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FULL TRANSCRIPT

   1                    Day 52, 20th September 1999
   2   (10.30 am)
   3   THE CHAIRMAN: Good morning, everyone. Good morning,
   4     Mr Langstaff.
   5   MR LANGSTAFF: Good morning, sir. Sir, today we cover two
   6     of the blocks of evidence which concerns this Inquiry:
   7     the first is a revisiting of Block 2, the national
   8     scene, when our witness is Sir Graham Hart, who was
   9     centrally involved at the top of the Department of
  10     Health for some of the years in question, as his
  11     statement describes.
  12        Later on today we will return to what we will come
  13     to know as Issue J, the retention of tissue issue, and
  14     we will have the benefit of hearing from Ms Helen
  15     Rickard.
  16        Sir Graham Hart, would you come forward, please?
  17     Sir Graham, we have a practice of standing to take the
  18     oath.
  19            SIR GRAHAM HART (SWORN):
  20            Examined by MR LANGSTAFF:
  21   Q. You are Sir Graham Hart?
  22   A. I am, indeed.
  23   Q. Can we have please on the screen WIT 40/1? Is that the
  24     start of your statement?
  25   A. Yes, it is.

   1   Q. In which you describe how, in 1985 as a Deputy Secretary
   2     Grade 2, you became the Director of Operations at the
   3     NHS Management Board, and worked as that until the end
   4     of 1989, and then from March 1992 until November 1997,
   5     you were Permanent Secretary at the Department of
   6     Health?
   7   A. Correct.
   8   Q. Can we turn to page 44? Is that your signature at the
   9     foot of the statement?
  10   A. It is.
  11   Q. Are the contents of that statement true?
  12   A. They are.
  13   Q. It is our practice to take the statement as read, so the
  14     questions which I ask will be questions around and
  15     following from the statement, but I will not ask you
  16     about the contents of it.
  17        You set out in paragraph 2, if we return to
  18     paragraph 2 of the statement, the ideas of duty,
  19     responsibility and accountability, using all three words
  20     in that paragraph.
  21        So far as the Department was concerned, someone in
  22     your position, how far did you see the responsibility of
  23     the minister of state extending for the day-to-day
  24     operations in hospitals?
  25   A. There is always, I think, a slight paradox about the

   1     arrangements that have been in place since 1948, because
   2     in the legal sense the Secretary of State as it now is
   3     has an overall responsibility for the service and he is
   4     accountable to Parliament for that. He will be
   5     questioned about anything and everything that goes on in
   6     the NHS.
   7        But in practice, of course, it is a vast service
   8     with millions, I suppose, of things happening every
   9     week, with hundreds of thousands of employees, and lots
  10     of hospitals and so on. It is simply impracticable for
  11     the Secretary of State to be in any detailed sense
  12     responsible for what goes on every day in every
  13     hospital.
  14        So Parliament provided that there should be set up
  15     and there should be accountable to him various statutory
  16     bodies who would carry out those responsibilities on his
  17     behalf.
  18        So the Secretary of State was not, and to my
  19     knowledge is not, as it were, routinely involved in what
  20     goes on in every hospital in the country. It does not
  21     mean that he does not take a very considerable interest
  22     in what has gone on, or may go on, in a particular place
  23     at a particular time for some special reason.
  24   Q. So obviously the fact of size means there has to be
  25     a division of function even if not of responsibility,

   1     and do I take it from what you are saying that the
   2     Secretary of State, although he has a nominal
   3     responsibility for the whole of the National Health
   4     Service, in fact concerns himself with what one might
   5     describe as "policy issues"?
   6   A. Generally speaking. As I have said I think later on in
   7     the statement, the Department's responsibilities --
   8     functions, at any rate -- tend to be very much of a kind
   9     of strategic and general kind related to policy, to the
  10     provision and distribution of resources, and at a high
  11     level, I suppose, the implementation of policy and
  12     performance, although, as I say in my statement, I think
  13     these are rather more problematical areas and ones
  14     where, over the years, I think probably the position has
  15     changed somewhat. I think these days there is a greater
  16     interest at the centre in policy implementation and
  17     performance of the NHS than there was originally. That
  18     is an area where I think attitudes have changed
  19     somewhat, practice has changed somewhat, over the
  20     years. But the fact remains that it is quite
  21     impractical, and I think wrong, for the Secretary of
  22     State or the Department on his behalf to try to
  23     superintend or supervise or be involved in routinely
  24     what is going on in each and every hospital, health
  25     centre and so on. It is just not practicable.

   1   Q. So what is required, presumably, is that there are
   2     structures in place by which, if necessary, the centre
   3     and the top, the Secretary of State, can be informed
   4     about what is happening at the -- one might call it the
   5     very bottom of the ward in a general hospital somewhere
   6     in the remoter parts of England?
   7   A. You need structures in place to -- you said to be
   8     "informed about". Up to a point it is not possible to
   9     be informed about everything that is going on,
  10     obviously, so you need to concentrate on the things that
  11     you think are of strategic importance, if I can put it
  12     that way, but of course what often happens, and I think
  13     inevitably happens, is that things happen in the NHS
  14     which require ministerial attention and action, which
  15     you have not been informed about in advance, you have
  16     not picked up from your as it were routine monitoring
  17     systems, whatever they are to be, which come to your
  18     attention because people bring them to your attention,
  19     whether it be the press or whether it be patients or
  20     people involved in the service. There are a whole lot
  21     of ways that the Department is constantly being informed
  22     about what is going on in the NHS, and its own internal
  23     management monitoring systems are probably one of the
  24     smaller contributors, as it were, to the Secretary of
  25     State's knowledge about what is actually happening.

   1     I mean, you just have to read the newspapers these days
   2     to see that.
   3   Q. So in terms of the structures, they should deliver the
   4     performance for the National Health Service for which
   5     the Secretary of State at the top is responsible. So
   6     far as policy is concerned, policy involves priorities,
   7     does it?
   8   A. Certainly, yes.
   9   Q. Who sets the priorities for health in the Department of
  10     Health?
  11   A. Gosh, that is a pretty general question. I mean, any
  12     important statement about policies or about priorities
  13     would be taken by ministers on advice from officials and
  14     possibly from people outside the Department, which set
  15     of officials would obviously depend on the subject. If
  16     you are asking about the National Health Service, ever
  17     since 1985 most of the advice that ministers would have
  18     had about the NHS would have come from the NHS
  19     Management Board, later the NHS Management Executive,
  20     although again, as I say in my statement, there was
  21     a period of some I suppose it was about 9 years when
  22     responsibility for some aspects of Health Service policy
  23     was not with the Management Board but with a separate
  24     policy directorate, if you like, elsewhere in the
  25     Department.

   1        But essentially, officials advising ministers on
   2     anything of any real importance or significance.
   3   Q. Can I stay with the issue of how one approached the
   4     development of policy and priority, given what happened
   5     after Griffiths. What you tell us in your statement is
   6     that following Griffiths, the NHS Management Board was
   7     set up. The way in which you describe it -- the top of
   8     page 3 [WIT 40/3] -- is that the NHS Board at the start
   9     did not have responsibility for policy on a wide range
  10     of issues relevant to the NHS, for instance, acute
  11     services. Those policy issues, you say, "remain the
  12     province of an administrative Deputy Secretary command
  13     (the Health and Social Services Policy Group)". You go
  14     on to describe how the Supra Regional Services Advisory
  15     Group you see as being part of the Deputy Secretary
  16     command to which you refer in paragraph 9. I have
  17     understood that correctly, have I?
  18   A. I do not want to be nit-picky. It was not technically
  19     part of anybody's command. It was an advisory group
  20     chaired by a regional chairman who actually stood
  21     outside the departmental structure. It was outside
  22     people serviced by officials from within.
  23   Q. Let me come back to that and how it fitted in, but so
  24     that we understand, why was it that some health policy
  25     was divorced from other health policy following

   1     Griffiths and until the later report on the situation
   2     from 1995?
   3   A. I was not involved in the original decision to structure
   4     the departments in 1985 in the way that it was done, but
   5     I think probably the rationale for doing it in the way
   6     that it was done was a two-fold belief: a belief that
   7     the Management Board which was then going to be a very
   8     new setup and structure would have so much on its plate
   9     in terms of getting the Griffiths report implemented and
  10     so on, that it was probably wise to keep work which
  11     could be separated off, separated off to as it were ease
  12     the load.
  13        I think probably the second reason that people had
  14     was a belief which I personally never shared, and
  15     certainly do not now share, but a belief that you could
  16     perhaps even beneficially, certainly it was possible to
  17     separate policy from management and its implementation,
  18     and that that separation might be even beneficial
  19     because it, as it were, enabled the policy issues and
  20     the management issues to be more clearly seen, if you
  21     like. If you, as it were, mix them up by putting them
  22     in the same body, one might pollute the other, and
  23     somehow you might retain some purity of the process, if
  24     I can put it that way. You have policy being clearly
  25     decided in one part of the organisation and management

   1     and its implementation being managed in another.
   2     I never shared that view, although of course I accepted
   3     the structure we had and worked with it. But we did
   4     change it, as I say.
   5   Q. When you say that the NHS did not have responsibility
   6     for policy on a wide range of issues, do I take it that
   7     it had responsibility for policy on some?
   8   A. Yes, certainly.
   9   Q. So it was not the clean division that the argument in
  10     favour of separating management from policy would imply?
  11   A. No. Its policy responsibilities related to issues which
  12     are, it has to be said, of the essence of management,
  13     for example, in relation to personnel practice in the
  14     NHS, in relation to finance, how the NHS should be
  15     financed, how much money it should have, how that should
  16     be distributed, those sorts of issues which are policy
  17     issues but also are about how the NHS is managed were
  18     always with the Executive. Really policy about services
  19     and acute services would be an example, or about mental
  20     health, for example. Those issues were kept separately
  21     in the Health and Social Services Policy Group.
  22   Q. So you had two separate parallel streams of
  23     organisation, did you?
  24   A. Yes.
  25   Q. And your own view, you never accepted that was

   1     a sensible way of organising matters, although you had
   2     to accept it?
   3   A. Yes. I accepted it, Mr Langstaff, and I worked with
   4     it. I just had my own personal reservations about
   5     whether it was the ideal way of doing things.
   6   Q. Why was it not?
   7   A. Why was it not the ideal way of doing things? As I say
   8     in my statement, in the 1990s we had the whole issue of
   9     departmental organisation looked at by a former
  10     colleague, Mrs Banks, and she took the view (which
  11     I agreed with) that it would be better to include the
  12     policy for the NHS and about the NHS in the Executive
  13     because that would make it more likely that the making
  14     of policy was properly informed by management and, as it
  15     were, the practical implications of it, firstly.
  16     Secondly, that the implementation of policy would be
  17     carried out in a way that was more understanding and
  18     accepting of the policy considerations that had led to
  19     the policy.
  20        I am sorry, I do not know whether that is clear or
  21     not. Do you want me to try again? Have I expressed
  22     myself clearly?
  23   Q. I think it is clear, but for the benefit of others, if
  24     you want to try again, please do so.
  25   A. I think it is important for the people who implement the

   1     policy to understand it; to have been involved in a very
   2     close way in its formulation, and last but not least, to
   3     have it in the right place in their order of priorities.
   4        That is more likely to happen if it is their
   5     policy than if it is the policy that somebody else has
   6     devised, albeit in consultations, and then, as it were,
   7     presented to them for implementation.
   8        It may be that this is not the way that things
   9     should be, but it is in the real world the way that
  10     people actually behave, so I always felt it was
  11     important for the Executive to be closely involved in
  12     that, indeed, responsibility for the whole range of NHS
  13     policies, which is the position that we achieved in
  14     1995, and which I think still obtains today.
  15   Q. You mentioned a moment ago the way in which the Supra
  16     Regional Services Advisory Group fitted in or did not
  17     fit in to the parallel systems that we were describing.
  18   A. Yes.
  19   Q. Can I again understand the relationship between the two
  20     parallel streams, the management stream and the policy
  21     stream, to the Supra Regional Services Advisory Group.
  22        It was an Advisory Group for the Minister?
  23   A. Certainly.
  24   Q. To whom did it report?
  25   A. Obviously at one level to Ministers. No, I think the

   1     answer unequivocally to your question is to Ministers.
   2     I do not think it reported to any official in the
   3     Department; it reported unequivocally to Ministers.
   4   Q. So to what degree would the policy stream be informed in
   5     advance, let us suppose, of the advice that was likely
   6     to go to a Minister from a body which inevitably was
   7     going to be concerned with policy so far as
   8     supra-regional services were concerned?
   9   A. The Department provided the Secretariat, as you know
  10     because you have taken evidence, from the officials
  11     involved on the medical and on the administrative side.
  12     Those were two post-holders within the policy structure
  13     that I was describing earlier, not part of the
  14     Executive: Dr Halliday, I think, throughout the period
  15     and various administrators.
  16        They would obviously be deeply and closely
  17     involved in everything that the group did, because they
  18     wrote the papers, or many of the papers -- not all of
  19     them probably, but they wrote the papers, organised the
  20     meetings, took the minutes; they would brief the
  21     Chairman, and so on.
  22        As to how far the Management Executive was
  23     involved in all that, I think their involvement would
  24     have been -- I speak without personal involvement in all
  25     this, but I think the Management Executive's involvement

