. Yes. There would be difficulties there at a number of
  18     levels and in the service to which you were referring
  19     yesterday, there is a sense in which that fundamental
  20     difficulty arose because the contract was for a finite
  21     amount of work, a number of operations, if you like, but
  22     the patients who were being sent to us exceeded that
  23     number and the purchaser was not prepared to join with
  24     us in any attempt to limit the number of referrals, so
  25     we were in the position of having an open door for

   1     referrals, at which point there were no limitations, but
   2     we were only expected to deliver a finite volume of
   3     work.
   4        So there was a difficulty there. We entered into
   5     prolonged discussion with the purchaser as to how we
   6     could work together to deal with that, control it, if
   7     you like, but the purchaser was unable to find a way to
   8     help us, so we were left entirely with the question of
   9     dealing with that extra load.
  10   Q. Each of the directorates had devolved responsibility.
  11     We touched on this yesterday when we were talking about,
  12     in effect, who might be responsible for the ITU and your
  13     answer was, "Well, it is the surgeon who looks after the
  14     patient who is ultimately responsible", and we
  15     investigated the problem of the ward rounds at different
  16     times and who might have been there and the absence of
  17     any protocol for discussions between the surgeons and
  18     the anaesthetists even though you would expect it.
  19        Can we look at UBHT 143/133?
  20        This is a document detailing the Directorate of
  21     Cardiac Surgery. Can we scroll down, please? It deals
  22     with physical resources. Then, when we come to the
  23     bottom, "Equipment", "Ward 5", there is a square box
  24     which has been put round "Ventilators and allied
  25     apparatus, discuss with anaesthetics."

   1        The writing on the right-hand side is yours,
   2     is it?
   3   A. No, I think it is the writing of either Dr Martin or
   4     Dr Brian Williams, who, on behalf of anaesthetics, have
   5     made those annotations.
   6   Q. "Whose budget, whose funding, whose maintenance?"
   7        Can we go overleaf(UBHT 143/124). "Anaesthetic and allied
   8     equipment discussed with anaesthetics, hours, query
   9     monitoring." This was an annotation to a document which
  10     I think you produced?
  11   A. Yes.
  12   Q. There was a problem, was there, of territory between the
  13     anaesthetic directorate and the proposed directorate of
  14     cardiac surgery?
  15   A. I never regarded it as a problem. It was really just an
  16     issue of definition. It was a matter that required
  17     discussion, and so the matters that required discussion
  18     were identified and they were discussed.
  19   Q. Who ultimately oversaw the relationship between the
  20     directorates if they came to loggerheads?
  21   A. Well, if there was a difference between two
  22     directorates, then it could be dealt with in a number of
  23     ways, either by the two talking directly to each other
  24     and resolving it; by the two being assisted by a third
  25     party to resolve it, and that is the sort of thing as

   1     a Medical Director I could have easily been involved in;
   2     or thirdly, at the monthly meeting of Clinical
   3     Directors, where all the Clinical Directors met together
   4     with the Chief Executive, then any interdirectorate
   5     issue could be aired and dealt with.
   6   Q. When it came to the perfusionists, who was it who took
   7     responsibility for their work?
   8   A. Historically, the surgeons had taken responsibility for
   9     their work and they were part of the surgical team.
  10     I would say that in the 1990s the realities of that
  11     changed a little bit because the anaesthetists became
  12     more interested in the work of the perfusionists, but of
  13     course at all points it was teamwork and within the
  14     teamwork, there were only a few occasions when that
  15     became an issue; it was a matter of working together.
  16     In practice, in working together for the care of
  17     a patient, these sort of lines of demarcation really did
  18     not figure very much.
  19   Q. So what you are describing, really, is a co-operative
  20     enterprise which, so long as people co-operated, it
  21     worked and worked well, with no one individual person or
  22     body overseeing the relationship, although a number of
  23     routes by which problems might be resolved.
  24        I think that is the description you have given.
  25     Have I got it wrong?

   1   A. I do not think I remember saying nobody was charged
   2     with overall responsibility. The activities of the
   3     subdirectorate of cardiac surgery, the Associate
   4     Clinical Director would have been charged with the
   5     responsibility. He might have had to go elsewhere to
   6     get help to resolve a problem, but it would have been
   7     his responsibility.
   8   Q. The emphasis you put, not only between directorates
   9     but I imagine you put it within directorates, is on
  10     teamwork, is it?
  11   A. Definitely, yes.
  12   Q. When Mr Dhasmana took over from you as the Associate
  13     Clinical Director of Cardiac Surgery, he chaired the
  14     meetings -- that was his role, was it?
  15   A. Yes, that is correct.
  16   Q. Was he a good and effective Chairman?
  17   A. I think he found it more difficult than some of his
  18     other duties.
  19   Q. I am not sure that is an answer to the question.
  20     Would you describe him as a good and effective Chairman,
  21     being frank?
  22   A. I think that most of the time he was, but there were
  23     occasions when the membership under discussion made life
  24     difficult for him when he was less effective than
  25     perhaps others might have been. So there were occasions

   1     when he was less effective.
   2   Q. Why would it be that he was less effective? What made
   3     him less effective?
   4   A. Well, consultants are all quite independent-minded
   5     people who are quite prepared to say what they think and
   6     stick to the point and have a robust dialogue, and
   7     I think that he sometimes found that possibly a little
   8     bit overwhelming and he was not quite sure how to, if
   9     you like, keep it within bounds. So it was a clash of
  10     personalities to some extent.
  11   Q. We have heard a description from others of the meetings
  12     under his chairmanship becoming, if I use the expression
  13     a "free for all" it is an overstatement of the picture
  14     we have had, but one in which there was a lack of
  15     control, perhaps, of the expression of very different
  16     opinions.
  17        How far is that description appropriate?
  18   A. I would have to say, I think it is a caricature.
  19     I think there were occasions, as I have indicated, to
  20     which that description might apply, and I can understand
  21     why they might loom large in somebody's memory, because
  22     those are always the bits you remember, but if one were
  23     to take the meetings overall, I think they would
  24     represent, really, quite a small proportion. I mean,
  25     I have not measured or counted anything, but that would

   1     be my impression. I mean, Mr Dhasmana was a very
   2     gentle, well-motivated, considerate individual, and most
   3     of the business was conducted entirely appropriately and
   4     in that sense.
   5   Q. You had been the Chairman immediately before he was?
   6   A. Yes.
   7   Q. When things got perhaps towards being out of hand, and
   8     again that may be a caricature of an expression but
   9     I use it to make the question, would it be the case that
  10     you might step in yourself and utter a few calming words
  11     or try and give assistance to the Chairman?
  12   A. You mean when Mr Dhasmana was Chairman?
  13   Q. Yes.
  14   A. Yes. I think, had I been present and had such
  15     a situation developed, I would certainly have sought to
  16     do my best in that respect, yes.
  17   Q. Can we have a look at JDW 7/95? This is 23rd January
  18     1995, so it is quite a bit later than a number of the
  19     other documents we have looked at. It is a letter from
  20     Professor Vann Jones to Mr Dhasmana.
  21        In the first paragraph, "I was dismayed", he says,
  22     "at the meeting of the cardiac surgery associate
  23     directorate last Tuesday to find out how divided and
  24     acrimonious the atmosphere is in cardiac surgery. I was
  25     also sorry to hear and indeed to see how our colleagues

   1     in less favoured positions in the directorate are being
   2     abused. I do not think we should be bandying terms like
   3     'disloyalties' or 'lack of co-operation' about. I also
   4     thought it was distressing to see the perfusionist so
   5     interrupted that he couldn't get a word in edgeways,
   6     particularly as the person berating him didn't even turn
   7     round to face him."
   8        The description given by Professor Vann Jones is
   9     stark, of that meeting. Were you at that meeting?
  10   A. No, I was not.
  11   Q. Is it the case that certainly by January 1995, the
  12     directorate of cardiac surgery, far from being a team
  13     and working as a team as you described the theory was,
  14     was in fact divided and acrimonious?
  15   A. Without going into details, I would remind you that
  16     there were events at the beginning of January --
  17   Q. I do not want to look at the reasons.
  18   A. But I think this letter cannot be understood without
  19     reference to the events that had preceded this. Because
  20     there had been events which had indicated or had
  21     reflected the fact that there were some very radical
  22     disagreements within the department. It was not
  23     surgeons versus anaesthetists; there were differences
  24     amongst the groups. I do not want to go into the
  25     details, but I think that you will appreciate that these

   1     had been very profound, very deep, very difficult, very
   2     hurtful and so forth. I do not want to get into the
   3     debate, but I think everyone will understand that people
   4     were feeling very raw at that time, and I think that
   5     without understanding that, whatever the events of this
   6     meeting were that Professor Vann Jones is describing,
   7     cannot be properly understood. I would have said that
   8     really prior to this time the difficulties reflected in
   9     the letter had not really happened -- did not happen.
  10     This is a new development.
  11   Q. That was my purpose for taking you to the letter. So
  12     it is not misunderstood by those who may be listening
  13     elsewhere to this, I am not asking and you are not
  14     intending to answer any questions at this stage about
  15     the immediate events that gave rise to this acrimony and
  16     this dissension at this time, but the question is
  17     related to management and what was being managed and the
  18     way that people worked together as a team. Plainly, by
  19     January 1995, at that stage they were not doing. The
  20     question, which you have anticipated partly by your last
  21     answer, is: was this, as it were, the visible face, as
  22     you see it, of tensions that had been there for some
  23     time?
  24   A. It may well have been that there is an element of
  25     mystery about that, because it is not clear to me, even

   1     now, but I think that clearly there had been activities
   2     and viewpoints which, as I know and remember events, had
   3     not come very clearly into the open until January 1995.
   4        So it is quite possible, therefore, that under the
   5     surface there were such opinions, but as I say, they had
   6     not come into the open until January 1995, so in that
   7     sense, you may well be correct.
   8   Q. So, looking back, it seems to be, does it, that there
   9     were strong opposing views within the directorate which
  10     had not in fact surfaced?
  11   A. I have difficulty in saying whether there were, simply
  12     because they had not surfaced. That is where I used the
  13     word "mystery" a moment ago. I cannot say.
  14   Q. Exploring that which I am interested in today, if that
  15     is the case, was there any reason that you can see why
  16     any disagreement as to any, let us suppose, clinical
  17     issue should not have come to light through an open and
  18     well-managed directorate structure?
  19   A. You mean prior to this?
  20   Q. Prior to this.
  21   A. Personally, I can see no reason why, if there were an
  22     issue in somebody's mind, it should not have come to
  23     light.
  24   Q. That would be whether the issue was clinical or whether
  25     it was interpersonal?

   1   A. I would have thought so, yes. I mean, I had been
   2     thinking more of clinical ones, so I am just reflecting
   3     on the personal ones, but there were plenty of people
   4     around whose good offices could have been used and were
   5     used when there was perhaps a tension between two
   6     individuals, to deal with that. That does not say that
   7     every problem can be successfully dealt with easily, but
   8     I mean, there were means and there were people of
   9     goodwill there to do it.
  10   Q. Going back from 1995, if it was, what, only within the
  11     year previous to that that the directorate of cardiac
  12     surgery had actually been established with a budget of
  13     its own, in 1994 --
  14   A. No, that is not correct.
  15   Q. Cardiac services, I am sorry.
  16   A. Cardiac services was established in 1994.
  17   Q. That is what I meant to say, you are absolutely right to
  18     correct me, I am sorry. So the Directorate of Cardiac
  19     Services had begun in April 1994?
  20   A. Yes.
  21   Q. And had been shadowed for a year before that?
  22   A. Yes.
  23   Q. Was it the cardiac services that brought together, as
  24     a directorate, cardiologists, anaesthetists and cardiac
  25     surgeons?

   1   A. No.
   2   Q. So they had been taking part, had they, in discussions
   3     about clinical issues before those three different
   4     groups?
   5   A. Yes. May I respond by explaining how that did happen?
   6   Q. Yes, certainly.
   7   A. In the previous document we saw, the one you said I had
   8     drawn up which was very much a first discussion
   9     document, it contains proposals as to how the surgeons
  10     and the anaesthetists, the nurses, the perfusionists,
  11     the physiotherapists, et cetera, would work together
  12     within the subdirectorate of cardiac surgery and how
  13     they could meet in meetings and so forth. This was
  14     a completely new departure, because while there had been
  15     some meetings at which some people met together, there
  16     had been no formal or regular ones.
  17        So, as far as the anaesthetists, the surgeons, the
  18     nurses, the perfusionists were concerned, they had been
  19     meeting together since whenever in 1991. What happened
  20     in 1994 was that the subdirectorate of cardiac surgery,
  21     the subdirectorate of cardiology, that is, adult
  22     cardiology, came together within the Directorate of
  23     Cardiac Services, so that at the level of the
  24     Directorate of Cardiac Services board, these groups
  25     met. But the surgeons, anaesthetists and others had

   1     been previously meeting, and continued to meet, within
   2     the subdirectorate of cardiac surgery.
   3        I hope I have used all the right words in trying
   4     to describe that.
   5   Q. If you have not, I am sure I shall do my best to make
   6     up for it.
   7        Can you then help me with this. Can we have on
   8     the screen UBHT 137/10. This is 1st February 1994 and
   9     it is the minutes. It is one of a number of minutes of
  10     cardiac surgical audit meetings. I am going to come to
  11     audit as a topic in a few minutes. If we look at the
  12     identity of those present and those absent, those
  13     present: are they all surgical?
  14   A. Those present are all surgical.
  15   Q. Is there, amongst the absentees, any cardiologist?
  16   A. No.
  17   Q. Is it the case, then, that for the purposes of audit of
  18     cardiac surgery, the cardiologists did not or were not
  19     expected to attend the cardiac surgical audit meetings?
  20   A. By February 1994 audit was still a unidisciplinary
  21     activity under the heading of medical audit, and the
  22     cardiac surgeons generally conducted their own audit.
  23     I may say that the surgeons were significantly more
  24     interested than the adult cardiologists in audit
  25     activities.

   1   Q. That may be, but it is really a reflection on what you
   2     have been saying about working as a team, and I want to
   3     get a feel for what the team consisted of.
   4        Here we have a surgical team looking at surgical
   5     issues. Before any operation was conducted on an adult
   6     or child, at some stage during the week before there
   7     would be a multidisciplinary meeting, would there, to
   8     review the case, if time permitted?
   9   A. Not necessarily. The cases had all been reviewed
  10     together at the time of referral, that is to say, by the
  11     cardiologists and the surgeons. At that time --
  12   Q. That was the point that I wanted to get to, and you have
  13     answered it.
  14        So for the purposes of referral and planning ahead
  15     for surgery, there would be cardiologists and surgeons
  16     meeting together to discuss what was to be done?
  17   A. Absolutely.
  18   Q. Joint input?
  19   A. Yes. There was one meeting a week with the adult
  20     cardiologists and there were two meetings a week, that
  21     is, two additional meetings, between the paediatric
  22     surgeons and cardiologists.
  23   Q. If, let us suppose, sadly things went wrong with
  24     a particular case in the sense that there was mortality,
  25     would it be the case that the cardiologists would not

   1     take part in an audit or review of that together with
   2     the surgeons as part of a general audit of the
   3     procedures that had been adopted?
   4   A. I think you would have to ask the cardiologists that
   5     question.
   6   Q. Were they invited?
   7   A. Were they invited? They were certainly invited from
   8     time to time to audit meetings. Later in the 1990s they
   9     did come, but that was really when the format had
  10     changed to a wider grouping, but at this stage I can
  11     remember personally inviting them to a number of audit
  12     activities, either before or after audit became a formal
  13     process, and I had to work hard to generate their
  14     interest.
  15        That, of course, does not apply to the paediatric
  16     cardiologists.
  17        The issue with the anaesthetists was a slightly
  18     different one, because I think at all times we perceived
  19     that it would have been right and proper, and
  20     appropriate, for our audit activities to be conducted in
  21     co-operation with the anaesthetists, if not at every
  22     meeting, at least at some meetings, but they were very
  23     much committed to the notion that all the anaesthetists
  24     had to meet together to conduct the anaesthetic audit,
  25     and again, it was not until the mid-1990s that

   1     a solution to the -- we could not resolve that problem,
   2     I am sorry. We could not resolve that problem. So that
   3     there was not consistent and regular attendance of
   4     anaesthetists at our audit in these early stages.
   5   Q. Again, looking before surgery, prior to surgery, did
   6     the anaesthetists play a part in planning ahead in the
   7     same way that cardiologists did?
   8   A. They played a part in a different way because their
   9     role was different, so they played a part in planning
  10     the basic programme of operating sessions and we knew
  11     what anaesthetist was there, when. As far as we were
  12     aware, they saw the patients beforehand, and it would
  13     not be uncommon, when they had seen them, that they
  14     would have a view or a suggestion that they would share
  15     with the surgeon. I well remember such suggestions
  16     being made and generally they were extremely helpful and
  17     they were incorporated into whatever we were planning to
  18     do.
  19        So the information of the earlier collaboration
  20     between the cardiologists and the surgeon was, of
  21     course, available to them in the notes within the
  22     records, so basically all the information was there.
  23   Q. The way in which the "team" worked, if I can piece this
  24     together -- please tell me if I am being too simplistic
  25     or if I have misunderstood -- was that at some stage

   1     prior to elective surgery, the cardiologists and the
   2     surgeons would meet to discuss that particular case?
   3   A. Correct.
   4   Q. At a later stage, the anaesthetist would be involved,
   5     having access to the notes and that which the
   6     cardiologists and surgeons had themselves discussed and
   7     agreed, and would plan the sessions so that the right
   8     anaesthetist would be available?
   9   A. Yes, so that is more immediately prior to the
  10     operation. That is in the run-up to the operation that
  11     that happens, yes.
  12   Q. But after the operation, at regular intervals, there
  13     would be a review of surgery which in terms is called as
  14     we see here a "surgical audit meeting", at which,
  15     amongst other things, the performance at surgery would
  16     be discussed -- I am using the words generally. But
  17     that would be between the surgeons?
  18   A. Yes.
  19   Q. The anaesthetists were for a while invited but preferred
  20     to have their own audit meeting?
  21   A. That was certainly how I understood it, yes.
  22   Q. And the cardiologists, the adults, were from time to
  23     time invited -- they were not expected as of right to be
  24     present, but they were from time to time invited, but
  25     were difficult to excite so far as the adults were

   1     concerned about the audit meetings?
   2   A. They would have been quite welcome -- they would have
   3     been extremely welcome.
   4   Q. And the paediatric cardiologists were much keener,
   5     from what you are saying?
   6   A. Yes. Let me say that if we had a heading of "audit for
   7     paediatric cardiac surgery", then cardiac surgical audit
   8     such as the document you have here would be one
   9     activity, and a second activity would be paediatric
  10     cardiological audit, where the paediatric cardiac
  11     surgeons met with the paediatric cardiologists and
  12     others and discussed the paediatric surgery.
  13   Q. If we can just scroll down here, in the second
  14     paragraph, the one which begins by the meeting being
  15     "dogged by lack of information", et cetera, the last
  16     two sentences:
  17        "In general the unit had been very active during
  18     December 1993 and January 1994 performing a total of 144
  19     open heart procedures. Of these 21 were in the
  20     paediatric age group. There were 9 deaths in the adult
  21     group and 2 deaths in the paediatric group."
  22        So paediatric surgery was discussed, it appears?
  23   A. Definitely. I am saying it was discussed in both fora.
  24   Q. I see. And that is, so I get it right, the cardiac
  25     surgical forum and the paediatric cardiologists forum?

   1   A. Yes. Paediatric cardiology embracing cardiology and
   2     surgery.
   3   Q. Did it occur to anyone at any stage that if one was
   4     operating as a team for adult and paediatric cardiac
   5     surgery, that teamwork might imply joint meetings
   6     before, after and a joint sharing of views, rather than
   7     the unidisciplinary approach?
   8   A. It certainly did, but if we are talking of audit, which
   9     is the area in which it was slow to develop because it
  10     was well-established in the pre-operative processes,
  11     I think we are talking of an evolution in which the
  12     surgeons had really been active in audit long before
  13     audit became a requirement. Initially, I think the
  14     different medical groups did their audit in their own
  15     area and then subsequently, as it evolved and developed,
  16     the obvious sense of groups doing their audit
  17     together -- it is like the directorate: it is
  18     a patient-focused audit as opposed to a medical group
  19     focused audit -- the sense of that became clear and was
  20     accepted and did eventually happen, but I think we are
  21     describing a developing scene.
  22   Q. I will come back to explore some of those issues in
  23     a minute or two. We have looked at the relationships
  24     and how they were managed within the directorate. You
  25     mention in your statement that there was a crisscross

   1     nature of identities and loyalties to outside bodies
   2     such as the Royal Colleges, the cardiothoracic surgeons,
   3     and so on, which you I think suggest may have created
   4     tensions for medical staff. It did not?
   5   A. I regarded those as highly constructive relationships,
   6     because if one had only an internalised set of
   7     relationships then one would be a very introverted group
   8     and all the members needed other professional
   9     relationships by which they would be informed, they
  10     would learn of new ideas, they would have debates, so
  11     they had something new to bring back to the group which
  12     was the team delivering the service. I regarded that
  13     crisscross, if I use the word "tension", then as an
  14     entirely creative tension.
  15   Q. The management style, the management approach, was for
  16     the delegation of power to directorates, we have heard,
  17     so that directorates were largely autonomous, although
  18     linked in the way that you have described?
  19   A. Autonomous, I think, is too strong a term to use.
  20     I know I have used it myself so I must own to that, but
  21     it is too strong. They were not autonomous. Partly
  22     autonomous, yes, but not autonomous.
  23   Q. At the head of the Trust was the Chief Executive. Can
  24     I ask you to look at UBHT 34/124? You had better go to
  25     the start, page 122(UBHT 34/122). This is 19th March 1993. It is

   1     the Executive Committee of the Trust. Page 124(UBHT 24/124), now.
   2     If we can go down to Deputy Chief Executives, the minute
   3     reads:
   4        "Dr Roylance reported that in his absence Mr Nix
   5     would deputise on financial and administrative matters,
   6     and he wished to recognise that Mr Wisheart acted as
   7     Deputy Chief Executive on medical matters. The Board
   8     gave its full agreement."
   9        A few questions arise. This appears to be
  10     Dr Roylance's sole decision to which the Board agreed.
  11     That is the way it appears from what is written. Is
  12     that right?
  13   A. I would have thought that was too literal. I would
  14     have thought that this is Dr Roylance suggesting how it
  15     would be and seeking the approval of the Board.
  16     Otherwise, why bring him to the Board? The Board gave
  17     its agreement. I think he is seeking the approval of
  18     the Board for that suggestion.
  19   Q. You appreciate the distinction between "discussion" and
  20     "rubber-stamping"?
  21   A. Indeed.
  22   Q. The way this is written looks like rubber-stamping
  23     rather than discussion?
  24   A. The Board was well able to state any opinion it
  25     felt, I can assure you.