   1     would have been at a very general level later on in the
   2     process; in other words, at the point at which decisions
   3     were being taken about how much money would be set aside
   4     for spending on supra-regional services and where that
   5     fitted into the overall scheme of things, and about the
   6     arrangements for actually distributing those sums of
   7     money. That all would be handled by the finance side of
   8     the Management Executive. That really comes at the end
   9     of the process.
  10        I think the argument so far as officials were
  11     involved in the discussions about how the supra-regional
  12     services arrangements actually worked at the front end,
  13     that would be very much for the policy side, until 1995,
  14     when, as I have said, the arrangements were changed.
  15   Q. What you have described is the officials from the policy
  16     side, both the medical and administrative, having an
  17     input into the Supra Regional Services Advisory Group
  18     discussions, inevitably because of their involvement
  19     from the policy side of the Department of Health.
  20        What you have not described as yet is any feedback
  21     from them to the policy side and any subsequent
  22     interaction by the policy side with the decisions the
  23     Supra Regional Services Advisory Group might make or the
  24     advice it might give to Ministers.
  25   A. I am not sure whether I understand the point, but let me

   1     try, and tell me if I am on the ball here.
   2        What would happen, I think -- I was never
   3     involved, but my guess would be this was how things were
   4     done.
   5        The Supra Regional Services Advisory Group would
   6     meet. They would consider papers. They would take
   7     decisions. Those decisions would, as it were, take the
   8     form of recommendations to Ministers.
   9        Officials in the Department on the policy side
  10     would then brief Ministers, inform Ministers, about
  11     those decisions -- I mean, maybe not after every
  12     meeting, obviously it would depend on what would take
  13     place at the meeting, but when there was something that
  14     needed to be decided or to be done of importance, then
  15     either Dr Halliday or one of his administrative
  16     colleagues, they would presumably agree between them who
  17     would handle it, would put a submission up the line
  18     which would go to Ministers.
  19        Officials from the Management Executive might well
  20     be involved at that stage, if, for example, there was an
  21     issue of money which would involve looking at priorities
  22     for NHS spending, for example. Then certainly the
  23     finance people in the Management Executive would be
  24     involved. Indeed, they might have been involved at an
  25     earlier stage. They would certainly be involved at the

   1     stage at which a submission was being drafted for
   2     Ministers. And they might even be involved in
   3     discussions with Ministers if there was a meeting or
   4     something of that kind.
   5   Q. So the likelihood is, and you are speaking I appreciate
   6     from a general experience rather than particular
   7     experience of the Supra Regional Services Advisory
   8     Group, but your general expectation would be that the
   9     process of reporting to a Minister would involve
  10     probably the Minister having discussions with the two
  11     streams in the Department of Health, both policy and
  12     management, so that --
  13   A. Depending on the content, yes.
  14   Q. So that the advice itself was not, as it were,
  15     self-contained and removed from any other advice which
  16     the Minister was going to get?
  17   A. No, and the arrangements -- despite this division of
  18     responsibility that I described earlier in the
  19     Department, as I think again I say in my statement
  20     somewhere, there was a kind of house rule that whenever
  21     you were handling a piece of business that affected or
  22     had repercussions for another part of the office, you
  23     consulted and you informed and made sure that people
  24     were preferably happy, certainly knowledgeable about
  25     what you were doing, and that the whole Department

   1     operated as a single organisation.
   2   Q. We know from evidence we have had thus far in this
   3     Inquiry that each year the Secretary of State made an
   4     announcement about the supra-regional services and their
   5     funding for the following financial year. Under his
   6     name, does one anticipate that that is something which
   7     he, or at any rate a Minister in the Department, would
   8     have seen?
   9   A. Certainly.
  10   Q. At one stage -- again, if necessary we can call up the
  11     documents -- the Minister considered, in his paper for
  12     the forthcoming year, the future of neonatal and infant
  13     cardiac services as a designated service. We have heard
  14     in this Inquiry how, in the late 1990s, the mid-1990s,
  15     it became de-designated, the issue being that the advice
  16     that was being given from the Medical Royal Colleges and
  17     by the doctors to the effect that a small number of
  18     centres doing the work, six or seven was appropriate.
  19     The fact was that 13 were actually doing significant
  20     numbers of operations. The profession did not, we have
  21     heard, recommend a reduction from the 11 that were
  22     recognised down to 6 or 7, although it was prepared to
  23     suggest that 2, at least, might be de-designated, and
  24     the ultimate result was that a system thought to be in
  25     the public interest in terms of benefiting patient care

   1     was abandoned because of the proliferation, contrary as
   2     I have indicated, the evidence goes, to what was seen to
   3     be in the patient's interests.
   4        That is plainly a policy decision that was
   5     reached, and reached in the Minister's name ultimately,
   6     upon the advice of the Supra Regional Services Advisory
   7     Group.
   8        Can you help me with the level of decision-making
   9     that would have been involved, probably, in putting such
  10     decision to a Minister for his approval?
  11   A. I do not know about this particular case. I wonder,
  12     before I answer, whether I could just ask you,
  13     Mr Langstaff, you said the decision was taken "in the
  14     Minister's name", I think were the words you used.
  15     I would have expected that decision on de-designation to
  16     be taken by a Minister. Was that in fact the case?
  17     I do not know myself.
  18   Q. One has to assume so, because he says it was.
  19   A. Yes. You are asking me from what level in the
  20     organisation I would have expected that recommendation
  21     to go to Ministers? Is that your question?
  22   Q. It would come from the Supra Regional Services Advisory
  23     Group.
  24   A. But it would come with a submission from officials
  25     saying "Here is a report from the Supra Regional

   1     Services Advisory Group", I would expect, "This is what
   2     we think about it and here are the issues that you need
   3     to consider, you need to be aware", you know, on the
   4     pro side, on the con side. "Will you please tell us
   5     your decision". It might end up with a very positive
   6     steer to Ministers to either agree or disagree, or it
   7     might just leave it open and say, you know, "We give you
   8     no steer, but here are the pros and cons, what do you
   9     think?"
  10        I do not know at what level that submission was
  11     made to Ministers. It could have been made at any level
  12     from grade 7 on the administrative side up to a much
  13     higher level. I think it just depends on all sorts of
  14     factors like whether Ministers were already apprised of
  15     all this and aware of it and it was just really the last
  16     coping-stone, so to speak, in a process that had been
  17     going on for some while, or whether it was some new and
  18     novel issue they had not addressed before; it would
  19     depend on how controversial people thought it was, how
  20     significant, how important it was. So it might have
  21     gone from a relatively junior level or from a relatively
  22     high level. I think it just depends on the context.
  23   Q. Let me approach the same question in a slightly
  24     different way. When heart transplants first became news
  25     in the 1960s, I think, following the work of Barnard and

   1     others, were they widely performed, or was it suggested
   2     by the medical profession that they should be widely
   3     performed in the United Kingdom?
   4   A. I do not think they were -- I mean, at the time, if you
   5     are talking about right at the beginning, of course it
   6     was a very experimental process, and a rather
   7     controversial one, for all sorts of reasons, not just
   8     medical reasons. It is hard to think back to those
   9     days, but I think there were probably even ethical
  10     considerations, too, that were being floated about organ
  11     transplantation, or heart transplantation. So I do not
  12     think it was something that was going to be taken up in
  13     a widespread kind of way, but it certainly was something
  14     which, in my recollection -- I was not involved at all,
  15     but my recollection is that there were people in this
  16     country who quite naturally wanted to take it up and to
  17     do it. I think there were a number of procedures of
  18     that kind carried out at quite an early stage. Then, if
  19     my memory serves, we stopped. I mean, we, the British,
  20     we stopped. We did not do any transplants for quite
  21     a period, I think.
  22   Q. Why was that, as your memory serves?
  23   A. My memory is not based on personal involvement, it is
  24     based on what I have read in print probably around this
  25     general knowledge, but I think what happened was -- you

   1     would need to check this if it matters with the people
   2     involved, but my belief is that what happened was that
   3     the Chief Medical Officer of the day took the view --
   4     possibly Ministers took the view, I do not know -- that
   5     this was something which he wanted to be rather cautious
   6     and careful about, so discussions were had. And the
   7     surgeons concerned agreed to desist for a while until
   8     greater expertise and greater experience could be built
   9     up on doing this procedure.
  10        But that is to my knowledge. There may well be
  11     others. You are really talking to the wrong person, you
  12     really need to talk to doctors about this. My
  13     perception would be that that was a very, very unusual,
  14     if not unique, episode.
  15   Q. What you are describing is a process by which central
  16     influence, at any rate, or control, managed to prevent
  17     or dissuade an operation of a certain type being
  18     conducted --
  19   A. Influenced.
  20   Q. And the net consequence of that, as one understands, has
  21     been that transplants are, today, carried out in
  22     a number of centres in the UK -- a few centres with some
  23     considerable success, comparatively speaking.
  24        So far as operations such as those on the hearts
  25     of infants suffering from congenital heart disease are

   1     concerned, was there, as you would see the role of the
   2     Department of Health, anything that the Department of
   3     Health could have done, perhaps by analogy with the
   4     pressure brought to desist from transplant operations,
   5     to restrict those operations to a few limited centres in
   6     the interests of patient care?
   7   A. Of course the whole supra-regional services setup
   8     was indeed designed to encourage -- and I used the
   9     word "influence" earlier, and I am going to use the
  10     word "encourage" -- the performance of these very
  11     specialised supra-regional services by a relatively
  12     small number of centres, and, if you like, therefore by
  13     implication, at least, to discourage their performance
  14     by anybody who just felt like having a go.
  15        So the very existence of the supra-regional
  16     services arrangements was certainly designed partly to
  17     meet that need.
  18        If you are asking me what influence was brought to
  19     bear or could be brought to bear on units which
  20     performed these procedures outside the supra-regional
  21     services arrangements, again, I think the answer is that
  22     that would have to be a question of persuasion and with
  23     the use of influence. I think it is very questionable
  24     what, as it were, legal powers the Secretary of State
  25     would actually have had to stop a unit from carrying out

   1     such procedures. I think -- I am not a lawyer, you
   2     would have to ask yourselves -- but you would certainly
   3     have to take legal advice on this matter as to how far
   4     the Secretary of State's actual powers would extend, and
   5     they might not extend that far. Certainly I think you
   6     would have to have some pretty good reasons for trying
   7     to stop somebody, not just a kind of general policy, you
   8     would have to be able to show there is some good reason
   9     why these people should be stopped from doing it.
  10        That is just on legal powers. There is another
  11     point which -- shall I go on?
  12   Q. Yes, please.
  13   A. There is another point that I think in the real world
  14     a Minister would always think twice or three times
  15     about, as it were, entering into a controversy with
  16     a particular unit or series of units by saying, "I want
  17     you to stop doing this", unless, as I say, there was
  18     some really good evidence. If it was going very badly
  19     wrong and it was quite clear that this should not be
  20     done, that is one situation. But if his only ground for
  21     doing it was, "We have this general policy which is in
  22     favour of these procedures being done in a few centres
  23     and that is why we have supra-regional services and you
  24     are not one of the chosen few, so to speak, so I want
  25     you to stop for that reason", I think that would be

   1     a very difficult argument to carry off in a situation of
   2     public controversy.
   3        When the Secretary of State or Minister was
   4     confronted, so to speak, in the argument, in the debate,
   5     with probably a very highly qualified consultant, who
   6     arguably in his view had the skills, could find the
   7     resources, had the patients in front of him, could say
   8     to the public, "Look, I have got the means, I have got
   9     the patients, I should be treating them, it is my
  10     ethical duty to be treating them. Here they are, if you
  11     forbid me from doing so or try to stop me from doing so,
  12     my only choice then is to, as it were, pass them on to
  13     a colleague 50 or 100 miles away who may already have
  14     quite a long waiting list".
  15        And further to that point, how do we make
  16     progress? Many of these procedures, it was clearly
  17     envisaged would, as it were, take off. More and more
  18     patients would be found to be suitable for them, the
  19     techniques would develop and so on and so forth, so
  20     something which at one time was very, very exceptional
  21     and rare and done in one or two centres, as with heart
  22     transplantation, would later become almost -- perhaps
  23     not routine, but very widely done in a lot of centres.
  24     How can you expect this procedure to be extended if you
  25     just put a kind of bureaucratic blanket on anybody

   1     acquiring off their own bat the skills and the resources
   2     to do it?
   3        So I am putting an argument that I think would
   4     have been put if the Secretary of State had tried to, as
   5     it were, put on his hobnailed boots and go down to
   6     a particular place and say, "Stop doing that". You
   7     could have done it, but it might not have been very wise
   8     and I think you would have had to have had some very
   9     good specific reasons, not just general reasons.
  10        None of that is in a sense quite on the point of
  11     Bristol, which of course was designated as a centre at
  12     the beginning, and remained one I think throughout the
  13     time that this subspecialty was a designated one.
  14   MR LANGSTAFF: So what you are saying to me is that the
  15     relationship between the Secretary of State, the
  16     Department of Health, the hospitals and the consultants,
  17     was such that even in a situation in which medical
  18     advice was, let us suppose, unanimously to the effect
  19     that, leave aside for the moment heart disease,
  20     a particular procedure would be more successful in, let
  21     us suppose, three or four centres only, if restricted to
  22     those, that there was in practical terms nothing that
  23     the Secretary of State or the Department would, or
  24     could, realistically do to prevent it in fact being
  25     conducted in 12, 13, 20, however many centres actually