   1   Q. So we cannot, from this particular episode, gain any
   2     view, can we, as to Dr Roylance's approach to the Board
   3     and to management generally?
   4   A. No, I would have thought this was a purely practical
   5     matter and he was suggesting this, and I do not think it
   6     would have been a matter of controversy.
   7   Q. The effect of having you as Deputy Chief Executive on
   8     medical matters and Mr Nix as manager on administrative
   9     matters preserved a division between the administrative
  10     and the medical right up to Dr Roylance himself, did it
  11     not?
  12   A. I would have looked at it in exactly the opposite way
  13     and said that this is recognising that problems could
  14     arise in a variety of areas and teamwork would be a good
  15     thing.
  16   Q. But teamwork by having two deputies rather than by
  17     having one combining both functions?
  18   A. Teamwork by recognising that different people had
  19     different knowledge and experience and skills.
  20   Q. Did you actually ever deputise as Deputy Chief
  21     Executive on medical matters?
  22   A. No, I do not think so.
  23   Q. So what did it actually mean, for you?
  24   A. Not a great deal. I think that what actually happened
  25     was that for practical purposes, Mr Nix acted as Deputy

   1     Chief Executive, that is to say, when Dr Roylance was
   2     away he was the Acting Chief Executive, and if a matter
   3     had arisen that was urgent on which he needed medical
   4     input, then he would have involved me in it.
   5   Q. But you were already Medical Director, were you not?
   6   A. Yes, so I was there, but he was the person who handled
   7     the post, if you like, and the messages coming in.
   8     I did not actually do that because I had other things to
   9     do. But Mr Nix and I worked well and constructively
  10     together and had there been an issue on which he would
  11     have wanted my advice, he would have approached me, and
  12     in a sense, because of this, I would have had the
  13     authority to help him in that matter.
  14   Q. Would you not have had that authority as Medical
  15     Director anyway?
  16   A. I guess so.
  17   Q. So what extra, apart from status or recognition, did
  18     being Deputy Chief Executive actually give you?
  19   A. None at all.
  20   Q. It may have been a measure, perhaps, of the regard that
  21     Dr Roylance must have had for you. You, for your part,
  22     I think, had considerable regard for him, did you?
  23   A. I did, yes.
  24   Q. Can we have a look at GMC 13/368? This is your
  25     handwriting, is it?

   1   A. It is.
   2   Q. If we just scroll down to the bottom so we can pick up
   3     the date, it is 3rd October 1995. This is as John
   4     Roylance retired?
   5   A. I think the context is important. This was at a party
   6     on the occasion of his retirement.
   7   Q. Can we go back up and read it through? You are probably
   8     a better person to read it than I am, because of the
   9     writing, because it is a bit faint on our screens.
  10     Would you mind? I am sorry.
  11   A. It says:
  12        "Thank you for creating a hospital, a Trust,
  13     where the values and commitment of its people are at
  14     once so challenging and so supportive. Here the focus
  15     is the care for our patient. I know that many of our
  16     colleagues who have not had an opportunity to write in
  17     this book join heartily in this sentiment."
  18        I should point out, I am only remembering this as
  19     I read it, that there was a book in which a large number
  20     of people had been invited to write something, so
  21     I think the context is very, very important.
  22   Q. So a bit like a visitor's book, only --
  23   A. This is not how we would have a normal daily
  24     conversation.
  25   Q. No.

   1   A. "Personally, I am deeply grateful for your guidance,
   2     inspiration and support over 20 years, but particularly
   3     over the last six, and very particularly through the
   4     vicissitudes of 1995."
   5        The other remarks are personal.
   6   Q. So you plainly intended those remarks, albeit in that
   7     context?
   8   A. Well, yes.
   9   Q. How, in general terms, would you describe your
  10     day-to-day relationship with Dr Roylance?
  11   A. They were cordial and professional, rather than
  12     personal.
  13   Q. Is it, do you know, the case that he was or had at some
  14     stage been a Freemason?
  15   A. Dr Roylance? No, I do not know of that.
  16   Q. Have you, for your part, been or are you a Freemason?
  17   A. I am not and never have been.
  18   Q. The way that you describe your relationship in the
  19     answer that you have just given me is as essentially
  20     a professional relationship rather than a social
  21     relationship?
  22   A. That is correct.
  23   Q. Was it both?
  24   A. No, it was essentially what I said.
  25   Q. I am sorry, you are dropping your voice.

   1   A. I am sorry. No, we did not have a personal or social
   2     relationship in the years prior to 1995.
   3   MR LANGSTAFF: I am going to turn to a separate issue, which
   4     is going to take me probably some three-quarters of an
   5     hour, an hour. We will deal with the question of
   6     accountability and audit, as I have promised you on
   7     a number of occasions in the questions I have asked.
   8        I am very much in your hands and that of our
   9     Chairman as to whether you would like me to begin that
  10     now, with something of a quarter of an hour to go before
  11     we have a break, or whether you would rather have
  12     a break now and then come to it, as it were, in one
  13     chunk. Which would you prefer?
  14   MR WISHEART: I will be guided by Professor Kennedy,
  15     I think.
  16   THE CHAIRMAN: I in all things defer to the witness in
  17     terms of not wanting either to make the sessions too
  18     long and also I have in mind the stenographer, so
  19     I would be greatly helped if you could make a decision
  20     on that.
  21   MR WISHEART: I would suggest, then, that we make
  22     a beginning and proceed for the normal duration of
  23     a session.
  24   THE CHAIRMAN: I am grateful; that is very helpful, thank
  25     you.

   1   MR LANGSTAFF: In your statement, you tell us that the
   2     surgeon had a personal responsibility for the care of
   3     his patient?
   4   A. Yes.
   5   Q. Essentially, that it was his professional duty to ensure
   6     the best care for each patient?
   7   A. Yes.
   8   Q. And to ensure that he, for his part, audited him?
   9   A. Yes, I regarded at all times in my consultant career
  10     that that was part of my professional duty.
  11   Q. It would follow that so far as competence or achievement
  12     in terms of surgery, one might use either word,
  13     depending on the circumstances, you would place the
  14     first responsibility upon the surgeon himself for
  15     monitoring the competence and achievement?
  16   A. Yes. That is correct. I would recognise that of
  17     course all elements of the achievement are not under the
  18     direct control of the surgeon, because we are talking
  19     about teamwork, but in terms of monitoring the eventual
  20     achievement, whatever the roots of it were, then I think
  21     that does lie with the surgeon.
  22        Might I just add one additional point, namely, of
  23     course, today we give quite a specific meaning to the
  24     word "audit". That is, if you like, a technical term
  25     which was a new concept in the late 1980s, so when we

   1     used the word "audit", and I said it from the beginning
   2     of my career, I am not necessarily referring to the
   3     concept and the technical meaning of it that we hold
   4     today.
   5        So in terms of how we thought of monitoring work
   6     at the time, I believed it was a professional duty to do
   7     so.
   8   Q. Perhaps we had better have your statement on the screen,
   9     WIT 120/15: you deal specifically with this period, as
  10     you pointed out in that last answer, from the fourth
  11     line down:
  12        "Consultants as clinicians exercising independent
  13     judgment had no formal requirement to be accountable for
  14     their work in this period, beyond their professional
  15     duty to maintain an acceptable standard. Only if this
  16     acceptability was in question would a question of
  17     accountability have arisen."
  18        I want to explore how it is that the acceptability
  19     might come into question. Let me give you
  20     a hypothetical example. Dr Roylance, throughout the
  21     time that he was the Chief Executive, maintained
  22     a clinical commitment, did he not? I think it was
  23     a session a week.
  24   A. He had one session a week when he attended
  25     a radiological meeting, yes.

   1   Q. Suppose that his performance in the course of that
   2     session had been poor by general standards. To whom,
   3     apart from himself, would he have been accountable?
   4   A. I would just like to say that he was not actually
   5     performing in that session, but I will accept your
   6     question as a general question. Who would have raised
   7     the question?
   8   Q. Yes.
   9   A. Then I think a person who can raise a question is
  10     a person who has some knowledge of the work of the
  11     clinician about whom the question has been asked.
  12   Q. Let me put it again in concrete terms, and I choose
  13     the name purely for the sake of example, I have to
  14     emphasise. Suppose Mr Dhasmana, when he was Associate
  15     Clinical Director of the Directorate of Cardiac
  16     Surgery -- suppose his performance was, in comparison
  17     with what was to be expected, poor. In terms of
  18     responsibilities at the time, it was a matter for him,
  19     is what you said. Was it a matter for anyone else?
  20   A. It was a matter for him in the sense that each
  21     individual surgeon is responsible for what he does, but
  22     it would also have been the responsibility of any of his
  23     colleagues who had a knowledge or awareness of what you
  24     are referring to, so those could be cardiologists,
  25     anaesthetists, fellow surgeons, amongst the medical

   1     staff.
   2        Is that what your question was asking?
   3   Q. It is asking, in effect, who is it that is going to
   4     raise any question of confidence? If it is not the
   5     surgeon himself it has to be somebody else and you are
   6     answering, it would be someone who has some knowledge of
   7     the work in question.
   8   A. Yes.
   9   Q. How is it that any of the persons you mention, the
  10     cardiologists, the anaesthetists, it may even be the
  11     nurse in the operating theatre, whoever it is, the
  12     Senior Registrar, how is it that they would know
  13     sufficient of the work which, again for the sake of
  14     example, Mr Dhasmana was doing, unless they regularly
  15     and consistently and always worked with him as part of
  16     the team?
  17   A. I think that in any situation it is unlikely that any
  18     individual such as the ones you have enumerated would
  19     actually be in the first instance in possession of hard
  20     facts. I think that what would happen in the first
  21     instance is that a person would have an impression or
  22     feel uneasy or have a concern which would not be based
  23     on hard fact, but what they perceived to be the case.
  24        So the first step really would be a voicing of
  25     that concern and an exploration of that concern in terms

   1     of establishing the facts.
   2   Q. Taking the people I have enumerated, suppose it was the
   3     Senior Registrar. The Senior Registrar is being
   4     trained, presumably, by the consultant?
   5   A. Yes.
   6   Q. So rather than questioning the consultant's performance,
   7     unless there is something very obvious, so dramatic, as
   8     it were, that it would be obvious to anyone, how is he
   9     going to be in a position to question the competence, to
  10     have the concern or to think that he can do anything
  11     with it?
  12   A. I think, you know, at any given time there were a number
  13     of surgeons in the group and the pattern of work for the
  14     trainee was to work with each one in turn for a length
  15     of time, so each trainee was, of course, known to all
  16     surgeons. So if a trainee had a concern, there would
  17     really be two courses of action, immediate ones, open to
  18     him. He could either go to the surgeon about whom he
  19     had the concern and express it, or he could go to any
  20     other surgeon and say, "Look, I am worried about X's
  21     work", and take it from there.
  22        And I may say that your example, I think, is
  23     a very appropriate one, because the trainee is the
  24     person who works most closely with the surgeon and
  25     therefore has the most intimate knowledge of the

   1     decision-making, the operating, the care, and so forth.
   2     It may seem strange, but a colleague actually has much
   3     less knowledge of those details because they are not
   4     normally involved with the individual in making or doing
   5     them.
   6   Q. The occasions -- let us take a for instance -- when you
   7     and Mr Dhasmana were together performing an operation
   8     once he became a consultant, were, I suspect, few and
   9     far between, if they existed at all?
  10   A. There were some, but they were few and far between,
  11     exactly.
  12   Q. So not enough for you, or for that matter he, to form
  13     any view of the other's general competence?
  14   A. Yes. I mean, in the example you have put forward, I, of
  15     course, knew about his technical ability and his
  16     decision-making ability when he was my Senior Registrar
  17     much better than I did five or ten years later, and vice
  18     versa, I expect.
  19   Q. So suppose that Mr Dhasmana, the Senior Registrar, comes
  20     to you and says "James/Mr Wisheart [whatever he would
  21     call you], I have this concern about what Mr Dhasmana
  22     has been doing in the operations, his cross-clamping
  23     times are too long", or something along those lines.
  24     You did, of course, know and have respect for your
  25     colleague consultant?

   1   A. Indeed.
   2   Q. The Registrar himself might feel inhibited, might he,
   3     from raising the issue with you because his own training
   4     might depend upon the reference that you and Mr Dhasmana
   5     would give at the end of his training?
   6   A. This is a point that arises from time to time in
   7     a variety of contexts and I have always had difficulty
   8     with. Let me say I have not had a Registrar come to me
   9     raising an issue of exactly the type we are now
  10     discussing, but I have certainly had Registrars come and
  11     raise issues of, let us say, a controversial nature in
  12     other areas. Where those have been dealt with openly,
  13     straightforwardly and on their merits, I do not believe
  14     that that creates a black mark against that trainee.
  15     I do not believe that at all. But again, I can only
  16     speak for myself and the people I know best. I do know
  17     that in the minds of trainees, or some trainees, such
  18     a concern exists, but I do not believe that that was an
  19     issue within our group, at least, certainly not in the
  20     days up to the early 1990s.
  21   Q. There is perhaps a distinction, is there, between an
  22     allegation which, by use of the word, one takes to be
  23     unfounded and perhaps wrong, and a legitimate concern,
  24     which again, by use of that expression, one might take
  25     to have the same factual content but having the merit of

   1     being well-founded. You appreciate the distinction
   2     I make for the purposes of the question that I am about
   3     to pose?
   4   A. Yes, I do.
   5   Q. The Registrar, in our example, would have to feel fairly
   6     confident, would he not, that what he was expressing was
   7     a legitimate concern rather than something that was
   8     likely to be treated as an allegation?
   9   A. I think that a form of words could be found to express
  10     a concern. Even if it were not clearly focused in that
  11     person's mind but he felt uneasy, then I think he could
  12     come to me or Mr Hutter or whoever, and use a form of
  13     words to express his concern that would ask the question
  14     and do so in a way that would be appropriate and would
  15     not create problems.
  16        Voicing any concern in a sense, the next stage is
  17     to try to evaluate the gravity and seriousness of it and
  18     whether it is something that needs to be carried further
  19     or not, and I believe that a concern could be expressed
  20     in a way that would not create problems.
  21   Q. What of the situation where, let us suppose a surgeon
  22     is not obviously slipshod in his approach but is simply,
  23     for whatever reason, much less successful in similar
  24     cases than is the usual run of comparison for a
  25     surgeon.

   1        The Senior Registrar attached to the surgeon
   2     I have used as an example would not know, would he, what
   3     to expect from others?
   4   A. After all, there are Senior Registrars who next week
   5     would be a consultant, so they are, really, essentially
   6     a consultant and they are full of knowledge and
   7     competence, usually, but the more senior ones of those
   8     are extremely well informed people and as specialists in
   9     training they would be familiar with the published
  10     literature, with the expectations, they will be members
  11     of our Society and they will therefore also have access
  12     to the UK Cardiac Surgical Register.
  13        So they will be well informed people who will know
  14     what to expect.
  15        Now I am just trying to recall exactly how your
  16     question was formulated.
  17   Q. In essence, it was how would he know, because he would
  18     have no real point of comparison?
  19   A. Thank you. So there are big issues about points of
  20     comparison, but if we just put those to one side for the
  21     moment and assume that there is a point of comparison,
  22     then it is quite likely that the Senior Registrar will
  23     know first what is normally achieved in this area, and
  24     he will also know what the centres at the leading edge
  25     of any activity are achieving.

   1        What he will see locally, with any individual
   2     consultant, will of course be a very small experience,
   3     so there will be difficulties of comparison for that
   4     reason. But I think you described a situation where
   5     a surgeon was not slipshod or obviously careless or
   6     inattentive to his patients, so is one doing a more
   7     careful job but for more subtle reasons, the results are
   8     not good.
   9        You see, I think through the process of audit, as
  10     we now talk about it, the Senior Registrar is deeply
  11     involved with that with us, so he will be aware of the
  12     figures, of the results of such a surgeon, so he might
  13     be in the position of saying, "Well, the results of
  14     surgeon X in this small series, very small series that
  15     I have experienced [because that would be the limit of
  16     his experience] do not look as good as I would have
  17     expected". I do not think he would actually be able to
  18     say much more than that. But by saying that, he is
  19     raising the question.
  20        So one would then want to look at the figures and
  21     perhaps a larger collection of figures than that Senior
  22     Registrar had experienced and if the figures seem to
  23     bear out -- I do not want to get into a statistical and
  24     sort of philosophical discussion about this, but if the
  25     figures seem to bear out, is the question, then of

   1     course the next question is, what reasons might there be
   2     for this? Then you are into a new level of discussions
   3     which are obviously essential if one is to understand
   4     the hypothetical problem that you have posed.
   5   Q. So in the case of the surgeon with more subtle deficits,
   6     let us assume, the only way I think that you are
   7     suggesting that this can be identified is really through
   8     a process of audit of some sort? And even then, one has
   9     the difficulty of numbers, interpretation of those
  10     numbers, and dealing with any hypothesised answer which
  11     may or may not be accurate as an explanation for an
  12     apparent shortcoming in a small series?
  13   A. Yes, I think all those points would need to be borne
  14     in mind. I think personally I seek to avoid the use of
  15     words like "audit" in this sense, because it is merely
  16     a current jargon word and while there is a sense in
  17     which it illuminates and brings forward a discussion,
  18     there is also a sense in which I think it limits it. So
  19     I would say that the figures in the experience need to
  20     be examined in detail.
  21   MR LANGSTAFF: Yes. Sir, it is now a quarter to 11. Shall
  22     we take a break?
  23   THE CHAIRMAN: I am grateful. We will take 15 minutes
  24     and reconvene at 11 o'clock. Thank you.
  25   (10.45 am)

   1               (A short break)
   2   (11.05 am)
   3   THE CHAIRMAN: Mr Langstaff?
   4   MR LANGSTAFF: Suppose that instead of being the Senior
   5     Registrar, it was the theatre nurse. How would you
   6     expect someone in his or her position to raise her
   7     concerns?
   8   A. I think the theatre nurse or other nurse could raise
   9     concerns in two ways. I imagine the more proper way
  10     would be to do so through the nursing structure, but we
  11     do work as a team and therefore I would include a second
  12     possibility and that is by sharing that with one of the
  13     medical members of the team.
  14   Q. Is one of the problems perhaps that the answer that she
  15     is likely to get is, "Well, this is a complex surgical
  16     issue and essentially, you are a nurse, you do not know
  17     enough"? Some approach along those lines?
  18   A. Yes. I think that is a realistic comment that you
  19     have made. You talked earlier about a surgeon who was
  20     not slipshod and if we are still in that framework, the
  21     theatre nurse is unlikely to be familiar with the
  22     results and the outcomes which happen many days after
  23     the theatre experience in a group of patients, so
  24     I think that her knowledge is actually likely to be
  25     quite limited.

   1        I think a theatre nurse would really be much more
   2     likely to be coming from a position of something
   3     unexpected but may be grosser than we have been thinking
   4     about earlier had happened in theatre and he or she was
   5     concerned about that, that that had happened, and was
   6     there a reason, was there a problem?
   7        My perception would be that it would be more
   8     difficult for a nurse because he or she would not
   9     necessarily have either the information about the
  10     surgeon or the knowledge on a comparative basis to raise
  11     the question. So I think a nurse is more likely to
  12     raise an issue about an untoward incident, let us call
  13     it that, than the results of a group of patients.
  14   Q. What about the anaesthetist?
  15   A. The anaesthetist, one would expect, would be in
  16     a position to have knowledge because one would have
  17     hoped he or she would have been involved in audit in
  18     some way. I think, if we take it in a looser sense,
  19     they were aware of the results, they talked to us, they
  20     knew, even if they were not at the particular meeting.
  21        So they would have had knowledge. They would
  22     either have, themselves, access to comparative
  23     information or, if they chose to ask for it, it would
  24     certainly have been provided. As it was on frequent
  25     occasions.

   1        Normally, anaesthetists would be appropriately
   2     assertive if they had a question to raise.
   3   Q. The process that we were describing before the break was
   4     essentially one which, in the case of the subtle
   5     deficits, as we hypothesised, puts the onus upon looking
   6     at figures, as we call them, and analysing those figures
   7     and any explanation that there may be for them, which is
   8     a complex and difficult process, is it not?
   9   A. Yes, it is.
  10   Q. In the Trust itself, was there perhaps a further
  11     problem -- can I raise it in this way: at UBHT 240/465,
  12     there is a note of the group of executive directors of
  13     23rd February. This is 1993. Can we go, please, to
  14     467(UBHT 240/467)? It is item number 22. The South West Regional
  15     Health Authority had written to Dr Roylance to say that
  16     UBHT had been shown to have very few clinical complaints
  17     and was the fourth lowest for the region. This follows:
  18        "He did, however, recommend that staff are
  19     extremely careful over making injudicious remarks when
  20     referring to colleagues, finance or treatment."
  21        Pausing there, there is plainly a distinction
  22     between having figures on the one hand, making concerns
  23     known within an institution on the other, and making
  24     them known outside the institution, publishing the
  25     figures or the concerns to a wider public, as a third.