   1     decided they wanted to do the job?
   2   A. No, I think that is an overstatement. I think there are
   3     constraints. They are partly as it were peer opinion
   4     constraints in the sense that if the hypothesis is, as
   5     you say, that the professional advice was unanimous,
   6     I do think it is uncharitable, and I think probably
   7     wrong, to say that every consultant in the country will
   8     ignore that view. I think many people would accept it
   9     and go with it.
  10        Secondly, I think there were things on the
  11     narrower point of what could Ministers and the
  12     Department do, I think as I said at the beginning, the
  13     supra-regional services arrangements were themselves
  14     a reasonable effective mechanism for encouraging and
  15     influencing things in the sense of limitation. I can
  16     expand on that, if you like. Thirdly, as I have said,
  17     I think that the Secretary of State could have
  18     intervened and taken action on particular cases, but as
  19     I said to you, only I think if there was some pretty
  20     good reason for doing so. My understanding is that --
  21     it is certainly perfectly thinkable -- that some of the
  22     units that were doing these procedures outside the
  23     supra-regional services arrangements had a good record.
  24        So why should he, in a sense, intervene? I think
  25     he created the right kind of environment in which the

   1     tendency would be towards limitation and specialisation,
   2     but he was not, as it were, putting down an absolutely
   3     rigid framework within which there was no room for
   4     movement at all.
   5   Q. Sir Roy Griffiths, when he began to work on his report
   6     in 1983 and produced it in 1984, likened the National
   7     Health Service to industry and used, as one understands
   8     it, an industry model against which to measure the
   9     management systems in the National Health Service.
  10        If one were approaching the issue that I have just
  11     been canvassing with you as an issue coming before the
  12     Board of albeit a very large corporation, and the
  13     question is put to the Board, "We are producing this
  14     particular product in 20 factories; some of the
  15     factories, actually, some of the lines do it very well,
  16     but it would be more efficiently and better produced in
  17     four", one anticipates what the normal commercial board
  18     would pretty quickly achieve, because after all, it
  19     controls the purse strings and directs the operation.
  20        What are you saying are the constraints on the
  21     National Health Service that prevented it acting in that
  22     way, even post-Griffiths?
  23   A. It is a common misconception. I do not think that Roy
  24     Griffiths thought you could run the health service like
  25     Sainsbury's. He never thought that. He had a very good

   1     understanding of the Health Service, and in particular,
   2     of the very considerable and proper influence which the
   3     medical profession and the consultants individually have
   4     within it. A hospital is not like a supermarket, and
   5     the Health Service is not a supermarket chain. You may
   6     be right, that the decision about whether to open or
   7     close a factory, or indeed a supermarket, is taken
   8     routinely at the Board of the supermarket chain. The
   9     Health Service is not like that; it never has been.
  10     Perhaps it is slightly more like it these days than it
  11     was 10 or 15 years ago. But I come back to the point
  12     that I was making to you earlier, Mr Langstaff, which is
  13     that there are a whole series, many hundreds of
  14     statutory bodies set up by Parliament who are
  15     responsible for running the services locally, and who
  16     have a responsibility to decide what goes on in those
  17     hospitals. That is bound, and very properly, to dilute
  18     the power which lies at the centre.
  19   Q. So you are giving me as one reason the balance of local
  20     and central power?
  21   A. Sure.
  22   Q. Despite what you say in your statement and have
  23     confirmed to me earlier, that at a central level the
  24     distribution of resources is controlled, the degree to
  25     which those resources are allocated or hypothecated to

   1     one particular form of treatment or one particular type
   2     of unit is left, is it, to the region or the district or
   3     whatever the body happened to be at the particular time?
   4   A. Correct. As a generalisation, correct. Obviously the
   5     supra-regional services themselves were an exception to
   6     that in the sense that you were taking a sum of money,
   7     an earmarked sum of money and separating it off from the
   8     generality of the funds for the Health Service, and
   9     Ministers were saying, "We will allocate so many 10s or
  10     100s or whatever it was, of millions, to the supra-regional
  11     services and they will be allocated in the following
  12     amounts". That was a justified arrangement because of
  13     the nature of the supra-regional services, but the great
  14     generality of Health Service funds were not, to use the
  15     term of art that we then used, top-sliced, removed from
  16     the general pool and allocated to specific purposes.
  17     That was unusual, and the whole weight of the system and
  18     Ministers were always very keen to minimise that as far
  19     as possible, because they wanted to maximise the degree
  20     of discretion which the local health authorities had for
  21     determining their own priorities and for their sense of
  22     responsibility for what they were doing. Obviously, if
  23     you dictate from the centre exactly how the money is
  24     going to be used, that removes any real responsibility
  25     from the local body, which is not desirable.

   1   Q. I understand the point you are making in the context of
   2     the fairly simple hypothetical example that I put to you
   3     of the operation best conducted in three or four centres
   4     but in fact conducted in 20 or more. The proposition
   5     that it was best conducted in three or four centres
   6     would of course be at a national level and could only be
   7     seen at a national level. Does it follow from the way
   8     in which you are describing the relationship between the
   9     centre and the regions or districts that taking such
  10     a national perspective and requiring the policy of the
  11     regions or districts to be within the framework of that
  12     national policy, was not something which practically
  13     speaking was open in the 1980s and 1990s to the
  14     Department of Health?
  15   A. I think it is a matter of degree, really, Mr Langstaff.
  16     I do not know that -- I think you are perhaps kind of
  17     slightly stretching the facts, are you not, possibly in
  18     relation to --
  19   Q. I am putting a hypothesis to inspire an answer.
  20   A. If you are not talking about paediatric cardiac surgery
  21     (where I understand there is a discrepancy between the
  22     number of designated centres and the number doing it;
  23     it is much narrower than the kind of span you are
  24     talking about) and you are talking about a hypothetical
  25     case in which the centre had decided on no doubt very

   1     good professional advice that three or four centres was
   2     the desirable number and it had proliferated to the
   3     point of 20 or more, then I think the first comment that
   4     one would make on that is that clearly in that
   5     hypothetical case, something has very badly gone wrong,
   6     something is wrong somewhere. Either the policy is
   7     wrong or a whole lot -- not just a few, but a whole lot
   8     of people have taken leave of their -- not taken leave
   9     of their senses, perhaps, but certainly are overreaching
  10     themselves, and I think you would want to sort that out
  11     in one way or another, you would want to have another
  12     look at the policy and you would want to have a look
  13     very closely at the results that the people in the 16 or
  14     17 units who were not designated were getting.
  15        As I said all along, if those results were pretty
  16     good then I think you would have to rethink your
  17     policy. If they were pretty bad, then you would want to
  18     do something by way of persuasion, and persuasion can,
  19     you know, take various forms and be quite powerful. If
  20     the results were really bad, if it was an absolute
  21     scandal that was going on here, then I think the
  22     Secretary of State would probably be able to use such
  23     legal powers as he had, but one would hope it would
  24     never come to that in the sense it would never be that
  25     bad. But persuasion can be pretty limited. I am not

   1     aware of any case under the supra-regional services
   2     advisory arrangements that really got quite out of
   3     kilter in the way that your example does.
   4        May I say one further word about, as I always
   5     understood it, not being personally involved in the
   6     supra-regional services arrangements, it was that those
   7     arrangements were, to use an analogy, a carrot, if you
   8     like, but it seems to me carrots can also be used as
   9     sticks, if you know what I mean, they can turn into
  10     sticks. What I mean by that is that if one looks at the
  11     hospital where the surgeons or physicians, surgeons,
  12     shall we say, wanted to branch out in a big way into
  13     a new field, which was a supra-regional services field,
  14     assuming that hospital is well-run, they would have to
  15     persuade the management of the hospital to allocate
  16     resources for that to be done. There would be bound to
  17     be some pretty intense discussion about why that should
  18     be, in that particular place, given that there was
  19     central funding allocated for this service and this
  20     particular hospital was not in receipt of that funding.
  21     That would be a pretty big disincentive, I think, to the
  22     management of any hospital to indulge in that. They
  23     might be persuaded, of course, these things can happen,
  24     but it is not a walk-over, so to speak, on behalf of the
  25     entrepreneurial consultant; there would have to be some

   1     pretty difficult discussions about that before that
   2     happened.
   3        I think that probably was quite a powerful
   4     disincentive to people to start up these things in every
   5     conceivable place.
   6        On the other hand, on the other side of that
   7     equation, you have to say that people who were inclined
   8     to do that, and were doing this type of thing, were
   9     motivated I am sure by absolutely the best of motives,
  10     the desire to help patients and professional ambition,
  11     which is a good thing,to develop the work of their unit.
  12        So these are quite complex, difficult issues which
  13     did not have an absolutely clear-cut outcome in terms of
  14     "you are designated and you do it" or "you are not
  15     designated and you do not do it"; there was some
  16     fuzziness around the edges, some spillage around the
  17     edges, but I still think it is an important context of
  18     influence and the beginnings of a kind of discipline
  19     that helped to ensure that the services did not
  20     proliferate in the way that they certainly would have
  21     done if there had just been a kind of complete
  22     free-for-all, no policy, just "Do what you like, chaps".
  23   Q. The "Do what you like, chaps", is the response of the
  24     clinician who has clinical freedom to provide whatever
  25     treatment he thinks is in the best interests of the

   1     patient. You are describing, are you, to some extent
   2     the balance that was struck or it might be said by some
   3     has to be struck, between the needs of the funding
   4     agency to secure the result which is intended by the
   5     funding on the one hand with the freedom, if there is
   6     such, on a clinician to treat the patient as he best
   7     thinks the patient deserves to be treated?
   8        Do you see policy, the balance between those two
   9     considerations, as having altered during the period of
  10     your involvement in the Health Service, or not?
  11   A. Yes. I think it has, really, yes. I think if you go
  12     back to my early days, so to speak, of involvement in
  13     all this, which would be in the 1960s, and even roll it
  14     forward to the early 1980s, really, there was a feeling
  15     around -- this can be oversimplified -- that clinical
  16     freedom meant that the centre -- Ministers, in effect --
  17     should keep out of anything to do with the practice of
  18     medicine, if you like. I am putting that in a very
  19     stark way, but I think there was that kind of general
  20     belief.
  21        I think that over the years both the profession
  22     have come to accept -- perhaps their representatives
  23     would not say it quite like this, but they have come to
  24     accept more and more that Ministers have a legitimate
  25     interest here and have certain responsibilities to try

   1     and see that the quality of service that is given to
   2     patients is of the right kind, the right level, and that
   3     it is legitimate for Ministers to be interested in that
   4     and to try at least to set up certain kinds of procedure
   5     and process to try and ensure that that happens.
   6        On the other hand, I think that Ministers and
   7     officials, if you like, the Department, have over the
   8     years become somewhat more bold, ambitious in its
   9     approach to these things. This is how the world is, it
  10     changes, fortunately for all of us, and over the years
  11     I think things that would once have been thought pretty
  12     well unthinkable, certainly very, as Sir Humphrey would
  13     have described it, "courageous" things to do, are no
  14     longer regarded in that light but are regarded as
  15     perfectly acceptable things to do. So I think there has
  16     to be a change in perception. It is not total, but it
  17     is significant.
  18   Q. In the Griffiths report -- we will just have a look at
  19     some of the general comments which he made. It is
  20     HOME 3/12. This comes from Griffiths, it is page 10 of
  21     what is acknowledged to be a short but effective
  22     report. In paragraph 2, under his general observations,
  23     he describes the NHS not having a profit motive but
  24     being enormously concerned with the control of
  25     expenditure:

   1        "Surprisingly, however, it still lacks a real
   2     continuous evaluation of its performance against
   3     criteria such as those set out above ..."
   4   A. I am missing the right-hand edge of mine.
   5   Q. It must be the photocopying, I am sorry.
   6   A. I can take it from you, anyway, "such as those set out
   7     above..."
   8   Q. "Rarely are precise management objectives set. There is
   9     little measurement of health output. Clinical
  10     evaluation of particular practices is by no means common
  11     and economic evaluation of those practices extremely
  12     rare."
  13        Leaving aside the economic and leaving aside the
  14     question of output, the number of operations done,
  15     clinical evaluation of particular practices is by no
  16     means common.
  17        In this paragraph as a whole, what Griffiths
  18     appears to be observing, and the implication is,
  19     complaining about, is that the NHS had no proper
  20     measurement of the quality of the care it was providing
  21     in general terms.
  22        First of all, from your own perspective, was he
  23     probably right about that, at the time?
  24   A. Yes. I mean, I would say, I think, what he was saying
  25     was that there was no system, if you like. Some of

   1     these things happened, but they did not happen in an
   2     organised and systematic way. I think that is true. He
   3     was spot-on, there.
   4   Q. What you say about that -- I will take you back to your
   5     statement and to page 2, paragraph 6. You are talking
   6     here about the monitoring of the quality of clinical
   7     services.
   8   A. Yes.
   9   Q. You note that the position in the 1980s was very
  10     different from the position today.
  11   A. Yes.
  12   Q. You say this:
  13        "There is a deeply rooted reserve on the part of
  14     the department - shared by the professions - about
  15     departmental involvement in clinical performance."
  16   A. Yes.
  17   Q. To what extent is that a reflection of our discussion
  18     a moment or two ago about clinical freedom and the
  19     Departmental right or not to get involved?
  20   A. Yes, I think it is exactly a reflection of that view.
  21     I think it is founded on two things which I would
  22     slightly separate one from another. I mean, one is the
  23     feeling that Ministers who are politicians should not be
  24     involved in anything to do with the clinical treatment
  25     of patients. I think that is the kind of origin of

   1     this, if you like, a sort of nervousness that has been
   2     around when you introduce, as one did in 1948, a system
   3     which is publicly funded by Ministers; Ministers are
   4     accountable to Parliament, as I have said, they have of
   5     course to exercise some kind of responsibility, some
   6     kind of control therefore over the use of the money.
   7     That could easily lead them into how individual patients
   8     are treated and whether they are well-treated and so on
   9     and so forth. I think the profession, and Ministers on
  10     their part equally, have always been extremely nervous
  11     about that. That is, it seems to me, a rational worry
  12     and one which people have perfectly properly as it were
  13     reacted to.
  14        The second, which is a slightly different point
  15     but it flows from the first, is that of course if
  16     Ministers might be tempted to tread down that path of
  17     involvement and intervention, then they could be pretty
  18     sure that there would be a tremendous row about it with
  19     the profession, and that is something which you
  20     certainly do not want to do without forethought; any
  21     Minister or Secretary of State may well have lots of
  22     points of disagreement with the profession over many,
  23     many issues, potential disagreements at any rate, and if
  24     you are going to fight battles, you want to choose your
  25     ground very carefully and fight battles on ground you

   1     think are important and you are going to win on and not
   2     fight battles on things that are either unimportant or
   3     that you cannot win.
   4        So I think that this whole area is one that has
   5     been, as I have said, susceptible to change; there has
   6     been change, but I think most of that change has come in
   7     the last probably 15 years since about the time of
   8     Griffiths. I think Griffiths was an important milestone
   9     in this, but it was not the only factor. But my
  10     perception would be that for the first 35 years of the
  11     NHS very little happened; since the early 1980s things
  12     have begun to happen, I think at a fairly quick pace,
  13     but a measured pace and a pace which has attempted to
  14     make sure that everybody was reasonably comfortable with
  15     it.
  16        I think attitudes have changed and the world has
  17     changed with those attitudes.
  18   Q. So the deep roots that you describe there are roots that
  19     go back to 1948, are they?
  20   A. Indeed, and before, of course, but certainly from 1948.
  21   Q. And the reserve that you describe as being shared by the
  22     professions was in part and from what I have understand
  23     you to have said, from departments because of the view
  24     that departments saw the professions would take, if the
  25     Department got itself too heavily involved?

   1   A. Yes. I mean, it was -- yes.
   2   Q. So it was really because of the professions, rather than
   3     shared by the professions, that the Department had the
   4     reserve that it did?
   5   A. I am not quite sure I am following you, Mr Langstaff.
   6     I am being rather slow.
   7   Q. I am looking at the words you used and just exploring
   8     them.
   9   A. The profession had very deep reservations about the
  10     Department getting involved. Reservations which, to
  11     some extent, as I said earlier, on rational grounds, the
  12     Department shared, but I think the fact that -- the very
  13     fact that the profession -- this was at the core of much
  14     of the profession's concerns about the NHS, added
  15     another as it were political with a small p dimension to
  16     the subject, which added to the Department's caution on
  17     it; yes.
  18   THE CHAIRMAN: I rather think that what Mr Langstaff is
  19     saying is that the reserve in the Department is wholly
  20     prompted by the reservations of the profession;
  21     therefore to say it is shared by the profession suggests
  22     a partnership whereas in fact your description is very
  23     much one-sided?
  24   A. I see, yes, okay. Thank you, Chairman. I understand
  25     the point. Perhaps my statement is not totally

   1     felicitous in this respect. I think that it would be
   2     true to say that perhaps at the bottom, the fundamental
   3     concern is the profession's, and it is shared by the
   4     Department for both the reasons that I have given, for
   5     the, if you like, small p, political reason, but also
   6     for a rational reason.
   7   MR LANGSTAFF: And the implication would then be that
   8     the Department would perhaps have wanted to do more but
   9     felt constrained by what it saw as politically, with
  10     a small p, acceptable given the context?
  11   A. What period are you asking me about, Mr Langstaff?
  12   Q. From the 1980s onwards.
  13   A. Yes. Before, if you like, this came on the agenda in
  14     a serious way, as it did in the 1980s, I do not think
  15     the Department did have a sort of extensive agenda, so
  16     to speak, although it must be said that my perception is
  17     that in various ways, even before the 1980s, the
  18     Department did do its bit to try and encourage issues of
  19     quality to be addressed. I mean, I think I mentioned
  20     again in my statement, for example, that for many, many
  21     years, I do not know when it started, the Department had
  22     been responsible for a thing called the Confidential
  23     Enquiry into Maternal Death, and I am not an expert on
  24     this -- you will get lots of expert evidence on this --
  25     there were other similar mechanisms, so it is not as if

   1     one washed one's hands on this subject, but these were
   2     specific initiatives responding to a specific need and
   3     I think agreed with the kind of community that would be
   4     particularly affected by them, and I think operating
   5     quite successfully. But it was not part of, I think it
   6     would be fair to say, either our agenda or even our
   7     ambition, even, if you want to go back to the 1970s or
   8     1960s, or earlier, to put the quality of NHS clinical
   9     practice at the heart of the Department's management
  10     system. Our management systems were extremely
  11     rudimentary, but to put that at the heart would have
  12     been not within our ambition, I think, in those days.
  13     I think that world changed significantly in the 1980s
  14     because of what Griffiths said, because of what other
  15     people were saying. It was not just Griffiths, it was
  16     because of all sorts of things, and because I think the
  17     profession themselves came much more comfortable with
  18     the idea that they needed to do more and I think that
  19     Ministers and the Department also had a legitimate
  20     interest in this and it was a proper subject for debate
  21     and discussion.
  22   Q. Can you help me to unpick what you say in the next
  23     sentence. You say:
  24        "Clinical performance was in general seen as the
  25     preserve of clinicians", and then this phrase,

   1     "individually and to some extent collectively"?
   2   A. Yes.
   3   Q. What you are saying, or recognising as the view of the
   4     profession in the early 1980s, is that the performance,
   5     the results of an individual, was a matter for him or
   6     her alone, essentially, although collectively the
   7     doctors had some concern with it.
   8   A. Yes. I would not say -- I am really the wrong person to
   9     get into this.
  10   Q. It is your words I am asking you about.
  11   A. Yes, I know. I am really just giving my perception.
  12     I do not think that the generality of consultants, even
  13     in the 1980s, would have said, to use your words, "It is
  14     a matter for me and me alone". I think some might have
  15     said that.
  16        What I was getting at in the use of the word
  17     "collectively" was that there were some mechanisms, as
  18     I understand it, that were above the individual level,
  19     whether you are talking about colleges, whether you are
  20     talking about some of the kind of things I mentioned,
  21     like the confidential enquiries, whether you are talking
  22     about the management processes for hospitals, which even
  23     pre Griffiths had medical committees and a Chairman of
  24     the Medical Committee and a kind of peer interest in
  25     what colleagues were doing. Of course there was the

   1     GMC. Ever since 1858 there has been the GMC.
   2        So I think you would have to have been a fairly
   3     extremist person, even in the 1980s, to say "It is
   4     nothing to do with anybody, it is between me and my
   5     patient and that is the end of it and if you do not like
   6     what I am doing, I will see you in court", kind of
   7     thing. There may be some people who took that view, but
   8     that would be the very extreme end of the spectrum.
   9     I think that even then there was certainly a recognition
  10     that one was part of a wider community, part of
  11     a profession with its own standards of conduct and
  12     behaviour and so on and so forth.
  13   Q. To finish this particular part of my questioning, how do
  14     you see the situation as having changed since the 1980s
  15     and where do you see it going? The last few words in
  16     that paragraph, if we just scroll down, "the process is
  17     by no means concluded", is pregnant with interest.
  18   A. I am glad I have been able to --
  19   Q. Since you are no longer in the Department of Health,
  20     having retired, you are free to comment on what you see
  21     is happening, I think.
  22   A. I think this is very interesting, and I understand the
  23     Inquiry will be looking at all this later, but I do
  24     think this is extremely interesting. I do think there
  25     has been a great change since the mid-1980s in

   1     attitudes, as I say, and you can argue about whether the
   2     pace of change has been fast enough, whether it has been
   3     done well or badly, but I think you can just tick off
   4     a number of things that have happened since the
   5     mid-1980s, some of them things which have actually been
   6     done by officialdom, by the Department, some which have
   7     been done by the profession, some which have come about
   8     as a result of just a change in climate of opinion, the
   9     way in the real world these things happen. Clinical
  10     audit, which, as I say in my note, was certainly
  11     well-established in the 1980s, but it was partial and it
  12     probably has not yet reached the kind of penetration
  13     that it ought to have, or the kind of quality it has to
  14     have, but it has certainly revolutionised in coverage
  15     since the 1980s and a lot of money has been spent on
  16     encouraging it, I think initially, at any rate, very
  17     much by as it were enabling the profession to develop
  18     it. Again, I am not an expert on that, you can get
  19     evidence on that, but certainly there is far more
  20     clinical audit going on, and I think an acceptance now
  21     by probably every consultant in the country that it is
  22     something that he or she ought to be involved in and
  23     participating in and doing.
  24        The whole Griffiths process introduced -- or
  25     encouraged, at any rate -- more formal arrangements at

   1     hospital level for the management of clinical work.
   2     I use the word "management" in inverted commas, but the
   3     management of clinical work, which puts individual
   4     consultants in a more organised framework than was the
   5     case in most hospitals at any rate before that. That is
   6     a significant change. I think the GMC -- it is not
   7     really for me to comment on the GMC, I am sure you have
   8     heard lots from them, but it seems to me as an observer
   9     that the GMC takes a much greater interest in this whole
  10     question than it once used to, and looking to the future
  11     for the moment, as I understand it, they definitely have
  12     set their foot on the path towards some kind of periodic
  13     review -- I may be using the wrong words -- of clinical
  14     competence which does seem to me, if I may say so in all
  15     humility, to be right, and that is going to make a big
  16     impact. They should be encouraged in that, that is
  17     going to make a big impact in the future.
  18        I think the world has changed. Patients are much
  19     more alert to what is going on, they are much less
  20     accepting of what happens and what doctors seem to be
  21     saying to them. They are much more willing to complain,
  22     much more willing to sue. I am not saying that is good
  23     or bad, in some ways it is not a good thing but in other
  24     ways it is a good thing, and it certainly raises
  25     awareness in the NHS among clinicians and managers and

   1     so on of the need to attend to the level of clinical
   2     performance. You cannot any more say, "Well, it is no
   3     concern of ours"; you have to attend to it.
   4        I think another thing that has changed greatly is
   5     this whole business of what is known in the trade as
   6     "whistle-blowing". There was a time when -- and maybe
   7     it still is true to some extent, but there was a time
   8     when colleagues generally speaking were very reluctant
   9     to complain about the performance of a colleague. Some
  10     were. The general climate was rather unfavourable to
  11     that.
  12        I think that is changing, it has changed, very
  13     markedly. I think it has now been put beyond doubt by
  14     the authority so to speak that it is people's duty to
  15     speak up if they think things are not going well and
  16     there is something wrong. So that is a big change.
  17        Then you look forward to as it were the new
  18     agenda, which again I am not involved in, I was not
  19     really involved in its formulation, even, but the new
  20     agenda as I understand it from Ministers, the setting up
  21     of the Commission on Health Improvement which as
  22     I understand it, one of its main purposes is going to be
  23     to supervise and take a big interest in the quality of
  24     clinical governance, which is really what we are talking
  25     about here. We are talking about the processes and

   1     procedures by which clinical performance is monitored
   2     and hopefully improved.
   3        We have a new powerful central body that is going
   4     to be taking a big interest in all that and making sure
   5     as far as it can that it is judged by quality of
   6     performance. That again I think is a good thing. It
   7     has to be done well, but if it is done well, it will be
   8     a very good thing.
   9        So really, I think, even the world now is pretty
  10     different from what it was 10 or 15 years ago, and
  11     I think I can see no reason why, provided nobody plays
  12     their cards badly, we cannot move into a new era when
  13     these things are even better done, significantly better
  14     done, even than they are now. But I think it is well on
  15     the way.
  16   MR LANGSTAFF: Sir, would that be a convenient moment for
  17     our mid-morning or now perhaps early afternoon break?
  18   THE CHAIRMAN: Yes. Shall we break for 15 minutes and
  19     reconvene at 12.15?
  20   (12.00 noon)
  21            (Adjourned until 12.15 pm)
  22   (12.25 pm)
  23   MR LANGSTAFF: One matter of housekeeping before I ask more
  24     questions.
  25        If we can scroll back on anyone who has LiveNote's

   1     screen -- you will not have it, Sir Graham, I think --
   2     to page 31, line 2, Sir Graham is recorded as saying
   3     "but persuasion can be pretty limited", which is in
   4     fact the word he used. It is not, I think, what you
   5     intended to say? Perhaps you can tell us what you had
   6     in mind. Is persuasion "limited" or some other word?
   7   A. It can be effective is what I meant. I meant to say the
   8     opposite of what I apparently said.
   9   Q. So continuing then with the issue we were on, which was
  10     essentially audit and developments in audit since the
  11     early 1980s, the impression one might get from
  12     paragraph 6 of what you say is that the Department was
  13     in some way distanced from the development of audit and
  14     it was really something which the professions took upon
  15     themselves and the Department, obviously, were happy to
  16     encourage, but did not necessarily inspire.
  17        Is that the flavour that you meant to convey, or
  18     not?
  19   A. Yes. It depends on what you mean by "inspire". I think
  20     we encouraged it, we were supportive of it, but I think
  21     it was only really probably following Working for
  22     Patients which was published, I think, at the beginning
  23     of 1989, that a tremendous amount of effort from the
  24     centre came behind it in terms of money and in terms of
  25     as it were formal encouragement to the process.