   1        What is Dr Burman talking about here, as you
   2     understood it?
   3   A. I need to say that I am not absolutely sure what the
   4     term "clinical complaints" means, but at this stage the
   5     number of complaints made by patients -- what I am
   6     saying is, I am not quite sure what distinction was made
   7     between complaints about a waiting time or bad food or
   8     some health care professional did not do the right
   9     thing. I am not sure about the distinction within this
  10     phrase. But whatever that may have been, complaints
  11     were registered and a return was made to Region about
  12     the number of complaints --
  13   Q. Just pausing there, what he seems to have in mind may
  14     come out from the last three words, referring to
  15     "colleagues, finance or treatment", so it looks as
  16     though it is more than just the "hotel" services?
  17   A. It would suggest to me that whatever complaints were
  18     made, the patient may have said that some member of the
  19     staff of the hospital had made injudicious remarks about
  20     colleagues, finance or treatment, and he was advising
  21     people to be prudent, careful, before making such
  22     remarks.
  23   Q. Another way of putting it might be to be quiet rather
  24     than speaking up if the person is unsure about the force
  25     of the complaint they might like to make?

   1   A. I would not have thought that was correct. I think
   2     if one has a concern, let us say, and you are a member
   3     of the staff, there are channels through which you
   4     should progress your concern and that does not include
   5     the patient. I mean, I do not think that saying to some
   6     other patient that you have a concern about somebody is
   7     an appropriate channel, so I do not really think that
   8     the conclusion you are pointing to should be drawn from
   9     these remarks.
  10   Q. So you think the injudicious remarks referred to here
  11     are remarks made to patients rather than to others?
  12   A. It is in the context of "complaints", and complaints
  13     would be made by patients or their families. Therefore,
  14     I can only assume that these remarks are to be
  15     understood within that context. I do not think that
  16     that is, if you like, a new paragraph, a second point,
  17     saying that in general "you should not make remarks
  18     criticising your colleagues". I think it is stating
  19     that in the context of dealing with other patients or
  20     their families.
  21   Q. It does not go so far as to say "you should not make
  22     criticisms", but the words "extremely careful
  23     over making..." would suggest that people should be
  24     silent rather than speak unless they are pretty sure of
  25     their ground, I suppose is the implied message, is it

   1     not?
   2   A. I believe that this remark applies purely to what you
   3     are saying, that staff members would be saying to
   4     patients. I do not think it has any other significance.
   5   Q. So far as the complaints within the hospital were
   6     concerned, or the raising of concerns within the
   7     hospital, they could only be addressed, I think as you
   8     describe, concerns in relation to the subtle deficits,
   9     by a process of looking at figures, as we have
  10     discussed.
  11        What you say in your witness statement is -- can
  12     we look at WIT 120/23, the foot:
  13        "Paediatric cardiological audit took place on
  14     a monthly basis but lapsed for a period during and after
  15     1992 because of the presumed breach of confidentiality
  16     which was involved in Private Eye publications. This
  17     audit programme was led by one of the surgeons, once
  18     a ..."
  19        It goes on to deal with that.
  20        The Private Eye publication in 1992 is this, is
  21     it, at SLD 2/6. It is the left-hand column. Can we
  22     scroll down, please? We can see the second of the
  23     bullet points in the left-hand column:
  24        "The sorry state of paediatric cardiac surgery
  25     at the United Bristol Healthcare Trust has been

   1     confirmed by an internal audit of the last two years'
   2     operations. The results of procedures to correct
   3     two ..."
   4        I am not asking you to comment on the accuracy of
   5     the results, it is the process I am interested in. Then
   6     there is a criticism of you and a reference to the use
   7     of UBHT money.
   8   A. Sir, it was not this that I was referring to in my
   9     evidence.
  10   Q. It was not?
  11   A. No.
  12   Q. So essentially, I can go back and get up the other
  13     Private Eye comments on the screen, but can we go back
  14     to your statement, please? What Private Eye had raised,
  15     had it, were concerns, let us call them that, about the
  16     success or failure of operative treatment for children
  17     at the Bristol hospitals, in broad terms?
  18   A. Yes. Amongst other things, that is what they had
  19     raised, yes.
  20   Q. What I want your comment on at this stage, because as
  21     I have indicated I will ask you about those concerns and
  22     reactions to them in the autumn: but why should it be
  23     that because the Trust was said publicly to have bad
  24     results, that the Department should fail to consider, at
  25     all, what the results actually are? That is the way

   1     that it might be read, as a reaction --
   2   A. You mean in my statement that audit had lapsed? Is that
   3     what you are referring to?
   4   Q. You are describing that audit of examining results
   5     continues. Outside in the national media, there is
   6     a publication which says the results are bad. The
   7     reaction is, "Let us not look at the results at all",
   8     is one way of reading the reaction.
   9   A. May I explain what happened?
  10   Q. Certainly.
  11   A. In June, although I might have got the month wrong, but
  12     I think it was in June 1992, a surgeon presented an
  13     audit to the paediatric cardiological audit group, that
  14     is the cardiologists, surgeons, and whoever else. It
  15     was an open group who were usually nurses, radiographers
  16     and quite a wide variety of people. So this was open
  17     multidisciplinary audit in 1992.
  18        The particular work which was presented was a new
  19     work and all the results were not very good, but the
  20     details are not our concern today. But the point I wish
  21     to make is that those results were presented in full.
  22     Everything was put on the table frankly, openly and
  23     honestly.
  24        I know you are going to ask me questions about
  25     audit later, but let me just say that in all the

   1     guidelines about audit at the beginning, there was
   2     a discussion about the confidentiality of the process.
   3     A month or six weeks after the meeting at which these
   4     open and honest findings were put on the table so that
   5     they could be discussed constructively, it is those
   6     results which were published in one of the Private Eye
   7     documents. It was therefore not too difficult
   8     a deduction to make that the information had leaked from
   9     somebody who was in that group. I do not know who it
  10     was today, but it had to be somebody.
  11        Therefore, some of the members of the group were
  12     very, very upset and their confidence in -- that is
  13     a bad word to use, but their readiness to put
  14     controversial data on the table so it could be discussed
  15     openly and honestly was really undermined because they
  16     did not have confidence that the group would maintain
  17     the confidentiality which had previously been assumed.
  18        This is just a very difficult real situation for
  19     the people concerned.
  20   Q. So the consequence -- you may say the publication would
  21     not have happened if the results had been good, but let
  22     us suppose, had the results been so good that Bristol as
  23     a Trust might have wanted to boast about them, do you
  24     think the reaction would have been the same in terms of
  25     breach of confidentiality?

   1   A. I think that is a difficult question to answer, but
   2     I think it might have been, because after all, if
   3     confidentiality is breached on one issue, then it is
   4     even more likely to be breached on a more difficult
   5     issue.
   6   Q. The reason that I ask you that, in part arises because
   7     of -- I am dipping into audit here and I will come back
   8     to it -- a contrast perhaps between two documents which
   9     I would like to show you:  JDW 4/465, 7th April 1993,
  10     Bristol and District Health Authority, the notes of
  11     a meeting on medical audit, clinical standards and
  12     outcome measurement. If we can scroll down, the meeting
  13     considered a paper on audit. We see the third bullet
  14     point:
  15        "Individual clinicians would not expect to be
  16     identified separately during the monitoring process."
  17        Am I to take it that that was the general policy
  18     and approach in respect of audit?
  19   A. This clause, if I understand it correctly, has been
  20     taken from a paper prepared by Keiran Morgan, who was
  21     the Director of Public Health for the purchaser, so,
  22     first of all, I would say that this is an expression of
  23     his view, but to answer your question more precisely,
  24     I think that that view is one that you would find
  25     reflected in quite a number of documents about audit in

   1     the early 1990s.
   2   Q. So it was certainly in 1993 a generally held view, was
   3     it, that the individual surgeon should not be identified
   4     even though the Department or Directorate or the Trust
   5     might be?
   6   A. I am not quite sure what you mean by saying "the
   7     Department or the Trust might be".
   8   Q. If one has results for cardiac surgery, let us suppose,
   9     there may be a number of surgeons, if we are looking at
  10     adult cardiac surgery, possibly four or five surgeons
  11     who do it. One would have the results for the purpose
  12     of audit, and you could, if you wished, publish them.
  13     We will come to issues about that in a moment. But I am
  14     trying to understand whether the policy would be to say,
  15     "Well, that is our collective results, that is okay to
  16     publish, but we are not going to deal with any
  17     individual surgeon and separately publish the individual
  18     surgeon's results"?
  19   THE CHAIRMAN: And Mr Langstaff, perhaps Mr Wisheart
  20     in responding to that question could -- if I take you to
  21     the document on your screen, although the paper was
  22     prepared by Keiran Morgan, the bullet points seem to be
  23     observations made by the committee when it met to
  24     consider that paper.
  25   MR LANGSTAFF: Yes.

   1   A. Yes, thank you. I was not present so I cannot actually
   2     give an account of everything that was discussed at that
   3     meeting, but that is clearly correct, from the top.
   4        I think that we were at a time in the evolution of
   5     this process when what you say is correct as a general
   6     statement and there would have been a reluctance to
   7     identify individuals. I say that within cardiac
   8     surgery, we had begun a year or two before that to
   9     actually put individual data on the table.
  10   Q. Amongst yourselves?
  11   A. Amongst ourselves, and the information was available to
  12     others. I am just trying to make sure that what I tell
  13     you is correct, but it certainly was made available to
  14     a number of purchasers, voluntarily.
  15   Q. So the information which found its way into Private
  16     Eye arising out of the multidisciplinary meeting might
  17     well, within months, have been supplied to purchasers or
  18     others with a proper interest?
  19   A. I am referring mainly to adult cardiac surgery in my
  20     earlier remark. That was consistently done year by
  21     year. In paediatric cardiac surgery, my recollection is
  22     that the individual results were published for one year
  23     around this time, and then were not for the next couple
  24     of years, and that brings us to the end of the period.
  25        So I think it all reflects an evolution.

   1   Q. What inspired my reference to this document and the
   2     next one which I am going to show you, UBHT 38/235 --
   3     a document from July 1993 -- was my saying to you, what
   4     if, in fact, the results publicised in Private Eye had
   5     been marvellous results rather than poor results: would
   6     that have caused the same problems over
   7     confidentiality? You said, "Well, it might have done".
   8        This letter, July 1993, and I appreciate it is
   9     a year on from October 1992, or the middle of 1992, if
  10     we scroll down, it is to the South Western Region,
  11     "Cardiac services, comparative outcomes". It is from,
  12     I think, Dr Roylance. It says:
  13        "I have discussed the matters you have raised in
  14     the letter with Mr Wisheart."
  15        It is the last two sentences of the first
  16     paragraph:
  17        "As Dr Mason will be able to confirm, the result
  18     in Bristol [dealing with the adult surgery] compared
  19     extremely favourably with results published from one
  20     major London centre and one major provincial centre.
  21     Consistent results were also reported amongst the
  22     different surgeons within our unit."
  23        So, so far as the Trust was concerned, and indeed,
  24     so far as the information you were supplying to
  25     Dr Roylance was concerned, you were making, as it were,

   1     a virtue out of the inter-unit comparison between the
   2     adult cardiac surgeons?
   3   A. Sir, this is not information I provided to
   4     Dr Roylance. I mean, it was to enable him to write
   5     the letter, but the substance of it was information
   6     which I provided to the Directorate of Public Health of
   7     the South West Region, who, if you like, are the medical
   8     representatives of the purchasers. It was to that group
   9     that I presented the information about our surgery, the
  10     Parsonnet scoring system as a system of risk
  11     stratification and within that, I identified the results
  12     of the individual surgeons.
  13   Q. So was it the case that when it appeared that results
  14     were praiseworthy and when it appeared that surgeons
  15     were, each of them, producing praiseworthy results, that
  16     would find its way to the South Western Region? Did
  17     that differ if the results were not praiseworthy?
  18   A. I also provided this meeting with the results of
  19     paediatric cardiac surgery, including the results of the
  20     work that appeared in Private Eye.
  21   Q. I will come back to the question of audit in a moment or
  22     two. We are touching on it and really I have been
  23     exploring with you the question of how one would go
  24     about raising a concern, other than by the audit
  25     procedure, in the case of the subtle deficit that we

   1     have discussed.
   2        If one is looking at the question of individuals
   3     raising clinical concerns, the Senior Registrar, the
   4     nurse, the anaesthetist, were any steps that you can
   5     recall taken to encourage the expression of any such
   6     concerns throughout the Trust in the 1990s?
   7   A. Throughout the Trust as a whole?
   8   Q. Yes.
   9   A. There were steps taken to encourage people -- I would
  10     have to say, this was mainly to the medical staff and
  11     I would hesitate to state what advice was given to
  12     others, but the medical staff were certainly encouraged,
  13     repeatedly, to use the mechanism of the "three wise men"
  14     if they had a concern. I myself drew the attention of
  15     my colleagues to it on quite a number of occasions when
  16     I was either Chairman of the Medical Committee or
  17     Medical Director.
  18   Q. Can you pause there for a moment? To confirm that,
  19     because you are entitled to the confirmation, UBHT 2/14,
  20     this begins on the previous page but I do not think we
  21     need look at it. If we just scroll down, please:
  22        "The Chairman [this is you; this is the Medical
  23     Committee] referred to recent events in Birmingham where
  24     communications appear to have failed. He stressed the
  25     importance of invoking the mechanism available to any

   1     member of the medical staff."
   2        If we go overleaf(UBHT 2/15), we can see there you are
   3     offering to be approached yourself, indeed separately
   4     from the "three wise men" mechanism, although you were
   5     part of the "three wise men"?
   6   A. I think a better minute would have said that either I or
   7     the "three wise men" could be approached at any time,
   8     because that was the case. There were of course four
   9     "wise men", not just three, because the Chairman of the
  10     Division of Psychiatry was nearly always brought in to
  11     join the other three when something was under
  12     discussion, so there were actually four people.
  13   Q. In any event, you were saying, and the minute confirms
  14     it, that you raised on occasion the availability of
  15     yourself or the "three wise men" as a procedure?
  16   A. Yes, and this was triggered by an incident which is
  17     irrelevant to this Inquiry, and it happened on other
  18     occasions as well that this reminder was made.
  19   Q. Was it your experience that anyone in fact came forward
  20     in any part of the Trust to make a complaint of this
  21     nature about the competence of another surgeon, leaving
  22     aside for the moment cardiac surgery?
  23   A. There were certainly complaints. They were not all
  24     about performance in the sense in which maybe you mean
  25     it, but there certainly were a number of complaints over

   1     the years that I was involved with it and I believe they
   2     were handled appropriately and constructively, yes.
   3   Q. In those cases, would the person making the complaint be
   4     identified, generally, or would his or her identity
   5     remain probably confidential to the person to whom he or
   6     she spoke?
   7   A. I think my memory would be that within the group,
   8     usually it would be known who had spoken to somebody
   9     about the person who was being complained about.
  10   Q. So what, if any, steps were taken to protect that
  11     individual? What sort of steps?
  12   A. Nobody outside that group knew who they were. It was
  13     not perceived that there was any need to protect the
  14     individual. It was not perceived that the individual
  15     was at risk.
  16   Q. So the feeling that somebody might be, as it were, "sent
  17     to Coventry for being a snitch" did not arise?
  18   A. I would not have been conscious of it in the context of
  19     the "three wise men".
  20   Q. In any other context where concerns of this sort were
  21     raised, if not with the "three wise men", with others?
  22   A. I can certainly understand that it might have been
  23     a concern in people's minds, but I can recall a number
  24     of incidents, I think the number might be two, when
  25     Dr Roylance very specifically said that on the one hand,

   1     while there are appropriate ways to make a complaint,
   2     raise a concern, whatever, that even if it is done
   3     inappropriately, no action would be taken against that
   4     person, because there were Trusts who provided for
   5     disciplinary action to be taken against such activity
   6     and we very specifically and publicly reassured all
   7     members of the staff that that would not be the case.
   8   Q. In the record of the meeting in 1995, which I took you
   9     to earlier -- I am not going to get it back up on the
  10     screen -- the acrimonious meeting in cardiac surgery,
  11     there is considerable reference to obviously feelings
  12     running high, people not looking at others when they are
  13     being quite offensive to them, is the tone of the
  14     letter. Was it part of the inspiration for that
  15     behaviour that it was perceived that concerns had been
  16     raised but not addressed? Just a "Yes" or "No" would
  17     do.
  18   A. Raised but not addressed? I think these agreements
  19     were concerning the appropriateness of what had been
  20     raised and how it had been raised and I think we were
  21     very much "in the heat of the moment" at that time.
  22   Q. So how appropriate would it be to make any general
  23     conclusion, do you say, from that atmosphere at that
  24     time as to the way in which people raising concerns
  25     might be treated? The letter talks about accusations of

   1     disloyalty, and so on.
   2   A. I would not have thought so, because I would have
   3     thought an understanding of what had happened at that
   4     time required quite a detailed discussion about the
   5     events of that time, or how people perceived them, which
   6     I know -- at least, I do not think you wish to go into
   7     just now. Better to say how people perceived them.
   8     I think the roots of it lay there, and I think that what
   9     we are talking about there are fundamental disagreements
  10     between colleagues which they were airing freely at that
  11     stage. Nobody was penalising anybody else and those
  12     people are working together today. Nobody was
  13     suggesting that somebody should be victimised. I think
  14     they are airing their disagreements.
  15   Q. An instinctive reaction of your being disloyal by
  16     raising the concern about whatever it is, is plainly
  17     a reaction which would inhibit the raising of any such
  18     concern and would need to be met, would it not, by at
  19     least encouraging an atmosphere in which people
  20     recognised that concerns needed to be fully and frankly
  21     addressed and taken responsibly and seriously?
  22        Are you saying that that atmosphere was the
  23     general atmosphere, whatever the meeting in 1995 may
  24     have suggested?
  25   A. If I have misunderstood the question, please say so,

   1     but I would take the discussion in January 1995 that is
   2     referred to in that letter to be about -- I mean, we are
   3     at perception level, I am not discussing substance --
   4     the appropriateness and accuracy of what had been done,
   5     and I would actually take it as a statement that we want
   6     to do it openly and accurately, because that is
   7     basically how we had conducted our affairs, and part of
   8     the disagreement reflected in that letter was
   9     a perception that it had not all been conducted openly
  10     and accurately. I mean, our culture and ethos, as we
  11     understood it, was that we were putting our numbers on
  12     the table, we were putting our results on the table, we
  13     were discussing when people died, be they adult or
  14     child, why they died and there was an opportunity and
  15     openness for people to express a view, and that that was
  16     the correct way to go, in the first instance.
  17   Q. So far as the system that you described, the
  18     availability of yourself or the "three wise men", what
  19     would happen if the complaint was itself about one of
  20     the "three wise men"?
  21   A. Then there are two other "wise men" and there are other
  22     people, there are other channels. It is by no means an
  23     exclusive mechanism. If a complaint had cropped up
  24     about one "wise man" then the other two could have
  25     considered it, they could have co-opted other wise

   1     advice, if they felt that necessary. I mean, the
   2     position was totally flexible. And of course, there
   3     were also other lines through Clinical Directors
   4     directly to the Chief Executive, through the Professor,
   5     and so forth and so on.
   6   Q. Can I turn from the issue that we have been focusing
   7     upon, the expression of concerns, to deal with what we
   8     have been touching upon, which is the question of
   9     audit?
  10        One could, I suppose, distinguish between the
  11     personal audit which the surgeon conducts of himself and
  12     the audit of the service and the results which the
  13     service produces.
  14        So far as personal audit is concerned, you make
  15     the point in your statement that the surgeon would have
  16     his logs?
  17   A. His logs?
  18   Q. His logs.
  19   A. Yes.
  20   Q. You kept logs?
  21   A. I kept logs.
  22   Q. Logs of what sort of operations? All operations?
  23   A. I kept a log of all the operations I carried out in
  24     the Infirmary, which were in fact all open-heart
  25     operations on adults, children, whatever. I began at

   1     the beginning of my work in Bristol in 1975.
   2   Q. So if one looks at your logs -- I mention for the record
   3     that you have supplied your logbook to the Inquiry; for
   4     obvious reasons of patient confidentiality, it has not
   5     been and would not be without very heavy redaction ever
   6     published, but we have seen it and thank you for it.
   7        That contains, does it, each and every patient
   8     upon whom you performed an open-heart operation?
   9   A. To the best of my knowledge and belief.
  10   Q. What about closed-heart operations?
  11   A. What about closed-heart? I did not keep a similar
  12     personal log of those, but there was a card index system
  13     with the secretary in the Children's Hospital that
  14     I always had access to the names and to those events.
  15     That existed and that seemed to be satisfactory and for
  16     my purposes sufficient.
  17   Q. So in order to check on your own performance, whether
  18     you had been getting better or worse at doing
  19     a particular operation or series of operations, you
  20     would go to your log and add up the numbers?
  21   A. Yes.
  22   Q. You could go to, what, the card index?
  23   A. Yes.
  24   Q. And ask somebody else to extract the data, or extract it
  25     yourself?

   1   A. I would normally do it myself.
   2   Q. Did you do it yourself?
   3   A. Yes, every year. This did not happen right at the
   4     beginning, but it began early on and evolved to the
   5     point where each year I published an annual -- what
   6     I have called a "statistical summary". So in the
   7     preparation of that, I would have reviewed the cards in
   8     the Children's Hospital and used that information.
   9   Q. Was that a statistical summary for yourself, or for the
  10     service?
  11   A. It was for the service, so my colleagues, or colleague,
  12     whatever was the situation at the time, provided their
  13     information to me, and I collated it.
  14   Q. Do I understand that the information was, with odd
  15     exceptions, one of which you have referred to,
  16     aggregated rather than broken down by surgeon?
  17   A. The summaries that I am referring to were aggregated
  18     and I continued to produce those up until, I think,
  19     1992. When I handed over the clinical directorship of
  20     cardiac surgery to Mr Dhasmana, then he undertook that
  21     responsibility subsequently, because I basically had
  22     done it from the late 1970s in one shape or form.
  23   Q. I was going to ask you what happened after 1993,
  24     because we have a certain shortage of recorded results
  25     post-1993 that have come through to us in the papers.

   1     Can you help on that at all?
   2   A. I think I might be able to. I certainly have some and
   3     I would have thought you had everything that I had,
   4     but --
   5   Q. I would hope so.
   6   A. Yes, but I would be more than happy to check and confirm
   7     that. If there is anything you do not have that I have,
   8     then it will certainly be available.
   9   Q. Would you, please? So far as an audit is concerned,
  10     obviously one is looking for results compared to
  11     expectations?
  12   A. Yes.
  13   Q. When we come to morbidity rather than mortality, how did
  14     you measure results against expectations?
  15   A. We --
  16   Q. You personally, from your logs.
  17   A. The answer is that I did not count morbidity very
  18     frequently. I think I did sometimes, but not regularly,
  19     whereas I counted mortality regularly or whenever I was
  20     reviewing a group of patients.
  21   Q. By "mortality", would that be in-hospital mortality?
  22   A. The definition which we used was the definition set out
  23     in the cardiac surgical register in the early days,
  24     which was death within 30 days, or beyond that if the
  25     patient were still in hospital. In other words, any

   1     death of a patient in a hospital would be included but
   2     if a patient had gone home, let us say, on the tenth day
   3     and died on the twentieth day or the twenty-ninth day,
   4     then, when that information was provided to us, we would
   5     include that patient within the group of those who had
   6     died and attributed that death, if you like, to the
   7     operation.
   8   Q. You then kept the logs from 1975 onwards. Can we have
   9     a look on the screen, please, at UBHT 61/10? This is
  10     September 1989. It encloses a review by Dr Bolsin. Can
  11     we go two pages on to the page I want to ask you about
  12     which is page 12(UBHT 61/12)? It is in the paragraph which we see
  13     at the bottom of the screen there:
  14        "For both paediatric and adult work, the surgeons
  15     and anaesthetists must establish mandatory convenient
  16     morbidity and mortality meetings to fulfil both training
  17     and audit requirements ..."
  18        So what he is reflecting there appears to be
  19     a situation in which there were no regular audit
  20     meetings of mortality and morbidity in adult and
  21     paediatric cardiac surgery.
  22        Was that in fact the position in 1988/89?
  23   A. There were not regular mortality and morbidity meetings
  24     attended by the surgeons and anaesthetists. There were
  25     in existence such meetings attended by the surgeons.

   1   Q. So he is talking there, is he, about the need for
   2     surgeons and anaesthetists to get together, rather than
   3     for there to be such meetings?
   4   A. He is expressing that view. I should say, however, that
   5     it would be quite wrong for anybody to think that the
   6     surgeons and the anaesthetists did not meet. They did
   7     not meet in the form of a regular mortality and
   8     morbidity meeting, but they met occasionally to review
   9     the policies, work and goals of the team in paediatric
  10     cardiac surgery.
  11        One of the matters discussed and reviewed
  12     regularly in those meetings was the annual statistical
  13     summaries, so, in other words, the surgeons and
  14     anaesthetists did have an opportunity to review those
  15     results together from year to year. That is just what
  16     I want to point out.
  17   Q. So far as the surgeons are concerned, then paediatric
  18     figures were produced, were they, separately from adult
  19     figures throughout the period that we are concerned with
  20     from 1983 to 1995, annually?
  21   A. They were separate in the sense that they were
  22     identifiable, but they were produced in the one document
  23     with the adult figures.
  24   Q. So far as you personally were concerned, in your
  25     personal audit from your logs, how did you know how your

   1     performance, as disclosed to yourself, compared with any
   2     other surgeon doing similar work in Bristol or
   3     elsewhere?
   4   A. Up until 1986, for practical purposes, all the
   5     paediatric work was done by myself, so whatever the
   6     results in paediatric surgery were, they were mine.
   7        Subsequent to that, in terms of comparison between
   8     surgeons in Bristol, then whichever one of us was
   9     compiling a summary would gather together their own
  10     figures and receive the figures of their colleague from
  11     the colleague. So each one of us would be looking at
  12     our figures at that stage.
  13        In terms of comparing it with people outside
  14     Bristol, the only comparator available to us was in the
  15     most recent annual report of the register that was
  16     available to us. So, for example, say we were compiling
  17     the report for 1988 some time in the early months of
  18     1989. The probability is that we would have available
  19     to us the report for 1987 but not for 1988.
  20        As we went on from year to year, that would be the
  21     situation. We recognised, of course, that the register
  22     figures had to be viewed in a guarded sort of way, for
  23     a whole variety of reasons which are probably the
  24     subject of another discussion. So they were taken as
  25     a broad indication of what was being achieved across the

   1     country.
   2        The value of the register figures, on the other
   3     hand, is that, if we just assume their accuracy for the
   4     moment, they then reflected the work in the whole
   5     country. That is quite different from information that
   6     is available to us in the literature for any particular
   7     operation or group of operations, because mostly work in
   8     the literature is the work of a particular unit.
   9     Obviously, that unit may or may not be representative of
  10     the work in a country.
  11        So it had that value and it has to be
  12     distinguished, therefore, from other sources of
  13     information that we would tap into.
  14   Q. So the comparison of figures, if one looks at paediatric
  15     cardiac surgery, would be a comparison which would look
  16     back to what had been the historical picture as best it
  17     could be revealed by the Cardiothoracic Register one or
  18     two years earlier. One would make the assumption,
  19     I suppose, that on the whole success rates improved
  20     across the country over time, would one?
  21   A. If you review the register, which is the best way to
  22     answer your question, over the years that it has been
  23     published, you can track that progress very precisely.
  24   Q. That would give you, in Bristol, a reflection of how
  25     well you were doing comparatively as a unit, as compared

   1     to units aggregated elsewhere in the country?
   2   A. That is correct.
   3   Q. It would not, I suspect, tell you whether you, as
   4     a surgeon, were doing very much better or very much
   5     worse than quite a number of other surgeons elsewhere in
   6     the country, because individual data would be subsumed
   7     in the whole?
   8   A. Yes. I mean in that sense what you say is correct, but
   9     of course I know my individual data; I know the data of
  10     our individual unit, and those two things I can compare
  11     with the aggregated data.
  12        I should add, because I am not sure if I made it
  13     clear, that when I prepared the annual statistical
  14     summaries, I included the figures for each operation
  15     from the most recently available, so it was there for
  16     everybody to see. I am not sure that I said that.
  17   Q. When there was a death following surgery, was there
  18     any system of review of that individual death?
  19   A. Yes, there was.
  20   Q. What was that?
  21   A. Excuse me if I am getting a little hoarse. I hope
  22     you understand.
  23   Q. Do help yourself to water if you have not.
  24   A. In paediatric cardiac surgery, from quite an early
  25     time, we had a practice that if a patient died, the

   1     cardiologist, the surgeons and the paediatric
   2     pathologists would meet together and review all the
   3     circumstances leading to the death of that child, so we
   4     would be looking at the investigation and its adequacy,
   5     we would be looking at surgery, we would be looking at
   6     post-operative care, we would be looking at findings, at
   7     autopsy, we would be looking at perhaps how the child
   8     was managed between investigation and surgery. In other
   9     words, it was an open discussion of anything that could
  10     have been a factor leading to the death of that child.
  11        Obviously, there were two reasons for doing that.
  12     One was so that we could reach the best possible
  13     understanding of what had happened in that particular
  14     case, and secondly, hopefully, so that if there was
  15     anything to be learned, we could learn it.
  16   Q. On occasions, did that process of review illuminate
  17     avoidable error?
  18   A. Your question says "avoidable error". I think I would
  19     need notice of that one. If I may answer a slightly
  20     different question, which I know I am not meant to do,
  21     we certainly learned from that review, regularly -- it
  22     was actually one of the most beneficial meetings we
  23     had. To the question about the avoidable error, I do
  24     not think I have anything in my mind that would enable
  25     me to answer that at the moment.

   1   Q. Let us suppose the pathologist said, "I have examined
   2     the heart and it seems to me [I use this for the sake of
   3     example] that there may be a problem here with the
   4     surgical repair which has been done; it is
   5     inappropriate". Suppose it was that.
   6        In such a case, you have your personal response to
   7     that, you or whichever surgeon it might be, to say
   8     "Obviously I must not do that again". In such a case,
   9     were the next of kin told that is what had happened, or
  10     not?
  11   A. Where the next of kin were -- okay. If a patient died,
  12     and we are talking now of children, it was my practice
  13     to suggest to the parents that if they thought it would
  14     be helpful, would they please come back to see me after
  15     a period of time, or whenever they wished to have the
  16     conversation, so that we could discuss all of the
  17     circumstances and events surrounding their child's
  18     death. That would include information that had been
  19     gained from the postmortem, and perhaps -- again, I did
  20     not keep a record so any figure is a guess, but my guess
  21     is that probably half the parents would come back to
  22     talk to me. Of course some of them lived very far away.
  23   Q. So if it happened to be one of those parents and if it
  24     happened to be that the pathologist had identified
  25     surgical error, the parent would be told?

   1   A. Well, there are a few "if"s there. There were very few
   2     instances in which surgical error of the type that
   3     I think you are suggesting was identified and I would
   4     doubt -- I am actually trying to think. You see, I know
   5     that Dr Berry published a paper on this subject --
   6     Professor Berry -- in the late 1980s and there are some
   7     facts and figures there. He did report a small number
   8     of autopsies in which something was found about the
   9     surgery which might have been done differently -- and
  10     I am avoiding the use of the word "error" -- but I am
  11     just saying it might have been done differently, and it
  12     was quite a small number.
  13        You see, a surgical error could include
  14     a situation where there was something wrong in the heart
  15     that we were unaware of and therefore what we did, if
  16     you like, was inappropriate, but we did have not that
  17     knowledge at the time. So there are a whole range of
  18     errors. Certainly, if there were some additional
  19     findings of that sort, that would have been told to the
  20     parents, but if there was a frank surgical error which
  21     was an error without qualification, I am not sure that
  22     that would have been told to the next of kin.
  23   Q. Why not?
  24   A. I said I am not sure because I am really talking about
  25     a situation where I am not absolutely sure. I am not

   1     sure about how frequently, I am not sure about the
   2     precise circumstances and I am not sure that there were
   3     not instances in which I did say it, so ... it is facts
   4     and instances and reasons for it that I am searching
   5     for, which I cannot really recall.
   6   Q. If, with reflection between now and the next time you
   7     come back to give evidence to us, you recall what the
   8     reason was or probably was, will you let us know?
   9   A. I shall revisit Professor Berry's paper and I shall try
  10     to see if I can establish any factual basis for doing
  11     that, certainly.
  12   Q. It may also be that if there is a specific case which we
  13     have, that we will let you know in respect of that, and
  14     you can focus your comments?
  15   A. That would be very helpful.
  16   Q. Moving away from personal audit and the meeting -- one
  17     thing you can tell me about the meeting after death:
  18     were such meetings minuted?
  19   A. No, they were not. Not until -- when Dr Ashworth came
  20     in, I think 1993, he began to keep a record of what
  21     patients were considered and who was present at the
  22     meeting. I think that was all.
  23   Q. In terms of the unit and the performance of the unit and
  24     the audit, you have told us about the annualisation of
  25     figures. We know that there were monthly audit meetings

   1     in 1992 because we have looked at the reflection in your
   2     statement of the fact that they stopped for a while
   3     following Private Eye and issues over confidentiality?
   4   A. That was only the paediatric cardiological audit.
   5     Cardiac surgical audit continued.
   6   Q. When did the paediatric cardiological audit begin on
   7     a monthly basis?
   8   A. I was hoping you would not ask me, because I am not
   9     actually quite sure.
  10   Q. Roughly?
  11   A. I know that Dr Martin put out a programme for 1983 and
  12     I do not think --
  13   Q. 1983 or 1993?
  14   A. I am sorry, 1993, I beg your pardon. The events we have
  15     been talking about were 1992. You quoted the bit where
  16     I said that subsequently it lapsed. I know that there
  17     was a programme for 1993. It may even be in the
  18     documents. I am not sure.
  19   Q. I can help you with some references --
  20   A. That of course does not necessarily mean, you know --
  21     given the circumstances we are in, I am not off-the-cuff
  22     able to say to you that the meeting scheduled for
  23     January 1993 definitely happened. That is my
  24     difficulty.
  25   Q. Can I take you back before 1993 to the beginning of

   1     1992? UBHT 61/153. It is 3rd January 1992. This is
   2     again Dr Martin writing, in this case to Dr Jordan:
   3        "Audit of paediatric cardiology. I think it is
   4     very important we recommence our audit sessions in
   5     1992."
   6        The audit of paediatric cardiology, that is
   7     distinct, is it, from the audit of paediatric surgery?
   8   A. No, what he is referring to is an audit programme, if
   9     I might use that word loosely, which embraced both
  10     cardiology and paediatric cardiac surgery.
  11   Q. He talks about recommencing the audit sessions, "It is
  12     important that we recommence...", which might suggest
  13     they had not been done for a little while?
  14   A. I think what happened was this -- and I have a feeling
  15     that it was in 1989 -- that Dr Martin first proposed
  16     a programme of audit meetings, so in a sense in terms of
  17     formal audit that was really quite early in its
  18     evolution. I think there was some problem -- initially
  19     I think those problems were scheduled for 8.00 in the
  20     morning or some time -- it does not matter what the time
  21     was -- but it did not prove to be a time that people
  22     found practical, so attendance was poor and it lapsed
  23     a bit.
  24        What he is doing here is to suggest that we
  25     recommence the audit sessions in a different format,

   1     a different time. It will be a wider discussion, and
   2     this was in fact on a particular Wednesday at lunchtime
   3     each month. This format, basically, worked very well.
   4   Q. The earliest reference that I can find to regular
   5     meetings -- I want to know if regular meetings began
   6     before this -- is UBHT 61/107. This is 18th December
   7     1989. It is the foot of the page.
   8   A. I think this is the letter to which I was referring.
   9   Q. That does appear to be the origin of the regular
  10     clinical audit meetings?
  11   A. Yes.
  12   Q. So can we take it that there may be some inaccuracy in
  13     it, but can we take it that broadly, from the beginning
  14     of 1990, thereabouts, there were attempts made to
  15     conduct regular audit meetings?
  16   A. Definitely.
  17   Q. Which had not been held as such before in --
  18   A. Not as such. This was in response to the government's
  19     White Paper of 1988 or 1989.
  20   Q. Yes. We have heard about that from other sources. I am
  21     going to explore this afternoon with you some further
  22     issues which arise in relation to audit, the publication
  23     of audit results, and the difficulties that there may
  24     have been in audit, in conducting it.
  25        First, sir, I think we have come to the half an

   1     hour break that we normally have on a Tuesday,
   2     a 40 minute break, for lunch.
   3   THE CHAIRMAN: It is ordinarily 45 minutes, Mr Langstaff.
   4     Are you suggesting something to me "sub silentio", as
   5     they sometimes said in the old days?
   6   MR LANGSTAFF: I am entirely in your hands.
   7   THE CHAIRMAN: Shall we say 35 minutes, then and come back
   8     in whatever 35 minutes is from now, because my
   9     arithmetic will let me down again. You will tell me.
  10   MR LANGSTAFF: 10 to 1.
  11   THE CHAIRMAN: Thank you.
  12   (12.15 pm)
  13            (Adjourned until 12.50 pm)
  14   (1.00 pm)
  15   MR LANGSTAFF: The purposes of audit were, were they, to
  16     inform and educate the clinician -- at least, that was
  17     the way it was seen in the late 1980s?
  18   A. I think the most fundamental purpose of audit is to
  19     improve the quality of care delivered to the patient,
  20     but of course, in order to do that, then what you have
  21     referred to needs to be achieved.
  22   Q. In order to understand the figures, if one was looking
  23     at an audit which consists of the figures -- there were
  24     other measures you have referred to in your statement
  25     and I do not trouble you with those -- one would need to

   1     understand something of what the figure signified?
   2   A. Yes.
   3   Q. Can we look at HA(A) 11/372, 11th July 1990, the
   4     Bristol & Weston Health Authority, in relation to
   5     contract development. Medical audit is the first of the
   6     issues. Mr Wisheart presented a paper which outlined an
   7     approach to medical audit, and there is a stratification
   8     of adults and children that we see there.
   9        We go on:
  10        "It was felt that this approach was appropriate
  11     in terms of operative risks and costs of procedures."
  12        So far as operative risks are concerned, was it
  13     the view that children under 1 year of age were to be
  14     distinguished from children over 1 year of age?
  15   A. That was clearly the intention, because those are two of
  16     the four groups.
  17   Q. The reason I ask is that it is not only operative risks
  18     but also costs of procedures that is referred to, and
  19     I just wanted to make sure that it was perceived, by you
  20     because you were presenting the paper, that there was
  21     a distinction in general terms in operative risk between
  22     the two children's groups?
  23   A. I think it is important just to acknowledge for the
  24     record that the distinction at the end of the day is not
  25     an official one, or an arbitrary one, but having said

   1     that, it has some uses. Possibly the most practical
   2     importance of that is that it would conform with the way
   3     in which results were reported in the cardiac surgical
   4     register.
   5   Q. You go on to outline that audit was considered under
   6     two headings, firstly outcome, secondly process. And
   7     you say what outcomes would be considered. This is
   8     obviously to inform the Bristol & Weston Health
   9     Authority contracting, but so far as audit of process is
  10     concerned, that is distinguished from outcome, the
  11     process no doubt would be evaluated against standards as
  12     to the length of stay, the ITU length of stay,
  13     the hours, days ventilated and so on, because audit
  14     would not make sense unless there was a standard to
  15     measure against?
  16   A. That is correct but it is an ideal statement because
  17     I am not aware that any such standards existed. Perhaps
  18     therefore take what I have said here as a goal to be
  19     worked towards, but not something that could be achieved
  20     tomorrow, because the bits and pieces to do it were
  21     simply not available.
  22   Q. We know, because you have told us, that figures were
  23     derived annually, at least until the time that you
  24     ceased to be the Associate Clinical Director of Cardiac
  25     Surgery. What about audit of process in relation to

   1     those items. Was that documented anywhere?
   2   A. Not generally. But it was the goal and of course, it
   3     was in order to do this that I wanted the cardiac
   4     surgeons to introduce the use of computerised
   5     information because I think that it is probably only
   6     possible to either collect or process the sort of
   7     information I have set out in this paragraph if it is
   8     done in that way.
   9        First of all, it means that it is there and
  10     available and you have an established process of
  11     recording it, and secondly, it can be processed in an
  12     accessible way. If you have to do it manually it will
  13     be incomplete, there will be errors and it is very hard
  14     to process.
  15   Q. Can we move on from July to 5th September 1990, UBHT 98,
  16     which begins at 204? It identifies the meeting of the
  17     Hospital Medical Committee when Mr Dean Hart was the
  18     Chairman. It is page 205(UBHT 98/205).
  19        This is Dr Thomas tabling a paper in which you had
  20     an input as author, recommending a District Audit
  21     Committee. He then goes on to say:
  22        "There were unclear lines of responsibility for
  23     audit, but the routes that were clear were those between
  24     the Colleges and those districts that needed recognition
  25     for training ... audit was to be part of a consultant's

   1     contract but there was no definition of the type or
   2     standard of audit."
   3        Stopping there, was it the case that there were
   4     unclear lines of responsibility for audit? This is
   5     1990.
   6   A. I think it is definitely the case. What we see, over
   7     a period of time, is how a proposal, an idea virtually,
   8     that was embodied in the White Papers was being
   9     translated into something that would be done and
  10     eventually would be seen as part of everybody's
  11     obligation, but it took time to move from the idea
  12     position to the implementation position, so in essence
  13     what Dr Thomas says is absolutely correct.
  14   Q. We see in the next paragraph, at that stage members felt
  15     that audit should be medically led. That was the
  16     general feeling at the time, was it?
  17   A. As I recall, that was consistent with what the White
  18     Paper suggested, and it is certainly consistent with
  19     whatever guidelines and publications appeared in 1988 or
  20     1990, that I can recall.
  21   Q. We know that over the next few years they developed the
  22     idea that audit should be clinical audit involving other
  23     disciplines, other than the medical?
  24   A. Yes.
  25   Q. What was your response personally to that. Was that

   1     to be welcomed?
   2   A. To the development of the idea of clinical audit?
   3     I felt that in essence it was the right thing to do. It
   4     was part of how I generally thought of things, but
   5     a service that is delivered to a patient is delivered by
   6     a group of people, not just nurses, not just doctors,
   7     not just whoever, so the team of people who deliver the
   8     service I think should appropriately audit it so that
   9     they can each look at their own contribution and they
  10     can each feel responsible and accountable for the final
  11     product.
  12        So that is number 1. Number 2: I continue to
  13     believe that there was a place in terms of education and
  14     peer review for audit to be an activity conducted by
  15     doctors in the interests of their education and so
  16     forth, so initially I felt we should not totally throw
  17     out unidisciplinary audit, I thought that it continued
  18     to have a place, and on the whole, I still think that.
  19   Q. You refer to it, if we look at UBHT 98/17. This is
  20     5th January 1994. We see the reference to the
  21     Chairman. The Chairman was you. "But we must be
  22     perceived to be carrying out the national guidelines
  23     lest we lose audit monies. We must also maintain
  24     medical audit ..."
  25        The reasoning that you were expressing -- I want