   1        I may be wrong about that because I am not an
   2     expert on this, I have to say, there are others who are,
   3     but that is my impression: that it was something that we
   4     were very much in favour of and benign about, but it was
   5     only after 1989 that we really started to put our weight
   6     behind it in a really tangible and serious way.
   7   Q. And the weight you then put behind it was funding?
   8   A. It was money, yes.
   9   Q. And not only money, but I think a number of circular
  10     letters which prescribed, effectively, that clinical
  11     audit should take place?
  12   A. I must not answer on the detail because I will mislead
  13     you. I was not involved in it very closely, I am not an
  14     expert on it and others are, but certainly my impression
  15     is that a number of central bodies were set up, I think
  16     by the CMO, in order to advance the cause, so to speak.
  17     Money was put into it. I am sure circulars were
  18     issued. Encouragement was given. But certainly the
  19     predominant mode, so to speak, even then I think, was
  20     very much of the idea that we were facilitating and
  21     enabling a process which the profession would have
  22     control of, very largely, rather than something which
  23     was going to be kind of centrally run or centrally
  24     imposed. I think the idea of getting the professions to
  25     do it better themselves was very much the philosophy.

   1   Q. So the funding, obviously, to encourage the profession,
   2     the element of central direction and putting your weight
   3     behind it that you perceived, although you cannot speak
   4     to the detail: how was the weight put behind the
   5     process, apart from the money?
   6   A. As I say, I cannot actually speak to the detail.
   7     Forgive me, I really do not want to sound as though I am
   8     as it were washing my hands of it, I am not, but if we
   9     are now talking about what happened in 1991 and
  10     following, which I think we are, and the implementation
  11     of the NHS reforms, I was not really centrally involved
  12     in any of that. By that time I had left the Management
  13     Executive. The initial part of the period I was in
  14     Scotland. When I came back to England I was Permanent
  15     Secretary. I was not day-to-day routinely involved in
  16     the detail of how the NHS was run, so you will have to
  17     ask other people about that, I think. I would just be
  18     speculating.
  19   Q. Let me then explore what you had in mind by saying "we
  20     put our weight behind it", because it is that word and
  21     the degree of influence or persuasion or coercion or
  22     control, however one puts it, that you saw as being
  23     available to the Department to influence the behaviour
  24     of the clinicians throughout the country?
  25   A. Yes.

   1   Q. That is what I am after.
   2   A. Yes, okay. Well, there would be a whole range of things
   3     that you could do. To some extent I am speculating now,
   4     as I say. This is dangerous; you need to check this
   5     against what actually happened. You put money in it.
   6     Probably you do it by inviting people to bid for funding
   7     that related to a particular project. That is a very,
   8     very visible and powerful way of signalling your
   9     interest in it and of enabling things to happen that
  10     have not happened before.
  11        You certainly handle it at the informal level; you
  12     put your weight behind it in all the conversations that
  13     are had at senior level with the profession; you discuss
  14     it in the joint meetings with the Joint Consultants
  15     Committee; you discuss it with the Colleges and so
  16     forth. You enrol, if you need to, the professional
  17     leaders in the whole enterprise of giving this a higher
  18     priority, and probably, although I do not know what we
  19     did do, you have some kind of organised management
  20     process as well. I mean, maybe you ask individual
  21     health authorities to report on what they are doing in
  22     this field; maybe you even set them targets. I do not
  23     know what we did. You will have to ask others about
  24     that. But there are a whole range of things we can do
  25     which would put weight behind it without, as it were,

   1     imposing a central diktat that "This is how you do it
   2     and you do it the same in every place".
   3   Q. There are one or two aspects of audit so far as it
   4     relates to the UBHT that I want to come back to and
   5     I will do so when documents are available, which are
   6     presently being scanned in.
   7        Before we leave paragraph 6, you say, in the
   8     middle of that paragraph:
   9        "Although much data was available, it was not used
  10     systematically except in limited contexts, and then by
  11     professional organisations."
  12        What did you have in mind in particular?
  13   A. That I was aware that quite a lot of activity was going
  14     on, for example, I think I am right in saying that even
  15     in the mid-1980s and it may be earlier than that, I do
  16     not know, there was a process called CEPOD, the
  17     Confidential Enquiry into Peri-operative Deaths,
  18     which -- I am not sure exactly the process, but it
  19     certainly had its origins in some very enthusiastic and
  20     able people in the profession, who got this started, and
  21     I am not quite sure which professional bodies were
  22     involved, whether it was the College of Surgeons -- it
  23     probably was the Royal College of Surgeons, I think, who
  24     took it up, and ran it, and it progressively got taken
  25     up and more and more people began to participate in it.

   1        Then at some point around I would think the late
   2     1980s, early 1990s, I am not sure when, I seem to
   3     remember the Department actually put quite a lot of
   4     money into it in order to try and as it were take it on
   5     to the next stage of becoming a comprehensive national
   6     system that is related to surgical outcomes.
   7        My understanding is that it was a limited system.
   8     It looked at peri-operative death, I think that means
   9     death within 30 days of operation. It is one aspect of
  10     looking at the quality of surgery. But that is an
  11     example of a professionally run, if you like, process at
  12     that time. It is something that is still professionally
  13     run, but I think now with greater participation, and
  14     certainly greater funding by the Department.
  15   Q. So the professional organisations which you had in mind
  16     were those such as the Royal College of Surgeons?
  17   A. Surely.
  18   Q. If the Royal College of Surgeons or, we in this Inquiry
  19     have heard about the cardiothoracic surgeons, if they
  20     had data which they collected which related to the
  21     Health Service, which it was known to the Department had
  22     been collected in respect of the Health Service, was
  23     there a system or practice whereby the Department also
  24     was given that data?
  25   A. As I say, there were one or two procedures the

   1     Department was involved in and indeed ran in a sense,
   2     like the confidential enquiry into maternal deaths
   3     which, I think I am right to saying -- you really need
   4     to ask others -- involved the Chief Medical Officer
   5     being in possession of all the facts that came out of
   6     such enquiries.
   7        To be honest with you, I do not know the extent to
   8     which the Department received information about, for
   9     example, CEPOD, which was over and above such data as
  10     was published. I imagine these things did find some
  11     kind of expression in publication, in journals and that
  12     kind of thing. Whether the Department received it, it
  13     would not have come to me so I do not know. Whether the
  14     Department received extra information, so to speak, I do
  15     not know. What I do know in general is that this is
  16     a pretty kind of touchy area, and doctors have always
  17     been quite understandably pretty careful about
  18     disclosing results, for all sorts of reasons including
  19     patient confidentiality.
  20        I do not imagine the stuff would have been widely
  21     disseminated.
  22   Q. If you had been asked, whilst you were Home Secretary,
  23     whether you wanted access to such data, would you have
  24     said "Yes" or "No"?
  25   A. I do not think I can answer that in such a general

   1     question. It would depend very much on what data you
   2     are talking about and the context in which it was to be
   3     made available.
   4        But in general, I am sympathetic to the idea that
   5     one wants to move as far as possible towards openness.
   6     This is not an uncontroversial thing to say, I may say,
   7     but I think that is the general direction of movement
   8     for official policy, as I understand it now, and
   9     I believe the Department is progressively trying to
  10     bring more and more information about clinical outcomes
  11     into the public domain.
  12        That has all kinds of difficulties about it; it
  13     is not a straightforward process, both in terms of
  14     confidentiality and in terms of interpretation of the
  15     results. This data can be very, very misleading
  16     sometimes, and it has to be interpreted: why does this
  17     person or this unit have worse results, as it appears,
  18     that way? There may be very good reasons why their
  19     results are worse, such as the obvious one: they may be
  20     doing more difficult cases or they may be -- well, the
  21     same point, I suppose, dealing with a different
  22     catchment population. I can understand why surgeons and
  23     consultants are going to be very sensitive about that,
  24     because it would be very easy for people to be attacked
  25     or pilloried when actually they are doing a very good

   1     job, very conscientiously.
   2        So it is not a straightforward matter, it is not
   3     a matter in which the world is going to change
   4     overnight. My own personal view is that, nonetheless,
   5     the only way to go is progressively towards greater
   6     openness, and that has to be done in the context of
   7     hopefully developing at the same time a greater
   8     understanding, a greater understanding on the part of
   9     the public, and particularly journalists and other
  10     people who write and comment on these things, about the
  11     complexities of it. Otherwise, if it is done in a kind
  12     of simplistic headline-grabbing way, I think you can be
  13     very, very unfair to people. And indeed, not only be
  14     unfair to people, it can have detrimental effects.
  15   Q. Looking back on it historically rather than anticipating
  16     the future, what I was asking you was whether or not
  17     data which underpinned the reports of the various
  18     enquiries into performance of parts of the National
  19     Health Service was actually supplied to the Department
  20     of Health. You said that you do not know that detail,
  21     you are not in a position to know it.
  22        The next question is whether there were systems
  23     for obtaining such data. Is the answer the same: that
  24     you cannot help us with whether there were or whether
  25     there were not?

   1   A. Yes. You are pushing me into areas where my knowledge
   2     was probably always fairly limited, and now my
   3     recollection is very hazy. There was of course
   4     a national system of collecting statistics about the
   5     Health Service. That is presumably still in place. It
   6     did include some data about clinical matters. I think
   7     that would be right to say. That data was received
   8     obviously in the Department, indeed, some of it was
   9     published, but you would have to ask other people about
  10     what use was made of it and what analysis was made of
  11     it. I think this was something that would have been
  12     handled very much on the medical side of the
  13     Department. I would be on really unsafe ground in
  14     talking about it, forgive me.
  15   Q. The third question which followed, or would follow --
  16     appreciating that you cannot say anything as to systems
  17     apart from the general information systems which operate
  18     in the National Health Service about which I can tell
  19     you we have had some evidence -- is if there was data
  20     collected in respect of individual specialties by people
  21     working in and for the National Health Service in
  22     respect of patients treated under the National Health
  23     Service. It might be asked by any observer now, if the
  24     data was not obtained by the Department of Health, why
  25     not? I think the answer you have given thus far is that

   1     it might have been too sensitive an issue for a number
   2     of clinicians, and we are perhaps back to the
   3     clinician/manager interface. Was there any other reason
   4     that might occur to you?
   5   A. I suppose you do not collect or draw in and analyse
   6     data -- because there is no point in collecting it
   7     unless you analyse it -- unless you are going to do
   8     something with it. I suppose that this part of the
   9     thinking on that would be, "Well, can we do anything
  10     useful with it?"
  11        As I have already said a number of times, I think
  12     that the context in the early 1980s at any rate, and
  13     earlier than that, was a different one from the context
  14     now, and I think that one's view of what could be done
  15     with it and what one might want to do with it would have
  16     been different, would have been rather more limited, if
  17     you see what I mean, in what could be done.
  18        But I do not want to give you the impression,
  19     Mr Langstaff, that the Department took no interest in
  20     outcomes. That would not be true. For example,
  21     I remember somewhere in my statement, I certainly do
  22     recollect, for example, having discussions with
  23     a Regional Health Authority. Remember, at the centre we
  24     then had 14 Regional Health Authorities and they were
  25     the bodies with whom we primarily interacted, not with

   1     the 200 or so health authorities. I do remember having
   2     discussions, not me personally, but being in the room
   3     when discussions were being held with a Regional Health
   4     Authority about the record in its region on perinatal
   5     mortality, for example, that this was the region that
   6     had the worst, if you like, figures for perinatal
   7     mortality, the highest number of deaths per thousand in
   8     babies in and around birth, and what the region was
   9     seeking to do in order to get an improvement.
  10        So it was not that we took no interest in these
  11     matters at all, but the interest was limited to a few
  12     key issues; it would not have been comprehensive or
  13     extensive.
  14   Q. I am going to come back to explore the relationship
  15     between Centre, Region and District, or, for that
  16     matter, Trust, at a later stage in the questions that
  17     I want to put to you. Can I show you SLD 2/5 as a means
  18     of focusing some further questions on the reaction that
  19     the Department might have had to the question of
  20     outcomes and so on.
  21        If we can scroll down, please, this is, as you may
  22     gather from the cartoon nature, from Private Eye, issue
  23     797, 3rd July 1992, to put a date on it.
  24        You can see in the second last paragraph on the
  25     left-hand column:

   1        "Mrs Bottomley claims that whistle-blowing through
   2     the correct channels will get results. Staff at the
   3     United Bristol Healthcare Trust, the UBHT, have been
   4     whistling about the dismal mortality statistics in the
   5     paediatric cardiac surgery unit since 1988 (Eye 793).
   6        "Whilst UBHT's Chief Executive John Roylance, the
   7     Royal College of Surgeons and Duncan Nichol, the Chief
   8     Executive of the NHS Management Executive, are all well
   9     aware of the problem, they seem more concerned with
  10     silencing the blowers ..."
  11   A. This would be when? What date is this?
  12   Q. July 1992. It quotes a complaint four issues earlier
  13     about what are described as "dismal mortality
  14     statistics".
  15   A. Okay, so that would be June or something 1992?
  16   Q. That would be March/April 1992. A number of questions
  17     about this: is this something you yourself have ever
  18     seen before?
  19   A. Only as it were latterly, because somebody told me that
  20     this had emerged as an issue. Whether I saw it at the
  21     time, to be honest with you, I do not know.
  22   Q. Did you read it from time to time?
  23   A. From time to time but not regularly.
  24   Q. Did the Department have a Press Office?
  25   A. Certainly.