   1     to know if the minute is accurate, is "as a valuable
   2     educational and peer review activity."
   3   A. I am sorry, this is a committee of which I was the
   4     Chairman, is it?
   5   MR LANGSTAFF: Yes. I am sorry, shall we --
   6   A. That is fine. I see the year, so I am sure that is
   7     correct. Yes, that last sentence expresses the view
   8     that I have just said to you.
   9   Q. As I say, this is 5th January 1994?
  10   A. Thank you. Is that a Steering Committee?
  11   Q. Shall we go back to page 13?(UBHT 98/13) It is my fault for not
  12     identifying the document, trying to be too quick, I am
  13     sorry.
  14   A. Yes, thank you very much.
  15   Q. So back again to 17(UBHT 98/17). Implicit in the comment that you
  16     make there and the comment you made a moment ago where
  17     you sit, was that clinical audit is less valuable as an
  18     educational and peer review activity?
  19   A. I think different. I do not think I was making any
  20     value judgments as to the superiority of one over the
  21     other; I was simply saying that there was a place for
  22     both.
  23   Q. What would you get out of medical audit that you would
  24     not out of clinical?
  25   A. I think the problem is -- what I felt is simply this:

   1     that if you have a group of people from different
   2     disciplines, you can probably pursue a question so far
   3     down the road together, before some members of the group
   4     will be losing interest. I am not confining this to
   5     doctors, I am confining it to any one discipline, but if
   6     you have a group of people in one discipline, they will
   7     probably follow their interest in that area of audit
   8     rather further down the road and in more detail, and
   9     maintain the interest of the group. I think that is
  10     really what I mean.
  11   Q. So it is a question, really, of motivation, is it, to
  12     take part --
  13   A. No, I think it is a question of they are in different
  14     positions, their remits and responsibilities are
  15     different. It simply reflects the fact that although
  16     people worked together as a team, they have differing
  17     responsibilities, different professional commitments,
  18     and it is right and proper that they should explore
  19     their individual professional responsibilities as
  20     individual professional responsibilities, as well as
  21     being right and proper that they should explore it with
  22     members of the team from other disciplines.
  23   Q. In the application for Trust status which we looked at
  24     this morning, it was said that not only the Clinical
  25     Director but also the Manager of the directorate had

   1     a responsibility for the quality of the service.
   2        In your statement you do not make any mention of
   3     any managerial role in the conduct and interpretation of
   4     audit.
   5        If audit is truly a question of measuring
   6     performance against standard, then why should there not
   7     be a managerial role in it?
   8   A. I may not, as you say, have made a statement that says
   9     the Manager has a responsibility for audit, but I think
  10     that when I have been discussing clinical audit in my
  11     statement, I have included managers within that group,
  12     so there was a tendency to have a sort of "them and us"
  13     view of health professionals on the one hand and
  14     managers on the other, and I do not find that a helpful
  15     view. I think they are members of the team, along with
  16     the others. When I included them in those who
  17     participated in clinical audit, that is what I meant.
  18     And in a sense, I think that is a better reflection of
  19     what I would feel than the quotation you offered me.
  20   Q. This morning, as it happens, in passing, when we were
  21     talking about Senior Registrars and concerns, one of the
  22     points you made was that the Senior Registrar was
  23     a member of our society, presumably our Royal Society.
  24   A. Yes, and the Society of Cardiothoracic Surgeons who held
  25     the register so had access to the register.

   1   Q. There is a sense, is there, in which you naturally feel
   2     an affinity and others in the discipline feel an
   3     affinity for a fellow cardiothoracic surgeon that you
   4     would not feel for a surgeon in another discipline, or
   5     for that matter, a doctor, not a surgeon.
   6   A. Well, there is a lot of common ground between colleagues
   7     in the same specialty, and in the area of one's
   8     professional work, then that common ground is very
   9     important, but obviously at a personal and other levels,
  10     then different considerations apply, so in terms of
  11     loyalty, it is not that simple. Many of my best friends
  12     are not cardiothoracic surgeons.
  13   Q. I suspect from the numbers, you might not have many if
  14     that were the case.
  15        We dealt with the nature of audit and the medical,
  16     clinical distinction. I am not going to ask you more
  17     about that. One of the issues which arises in respect
  18     of audit is the extent to which one may publish the
  19     results.
  20        Was it a concern of those who consented or agreed
  21     to take part in early audit, in the 1980s, that the
  22     results of that audit might become more generally known
  23     than within their own grouping?
  24   A. Yes. I think it probably was a concern, and I am sure
  25     that that concern was reflected in the emphasis on

   1     confidentiality. But as this whole activity evolved --
   2     I mean, we are talking about a very short time. By the
   3     mid-90s, by which I mean about 1995, the need for
   4     openness about audit outcomes was entering on to the
   5     agenda, very clearly and explicitly, and it is certainly
   6     one that I was attempting to promote amongst my
   7     colleagues. I am not sure how successful I was, but
   8     again, it takes time because this represents
   9     a considerable change in people's attitudes and it has
  10     certainly taken root and is happening, but I do not
  11     think it is fully accomplished yet.
  12   Q. Did you meet resistance?
  13   A. I guess not so much resistance as non-activity. It did
  14     not happen.
  15   Q. What are the examples of --
  16   A. It is more complicated than that, because what I was
  17     actually saying to people at that time were two things.
  18     This illustrates the difficulty and the evolving nature
  19     of things. Even in 1995, I was saying to my
  20     colleagues -- I am now talking of whole disciplines in
  21     medicine, whole activity, that you had to develop
  22     measures of outcome for the work you are doing, because
  23     many, indeed the majority of disciplines, had no
  24     sensible measures of outcome, either crude or
  25     otherwise. So most people in the practice of medicine

   1     were still at the point of trying to develop a measure
   2     of outcome. You have to do that before you can actually
   3     make the measurement. So I was encouraging people to
   4     develop a measure, to make the measurement and to try to
   5     be open about what they found.
   6   Q. In terms of adult cardiac surgery, making the
   7     measurement or analysing the figures was easier, was it,
   8     than in paediatric cardiac surgery, because of the
   9     availability of risk stratification for adults?
  10   A. In that respect, it was, and that stemmed from the large
  11     numbers of hopefully homogeneous patients who could be
  12     lumped together for the purposes of risk
  13     stratification. So if you took coronary artery surgery,
  14     you are looking at tens of thousands of patients per
  15     year in the country, but if you look at paediatric
  16     cardiac surgery and go to the UK register, I think you
  17     will count up something like 60 different categories of
  18     operation or patient, so the numbers are tiny in
  19     comparison, and therefore, that is why the development
  20     of risk stratification is so difficult. You cannot get
  21     the numbers together. That, for example, is the reason
  22     why I suggested to the national group of paediatric
  23     cardiac surgeons in 1990, I think, why do they not
  24     consider developing a national database of information
  25     about paediatric cardiac operations to try to get this

   1     information base together that would enable risk
   2     stratification, better comparisons and so forth to be
   3     carried out.
   4   Q. If we have a look at JDW 4/836, 24th November 1992, it
   5     is a letter to you from Dr Pitman about cardiac surgery
   6     figures. If we scroll down, please, it relates to
   7     Mr Hutter, obviously adult surgery, therefore, who had
   8     given Parsonnet scores to the South West Regional Health
   9     Authority, but which it is commented show the results
  10     very effectively.
  11        The next sentence:
  12        "We did have a discussion about infants and he
  13     agreed to discuss with you the best way of presenting
  14     the data. The suggestion seems to be trying to develop
  15     some form of risk stratification for infants so that one
  16     can adjust the results, crude results, by some idea of
  17     the severity of the condition, the likelihood of
  18     survival of surgery, in conducting any analysis.
  19        Did Mr Hutter have such a discussion with you?
  20   A. I do not remember it specifically, but I know that his
  21     visit to Dr Pitman arose out of a continuing
  22     conversation and correspondence between Dr Pitman and
  23     myself, so I think it is very likely that such
  24     a discussion took place. But of course, I think that
  25     the desire to do what has been suggested here in

   1     relation to infants, or indeed to children, is
   2     absolutely right, but it really needs an enormous
   3     collaborative effort to achieve it, it is not really
   4     within the ability of any one unit, no matter how large,
   5     to achieve the goal that has been set out there.
   6   Q. In 1990, some two years earlier, you tell us you have
   7     been discussing the idea, the possibility of developing
   8     some sort of scoring system?
   9   A. Yes.
  10   Q. Did anything come of that initiative?
  11   A. Well, yes. There were discussions within the British
  12     Paediatric Cardiology Society because it was seen that
  13     it would be sensible to do it if the physicians and
  14     surgeons were not together, and I think the notion that
  15     patients could be tracked, if I may use that term,
  16     through the different episodes of their care would be
  17     appropriate rather than dividing it artificially into
  18     physicians or surgeons or whatever. I am not wholly
  19     certain where that situation lies now, but I know that
  20     there were conversations, there were committees and
  21     there were attempts to do it. I also know that there is
  22     a European group of paediatric surgeons who in fact did,
  23     over the course of the following number of years, manage
  24     to achieve a collaborative database.
  25   Q. If we move forward from 1992 to March 1993, 24th March

   1     1993, and to UBHT 38/243, this is from the Director of
   2     Corporate Management to Dr Roylance:
   3        "I have been informed that at the meeting of
   4     Directors of Public Health on 5th March, Mr Wisheart
   5     presented his initial findings on operative
   6     mortality ... based on the Parsonnet scoring system.
   7     This is certainly a welcome development and will be
   8     extremely useful ..."
   9        Just pausing there, this presentation to which you
  10     make reference in your statement: was it just in respect
  11     of adults?
  12   A. No. I think I pointed out this morning that I also
  13     presented the results on children. That is from our own
  14     unit.
  15   Q. And the results that you presented from your own unit:
  16     did they involve any comparative analysis with the
  17     cardiothoracic register?
  18   A. It was my normal practice to include on tables the most
  19     recent UK register figures, as we discussed this
  20     morning, and I would be fairly confident that for this
  21     particular presentation, I would have adhered to my
  22     usual practice.
  23   Q. So if one was looking for the analysis which you then
  24     presented, it would have been, I suppose, the analysis
  25     ending in 1992. May we have a look at DOH 4/45? It is

   1     dated 6th February 1992, I thought it was the 8th. It
   2     is 6th February 1992. If we go down, it is a meeting,
   3     as we can see, in relation to the supra-regional
   4     services. It is in relation to neonates and infants,
   5     but that of course is one of the classifications which
   6     you had referred to as being one of the risk
   7     categories. So presumably, the results would have been
   8     broken down to show that.
   9        If we can move down: "Mr Wisheart..." -- people
  10     seem to have difficulty spelling your name at times --
  11   A. Great difficulty!
  12   Q. " -- presented the surgical results to date. Both open
  13     and closed-heart operations had increased from 1990 to
  14     1991."
  15        The minute sets out the 30-day mortality, 30 per
  16     cent compared to a UK average of 20 per cent, mainly due
  17     to a number of particularly difficult cases.
  18        Without explanation, looking at the crude figures,
  19     what you would have been presenting to the Directors of
  20     Public Health at your meeting in March would be those
  21     figures, would they, amongst others?
  22   A. Clearly for this meeting there was concentration on the
  23     infants and neonates, because that was what this
  24     particular meeting was about. But I think what he is
  25     saying here is that he was given a presentation with the

   1     details of the different operations and the results and
   2     the comparison.
   3        In fact, I think that the person visiting from the
   4     Department of Health was just the civil servant; I do
   5     not think Dr Halliday was present; is that correct?
   6   Q. I think that is right.
   7   A. However, despite that, we still provided him with the
   8     information, although I think technically he was only
   9     interested in the volume of work we were carrying out.
  10   Q. But it is not the details of that which I am interested
  11     in; it is simply to identify the figures that were
  12     current. Can we go back to UBHT 38/243, which is where
  13     I started this line of questions? You tell us, it is
  14     not apparent from the letter, that you would have
  15     mentioned the latest paediatric figures, so amongst
  16     those figures would have been that division between the
  17     30 per cent and 20 per cent for neonates and infants,
  18     would it?
  19   A. It would probably have been more detailed than that;
  20     I would probably have presented the difficult categories
  21     of operations carried out, both for the over 1s and the
  22     under 1s. That is what I believe I did.
  23   Q. What I wanted to understand was the last sentence of
  24     this letter:
  25        "I understand that Mr Wisheart will be comparing

   1     the BRI's outcomes against those of other cardiac units,
   2     and I very much look forward to learning the results of
   3     this work."
   4        That rather suggests, at least for the bulk of
   5     what you were saying, that there was no comparison made
   6     with the register?
   7   A. The register does not provide information which enables
   8     you to compare risk stratified outcomes. So the risk
   9     stratified information was relatively new and was only
  10     available from two or three -- well, there might have
  11     been four, I cannot quite remember, two, three or four
  12     centres who had in one way or another made their results
  13     known and we were aware of -- I think we had a reference
  14     to it somewhere else in today's conversation. So at
  15     that time we were comparing our results to the available
  16     information, but that was only three or four specific
  17     units; it was not the country as a whole and it was not
  18     until -- Mr Keogh would be able to tell you, because he
  19     was the chief mover and achiever, Mr Bruce Keogh. 1996,
  20     I should think, maybe a little earlier, a little later,
  21     that he first produced data that was validated and
  22     reliable, not from all the centres but from
  23     a substantial number of centres. It was risk stratified
  24     and could be looked at in that way.
  25   Q. So is the answer that you were not able to compare your

   1     outcomes against those of other cardiac units, save
   2     perhaps one or two --
   3   A. Not at that time.
   4   Q. -- until very much later?
   5   A. Not at that time.
   6   Q. This particular letter was chased up at UBHT 38/237,
   7     on 30th June 1993.
   8        It is the last sentence of that paragraph. Can
   9     you help us at all: was there any feedback to that, or
  10     did one have to wait, really, until much later when the
  11     comparative data became available?
  12   A. Mr Hutter was the person who was leading our efforts in
  13     this area at this time, and he was involved in the
  14     enterprise led by Mr Bruce Keogh that we have just
  15     mentioned, so I think that that is how we sought to
  16     bring that matter forward.
  17   Q. In November 1992, it had been agreed, as I understand
  18     it, to start providing the purchaser with outcome
  19     measures.
  20   A. In 1992?
  21   Q. Yes. UBHT 273/157.
  22   A. The reason I sort of looked quizzical is that
  23     I thought it was actually in the service agreement for
  24     1991.
  25   Q. Yes, which is why --

   1   A. I have reservations about it.
   2   Q. -- I wanted to ask you about this particular letter.
   3     One reads it:
   4        "At a meeting this morning between officers of the
   5     Trust ..." just scroll down a little bit. You can see
   6     it comes from you?
   7   A. Yes. I know now where we are, yes, thank you.
   8   Q. "It was agreed that we make a beginning in providing the
   9     purchaser with some measures about the outcome of
  10     treatment".
  11   A. We are now talking about audit activity Trust-wide and
  12     the relationship with the purchaser across the board.
  13   Q. As opposed to cardiac surgery?
  14   A. Exactly. The cardiac surgical arrangements were really
  15     unique to cardiac surgery. But there is another thing
  16     that it is important to say about this, because
  17     I believe this letter has been discussed before and what
  18     is being proposed here is additional audit to that which
  19     was already being carried out within the various
  20     directorates. So this was new and additional audit over
  21     and above what was already happening, on specific topics
  22     agreed between the purchaser and the provider, i.e. the
  23     directorate. So, for example, the application or the
  24     implementation of this in cardiac surgery concerned
  25     a development and continuation of the Parsonnet risk

   1     stratification assessment of our work in coronary artery
   2     surgery that we have already talked about.
   3   Q. If one restricts oneself to the Parsonnet system and the
   4     question of the information given on outcomes in respect
   5     of cardiac surgery, did you regularly provide
   6     information as to outcomes to the purchasers of your
   7     services?
   8   A. Perhaps the change that this letter heralds is the
   9     change that we spoke of a moment ago when we talked of
  10     the move from confidentiality towards openness.
  11        This letter is really a milestone, an early
  12     milestone, on that road of change.
  13        As far as cardiac surgery was concerned, we were
  14     already, I think, involved in the project that I have
  15     mentioned about risk stratified results in coronary
  16     surgery and those were the results which we continued to
  17     make available as in this agreement to the purchaser,
  18     but in other fora and in other circumstances, other
  19     information was also made available to the purchaser.
  20   Q. May we have a look at UBHT 84/163, the cardiac surgery
  21     meeting board, 23rd November 1993. Can we scroll down?
  22     It is the very bottom of the page:
  23        "Sally Masey asked what quality information we
  24     supplied to purchasers", you explained they asked for
  25     little except reduced waiting times, "but we had shared

   1     our audit results with some."
   2        So the system was that they had to ask before you
   3     supplied?
   4   A. When the service agreements were made, they were
   5     agreements, within which there was provision for giving
   6     this information. Again, we see the two headings under
   7     the word "quality". There is the sort of
   8     "process/management" heading, where waiting times is
   9     the example, and there is the "clinical outcome" heading
  10     of which audit results is the example. The first group
  11     was always actively provided within the service
  12     agreement simply because that was something that was
  13     already within the NHS data systems and the Managers
  14     could use and operate and exchange. But, you see, audit
  15     outcome results were much less well-developed and in
  16     1993, for example, our own cardiac surgical computer
  17     systems were not yet, in a sense, fully and reliably
  18     operational. So it was a growing process, but I think
  19     throughout it, we had been at least relatively open with
  20     our results, with the purchasers, in the way that we
  21     have been discussing.
  22   Q. Is it the case that they had to ask before you supplied,
  23     in practice?
  24   A. I think it is better expressed as being part of the
  25     agreement that we had, and we exchanged information

   1     within that, to the best of our ability.
   2   Q. I understand that an agreement may provide for
   3     information to be supplied, in which case it is
   4     supplied, or it may provide for it to be available, in
   5     which case it may be supplied if requested.
   6        I am pushing you on the point. What generally
   7     happened?
   8   A. The early service agreements set out that quality
   9     measures, we will say of the management type, and
  10     a whole range of them, would be measured, and they were
  11     monitored and shared I think on a quarterly basis --
  12     I could be inaccurate on that, but I think it was
  13     a quarterly basis.
  14        Secondly, there was a requirement that audit,
  15     that is, medical clinical audit, would be carried out.
  16     We have seen some bits of that. I think initially the
  17     agreement was that they would be assured that it had
  18     been carried out, because that was generally the
  19     framework within which audit was carried out by
  20     clinicians and it was reported to the managers or the
  21     Board and they were assured that it had been carried
  22     out, rather than providing them with all the detailed
  23     information. That was the way it happened at that time.
  24   Q. Just stopping you there, that is a reflection of the
  25     idea, "Well, it is a tool for us to assure ourselves

   1     that we are providing a decent service, rather than
   2     a measure by which you can say we are good, we are bad
   3     or better than anywhere else, or not"?
   4   A. Yes. I think that is right, and it was still
   5     a developing tool, and it still is. But it would not
   6     have been an easy tool for somebody outside the
   7     specialty -- and I mean any specialty -- to use.
   8        The third element is the element of the additional
   9     agreed topics of audit. That agreement included, of
  10     course, the exchange of information because it was
  11     actually a collaborative exercise, in essence. So there
  12     was full and free exchange of information within that
  13     agreed topic. That is why I said that the earlier
  14     letter that described that was really an important
  15     milestone on the road from confidentiality towards
  16     openness.
  17   Q. Coming up to today, 1999 -- I appreciate you are no
  18     longer working at the hospital -- is it the case that in
  19     general terms the information is not only made available
  20     but is in fact volunteered by Bristol to purchasers or
  21     others who might have a legitimate interest in seeing
  22     the results?
  23   A. I am not sure if you are asking a general question or
  24     a cardiac surgical question.
  25   Q. It is a general question.

   1   A. I really would not be able to answer the general
   2     question. I am too far away from it.
   3   Q. Cardiac surgery?
   4   A. I know that cardiac surgeons certainly make their
   5     results open, but we have been doing that for a long
   6     time, as far as purchasers are concerned. It comes
   7     right back to the years that we are discussing here.
   8   Q. Can I turn to a slightly different topic related to
   9     audit? It is really the status which was accorded to
  10     audit during the early 1990s. You have told us that you
  11     had quite a lot to do with developing audit and "pushing
  12     it" -- these are my words -- amongst your colleagues.
  13   A. Yes.
  14   Q. I hope the words are not inappropriate?
  15   A. No, that is correct.
  16   Q. You have indicated gently that there may have been some
  17     resistance in some quarters to what was after all
  18     a development. Do we get any reflection about the
  19     general interest in audit from the fact that when
  20     Dr Thomas stood down from the Audit Committee, not only
  21     did he require to be replaced as a Chairman and no-one
  22     could be found until you stepped in to fill the breach,
  23     but there were five committee places which had to be
  24     filled as well, which were vacant?
  25   A. I would have taken the difficulty in replacing

   1     Dr Thomas to reflect the fact that it was quite an
   2     onerous job rather than a lack of interest, but that is
   3     just my subjective view of the matter.
   4        As regards the committee places, you can correct
   5     me on the details, but I think the situation was that
   6     the committee was being reconstituted as a clinical
   7     audit committee, having been previously a medical audit
   8     committee and therefore there were new people to be
   9     elected to the committee.
  10   Q. We have seen, quite a bit earlier than that, in March
  11     1991, UBHT 25/178 is where the document starts, and it
  12     is District Audit Committee. Can we go to page 179(UBHT 25/179) and
  13     scroll down? I am sorry, I think I have lost my
  14     reference here; you will have to forgive me on that
  15     one. Can we go back up to the top? I have lost it,
  16     I am sorry.
  17        At the time that the committee was established,
  18     the Clinical Audit Committee, was it funded other than
  19     through the directorates?
  20   A. The historical details of this are also difficult,
  21     because around this time the funding changed and came
  22     with the contracts from the purchasers. But the funding
  23     for audit prior to that had, as I recall, been wholly
  24     devolved to the directorates and was used by the
  25     directorates chiefly in the appointment of audit

   1     assistants. The terminology of their appointment may be
   2     incorrect, but please forgive me. I think they were
   3     called audit assistants who helped with audit, and
   4     secondly, to a limited extent, for the purchase of
   5     computer equipment, software, hardware, whatever, to
   6     assist with the audit process.
   7        Following the setting up of the Clinical Audit
   8     Committee, and following a review of audit strategy in
   9     the Trust shortly after that, there was slight
  10     modification to those arrangements and some of the
  11     resource, some of the money was devoted to establishing
  12     a central resource which all the directorates could use
  13     and hopefully would be of help or encouragement to them
  14     in doing audit.
  15   Q. Would you look with me at UBHT 65/196? We are going to
  16     go to page 197(UBHT 65/197) in it, but we will identify the document
  17     first. It is 2nd March 1994 and it is the first meeting
  18     of the Clinical Audit Committee. Can we go to the next
  19     page? It is the last sentence, under 4/94, under
  20     "Clinical audit".
  21        "It was clear that members had some concerns, the
  22     committee had no specific resources and that its
  23     influence on the conduct of audit would necessarily be
  24     an indirect one."
  25        Those concerns represented the position, did they,

   1     or not?
   2   A. They represented a concern, and what I told you a moment
   3     ago was a practical response to that concern.
   4   Q. So if one looked over the period of 1990, 1989, to the
   5     time that you ceased to work in the Bristol hospitals,
   6     the process of audit was a slowly growing and improving
   7     one from medical audit to clinical audit and slowly
   8     gathering credence among the clinicians, was it?
   9   A. As a general statement, that would certainly be my view,
  10     yes. And, you know, I would add to that the move
  11     towards openness.
  12   Q. I am not going to ask you any more about audit. I again
  13     emphasise, for the sake of those who listen at
  14     a distance, that precise figures and their meaning are
  15     matters which we will explore later. It has been the
  16     question of the management and the structure and the
  17     aims of audit that we have been looking at today.
  18        There are two further areas which I am going to
  19     explore with you so that you know where I am going. The
  20     first of those is going to be in relation to postmortems
  21     and the retention of tissue and the second is in
  22     relation to the supra-regional service which the
  23     neonatal and infant cardiac surgery constituted. Those
  24     are the areas that we have left to deal with.
  25        Can I turn to the question of postmortems and

   1     tissue retention?
   2        You have given us -- again I emphasise for those
   3     who are listening perhaps at some distance -- a separate
   4     statement on issue J which deals with this particular
   5     issue for us. More generally, one of the things you do
   6     not mention in that statement is a document which is
   7     dated January 1988, in its fourth edition, which we find
   8     at UBHT 152/8.
   9        This document consists of a notebook for members
  10     of the cardiac surgical unit. Did you play a part in
  11     its formulation?
  12   A. Yes, I, for practical purposes, wrote it.
  13   Q. Even although one sees at the bottom of the page other
  14     names, you were modest enough to leave the apparent
  15     authorship to them, were you?
  16   A. Yes. I did this first in 1975 or perhaps into 1976 when
  17     I first arrived, and revised it a few times, and this
  18     was the fourth edition.
  19        I kept inviting other people to do it for me, but
  20     it would never go away, but these individuals did help
  21     me on this occasion.
  22   Q. It is a lengthy document which those who want to find it
  23     in the core bundle will find it by going to page 152/98,
  24     from where it begins here, which essentially sets out
  25     a number of particular details of the surgery.

   1        I have been asked to point out, and I cheerfully
   2     do so, that you did not have this document in front of
   3     you or in mind when you wrote your statement, and there
   4     is no good reason why you should, because references to
   5     postmortem do not loom largely in it, it is largely to
   6     do with cardiac surgery and so on?
   7   A. It is to do with the care of the patients.
   8   Q. I am grateful. Page 12(UHBT 152/12):
   9        "In the event of death, the family doctor and
  10     referring physician should be informed. One member of
  11     the team should attend the autopsy if at all possible.
  12     Permission for postmortem examination should always be
  13     requested."
  14        Two points. We have heard from one of the parents
  15     when they gave evidence that there was particular
  16     distress caused because the family doctor wrote some
  17     months after death with a follow-up appointment.
  18     Plainly in that particular case the procedures you had
  19     laid down which you hoped would be instituted had not
  20     been followed and that would be a breach of the expected
  21     procedure, would it?
  22   A. It would be, but I am aware that there were such
  23     breaches on occasions, sadly.
  24   Q. Permission for postmortem examination should always be
  25     requested. What did you have in mind as the inspiration

   1     for that? Anything legal, or was this personal or
   2     what?
   3   A. I am interested to read that sentence, because
   4     I imagine I must have written it in 1975, and it escaped
   5     revision, because of course it did not really conform to
   6     the reality of 1988 when this was revised because the
   7     reality of 1998 was that nearly all postmortems were
   8     Coroner's cases, they were not hospital postmortems, if
   9     I may describe the distinction that way.
  10        I think that the advice that permission should be
  11     sought is advice referring to hospital postmortems.
  12   Q. Was it your practice, so far as you could, to speak to
  13     parents yourself about postmortems?
  14   A. If a child died, it was my practice, nearly always --
  15     I cannot say always because I am sure it was not -- but
  16     nearly always to see the parents, to explain what had
  17     happened, if that were necessary, and to discuss the
  18     next steps. The next steps, broadly speaking, would
  19     have included two things. Again, in nearly all
  20     instances I would have been saying to the parents that
  21     I felt that it was my duty to report this event to the
  22     Coroner; and secondly, I would have been inviting them
  23     to come back to see me after an interval, if that is
  24     what they wished to do.
  25   Q. Your understanding of why it was necessary to report

   1     it to the Coroner was that it was a death in hospital
   2     following operative treatment, was it?
   3   A. Yes. There are "rules", in quotes, about that. I am
   4     not quite sure how my view developed. It may even have
   5     been in discussion with the Coroner a very long time
   6     ago, but my view was that if a child died following an
   7     operation, even if it was outside 48 hours or any other
   8     arbitrary time limit, that it would be appropriate to
   9     inform the Coroner and if he felt that it was not a case
  10     that he needed to be concerned with, then he would give
  11     me that advice and we would proceed with that advice.
  12   Q. Do I understand that that was something that only rarely
  13     happened?
  14   A. What, that he gave that advice?
  15   Q. That he only rarely --
  16   A. Yes, I can only recall one or two instances over the
  17     entirety of my career.
  18   Q. So the procedure would be: you would tell him?
  19   A. Yes.
  20   Q. And you would expect him to then require a postmortem?
  21   A. Not expect in the sense that -- I would seek not to
  22     anticipate his views, but on the basis of experience,
  23     I would have an expectation, yes.
  24   Q. So far as notifying the Coroner was concerned, was that
  25     something that your Secretary did?

   1   A. No, it was something that either the Registrar or the
   2     Senior House Officer did. It was something a doctor
   3     did.
   4   Q. By telephone?
   5   A. Yes.
   6   Q. Did it go direct to the Coroner or to his officer?
   7   A. I believe it went to his officer nearly always.
   8   Q. On each and every occasion, it was a formal procedure in
   9     the sense that every death was treated separately from
  10     every other death; there was no, as it were, standing
  11     instruction that all such deaths were to be regarded as
  12     subject to Coronal autopsy?
  13   A. No, obviously one operated within a framework of
  14     understanding who should be referred to a Coroner, but
  15     only in that sense was it a standing instruction. Each
  16     individual instance was dealt with as an individual
  17     instance, and a conscious decision made by the Coroner,
  18     and then relayed back to us.
  19   Q. Would you or your Registrar make a note on the papers
  20     that there had been a reference to the Coroner?
  21   A. I believe there frequently were such notes, if not
  22     always.
  23   Q. In order to discuss this with the parents, you would
  24     have to be aware that it was likely, therefore, that
  25     there would be an obligatory autopsy. How did you

   1     approach the fact that parents might have feelings about
   2     how the autopsy might sensitively be conducted?
   3   A. As you can imagine, these were not easy conversations,
   4     but I generally sought to put over a few points in
   5     relation to the referral to the Coroner. I would first
   6     of all point out that the existence of the Coroner, the
   7     role he played, was a very important safeguard for
   8     patients and their families in relation to the practice
   9     of medicine. Secondly, I think always, really, I said
  10     to the parents that while it was not my decision and
  11     I could not anticipate the Coroner's decision, it was
  12     nevertheless highly likely that he would decide that
  13     a postmortem should be carried out because without that,
  14     he would not be able to form any independent view as to
  15     what had happened.
  16        I certainly frequently, if not always, would have
  17     said that it was my understanding that neither the
  18     family on the one hand nor myself on the other hand
  19     would be able to influence the Coroner in his decision.
  20     I sincerely believe that to be the case, but in the
  21     latter part of my career, I am aware of one instance
  22     where the patient was not my patient, where the family
  23     had strong views against a postmortem being carried out
  24     and communicated them to the Coroner and the Coroner
  25     accepted that view and the postmortem was not carried

   1     out.
   2        So following that experience, I was a little more
   3     measured in what I said.
   4   Q. Roughly when was that?
   5   A. I am guessing if I said the early 1990s. I have no
   6     precise notion.
   7   Q. As best you can, it was the early 1990s?
   8   A. It was not the early 1980s, yes.
   9   Q. Did you yourself ever speak to the Coroner directly or
  10     to his officer about the postmortem, the case as it
  11     were, before a decision was finally made by the Coroner
  12     as to whether or not to have a postmortem?
  13   A. There were a few occasions down the years when I myself
  14     reported the case. In doing so, I would obviously have
  15     provided the information that was available to me about
  16     the case, but I do not think that there would normally
  17     have been a discussion that involved me as to the
  18     decision about a postmortem.
  19   Q. The Coroner would have to exercise his decision, his
  20     discretion whether to have a postmortem or not, upon
  21     information which he is given?
  22   A. Yes.
  23   Q. And so he is crucially dependent upon the information
  24     coming from your Senior Registrar, or on occasions from
  25     yourself?

   1   A. Yes.
   2   Q. What is the nature of the information generally speaking
   3     that you would be given?
   4   A. I will answer your question, but may I just say as
   5     a preamble that I am very conscious that the information
   6     given would be crucial to the Coroner's decision, and
   7     that was one of the reasons why I consciously felt that
   8     I should ask my Senior Registrar to give the
   9     information, because he was not the person who had
  10     carried out the operation but he was an informed person,
  11     and therefore I expected him to give it exactly as he
  12     saw it.
  13        So -- now I have forgotten what the question was,
  14     I do apologise.
  15   Q. I was asking about the general nature of the information
  16     given. You were saying that "It was not me because
  17     after all I was the surgeon".
  18   A. I would obviously have identified the patient, the
  19     patient's age, the patient's diagnosis, what the state
  20     of health had been pre-operatively, what the nature of
  21     the operation was, what problems there had been, either
  22     with the operation or in the post-operative period that
  23     had led to death. So I would have expected him to give
  24     an account of events which would have included -- I am
  25     sure -- an element of interpretation of those events, to

   1     help understanding, as to, not why death had come about,
   2     but the events leading to death.
   3   Q. If the Coroner exercised his judgment -- I called it
   4     perhaps misleadingly a "discretion" a moment or two
   5     ago, but if he exercised his judgment in deciding
   6     a postmortem was required by law, who would do the
   7     postmortem? Would it be Professor Berry or someone in
   8     his department?
   9   A. Well, I think the technical answer is, it would be
  10     a Coroner's pathologist.
  11   Q. But in reality?
  12   A. In reality, if the patient were a child, it would be
  13     Professor Berry. I think the name of the person who
  14     did it when Professor Berry was not in Bristol was
  15     Dr Pat Burton, and then Dr Professor Berry had
  16     a colleague who came around 1990 or 1991 called
  17     Dr Helen Porter, although I think her main interests
  18     were in other areas, and then in 1993 there was
  19     Dr Ashworth. Dr Ashworth had a very active interest, so
  20     once he came, it was more likely to be Dr Ashworth.
  21   Q. So if it was a hospital postmortem it would go to the
  22     same people, apart perhaps from Dr Burton, would it?
  23   A. I think it is -- I am just thinking of my patients and
  24     the patients that I would have referred to the Coroner
  25     and he declined, so to speak. The incidents were so

   1     few -- I can hardly remember a hospital postmortem, so
   2     I hesitate to answer your question. But it would have
   3     been the same people, hopefully.
   4   Q. What interest did you have in the retention of any
   5     tissue following postmortem?
   6   A. The sole interest that I had was in terms of the
   7     clinical pathological conference, where we would review
   8     all the events leading to the death of the child.
   9   Q. In August 1992, there was a letter written by Professor
  10     Berry. Can we look at UBHT 308/18?
  11        This is written as it appears to Mr Dhasmana. Let
  12     me read it:
  13        "I know that we have discussed this issue before
  14     but increasing pressure from the Coroner's office, the
  15     Department of Health ... means we must put our house in
  16     order.
  17        "When we last discussed this matter, it was left
  18     that you would ask your patient's permission for us to
  19     retain cardiac tissue from Coroner's postmortems. You
  20     will recall that the pathologist is only allowed to
  21     retain tissue for the purpose of establishing the cause
  22     of death and that for the Coroner's purposes the cause
  23     of death can be general ..."
  24        Then it deals with hospital postmortems.
  25        "In future we will not be able to retain the heart

   1     unless there is a signed statement in the notes from one
   2     of the doctors looking after the child to satisfy
   3     themselves that the parents of the child do not object
   4     to the retention of tissue during the course of the
   5     Coroner's postmortem examination."
   6        He deals with explanations that are to be given to
   7     the parents.
   8        There are two responses to that. The first was
   9     from Mr Dhasmana, which I will come back to in a moment,
  10     but the second, on 9th September, UBHT 308/170, is from
  11     you. We can read what it says there:
  12        "We should be a little more rigorous in stating
  13     that we have received the permission of the parents to
  14     retain part of the heart."
  15        That is plainly a reference to the need to have
  16     something in writing as Professor Berry suggests.
  17        "I was slightly surprised to receive this advice,
  18     as I had been recently told by Dr Sheffield that this
  19     problem had eased a little under the jurisdiction of the
  20     new Coroner."
  21        What did you mean by that?
  22   A. I recall that there had been one or two conversations
  23     with Dr or Professor Berry, as he became, about this
  24     issue, in which he had offered the advice, if you like,
  25     that was contained in the letter we saw to Mr Dhasmana.

   1     We had discussed that. What that would have
   2     represented, if you like, was an addition to the usual
   3     conversation that I gave you an account of which I had
   4     with parents when a child died. I did seek explicitly
   5     permission to retain the heart on one or two occasions.
   6     It was my view that it added to the difficulty of that
   7     conversation, certainly for the parents, and I guess for
   8     myself as well, to be honest, and I did not persist with
   9     that.
  10        Shortly after that, I got the advice or
  11     information that is written down in the letter. Before
  12     I saw this letter in the documents, my recollection had
  13     been that it was Professor Berry himself who had
  14     indicated that the situation had eased, but having seen
  15     this letter, I would have to acknowledge that my
  16     recollection may have been wrong and it may have been
  17     Dr Sheffield.
  18        It had never been represented to me that this was
  19     a legal requirement; it had never been represented to me
  20     that any ethical body in their guidelines were saying
  21     this was the right thing to do and anything else is the
  22     wrong thing to do. I very much felt that the advice
  23     given by Professor Berry was certainly farsighted and
  24     prudent, but was in a sense more than was necessary in
  25     our practice at that time. I am just reflecting to you

   1     that is how I felt. So I did not persist with it and
   2     the issue seemed to go away, so to speak, if I may put
   3     it that way, until more recent times.
   4   Q. When you say you did not persist with it ...
   5   A. I meant that I did not persist with the practice of
   6     asking the parent for permission to retain the heart
   7     after a Coroner's postmortem.
   8   Q. So when you say here on 9th September 1992 that you were
   9     surprised to receive advice to obtain written consents
  10     or written documents recording an absence of objection
  11     from the parents, you talk there of your conversation
  12     with Dr Sheffield that this "problem had eased a little
  13     under the jurisdiction of the new Coroner."
  14        I am not clear what the "problem" was that had
  15     "eased" as you saw it at the time.
  16   A. Reading the letter now, I had assumed that the problem
  17     was the problem of acquiring consent. Maybe it should
  18     not have been called a "problem" but the matter of
  19     requiring consent to retain an organ.
  20   Q. That would imply that you had known before you wrote the
  21     letter that there should be written consent before
  22     organs were retained?
  23   A. I think it implies that I had received the advice from
  24     Professor Berry that I have just described to you.
  25   Q. It would imply that before you got the letter from

   1     Professor Berry, you knew or had an idea that consent
   2     was necessary, would it not?
   3   A. Not "was necessary", no. There had been the
   4     conversations at which he had encouraged, even advised
   5     us, but he had never given any indication that it was
   6     necessary. That is what I was trying to stress in my
   7     latter remarks.
   8   Q. So again can I come back to it and ask you to reflect
   9     upon it? It may be that you would reflect better with
  10     a 10 minute or 15 minute break in a moment. What was
  11     "the problem" which had eased a little? I am still not
  12     confident that I have got an answer, really, to that.
  13   A. The problem was whether or not we should seek explicit
  14     consent in one form or another for the retention of the
  15     organ.
  16   Q. And the "jurisdiction of the Coroner": by "jurisdiction"
  17     do you mean approach of the Coroner?
  18   A. I guess I do.
  19   Q. Or the way he exercised his jurisdiction?
  20   A. I do not think I am describing a geographical concept.
  21     I think it was probably an ill-chosen word.
  22   Q. It is your word, which is why I asked you.
  23   A. Exactly. I think it refers to the new Coroner
  24     exercising his responsibilities.
  25   Q. And you appear to be saying that the new Coroner, you

   1     had thought, did not require consent for the retention
   2     of tissues or consent to be recorded for the retention
   3     of tissues, whereas the old Coroner did. That is
   4     a crude way of looking at it, but that appears to be
   5     what the letter is saying. Have I got it wrong?
   6   A. No, I think that was the impression that I had gained,
   7     be it right or be it wrong. And therefore, that is the
   8     impression that I am recording in this letter.
   9   Q. Before Professor Berry's letter of August 6th, when
  10     before that had you become aware that there was a need
  11     to obtain consent, or there might be a need to show or
  12     prove that one had obtained consent?
  13   A. As I say, it was not a need; it was advice or
  14     encouragement to do it. I believe that there would have
  15     been one or perhaps two conversations over the previous
  16     year or two. It would have been that sort of
  17     timetable.
  18   Q. If you look at your witness statement at page 264,
  19     WIT 120/264, and scroll down, please, to the bottom of
  20     that, this is your supplementary statement in respect of
  21     the retention of tissue, and you say that there your
  22     recollection of the conversation with Professor Berry --
  23     or Dr Sheffield -- is that the burden of the
  24     conversation was that, these are your words again, "the
  25     need to obtain consent had eased."