   1   Q. Was it part of the duty of the Press Office to pick up
   2     reports about the NHS and how they were functioning?
   3   A. Yes, but -- may I explain how I think it worked?
   4   Q. Let me ask you a couple more questions and then by all
   5     means add what you want. Do you know whether they
   6     looked at magazines such as Private Eye?
   7   A. I am pretty sure that the Department took Private Eye.
   8     I mean, this is where I need to explain the system.
   9   Q. Then please explain it.
  10   A. We took, obviously, all the national newspapers,
  11     including the Sunday newspapers, and they were scanned,
  12     I think even in those days we probably used an agency,
  13     but the national press, the dailies or Sundays, would be
  14     scanned by an agency and anything that is to do with the
  15     business of the Department would be extracted, copied
  16     and circulated very widely in the Department, either on
  17     a comprehensive basis, you could have the whole lot
  18     every day, as I did, which was a pretty fat bundle,
  19     usually, or I think you could have a kind of more
  20     limited service that focused on particular topics.
  21        So that is the newspapers.
  22        As for magazines, my recollection is that the
  23     press cuttings service did not cover magazines. It may
  24     have covered just one like The Economist or something
  25     like that, I am not sure about that, but in general the

   1     system for magazines as I remember it is that they were
   2     bought in some quantity by the Press Office or by the
   3     Department, anyway, and then made available to such
   4     people as wanted to read them on a kind of circulation
   5     list. This would be the common system you would have in
   6     any large organisation. That would include the obvious
   7     things like the important medical journals, the Health
   8     Service journal, the Economist, The Spectator.
   9     I think -- I am on oath, so I must say I am not
  10     absolutely certain, but I think Private Eye, but I am
  11     not absolutely certain about that.
  12        Whether you saw it or not, then, in that case, on
  13     the hypothesis that Private Eye was in the list, whether
  14     you saw it or not depended on whether you had asked to
  15     see it. Are you with me?
  16   Q. So are you saying there would be no automatic reference
  17     of a complaint like this to the individuals mentioned,
  18     take Duncan Nicol, for example?
  19   A. In that particular case, as it mentioned him by name, it
  20     is obviously more likely, can I put it that way, that
  21     somebody would read it and notice and mention it to him,
  22     but whether that happened, I have no knowledge. Whether
  23     it actually happened, I do not know. I do not know
  24     whether Duncan ever saw this or whether anybody ever
  25     drew explicit attention.

   1   Q. Would you be able to say what response you might expect
   2     from the Department to a complaint such as this? The
   3     complaint appears to be of covering up statistics which
   4     are available to anyone who asks sufficient questions,
   5     looks at the data, and so on.
   6   A. I am sorry, would you repeat the question?
   7   Q. There is an allegation, it would appear here, that the
   8     NHS Management Executive, at any rate, may be involved
   9     in covering up the poor performance of an NHS unit,
  10     which would be obvious for all to see if they had
  11     examined the appropriate data. That is the allegation.
  12   A. Yes.
  13   Q. How would you expect such an allegation to be treated in
  14     the NHS in the time that you were the Permanent
  15     Secretary?
  16   A. I suppose in general one would expect it to be taken
  17     seriously, but I think it does depend a bit on how it is
  18     made, who it is made by and the context in which it is
  19     made. It is one thing if it is true. I do not know
  20     whether it is true. If it were true that this was
  21     familiar material, so to speak -- I mean, the
  22     implication there is that it is familiar material,
  23     everybody knows about this. If that were true and it
  24     had already been looked at very carefully by people,
  25     then they might be inclined to say, "We already know

   1     about this and we have looked into it" and so on and so
   2     forth.
   3        That is why I say it depends on the context in
   4     which it arose. Obviously if it was entirely new and
   5     actually was not, contrary to the impression given,
   6     known before, then that is obviously a different
   7     situation.
   8   Q. What would you expect to happen in that different
   9     situation?
  10   A. In an ideal world, maybe you would do something about
  11     it. I cannot see the whole page here, Mr Langstaff,
  12     but --
  13   Q. Do you want to scroll down?
  14   A. I am making a general point. I think you will find
  15     there are probably 10 or 12 stories there. Private Eye
  16     comes out once a fortnight, I think. There is a lot of
  17     other media comment as well, not only in the printed
  18     press but in the broadcast press. I do not think the
  19     Department then, or subsequently, would aim to follow up
  20     each and every single story in the media alleging
  21     something wrong in the NHS as a kind of routine.
  22     I think it would be something to which people in the
  23     real world would have to apply judgment as to whether
  24     they thought it was something that was a true bill or
  25     was likely to be a true bill and needed to be followed

   1     up in a serious way.
   2        But as I say, all this is hypothesis, because I do
   3     not know whether we were aware of all this before or who
   4     saw it.
   5   Q. It is useful to ask you because you have, better than
   6     anyone, I suspect, from your position, a view and
   7     perspective which is informative, even if you cannot
   8     yourself deal with the exact facts.
   9        It is that which we are exploring. I appreciate
  10     that you did not know of this particular episode, but
  11     what you are saying is that a judgment would have to be
  12     made by someone as to whether to follow it up or not in
  13     the real world; is that the way you put it?
  14   A. Yes.
  15   Q. And if an allegation such as this were to be followed
  16     up, how, in 1992, do you suspect it would have been
  17     followed up?
  18   A. Gosh, that is a very broad question. I will answer in
  19     a general way, if I may. I really do not want to get
  20     into the details of this case which I do not know about,
  21     but let us take as a hypothesis that an apparently
  22     serious allegation that may well be well-founded comes
  23     in front of a Chief Executive or some senior
  24     Departmental official. He or she would ask the relevant
  25     person in the Department to follow it up with local

   1     management. That is the only way you could do it,
   2     I think, to ask the local people. You might do it
   3     through the Region or you might do it direct with the
   4     local Health Authority or, indeed, in this case
   5     I suppose the Trust. I think what you would do is you
   6     would get on the telephone or write a letter and say
   7     "This allegation has been brought to my attention.
   8     What do you have to say about it?" Then obviously you
   9     evaluate that and take it from there.
  10   Q. To finish perhaps this passage of the questions I have
  11     to ask you, may I invite your response, if you feel able
  12     to respond, to the allegation which has been made during
  13     the course of this Inquiry that the Department of Health
  14     was involved in a cover-up of the Bristol figures. That
  15     is the allegation, relatively unspecific, and it does
  16     not descend to names, but as the Permanent Secretary
  17     between 1992 and 1997, you are, I think, the appropriate
  18     person to ask for a response as far as you are able to
  19     give one.
  20   A. My only response is, I have absolutely no knowledge of
  21     that. In so far as I understand what "cover-up" means,
  22     I think it is a pretty scandalous allegation and I would
  23     be very surprised if it was true.
  24   Q. Moving from that, if I may, to the internal organisation
  25     of the Department, we have spoken of a number of

   1     committees and the Advisory Group. Can you help as to
   2     how the individuals who were appointed to such a group
   3     came to be appointed and how it was that other
   4     committees important in developing and maintaining
   5     health policy came to have the constitution in terms of
   6     individuals that they did?
   7   A. If you are asking me, Mr Langstaff, how the Supra
   8     Regional Services Advisory Group was chosen --
   9   Q. That is an exemplar of the general, which is who was it
  10     who determined who sat on the various committees, as
  11     individuals?
  12   A. I cannot answer for the Supra Regional Services Advisory
  13     Group in particular. In general, members of an Advisory
  14     Group to Ministers would be appointed by Ministers, on
  15     the advice again of officials. I suppose classically
  16     the way you would approach an issue like that when you
  17     were setting up such a committee is that you would think
  18     about the nature of its work and therefore the kind of
  19     people that you would want to have on it who would be
  20     most likely to be able to contribute to the work. You
  21     might think about various groups or interests that might
  22     be represented. I do not mean "interests" in the sense
  23     of being self-seeking but simply interest groups like,
  24     in this case, obviously you would want some kind of high
  25     level professional involvement from the Royal Colleges

   1     or the professional bodies, at any rate, that were
   2     involved; you would want in this case some kind of NHS
   3     management involvement, indeed, the Chair in this
   4     particular case, I don't know whether it is always, but
   5     certainly for a long time it was a Regional Chairman.
   6     You might well want -- I do not know whether there was
   7     in this case -- some kind of nursing involvement and so
   8     on. So you would think about the different groups.
   9        Then you would cast about, if I can put it that
  10     way, for a suitable list of candidates for membership
  11     and you would do that by, for example, taking advice
  12     from senior medical staff who in turn would no doubt
  13     consult in the profession with the Colleges and so on,
  14     and you would draw together a list of names. You would
  15     then put your recommendations to Ministers.
  16        That is a broad description of how you would set
  17     about setting up a group like this.
  18   Q. So the names, by means of the process you have
  19     described, come through the Department. So far as the
  20     Departmental representatives, the Medical Officers, are
  21     concerned, people such as Dr Halliday in the
  22     Supra-regional Services Group, how would they come to be
  23     on the committee? Plainly someone has to nominate or
  24     appoint?
  25   A. I do not know, but I do not think Dr Halliday was

   1     a member of the committee, if you will forgive me.
   2     I think he was the Medical Secretary. So his role in
   3     relation to the committee would, so to speak, come with
   4     the rations. He was responsible for the subject that
   5     the committee was interested in, and therefore, by the
   6     nature of his duties, he would be associated with his
   7     work. Whether he would actually be the Medical
   8     Secretary is obviously a matter that the Chair and he
   9     would sort out between them. But it came with his job,
  10     so to speak, to be involved in the work of that
  11     committee.
  12   Q. Plainly, when one looks at the professional men or women
  13     involved in the various committees, from what you said
  14     the Department would look for someone who carried
  15     a certain amount of clout, prestige, that would
  16     inevitably, one suspect, be a busy, active person in the
  17     profession or organisation whose interests you might be
  18     thought to represent?
  19   A. You might want clout and prestige. I do not think
  20     I would use those words. You certainly want competence
  21     and knowledge. That is what you want above all else.
  22     You want to have people who are competent to contribute
  23     to the committee.
  24   Q. Is there perhaps a problem on occasions in that those
  25     people who appear, and undoubtedly are highly competent

   1     and highly valued for their competence, may find
   2     themselves on quite a number of committees by reason of
   3     that fact?
   4   A. I think that does happen, yes.
   5   Q. Is there any sense that might detract from their ability
   6     purely by function, numbers and time, to make an actual
   7     valuable contribution to the work of each?
   8   A. I suppose that could happen. I think you have to rely
   9     on their good sense and to some extent you have to rely
  10     on the good sense and the integrity of the people you
  11     appoint to give it a fair allocation of time and effort,
  12     although it is not unknown -- I do not know whether it
  13     happened in this case -- for a Chairman of a committee
  14     to decide that it would be a good idea to dispense with
  15     the services of a committee member,
  16     because they are not giving it the time or commitment or
  17     whatever. So it is not purely in the hands of the
  18     individual, it is also down to the Chairman and
  19     Secretariat to look at things like attendance and
  20     obviously if people come to committees and they have not
  21     read the papers and all that kind of thing, you expect
  22     to take that into account. It is all part of being
  23     a competent member of a committee.
  24   Q. I said I was coming back to the question of audit once
  25     documents had been scanned in, and at the same time

   1     I want to explore with you the way in which the centre
   2     operated through the Regions who you say were your first
   3     point of contact, while there were Regions, and how the
   4     issue of accountability of the District, subsequently
   5     the Trust to the Centre, was maintained and organised.
   6        Can I do it in this context: if we go, please, to
   7     HA(A) 167/1, you will see that we are looking at
   8     a document called "Meeting and Improving Standards of
   9     Health Care", South Western Regional Health Authority
  10     1994."
  11        It is in relation to clinical audit. It says that
  12     underneath the shading.
  13   A. Do we know what the context is of this, Mr Langstaff?
  14   Q. This is an annual report from the Region about clinical
  15     audit. If we turn to page 3, you will see the
  16     distribution list.
  17   A. Fine.
  18   Q. If we go to page 6 in the introduction, we see that the
  19     report intends to account to the Department of Health
  20     for progress in the evolution of clinical audit and
  21     enhancing and improving patient care and outcome.
  22   A. Yes.
  23   Q. That is in accordance with EL 93/34.
  24   A. That was one of those circulars that you referred to
  25     earlier.

   1   Q. Yes, so what appears to be the system is that there is
   2     a circular which comes out from the Centre which says
   3     "account to us for clinical audit" and this is the
   4     method of accounting.
   5        Just pausing there for a moment, so far as the
   6     Centre was concerned, did it require Regions to account
   7     to it for their performance or their management in
   8     a number of specific respects from the early 1980s until
   9     the late 1990s? You are nodding.
  10   A. Yes.
  11   Q. A nod does not go down on the transcript which is why
  12     I have to say that. The system worked that the Centre
  13     would require, whether by means of a letter such as
  14     referred to as EL 93/34 or otherwise, the Region to
  15     account in a formal way wherever it was felt necessary?
  16   A. Yes.
  17   Q. What was the intention that the Regions should do so far
  18     as the District comprising the Region were concerned?
  19   A. I do not know how this particular exercise went, so is
  20     that a general question?
  21   Q. It is a general question.
  22   A. Obviously it would depend again on the subject and how
  23     it would be best managed. There would be some things
  24     which a Regional Health Authority might be expected to
  25     handle on its own; not perhaps many, but a few.

   1     Obviously on those it would account as it were on its
   2     own account.
   3        But most of the issues on which the Department
   4     sought to monitor achievement would be things that were
   5     actually local and the Region would therefore have to
   6     transmit the policy and the imperatives, so to speak, to
   7     the local Health Authority or whatever, and would then
   8     ask them to account back to the Region for what they
   9     were doing, and then the Region would in turn account to
  10     the Centre.
  11        So it would be a rolling on process of down the
  12     line and then back up the line, so to speak.
  13        That is broadly how I would expect it to work.
  14   Q. The links of the chain down the line transmit the
  15     policy, the links back up transmit the results, or
  16     whatever it is?
  17   A. Broadly that would be right, yes.
  18   Q. So if there is a problem in achieving the policy at
  19     a local level, say in an individual hospital, the first
  20     point of accountability beyond the hospital is going to
  21     be the District, is it, back in the 1980s?
  22   A. Back in the 1980s Districts were, as you know,
  23     responsible for the management of the individual
  24     hospitals, yes.
  25   Q. And the District responsible to the Region?

   1   A. Correct.
   2   Q. And the Region to the Centre?
   3   A. Correct.
   4   Q. At the time that this was written, plainly post 1993,
   5     1993/94, there were Trusts. What was the process so far
   6     as Trusts were concerned?
   7   A. I was not deeply involved in this myself, so I think you
   8     would do better to ask others who were, but my general
   9     understanding is that the Regions would also have lines
  10     of communication to Trusts and could certainly hold them
  11     to account for the achievement of certain aspects of
  12     their performance, although I think it is true to say
  13     that the relationship between Regions and Trusts was
  14     principally about financial management and targets.
  15   Q. If we turn to page 8, we see that the Region here were
  16     saying as an "NB" at the foot of the page that the
  17     report had been produced by the Regional Clinical Audit
  18     Co-ordinator on behalf of the South Western Regional
  19     Health Authority as part of the annual accounting and
  20     monitoring process to the Department of Health?
  21   A. Yes.
  22   Q. So the intention is that here there is money for audit,
  23     given centrally. The Region are responsible for that in
  24     distributing it or ensuring its distribution amongst the
  25     Trusts and they account back to the Department of Health

   1     so that presumably the Department of Health may monitor
   2     the way in which the funds have been spent?
   3   A. Yes.
   4   Q. Having established that that is probably the process
   5     that we see, can I invite you to look at some of the
   6     specifics? I appreciate you will not have seen this
   7     document before, but it gives rise to questions which
   8     you will see emerging as we go through one or two of the
   9     pages.
  10        Can we have a look at page 37? Can we scroll down
  11     so we get "Staffing" on the screen? "Percentage
  12     Expenditure of Total Available Funds (Staffing)", and
  13     the Trusts are all identified. Perhaps if we just
  14     rotate through 90 degrees, we can read the Trusts, and
  15     you can see that of the Trusts identified, the fourth
  16     down is the UBHT. And the percentage of money spent on
  17     staffing, if one were to read the graph as a graph to
  18     which the UBHT had responded, would be nought per cent,
  19     which is plainly nonsense. The only interpretation one
  20     can have of this is that the UBHT did not supply the
  21     available data to the Region for anything sensible to be
  22     put on the graph.
  23        I have drawn that to your attention because I will
  24     show you what follows in the report. It will be
  25     something which, because this document is new, the Trust

   1     will be invited to respond to from their perspective in
   2     due course.
   3        But if we can go to page 44 and just scroll up,
   4     please, so we can see what we are looking at, this is
   5     "Activity by Trust, 1993/94" of those reported. There
   6     are attendance rates at medical audit meetings, and
   7     again one can make the same comment. It looks as though
   8     what has happened is that the UBHT simply has not
   9     reported to the Region.
  10        Shall we go through, having looked at that --
  11     I think we can scroll back. HA(A) 167/36. Expenditure,
  12     total budget. There is nothing against UBHT. Page 38
  13     [HA(A) 167/38]. Nothing against UBHT in either of the
  14     graphs. HA(A) 167/39: the same point. HA(A) 167/40:
  15     there are two graphs. Nothing from UBHT in either.
  16     HA(A) 167/41: nothing there at the top, nor at the
  17     bottom.
  18        So an absence of information, it would appear,
  19     supplied by the United Bristol Healthcare Trust to the
  20     Region in order to account to the Department of Health
  21     centrally so that the Department of Health centrally can
  22     monitor what has happened with the expenditure of funds.
  23        So the expenditure of funds themselves, the
  24     document is helpful, at page 72 we can see there in
  25     appendix 2 clinical audit allocations, 1994/95?

   1   A. Is that the same year?
   2   Q. It is the next financial year. You have seen the
   3     results for the year 1993 to 1994. This is the
   4     allocation for 1994 to 1995. The United Bristol
   5     Healthcare Trust, if one reads across the top line --
   6     perhaps we could have that highlighted?
   7   A. If I may interrupt, what that table seems to be showing
   8     is that these are the actual specific figures for UBHT
   9     for the 1993/94 commitments, does it not?
  10   Q. You are right, I am grateful for being corrected.
  11   A. It looks as if there is a global allocation for Bristol
  12     and District in the right-hand column, 737, but not
  13     broken down between individual Trusts within that global
  14     figure.
  15   Q. I think it is. Is that not the figure we get from 308.8
  16     in the top line?
  17   A. No, that is still under the heading "1993/94
  18     commitment".
  19   Q. So the money which has been committed to audit for
  20     1993/94 for UBHT would appear to be œ308,800.
  21   A. I see what you are getting at.
  22   Q. In other words, the funding for the year 1993 to 1994 in
  23     respect of which the report is reporting would appear to
  24     show that of the Trusts in the Bristol and District
  25     area, the UBHT was the biggest consumer or had the

   1     biggest funds committed to them?
   2   A. Yes, it looks like that. It looks as though they had
   3     getting on for half the money.
   4   Q. In fact, if one casts an eye just down the page, of the
   5     total clinical audit allocation, they have more than any
   6     other individual Trust which is identified on the page?
   7   A. Yes.
   8   Q. So the picture would seem to be that UBHT were getting
   9     the most money, or had the most money committed to them,
  10     and they were simply not providing any data or details
  11     to the Region for the Region to report to the Department
  12     of Health.
  13        A number of questions. First of all, do you know
  14     whether this was or was not typical of Trusts throughout
  15     the country, let alone this region?
  16   A. No. I mean, I have no knowledge of any of this at all.
  17     I hope it was not typical, but I do not know the
  18     circumstances. I do not know why there was this gap in
  19     the data.
  20   Q. I am asking you to comment on something which is
  21     a specific case, and it is really as a springboard to
  22     asking you a number of questions about the system.
  23        What one would pick up from this is that unless
  24     there is some explanation, there has been a lack of
  25     co-operation by the United Bristol Healthcare Trust to

   1     providing information which is necessary for the
   2     Department of Health to have in order to monitor the
   3     expenditure of its funds?
   4   A. It looks like it.
   5   Q. In such a case, obviously one would want an
   6     explanation. From whom would the explanation have been
   7     sought so far as the Department was concerned?
   8   A. If it was sought, it would have been sought from the
   9     Region, I think.
  10   Q. So the Department have said, "Why do we not have the
  11     data from Bristol; you have shown us an absence here of
  12     any data, and yet this is the biggest spender amongst
  13     your Trusts. What is the reason for that?" Something
  14     of that sort?
  15   A. Something of that sort, but I am making an assumption
  16     that this report we have in front of us from this
  17     particular region to the Centre was structured the way
  18     it was in order to respond to some kind of central
  19     pro forma, or whatever. I do not know whether it was
  20     like that or whether the Department simply said to
  21     Regions, "Send us a report in whatever form you find
  22     helpful", or whether there was a highly structured
  23     accounting exercise, I do not know. Certainly if it
  24     were that, then I think the assumption would be that you
  25     would want the data from everybody, although if I may,

   1     I would make the obvious comment that what I think the
   2     Department would be looking for in this would not
   3     necessarily primarily be the performance of individual
   4     Trusts or the lines for individual Trusts. What you
   5     would be looking for was an aggregated picture for the
   6     Region or probably for the whole country about some of
   7     the answers to some of the questions that these data
   8     were intended to provide: what proportion of the money
   9     was being spent on this; what proportion of the money
  10     was being spent on that.
  11        The Department's way of looking at this would not
  12     be to say "Our primary concern here is to make sure that
  13     the performance of each and every Trust in the country
  14     is up to scratch or has to be of this kind or that
  15     kind"; what we would have been seeking, I think, is
  16     a kind of global picture of what is happening throughout
  17     the country. For example, the obvious questions that
  18     occur to one, I do not know whether this was in people's
  19     minds, but how was the money being used, how much
  20     percentage on this, how much percentage on that.
  21        The question in your mind in doing this would not
  22     be: is UBHT or is any other particular Trust --
  23     remember, there are hundreds and hundreds of Trusts --
  24     doing this or, you know, is it doing it well or badly.
  25     I think you were trying to build up a composite picture;

   1     it is about the kind of strategic management of the
   2     exercise; it is not about holding individual Trusts to
   3     account from the centre.
   4   Q. Can I deal with two matters which you have raised in
   5     that lengthy answer? If we go back to page 7 of this
   6     document, 167/7, we see the context of the report,
   7     "Reporting requirements". It indicates what it
   8     includes in the first bullet point. The third bullet
   9     point down:
  10        "Towards the end of 1993 the minimum data set was
  11     issued by the Department of Health as the basis for
  12     local arrangements for reporting on audit activity."
  13   A. Fine. It sounds as though it was a standard national
  14     format.
  15   Q. The next bullet point if we go down to that --
  16   A. This is still from the South West document, is it?
  17   Q. This is all from the South West document. Can I take
  18     you away from the South West document, because I do not
  19     want anything I say to be picked up unfairly. If we go
  20     to UBHT 28/23. You can see that the format is set out.
  21     This is EL 93/34.
  22   A. This was the circular that you referred to that called
  23     for this?
  24   Q. That is right. You can see what annual reports should
  25     cover. The details are set out. Shall we scroll down

   1     so you get a flavour of it? By all means stop the
   2     scroll if you think that you want to look at anything in
   3     greater detail. Can we go across to the next page,
   4     UBHT 28/24? You can pick up the bold headings to give
   5     you an idea of what is being mentioned.
   6        Again, so I do not mislead or give a wrong
   7     impression, can we look at UBHT 66/316? This is the
   8     start of a document. I am going to take you to
   9     a particular page in it.
  10   A. It is a different report, is it?
  11   Q. It is a different report. It speaks for itself. Can we
  12     go to page UBHT 66/322? Can we scroll down underneath
  13     "Expenditure"?
  14        An explanation is given there for why it is that
  15     UBHT has not reported:
  16        "Local distribution of funds has varied. For the
  17     purposes of the following discussion, those units who
  18     have not yet provided a report have not therefore been
  19     included, neither has the UBHT because of the way in
  20     which funding is distributed and then accounted for in
  21     the year end report. It is not possible to identify the
  22     specifics of where funding has been spent because the
  23     total allocation is divided amongst directorates."
  24        So the answer to the reason why UBHT has not
  25     provided the data is that it, itself --