   1        If "need" was not the appropriate word, what
   2     should one substitute in your statement?
   3   A. I see that I used the word "need". I never thought it
   4     was need if "need" means a requirement. I guess it is
   5     the construction you place on the word "need". I never
   6     thought that -- I never unequivocally thought it was
   7     a legal requirement or that it was an ethical guideline
   8     or instruction. I thought that Professor Berry's advice
   9     was partly because he had been encouraged to give it
  10     from the Coroner, and partly because I think he was
  11     genuinely farsighted in the matter, and felt it would be
  12     a wise and prudent thing to do.
  13        I expect what I mean by it "easing" is, whether it
  14     was through Dr Sheffield or Professor Berry, that the
  15     new Coroner did not seem to feel so strongly about this
  16     issue. I mean, that is what I thought and that is what
  17     I have sought to record. The use of the word "need" is
  18     potentially ambiguous.
  19   Q. If one goes up to the top of your statement, I have been
  20     asked by Mr Moon to point out, and I do, that there, in
  21     reflection upon your earlier statement, where you had
  22     said quite simply that you had not actually had access
  23     to the documents to review the matter, in your statement
  24     in relation to the retention of tissue, you had said it
  25     was not clear whether or not consent was needed and that

   1     there was very little if any guidance on this issue from
   2     the legal or ethical authorities.
   3        That is how you begin this supplementary
   4     statement. You do not actually say, I think at any
   5     stage in your supplementary statement, on reflection,
   6     having looked at the further documents, whether it was
   7     or it was not clear.
   8        Which do I take it as being the case?
   9   A. I think that my position would be that it was not clear
  10     that consent was required, either on legal or ethical
  11     consideration.
  12   Q. If I can return from the supplementary statement just
  13     for a moment, before we have a break, to the letter
  14     which you wrote back to Professor Berry, you knew that
  15     the difficulties over consent arose in relation to what
  16     the Coroner wished?
  17   A. Yes. I thought that was a strong element of the
  18     discussion.
  19   Q. What the Coroner wished you would no doubt have hoped
  20     to deliver?
  21   A. That was certainly my stance in other matters, yes.
  22   Q. Are we to take it that although you did not know that
  23     there was a need, a requirement, for consent, you
  24     understood that, at any rate, that is what the Coroner
  25     wished there should be and wished that it should be

   1     recorded in writing?
   2   A. I am not sure that I ever understood it to be quite as
   3     strong as that.
   4   Q. So something short of a wish, but something --
   5   A. A "wish" meaning his personal requirement?
   6   Q. Yes.
   7   A. I never thought that the Coroner was actually saying
   8     through Professor Berry or anybody else, "Please, you
   9     must do this, gain permission, otherwise there will not
  10     be the retention of an organ".
  11   Q. The message you are giving me in your evidence --
  12     I speak for myself; it may give different messages to
  13     others -- is not that it was a question of "must" as you
  14     understood it, but a question of "should" and obviously
  15     "should" can be expressed with a number of degrees of
  16     emphasis?
  17   A. Yes, it could even be "possibly should".
  18   Q. If the previous Coroner was saying "you should" or
  19     "possibly should", "do this", the fact, nonetheless is,
  20     as you have told us, that your practice was not to?
  21   A. That is so. I think there was a source of ambiguity in
  22     all of this for me and it is noted towards the end of
  23     Professor Berry's earlier letter to Mr Dhasmana, and
  24     that is the provision that an organ -- in this case the
  25     heart -- but an organ could be retained in order to make

   1     or complete the diagnosis, so there is another area of
   2     ambiguity there. I am not saying one could argue in
   3     a watertight way, but it could certainly be argued that
   4     the retention, as far as my interests were concerned,
   5     was with regard to the making of the diagnosis.
   6   Q. Do I understand -- this is the last question before
   7     I shall suggest to the Chairman that we do have
   8     a break -- from what you said earlier that even
   9     following this exchange of correspondence between
  10     yourself and Professor Berry, that your practice
  11     essentially did not change from what it had been before
  12     the correspondence?
  13   A. That is correct.
  14   Q. Did you seek any further advice as to whether that
  15     should legally, whatever the moral position might be,
  16     should legally -- there is an objection to the question
  17     and I shall not ask it.
  18        Sir, may we have a break? I expect that I have
  19     about 20 minutes more of questions to ask Mr Wisheart.
  20   THE CHAIRMAN: I am grateful. Yes, we shall have
  21     a break now for 15 minutes, which is to 2.35 and perhaps
  22     you could have a conversation with those behind you to
  23     make sure that the interventions are appropriately
  24     routed. Thank you.
  25   (2.20 pm)

   1               (A short break)
   2   (2.40 pm)
   3   MR LANGSTAFF: Mr Wisheart, we have one major issue left
   4     which I want to canvass with you. It is dealing with
   5     Bristol's designation and subsequent de-designation as
   6     a supra-regional centre for neonatal and infant cardiac
   7     surgery.
   8        Can we begin by looking at JDW 1/153?
   9        This is a draft plan for the provision, as it
  10     says, of both medical and surgical paediatric
  11     cardiological services in a supra-regional unit.
  12        We can see that you were a member of the
  13     membership of the steering group.
  14        If we scroll down, "The goals of surgery" in
  15     paragraph 2, "Following the expansion of cardiac surgery
  16     in June 1984 ..."
  17        Can we go over?(JDW 1/154) And scroll down. 2.2(2) at the
  18     bottom. It is suggested that so far as the volume of
  19     open heart surgery in children is concerned it needs to
  20     increase to around 100 cases per year by not later than
  21     1985 and beyond that in the following years.
  22        So the plan is to increase following
  23     designation. Am I right that that was the aim?
  24   A. That was definitely the aim, yes.
  25   Q. Was it thought to be necessary?

   1   A. In what sense "necessary"?
   2   Q. As opposed to "desirable" if Bristol was going to
   3     survive as a centre?
   4   A. I do not think it was seen in such stark terms as what
   5     you have just said. I think it was seen much more as
   6     desirable that if more work were being done, we would
   7     all amass greater experience in it and so forth and so
   8     on. I think it was very much coming from that point of
   9     view, that we wanted to increase the volume of the work.
  10        Secondly, I think because lengths of waiting lists
  11     and so forth led us to feel that if the work could be
  12     done more promptly and if we were doing a large volume
  13     of work, the service would be better from that
  14     standpoint.
  15   Q. Can we look at JDW 1/150?
  16        We have just looked at a document which postdated
  17     designation. This pre-dates. If we see what it is, it
  18     is a memorandum on designation of Bristol. The second
  19     paragraph:
  20        "The number of open-heart operations ... was taken
  21     as the major criterion for designation ..."
  22        Because the designation will be in neonatal and
  23     infant surgery, one would be looking at the number of
  24     open-heart operations in that group, would one not?
  25   A. One might, but given that in 1982, the years

   1     preceding, the total numbers of operations in children
   2     under 1 nationally was very small, it is possible --
   3     I do not know, because I really was not part of the
   4     process, but it is at least possible that they were
   5     looking at the volumes of paediatric surgery as a whole
   6     and if you like, extrapolating from that what
   7     potentially might happen in the future for children in
   8     the first year of life.
   9   Q. Can we go to JDW 1/175 to identify the document and to
  10     page 183 (JDW 1/183) within it?
  11        "Indicators relating to the size of cardiac
  12     surgery units."
  13        The aim in the South Western Region, it tells
  14     us in paragraph 3.2, was for up to 600 open-heart
  15     operations per annum. This is obviously looking at both
  16     adults and paediatric cases. The second paragraph:
  17        "The reasons for settling for 600 ... as the
  18     minimum viable size for a unit in Bristol ..."
  19        Just pausing there, that is the description
  20     adopted in the Working Party report. Is that one which
  21     you would regard as appropriate?
  22   A. That one should aim to be doing at least 600
  23     operations?
  24   Q. As a minimum viable size?
  25   A. I would certainly have regarded that as appropriate,

   1     yes, or more.
   2   Q. Not only did it provide an economic size for which to
   3     provide staff and facilities, but it is "internationally
   4     recognised that the overall mortality rate drops in
   5     direct relationship to the number of operations carried
   6     out."
   7        That was the view at the time. We have heard it
   8     remains a justification for concentration of surgery of
   9     a rare kind in a few centres.
  10        Is it something that you accept?
  11   A. In general, yes, and I certainly agree with it in
  12     relation to children under 1 year of age. I would have
  13     to point out that the evidence for the view is fairly
  14     sketchy, but, I mean, I have much sympathy with the
  15     view.
  16   Q. The view works I think on two levels. We have heard
  17     there is some evidence for it, the other level is an
  18     intuitive level?
  19   A. Exactly.
  20   Q. The third paragraph:
  21        "When the Bristol unit achieves 375 operations
  22     per annum", this was a 1984 report, when I think there
  23     was something like 250 plus operations, but about that
  24     measure --
  25   A. I think that is correct.

   1   Q. "When Bristol achieves 375 ... per annum ....", it deals
   2     with coronary artery, and so on, "whereas of 600 almost
   3     300 coronary artery bypass operations will be done,
   4     thereby securing the best survival rate."
   5        It is the same point, repeated there for adults as
   6     opposed to children. So can we begin by taking it as
   7     a given that the general view for which there is some
   8     empirical and considerable intuitive support is that
   9     a unit needs to be large enough to do a volume of work
  10     in order to ensure the best mortality rates?
  11   A. Yes, although we have not really defined what "large
  12     enough" is, but the notion I agree with.
  13   Q. The number of operations that were in fact open-heart
  14     operations in the under 1s you have, on a number of
  15     documents, repeated the three operations -- I am sorry,
  16     the four operations in 1983 to 1984.
  17        There is one rival figure -- it may not make any
  18     difference but it is because you take exception with my
  19     question at the beginning of the Inquiry where I said
  20     three operations. Can I show you where it comes from?
  21     It is UBHT 62/56. It is a return, or a document given
  22     to the Supra Regional Services Advisory Group. Can we
  23     scroll down, please? The number of outpatient
  24     attendances, inpatient discharges and deaths, then the
  25     number of operations performed, 36 closed-heart,

   1     3 open-heart, 1983 to 1984, and the three stars relate
   2     to the very bottom of the screen, "information supplied
   3     by [your secretary] on 21st May 1984". That is where
   4     the figure 3 comes from?
   5   A. I think I can offer a resolution of the problem.
   6     I think I was quoting a calendar year and this is
   7     a financial year.
   8   Q. I wondered whether that might be the explanation. In
   9     any event, the figure is at that level at the time that
  10     designation occurs. So on any showing in terms of
  11     actually doing the work, Bristol was a weak candidate
  12     for designation if the number of operations was as the
  13     earlier document I showed you might suggest, if it was
  14     the criterion to be applied.
  15        Would you agree?
  16   A. If the number of infants being operated in previous
  17     years was the criterion, then it was a relatively weak
  18     candidate. If it was the number of paediatric
  19     operations, then it was less weak.
  20   Q. It is figures such as this which you were hoping to
  21     improve upon?
  22   A. Yes.
  23   Q. We have heard that when Jennifer Lloyd and others from
  24     Wales visited Bristol in the late 1980s in connection
  25     with the provision of services by Bristol in the

   1     neonatal and infant range for children from Wales, that
   2     the Welsh delegation, if I can call it that, met you and
   3     others?
   4   A. Yes.
   5   Q. And that you were frank about your results and said that
   6     in essence, with bigger numbers, which you hoped for,
   7     you would be confident of better outcomes.
   8        I am summarising, but you will recall, no doubt,
   9     those parts of the transcript?
  10   A. I think the context of the conversation was all of
  11     paediatric cardiac surgery and not just infants.
  12   Q. But the expectation is correctly described, is it?
  13   A. Yes, I think that is fair.
  14   Q. So do we recognise in that that in 1987/88 there was
  15     a recognition within Bristol that the results could be
  16     better and probably would be better with greater
  17     volume?
  18   A. I think working in paediatric cardiac surgery, as we
  19     discussed earlier, the results were constantly improving
  20     across the field. Then one constantly was aspiring to
  21     improve the results. It was an ever-present imperative
  22     for anybody working in this field and that was the case
  23     whether or not your own results were better or less good
  24     or whatever. You had to be constantly working at the
  25     improvement. That is what we were constantly committed

   1     to.
   2        But then, over and above that, we certainly
   3     believed that if we were doing more operations, then we
   4     would amass more experience and more knowledge and
   5     skill.
   6   Q. As a description of aspiration, I understand the
   7     answer. As a description of means to achieve the
   8     aspiration, it is lacking. Can I ask you how it was
   9     that you hoped or expected, or aimed, to achieve the
  10     greater throughput following 1988 which might achieve
  11     the aspiration or better results?
  12   A. The aspiration is the throughput rather than the better
  13     results.
  14   Q. The aspiration is the better results. The means to the
  15     end is the increased throughput. How do you get the
  16     increased throughput?
  17   A. Thank you. Part of the history of cardiac surgery is
  18     that when you have an ability to operate on more
  19     patients and waiting lists for more patients appear, and
  20     so in the early 1980s, the mid-1980s, first of all it
  21     was unclear to us whether or not we were actually
  22     meeting with the full need in the region, and you can do
  23     a variety of calculations about expected need for
  24     operations and so forth. So that would be number 1.
  25        Number 2, we hoped to be able to gain increased

   1     referrals and the situation that you have referred to at
   2     South Wales was one of the more important opportunities.
   3        The only other real opportunity for us to gain
   4     increased referrals -- I mean, within any broad
   5     geographical area -- was in relation to Plymouth, who,
   6     from before my time and subsequently, sent their
   7     children elsewhere. But overall, that is a relatively
   8     small proportion of the potential, so those were the
   9     opportunities overall. Then finally, if in fact the
  10     question is about increasing the numbers in the under 1s
  11     specifically, then there is the fact that at this time
  12     but even more in the years to come, we were tending to
  13     operate at a younger age and therefore to operate more
  14     frequently in the first year of life.
  15        So there was the question of, for any given child,
  16     should we operate in the first year of life or should we
  17     leave it later, and at the clinical level, of course,
  18     that was the most important decision. But you may wish
  19     to come to that later.
  20   Q. Can we look at DOH 4/28 and turn it sideways?
  21        This is the under 1s and the numbers. Before we
  22     have been talking about, 1983, is there. Throughout the
  23     period up until 1991, one can see how the numbers of
  24     open-heart cases varied. The total number of cases
  25     varying with something of a reduction in the stability

   1     in the closed-heart surgery.
   2        The numbers being done either by way of closed or
   3     open operation in Bristol remained small in comparative
   4     terms with other units, did they not?
   5   A. That is correct. Well, I know the numbers for open
   6     did. I am not quite so certain about the relative
   7     position for closed. Certainly, it was amongst the
   8     smaller.
   9   Q. Those numbers, in terms of open heart surgery, did they
  10     come as a bit of a disappointment to you, given the
  11     aspiration to increase the numbers and thereby to help
  12     with improving the outcomes?
  13   A. I think it would be better to say "mixed feelings" than
  14     "disappointment". Because while, you know, on the one
  15     hand one wants to be able to report a larger number of
  16     operations, particularly open operations, in the first
  17     year of life, on the other hand one's primary commitment
  18     is to making the best decision for the individual
  19     child. I do not think one would have wanted to change
  20     from a position that that was the primary
  21     consideration. So if one's best judgment was that the
  22     child should be operated in the first year, then that
  23     should take place. If the best judgment was that it
  24     should not be, then one would not subvert that judgment
  25     by a desire to increase the numbers.

   1   Q. By 1991 plainly there had been growth, as you point out
   2     a number of times in your statements, since designation,
   3     but it looks, over the period 1989, 1990, 1991, as
   4     though relative stability in the numbers of open-heart
   5     operations had been achieved. It was going to be
   6     somewhere in the 40 to 50 bracket, so it appears?
   7   A. Yes. It rose marginally in the subsequent years and
   8     sort of stabilised around 50 or immediately below.
   9   Q. It would have been apparent, I suppose, in 1990/91, that
  10     that was likely to be the case, was it?
  11   A. I think if I had been asked in 1991, I would probably
  12     have predicted a continuing increase. I have no
  13     particular reason to think otherwise. The trend to
  14     earlier operation was well-established and was
  15     continuing, so a variety of operations were being
  16     operated at a younger age, but not all of them in the
  17     first year of life.
  18   Q. But in 1991 you would have had the growth of Cardiff on
  19     the horizon?
  20   A. Yes, thank you, that is absolutely correct. Cardiff --
  21     it was about then that it began, was it not?
  22   Q. Yes.
  23   A. There was, of course, ambiguity at the beginning, as
  24     I think you know, as to what service they would provide
  25     and I think it was as unclear to us as to anybody else,

   1     so we did not quite know what to expect, but we realised
   2     that if the unit there developed as an effective one, as
   3     one hoped it would, it was quite likely that they would
   4     be working in the first year of life.
   5        In fact, the numbers fell much less than we really
   6     expected. We really expected that Wales would syphon
   7     off a significant proportion, but the numbers actually
   8     virtually held up, as you can see from -- if I were able
   9     to add the numbers for subsequent years, that would be
  10     the case.
  11   Q. Is it the case that the Department of Health and Social
  12     Security, through one or other of the offices of the
  13     Supra Regional Services Advisory Group, asked, advised,
  14     encouraged Bristol to increase the throughput of
  15     open-heart operations in the age group?
  16   A. They may have. I mean, I have thought a lot about this
  17     question in recent months. The answer is, I have no
  18     clear recollection. I think that what that means is
  19     that they may well have exhorted us in a general way to
  20     increase the numbers, which indeed was our own goal
  21     anyway, and therefore it did not make a particular
  22     impact. I think what it means secondly was that at no
  23     time was that encouragement offered in such a way as to
  24     indicate that failure to achieve those numbers would
  25     have potential consequences. I think that is the best

   1     way I can respond to the question.
   2   Q. What Mr Owen told us was the Advisory Group were
   3     concerned about the throughput of the unit. For those
   4     of us who want to track this, it is Day 12, page 106 and
   5     it is lines 19 onwards. I am sorry I cannot show it to
   6     you on the screen.
   7   A. I have read it.
   8   Q. The Advisory Group were clearly concerned about the
   9     throughput of the unit that had been expressed to the
  10     unit many times. I had expressed it to them myself."
  11        When asked how it was proposed you might increase
  12     the throughput, he said it was very sketchy, but he had
  13     discussed it, and added that Bristol, "they", he called
  14     you, "did not seem to me to have a particularly
  15     well-worked plan for the future in terms of increasing
  16     referral rates."
  17        If that is a criticism, that he says there is
  18     a need to increase referral rates, we mentioned it
  19     a number of times, you did not seem to have a very
  20     well-worked plan to increase referral rates; is it
  21     justified?
  22   A. I mean, the sense of it is justified, we discussed
  23     a few minutes ago what opportunities there were for us
  24     to increase our referral rates or the operations in the
  25     first year of life and that left us with very limited

   1     opportunities, so that could be described as a not very
   2     good plan to increase the referral rates.
   3   Q. Can we have a look at UBHT 62/213?
   4   A. If I may, may I respond to the quotation from Mr Owen?
   5     Far be it from me to say he did not encourage us, if he
   6     said he did encourage us, but it has certainly made no
   7     impact on my memory or recollection.
   8   Q. Can we scroll down to see who this letter is from?
   9     Anthony Hurst. It is to Dr Pitman. The date, can we
  10     scroll up again, 27th October 1986.
  11        It is in relation to supra-regional services. It
  12     is the third paragraph:
  13        "I confirm that when the decision was made to
  14     designate Bristol as a supra-regional centre for
  15     neonatal and infant cardiac surgery, it was anticipated
  16     that it would treat babies referred from South and West
  17     Wales."
  18        It describes how that would have allowed the
  19     allocation of additional funds. Then this:
  20        "We are anxious to do what we can to encourage
  21     referrals from Wales because we would like to see
  22     activity levels in Bristol rise, but there is no
  23     mechanism which enables us to influence clinicians,
  24     particularly Welsh ones, since health services in Wales
  25     are not a DHSS responsibility."

   1        Did you know that letters of this sort, putting
   2     in writing a desire to increase the throughput in
   3     Bristol, were being written?
   4   A. I have no clear recollection of it. I do not know
   5     whether that letter was copied to any of us, but I have
   6     no recollection. Nor have I any recollection or
   7     awareness of anybody from the department, or indeed the
   8     College, seeking to influence referrals into Bristol.
   9   Q. One of the features, I suppose, of supra-regional
  10     arrangements, is that there is a number of operations
  11     that need to be done in the nation as a whole and the
  12     idea is to limit the number of centres that will do that
  13     work so each may do it properly and successfully.
  14        As a concept, I understand from what you have said
  15     in your statements that it meets with your approval?
  16   A. Absolutely.
  17   Q. So in terms of theory, you are someone who would say
  18     this needs, or ought to be, the policy if it can be.
  19        Can we move on from 1986, this letter, to one in
  20     1989 at 61/202? It is in relation to a review of
  21     cardiac services in Wales. Can we scroll down, please?
  22        " ... I should like to make a few comments about
  23     your memo in relation to the impact of this development
  24     on paediatric cardiac services in Bristol."
  25        Can we go down?

   1        "Secondly, I agree that the development of more
   2     units capable of providing the facilities and expertise
   3     for infant cardiac surgery may lead to the cessation of
   4     supra-regional funding for this work which will then
   5     have to be borne by the regions."
   6        Did you know, did you appreciate, that the
   7     proliferation of units doing the work might have the
   8     consequence of ending the system of which you approved?
   9   A. I think I knew it to be a theoretical possibility and of
  10     course the development of the unit in Cardiff was an
  11     example of such proliferation.
  12   Q. I think Mr Hamilton wrote to you -- it is in January
  13     1989, UBHT 194/14, setting out the fact of the number of
  14     centres. If we go down a bit, seeking information from
  15     you, saying:
  16        "The information is required by the DHSS as they
  17     presently face the dilemma of how to ensure that
  18     neonatal and infant cardiac surgery continues to have
  19     a degree of protection and regulation as
  20     a supra-regional specialty."
  21        It deals with approaches to be made by other
  22     centres.
  23        Am I right in thinking that you would have
  24     understood that de-designation was on the cards because
  25     of the proliferation of centres wishing or doing the

   1     work?
   2   A. I think that I certainly recognised that it was
   3     a theoretical possibility because, obviously,
   4     I recognised that our small size -- I recognised the
   5     possibility first that the whole system could disappear,
   6     which of course is what happened; but if the alternative
   7     approach of maintaining the number of or a reduced
   8     number of centres was followed, then clearly we would be
   9     vulnerable because choices would have to be made between
  10     one centre and another.
  11   Q. What was the reason, in terms of managing the service,
  12     at this stage, 1989, that made Bristol want to continue
  13     to be a centre for neonatal and infant cardiac surgery.
  14        Let me expand on the question a little.
  15        At this stage, we have seen what the numbers were
  16     and that numbers were critical. We know, we have been
  17     told that Bristol was, if not the smallest, one of the
  18     smallest in the country. You acknowledge that there
  19     were problems created for this class of patient, given
  20     the split site between the Children's Hospital and the
  21     Royal Infirmary and the nature of the shared intensive
  22     care facilities, problems possibly with the retention,
  23     if not recruitment, of paediatric nurses. There had by
  24     now been difficulties, although they have been overcome
  25     in obtaining a paediatric cardiologist, and there were,

   1     shortly after this, problems in attracting a paediatric
   2     cardiac surgeon because of the particular institutional
   3     problems of the site.
   4        Given all those features, did anyone actually
   5     think of saying, "Well, we ought to do the sacrificial
   6     thing and in the interests of children elsewhere in the
   7     UK, say we will not go on doing this class of surgery,
   8     we will leave that to others"?
   9   A. I think the quick answer to that is "No, we did not
  10     consider that", and again, I have reflected on that.
  11     Everything seemed to happen in a very mysterious way.
  12     Had we all been called together and cards put on the
  13     table and proposals made, then I think we would
  14     certainly have had a constructive discussion, but that
  15     never happened and we did not think that, so rather we
  16     thought of the difficulties that you enumerated, some
  17     were general and not specific to Bristol, so that does
  18     not influence our local position.
  19        Others were specific to Bristol and we sought to
  20     improve those. We sought to improve the quality of our
  21     service, so if in the future any such problem arose, we
  22     would be in the best possible position, but of course
  23     the primary goal was to provide the best service to the
  24     patients for as long as we were providing that service.
  25   Q. When, later, the DHSS considered the possible option of

   1     de-designating one of the units in order to preserve the
   2     system, we have been told, I think it was by Sir Terence
   3     English, that one of the difficulties was that everyone
   4     agreed that there ought to be fewer units, but no-one
   5     would accept that it should be them that would lose the
   6     service.
   7        Did he ever broach with you the possibility that
   8     Bristol might volunteer to be sacrificed?
   9   A. Never.
  10   Q. Did he ever raise with you the problem in those terms?
  11   A. He never raised any problem with me in any terms.
  12   Q. Did he ever speak to you about any need, as he saw it,
  13     to encourage throughput in numbers of open-heart
  14     operations at Bristol?
  15   A. I do not recall ever having conversations with Terence
  16     about the politics of paediatric cardiac surgery in
  17     Bristol, or indeed, clinical aspects either: there were
  18     no such conversations.
  19   Q. We lost that on the microphone.
  20   A. I had no conversations with Sir Terence about paediatric
  21     cardiac surgery in Bristol.
  22   Q. Let me turn from this aspect, the numbers aspect and the
  23     designation aspect. The division at 12 months, an
  24     artificial division, as you have said: was there any
  25     temptation at any time to bring children over the

   1     12-month divide from those who might have been operated
   2     normally at a year and one month, a year and three
   3     months, so that they were operated at 10 or 11 months,
   4     in order to -- "massage" is the wrong word, but in order
   5     to make the numbers appear different?
   6   A. Well, we discussed how we dealt with particular groups
   7     of patients, and if we take a fairly uncontroversial
   8     group as an example, ventricular septal defects, early
   9     in my time in Bristol a very small number of those would
  10     have been dealt with in the first year of life because
  11     there was an inescapable clinical need, and the majority
  12     would have been dealt with later. But they were one of
  13     the groups for whom we first said, for the reasons we
  14     discussed I think yesterday when we talked about patho-
  15     physiology at some length, or I did, that it would be in
  16     their interests to do many, perhaps the most of these
  17     children, in the first year of life. So having made
  18     that decision, when we were presented with the child and
  19     made a decision to operate in the first year of life,
  20     then we would have made every attempt to carry out that
  21     operation before their first birthday, rather than let
  22     it slip until after their first birthday. But there
  23     would in no sense have been a question of bringing
  24     patients into the first year of life unless we believed
  25     it to be in their best interests.

   1   Q. Can I turn from that to issues of funding that related
   2     to supra-regional services?
   3        You needed, in Bristol, capital funding if the
   4     development of the Children's Hospital to accommodate
   5     open heart surgery in children was ever going to take
   6     place. You told us yesterday that had been an
   7     aspiration for some time?
   8   A. Yes.
   9   Q. Through the supra-regional services, there was the
  10     availability, after 1987, at any rate, of capital
  11     funding, was there not?
  12   A. That is what I understand, yes.
  13   Q. Could we have a look at UBHT 62/370? It is dated, as
  14     you can see, 13th November 1987. Can we scroll down,
  15     please. It is to Catherine Hawkins dealing with capital
  16     funding, 1988 to 1989. Essentially, it is rejecting
  17     a scheme which had been put forward by South Western
  18     Regional Health Authority to extend ward and theatre
  19     areas at the BRI in respect of neonatal and infant
  20     cardiac surgery.
  21        The first question: do I take it that throughout
  22     the period from 1987 onward, the Division of Surgery and
  23     subsequently the Directorate of Cardiac Surgery was
  24     aware that there was a source of capital funding which
  25     could be tapped, even if it might not be forthcoming?

   1   A. I was aware of the existence of that possibility and
   2     I know that Mr Nix was aware of the existence of that
   3     possibility. I presume from this letter and other
   4     evidence that the folks at Region, at least the
   5     appropriate people at Region, were aware of that
   6     possibility.
   7   Q. The second question: do you recall this particular
   8     application having been made?
   9   A. Yes, I have been reminded of it by these documents.
  10     My recollection actually was that it was in relation to
  11     the provision of the catheter laboratory in the
  12     Children's Hospital in 1987, so I am slightly bemused by
  13     some of the details that are at the bottom of that
  14     letter. It is possible that my recollection is wrong,
  15     but that was my recollection.
  16   Q. So the scheme would have been a formal application
  17     prepared, it must have had the co-operation of those at
  18     Bristol as well as Region, forwarded to the group and
  19     the group then, sadly, tell you the news that this
  20     particular application has not been recommended?
  21   A. Yes. I think my awareness of this particular proposal
  22     was minimal or minuscule at the time. The plan for
  23     a development was part of the development of our service
  24     that took place around 1987/88. I think it happened in
  25     three stages. The second stage, in 1987, was the

   1     provision of the catheter lab in the Children's Hospital
   2     and my understanding was that when those plans and
   3     proposals were at quite an advanced stage, the
   4     possibility of getting capital money from the Department
   5     of Health became available and an application was made.
   6     In that event, then the charge on the Region would have
   7     been less, because they were already committed to the
   8     scheme.
   9        In the event and for reasons that I have no
  10     knowledge of, the application did not succeed. But the
  11     scheme went ahead.
  12   Q. Can we have a look now at JDW 3/142? Just scroll down
  13     a little so we get the signature in. This is from
  14     Dr Joffe, is it?
  15   A. It is, yes.
  16   Q. "Dear Colin, We were requested by Mr Owen ... for intent
  17     to apply for capital allocation for 1993/4. The
  18     deadline was very short so I have submitted the enclosed
  19     as a preliminary bid. A detailed submission will need
  20     to be prepared in due course (? by when)."
  21   A. It could be him.
  22   Q. Is it actually Catherine Hawkins it is addressed to?
  23   A. No, it is Colin Hawkins, a quite different person. He
  24     was the deputy to Graham Nix in finance.
  25   Q. So this goes to Graham Nix's deputy?

   1   A. Yes.
   2   Q. If we turn over the page(JDW 3/143), we can see what was enclosed.
   3     A request for funding to help to resolve the split site
   4     issue. I think you have had an opportunity to look at
   5     this document. If we just scroll down to the bottom of
   6     the page(JDW 3/144), we see the advantages and disadvantages. We
   7     see the proposal and the preliminary costing.
   8        "The supra-regional services group is requested to
   9     fund œ300,000 in respect of infant and neonatal work
  10     with the remaining funding to be met by the United
  11     Bristol Healthcare Trust."
  12        "This paper outlines a draft proposal ..."
  13        The proposal comes from Dr Joffe. Did you know
  14     of it?
  15   A. Yes. I was aware of it.
  16   Q. Did you play a part in its formulation?
  17   A. I think I asked him to do that -- or we agreed that he
  18     should do it, would be better, I am sorry.
  19   Q. If it had been seen for some years by now that it was
  20     desirable to have a theatre at the Children's Hospital,
  21     for reasons relating to the children's service, let
  22     alone relieving pressure on facilities that might be
  23     used for adults, why was it that it was not until now,
  24     in the last year of the supra-regional services, that an
  25     application was put in and then with obvious haste?

   1   A. I think it is an important question. I think as
   2     indicated in Dr Joffe's memo, the covering note, the
   3     handwritten note, it looks as if this was sparked off by
   4     a conversation with Mr Owen, and I presume, therefore,
   5     that it was when they came down from the Department of
   6     Health to visit us in 1992 that there was a conversation
   7     which led to this.
   8        I think it would be fair to say that the technical
   9     details of funding are something that clinicians have
  10     a vague awareness of but it is not their prime
  11     interest. So that for funding opportunities or
  12     potential, I mean, we would be looking for advice to the
  13     financial experts within the Trust or at Region, or
  14     whoever.
  15        The question that I have asked myself, on seeing
  16     this, is, when we prepared our proposals in 1990, why
  17     did we not knock on this door then? In a sense, all
  18     I can say is that the proposals were prepared and they
  19     went to all the appropriate authorities at District as
  20     it then was and Region, and nobody prompted us to think
  21     that this was an avenue to go down.
  22   Q. So the plain truth is that, notwithstanding experience
  23     of having made an application for capital funding
  24     earlier, and having had to live daily with the effect of
  25     lack of resources generally, no-one actually thought of

   1     it?
   2   A. I think Mr Nix has said somewhere that he and his
   3     colleagues at Region nearly privately created the
   4     application in 1987, and I think our awareness of it was
   5     really very limited. It was merely a financial device
   6     operated by the financial people, and it did not work,
   7     but there we are.
   8   Q. Can you help with why it should be that Mr Nix, in
   9     giving evidence about this to us, should reflect that
  10     until he had seen the documents which I think you gave
  11     him at your house, he had not been aware of the
  12     application being made?
  13   A. That is Dr Joffe's application?
  14   Q. Yes.
  15   A. I do not know, because I think on Dr Joffe's covering
  16     handwritten memo, it clearly states that a copy went to
  17     him, so I think it is simply that he had forgotten.
  18   Q. I think it states it went to Colin Hawkins -- you are
  19     absolutely right, my apologies. The copy that you
  20     handed to him, when he came to see you at his house, did
  21     he indicate surprise when he got it?
  22   A. Yes. But it is very hard to remember everything over
  23     a long period of time.
  24   Q. There is only one other matter which I want to ask you
  25     about. I am not going to ask you any more questions

   1     today about the supra-regional services, but there is
   2     one further matter which it has been suggested I might
   3     ask you about. It relates to those who attended the
   4     postmortem pathological review meetings. Cardiologists
   5     attended those, did they?
   6   A. I am sorry, yes, they did.
   7   Q. Because they were part of the team?
   8   A. Yes.
   9   Q. So far as surgical audit is concerned, cardiologists did
  10     not attend as a general rule?
  11   A. Paediatric cardiologists attended the paediatric
  12     cardiological audit, which included surgery.
  13   Q. Did the cardiologists attend the paediatric
  14     cardiological audit, including audit of cardiac surgery?
  15   A. Including the audit of paediatric cardiac surgery, yes,
  16     they did.
  17   Q. And that was a matter of the expectation of everyone
  18     that they should do so?
  19   A. Absolutely. It was a joint effort. I mean, from the
  20     beginning.
  21   MR LANGSTAFF: I am grateful. I have asked you a number of
  22     questions over a number of topics. There may be
  23     something that you would wish to raise which has not
  24     been raised and canvassed with you in evidence. If so,
  25     now is your opportunity to tell us about it, if there is

   1     anything which you would wish to add to that which you
   2     have said over the last two days?
   3   MR WISHEART: Thank you for that opportunity. I do not
   4     think I have anything new to raise at present, thank
   5     you.
   6   MR LANGSTAFF: Mr Wisheart, it is just after 3.30 in the
   7     afternoon. I imagine the Panel may have one or two
   8     questions and Mr Moon, from behind me, may have some
   9     questions in re-examination. Are you happy to have
  10     those today, or would you prefer that that goes over
  11     until tomorrow?
  12   MR WISHEART: Thank you. I would have to say, I do
  13     feel it has been quite a long day and it is quite
  14     a draining experience to sit here. I think if it is
  15     agreeable, I would be grateful if we could wait until
  16     tomorrow.
  17   THE CHAIRMAN: It is entirely agreeable with the Panel.
  18     So shall we, Mr Langstaff, hold over until tomorrow
  19     questions from the Panel -- there are some -- and any
  20     re-examination that there may be thereafter?
  21   MR LANGSTAFF: Sir, I do not want to place any
  22     imposition upon either Mr Wisheart or his legal
  23     advisers, about whom I have not canvassed this
  24     proposal. Miss Grey mentions to me that the witness who
  25     is due to come at 9.30 tomorrow, Professor Green, has to

   1     be away by 12 o'clock for reasons that he is required by
   2     I think subpoena in court elsewhere. It is likely that
   3     his evidence will take something approaching two hours,
   4     maybe a bit less. Is there a prospect that it might be
   5     convenient to those here that we begin at 9, or is that
   6     asking too much?
   7   THE CHAIRMAN: We are always at your service,
   8     Mr Langstaff. It is really a matter for others. We
   9     will always be here at your suggestion.
  10   MR LANGSTAFF: Sir, perhaps it is best that Mr Wisheart
  11     is not in the position of appearing to reject any such
  12     proposal without first discussing it with Mr Moon, or
  13     acceding unwillingly to it. Perhaps if we could have
  14     a short break for Mr Moon to talk to him about that,
  15     that would be a sensible way of proceeding.
  16        May I indicate further that I understand that
  17     Mr Lissack would wish to make an application.
  18   THE CHAIRMAN: Would it be sensible -- I am entirely in
  19     your hands -- Mr Wisheart, this conversation is going on
  20     as it were like ping-pong with you being the observer,
  21     for which I apologise. Mr Langstaff: Mr Wisheart may
  22     stand down now and consult with Mr Moon elsewhere while
  23     we hear Mr Lissack, or would that be unsatisfactory?
  24     Would you advise me?
  25   MR LANGSTAFF: Sir, would you give me one moment?

   1     (Pause). Sir, that would be a convenient course and
   2     perhaps if Mr Wisheart would like to retire, Mr Moon can
   3     join him.
   4   THE CHAIRMAN: Thank you. Thank you, Mr Moon.
   5     Mr Wisheart, please step down and those who advise you
   6     will claim you.
   7            (The witness withdrew)
   8   THE CHAIRMAN: Mr Lissack?
   9         MR LISSACK: APPLICATION FOR RESTATEMENT
  10         OF GOVERNING PRINCIPLES OF THE INQUIRY
  11   MR LISSACK: Sir, thank you very much. I think that you
  12     were given notice of the application that I have to
  13     make. Thank you very much for letting me make it now.
  14     I think it is convenient both to those whom I represent
  15     and to the Inquiry.
  16        The application that I have is that we have now
  17     reached the halfway stage, at least in the calendar, in
  18     the taking of oral evidence in the first part of the
  19     Inquiry's work. We invite the Inquiry at this stage to
  20     restate the principles that guide and govern the
  21     Inquiry's deliberations.
  22        The Inquiry may wonder why. May I therefore take
  23     a moment to explain why we submit this is going to be
  24     a constructive thing that we invite you to do, and
  25     helpful for many of my lay clients, and perhaps others

   1     who have watched these proceedings, either in this
   2     chamber or from afar.
   3        We recognise that the process of Inquiry is slow
   4     and continuing. We recognise that, from the first, you
   5     have been anxious to underline that you embark upon this
   6     onerous task without preconception and conduct it
   7     throughout with an unfailing independence. Both of
   8     those principles we quite understand, as I think does
   9     every single one of the 600 individuals in the group
  10     that I represent. And all that lies behind those two
  11     principles of no preconception and maintained
  12     independence is understood.
  13        But you will know from that which over the last
  14     few months you have been good enough to listen to me
  15     from time to time and from that which has been passed
  16     through the appropriate channels to you, that there are
  17     in some whom I represent elements of bewilderment and
  18     even a restlessness from time to time. Those who have
  19     fought so hard for this Inquiry placed in the first few
  20     moments of its sitting, through the opening statement
  21     you permitted me to make, their hopes and confidence and
  22     faith in you. They are willing to leave it there. They
  23     are willing to be patient in the hope and expectation
  24     that when we do apply to cross-examine at some later
  25     stage of this Inquiry, the application that we then make

   1     will be taken seriously and all the more so because we
   2     have not made applications before and make no
   3     application now.
   4        I say "when we apply" not "if we apply" advisedly,
   5     because it is our judgment that there may be a price to
   6     be paid for independence in this Inquiry or in any other
   7     similarly constituted investigation, because in order to
   8     preserve that independence, it may be necessary that
   9     questions which must perforce be asked with a vigour and
  10     a persistence that is perhaps out of step with the
  11     general tenor and approach, that those questions can
  12     only properly be asked from someone who might be
  13     labelled "partisan".
  14        The lawyers for the BHCAG have worked very hard,
  15     sir, to win and retain the confidence of our large
  16     number of lay clients, each individuals with their own
  17     perceptions, their own hopes and their own wishes;
  18     worked hard to retain their trust that our advice as to
  19     the proper approach to be taken on their behalf, which
  20     is one that may appear supine to the casual observer but
  21     you know otherwise, will pay dividends and it is the
  22     right way to ensure that we best help you get to the end
  23     of this Inquiry efficiently and effectively. I have to
  24     tell you that sometimes the winning and maintaining of
  25     that confidence has been far from easy.

   1        Equally, we, and they, as I said earlier, continue
   2     to place our trust in this Inquiry and its processes.
   3        The autumn and winter will be difficult. The
   4     strains and stresses upon our clients in the last few
   5     weeks, and indeed upon their representatives also,
   6     cannot be overstated. They are not legal stresses and
   7     strains, they are human stresses and strains. It is
   8     inevitable that whatever has been endured in recent
   9     weeks will be much much worse for many of our clients in
  10     the months ahead. It is my hope that we all emerge out
  11     of this millennium and into the next with our clients'
  12     trust in us, and all of our trust in the Inquiry intact,
  13     and it is with that object in mind and no other we think
  14     it may be helpful if you feel able, before we break --
  15     which is why I make the application today, a few days
  16     before the end of sittings -- to send us away for the
  17     weeks that we have away from this building with
  18     a restatement of the principles which, as I said before,
  19     guide and govern this enormously important Inquiry.
  20        Sir, that is my application.
  21   THE CHAIRMAN: Mr Lissack, thank you very much.
  22     I know that there is a lot of trust placed in the
  23     Panel. We feel it. We hope it is not misplaced, and we
  24     hope that we can fulfil that trust.
  25        On your particular point about re-examination, we

   1     will of course treat any application on its merits; you
   2     have our assurance.
   3        I understand the position you are in, and you put
   4     it very well, and it is very helpful to hear it for all
   5     of us, not only here in the Panel but elsewhere.
   6        Maybe it will help if I say one thing. First of
   7     all, I am happy to accede to your application, and
   8     certainly will do as you ask, but maybe it will help
   9     some if I just say one thing to everyone who has been
  10     following this Inquiry, on behalf of all of us here. It
  11     would be much simpler for the Panel to conduct this
  12     Public Inquiry if we had already made our minds up, and
  13     reached our conclusions about, if I can put it crudely,
  14     who are the bad guys and who are the good guys. We
  15     could have announced our findings long ago and we could
  16     have struck camp. It would have been simpler, yes. But
  17     it would have been unfair; it would have been improper,
  18     and it would have been a breach of the Trust which you
  19     rightly refer to, Mr Lissack, placed in us by the wider
  20     public.
  21        Furthermore, just so that I put that in context,
  22     I repeat again, we are not conducting a trial, far less
  23     a show trial. We are conducting a huge wide-ranging
  24     Public Inquiry, which, as I said in October, goes to the
  25     very culture at the heart of the health care within the

   1     National Health Service, both in the past and for the
   2     future.
   3        So, as you rightly, if I may say so, and
   4     helpfully, Mr Lissack, remind us, we proceed carefully
   5     and we proceed slowly, and we proceed too slowly for
   6     some.
   7        We are only halfway through the oral hearings and
   8     we are a year away from the report. There is much yet
   9     to read and to hear. We promised, we gave our
  10     assurance, that we would seek to get to the bottom of
  11     things, so that means there is much digging yet to be
  12     done.
  13        Thank you, Mr Lissack.
  14   MR LISSACK: Thank you very much.
  15   THE CHAIRMAN: Mr Langstaff, you were going to help us?
  16   MR LANGSTAFF: If you give me again one moment, please.
  17     (Pause).
  18        Sir, Mr Wisheart for his part would have been
  19     happy to start at 9 o'clock. I say "would have been
  20     happy" because perhaps I have demonstrated in asking
  21     that we begin at 9 that it is better, as normally
  22     happens, that Counsel to the Inquiry talk extensively
  23     with the representatives of interested participants
  24     before opening his mouth, because what I had overlooked
  25     was the fact that a number of people who are interested

   1     in following personally our proceedings here have
   2     child-care difficulties, which means that 9 o'clock is
   3     simply too early, and it is important, and as a parent
   4     I should have recognised it, that they should be given
   5     that time.
   6        Sir, arrangements can be made for Professor Green
   7     to leave in order to catch a train at 1.15, which will
   8     suffice and that gives us probably the extra half an
   9     hour we might have needed. It means we will probably
  10     have to conclude his evidence no later than 12.30 in
  11     fairness to him, but that is achievable.
  12        So for all those considerations, may I ask, with
  13     all due thanks to Mr Wisheart for being willing to start
  14     earlier, that we do in fact begin at 9.30 as first
  15     planned. I am sorry for raising it.
  16   THE CHAIRMAN: I echo those thanks and I am grateful
  17     to you for being able to resolve the matter behind you
  18     and that is something that the Panel always applauds.
  19        So thank you, everyone. Thank you, Mr Langstaff.
  20     We adjourn now and reconvene at 9.30 tomorrow morning.
  21   (3.50 pm)
  22      (Adjourned until 9.30 am on Wednesday 21st July 1999)
  23
  24
  25

   1
   2                I N D E X
   3
   4
   5     MR JAMES WISHEART (recalled):
   6        Examined by MR LANGSTAFF (continued)......... 1
   7
   8     MR LISSACK: Application for restatement
   9         of governing principles of the Inquiry...... 153
  10
  

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Published by the Bristol Royal Infirmary Inquiry, July 2001
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