   1   A. It does have not the data.
   2   Q. -- distributes the money amongst the directorates and
   3     does not have the data to provide.
   4        Coming back to the way in which the Centre looks
   5     at this, who, by name or designation, in the Centre
   6     would have the responsibility of looking at the report
   7     from the Region on something such as this?
   8   A. It would have been somebody in the -- I think it was
   9     then called the Health Care Directorate. At any rate,
  10     it would be -- I do not know who, but somebody. It
  11     probably tells you on the document somewhere who the
  12     returns had to be sent to.
  13   Q. You fairly say that the concern that you would have is
  14     to get an impression across the country as to how the
  15     money was being spent rather than whether individual
  16     authorities or Trusts had or had not responded?
  17   A. Yes.
  18   Q. But the difficulty with knowing how money has been spent
  19     must be considerable if, as it happens, some of the
  20     biggest recipients of funds simply have not said
  21     anything about what they have done with it?
  22   A. Yes. I do not know what the national response rate was,
  23     if you like, how many gaps of the kind you have
  24     indicated there were nationally. Obviously we are just
  25     looking at the South West, but obviously if there were

   1     a lot of units that behaved in the same way, that would
   2     very much reduce the utility of the report, would it
   3     not?
   4   Q. This is part of the system, the system which the
   5     Department has thrown its weight behind, as you put it,
   6     of developing and encouraging audit?
   7   A. Yes.
   8   Q. Again, I do not want to go into the specifics of this
   9     situation but would you expect some action to be
  10     initiated from the health policy group officer before
  11     whom this came so that fuller information was provided?
  12   A. Obviously in this particular case it sounds as though it
  13     would have been a futile exercise, because it sounds
  14     from that report as though they were not collecting the
  15     information. Although I am surprised by that. I mean,
  16     retrospectively.
  17   Q. This particular one, one might think simply required
  18     a stiff letter from the Centre saying "You will not get
  19     money next year unless you make sure you collect the
  20     data and tell us"?
  21   A. I would expect that to be handled regionally. The
  22     Region acts as a kind of Post Office. They are handling
  23     the money on behalf of the Department. I do not want to
  24     get into sort of trying to blame anybody for this, but
  25     I would be surprised if nobody had, as it were, taken it

   1     up with the Trust and said, "Look, this exercise is
   2     actually that you account for this, and if you have not
   3     got the data for last year, because you have not got the
   4     data, that may be something we cannot do anything about
   5     now, but you had better get it right for next time".
   6   Q. You would expect the initiative for that step to be
   7     taken at regional level?
   8   A. Yes. I would certainly expect the contact with the
   9     UBHT to be from regional level. They should not need
  10     encouragement from the centre. But whether as a result
  11     of encouragement from the centre or on their own
  12     initiative, yes.
  13   Q. They should obviously have done the job and collected
  14     the data. On the assumption that they did not, as
  15     appears to be the case, they are part of the District
  16     and the District is part of the Region. What role or
  17     function would the District play in this?
  18   A. No, I do not think post-1991, I mean, this is a Trust
  19     now. The District obviously has, or a number of
  20     Districts have a relationship with the Trust, but it is
  21     not such that you could really expect the District to
  22     put this right.
  23   Q. So this is for the Region?
  24   A. I think so, yes.
  25   Q. The NHS ME had an outpost following Trust status in most

   1     regions. What was the function of that?
   2   A. Again, if you really want a very precise answer to that,
   3     you will have to ask the people who operated that
   4     system. I was quite removed from it. But their
   5     relationship was, as I understood it at the time, very
   6     much based on the financial arrangements of the Trust;
   7     they were there -- not I think exclusively, but
   8     certainly one of their main functions was to monitor the
   9     financial health, to handle capital allocation, that
  10     kind of thing.
  11   Q. Because of their interest in finance, would they be
  12     interested in something such as this, or not?
  13   A. I doubt it. I doubt it. I think this was handled as
  14     a one-off separate exercise.
  15   Q. So this was, as you see it, probably a regional
  16     responsibility as such?
  17   A. Yes. I think so.
  18   Q. Again, I do not want to take you too far away from that
  19     which you can properly say, but can you give us an idea
  20     as to who, in terms of designation or status at the
  21     region, you would have expected to have, if I can put it
  22     colloquially, "kicked" UBHT to produce the data?
  23   A. No, I cannot. I do not know enough about it. I see on
  24     those papers somewhere there was talk about a regional
  25     clinical audit co-ordinator, but I simply do not know

   1     enough about what the management arrangements were. You
   2     would have to ask those who were involved.
   3   Q. The only other area which I want to explore with you is
   4     in relation to what happened when the NHS Management
   5     Board became the NHS Management Executive. I think
   6     you --
   7   THE CHAIRMAN: Mr Langstaff, I wonder, looking at the time,
   8     would this be an appropriate time to break for lunch?
   9   MR LANGSTAFF: Yes, certainly.
  10   THE CHAIRMAN: Bearing in mind others who are helping us.
  11     I assume you have some period of time after lunch?
  12   MR LANGSTAFF: It will be about 10 or 15 minutes, I think,
  13     but I think it is probably sensible to break now.
  14   THE CHAIRMAN: In other words, we will come back at 2.15,.
  15   (1.35 pm)
  16            (Adjourned until 2.15 pm)
  17   (2.25 pm)
  18   MR LANGSTAFF: Sir Graham, can we return to your statement
  19     and go to WIT 40/3.
  20        You describe in the last sentence of paragraph 9
  21     how there was a shift in how NHS policy work was dealt
  22     with. We have already explored this to some extent in
  23     evidence.
  24   A. Yes.
  25   Q. Was the move one which was the subject of fierce

   1     controversy, or not?
   2   A. I think outside the Department it was a matter of
   3     indifference to people on the whole. It was very much
   4     an issue internal to the Department, I think.
   5        There were different opinions about it inside the
   6     Department, that is for sure. Yes, I think
   7     "controversy" is too strong a word, but there were
   8     people who thought the changes we made were not the
   9     right thing to do. That is undoubtedly true.
  10   Q. Was it part of the change from Board to Executive?
  11   A. No, it followed that.
  12   Q. Was the change from Board to Executive also a matter of
  13     internal debate?
  14   A. Not to any significant extent, no. It was, I think
  15     I said in a footnote, a matter of form rather than
  16     substance. It really did not make a lot of difference,
  17     to be honest.
  18   Q. At some stage the Management Executive moved to Leeds?
  19   A. True.
  20   Q. The Department of Health stayed where it was, based in
  21     London. Did that make for less effective communication
  22     between the two?
  23   A. First, do you mind, without being picky, if I make
  24     a point, which is that the NHS Management Executive is
  25     part of the Department of Health and so I know people do

   1     refer to the bit that is not the Management Executive as
   2     the "Department", but actually both constitute the
   3     Department.
   4        Obviously, if you take a whole group of staff and
   5     transport them 200 miles up the M1, that does not do
   6     wonderful things for your communications. So we had to
   7     work very hard to make sure that the best possible
   8     communications were maintained, not only obviously with
   9     the remaining officials in the department, but also with
  10     Ministers who predominantly were in London.
  11        So we had a whole range of ways of dealing with
  12     that and we were fairly early on in the e-mail business
  13     and a lot of people spent a lot of time on trains, but
  14     we did work very hard at communications.
  15        Actually, of course, the people who were handling
  16     supra-regional services were not affected by this
  17     initially because, if I remember rightly, the move to
  18     Leeds was in 1992/93, whereas these changes I am
  19     describing whereby the staff were transferred to the
  20     executive did not take place until 1995.
  21        I am going to stop there, Mr Langstaff. I may be
  22     misleading you. You would need to check this. I think
  23     I am misleading you. I apologise for that. I think the
  24     change whereby the Management Executive took
  25     responsibility for the policy work on acute services and

   1     all the rest of it may actually have happened earlier
   2     than 1995, although I say in my statement here it was
   3     1995. That would need to be checked from the record if
   4     it really matters. It may have been 1993 or 1994.(post hearing note - confirmed 1995)
   5   Q. Since it is in your statement as being 1995, you will
   6     want to check it, will you not?
   7   A. I will check it with a colleague, yes.
   8   Q. If you want to make any change, please let us know,
   9     because the important thing is to get what you say
  10     right.
  11   A. I just had a thought it might be wrong, yes.
  12   Q. What was the inspiration for the move to Leeds if it was
  13     going to make the communication between the two arms of
  14     the Department more difficult?
  15   A. It was basically a response to government policy of the
  16     day, that is to say in the late 1980s, which was at that
  17     time very much in favour of as much government work as
  18     possible going out from London to other locations for
  19     reasons of economy, but also I think of regional
  20     development, I suppose you would call it.
  21        There was a discussion in the Department about
  22     what the Department of Health response to that should
  23     be, and various options for dispersion to outside London
  24     were debated.
  25        The decision was taken at the end of the day that

   1     it should be the Management Executive that went. That
   2     was decided, I think, in 1989, or maybe 1990, early
   3     1990, and actually put it to effect in 1992/93,
   4     I think.
   5   Q. The Executive reported to the Secretary of State through
   6     the Chief Executive?
   7   A. Correct.
   8   Q. And the residual arm of the DoH through the Permanent
   9     Secretary?
  10   A. And the Chief Medical Officer, yes.
  11   Q. Are there now moves to bring the Management Executive
  12     under the Permanent Secretary?
  13   A. Currently you mean?
  14   Q. Currently.
  15   A. Not as far as I am aware. I do not know. Not as far as
  16     I am aware.
  17   Q. Plainly the division of reporting was thought to be
  18     a good thing: what was the reason for separating the
  19     responsibilities rather than uniting them under one
  20     Permanent Secretary?
  21   A. The division of reporting, as you call it, goes back to
  22     the setting up of the Management Board in whenever it
  23     was, 1984/85. Again, I was not involved in that as it
  24     were before it happened, but only after it happened.
  25     But my belief is that it was founded on the assumption,

   1     on the belief, indeed, that the Chief Executive role
   2     could only be effectively carried out if the Chief
   3     Executive was himself an accounting officer in his own
   4     right, accountable to Parliament for the use of the
   5     funds -- these are very large funds -- and it is both
   6     desirable from the point of view of his accountability,
   7     but also I think from his authority in the NHS that he
   8     be -- I am using "he" because so far it has always been
   9     a man -- that he be seen visibly to be very much in
  10     charge of the Department's work in relation to the NHS.
  11        I think the arrangement therefore was made that
  12     there should be direct reporting to Ministers. I do not
  13     think that was ever really challenged by anybody, not as
  14     far as I know. It has to be said that the Chief
  15     Executive does have to, as it were, work with the
  16     Permanent Secretary and the Permanent Secretary does
  17     have a kind of overall responsibility for the way the
  18     whole thing works, so it is not true to say that the
  19     Chief Executive has total and absolute carte-blanche in
  20     relation to everything. I mean, he certainly does in
  21     relation to NHS matters, but when it comes to the way
  22     that his bit of the office works in the whole context,
  23     when it comes to staffing, budgeting and all that kind
  24     of thing for his own bit of the office, then he has to
  25     discuss it and agree it with the Permanent Secretary.

   1   Q. The last matter that I want to explore with you, you may
   2     be particularly able to comment upon it since you went
   3     for a while to Scotland, to the Scottish office. It is
   4     the relationship between the Department of Health in
   5     London, as Secretary of State for Health and the extent
   6     to which planning of health services in England took
   7     account of the provision of health services in Wales and
   8     Scotland. Perhaps you might like to help us with the
   9     way in which Scotland and Wales related in their
  10     provision and organisation of health services to
  11     London.
  12   A. It is a very topical subject because of devolution, but
  13     of course since -- well, for a very long time the
  14     Scottish Office and the Welsh Office, since the 1960s in
  15     the case of the Welsh Office; since before 1948 in the
  16     case of the Scottish Office -- those departments have
  17     been responsible for the services in those countries.
  18     Except in relation to a very limited list of things, the
  19     Department of Health's writ does not run in Scotland and
  20     Wales, and has not done, as I say, since 1948 in the
  21     case of Scotland and since the 1960s I think in the case
  22     of Wales.
  23        So it has been very much a question of working
  24     together with partners, so to speak, and certainly at
  25     a high level that has regularly taken place and there

   1     have been high level discussions about policy and so on
   2     and so forth.
   3        When you come down to planning of individual
   4     services, then I think the relationship has been founded
   5     much more on focusing on those situations that really
   6     need some kind of joint planning. An example of that
   7     would be in relation to Wales: that historically centres
   8     in England have traditionally provided quite a lot of
   9     the services, the specialist services particularly, for
  10     parts of Wales, particularly North Wales. In order to
  11     deal with that, there had to be a fairly close
  12     relationship, but that would have been, I think, a lot
  13     of it done at Regional level, if I can put it that way.
  14     For example, the English Mersey Region which covers
  15     Liverpool used to provide, and I think still does, a lot
  16     of the service for North Wales, and I think there would
  17     have been a lot of discussion between the Mersey Region
  18     on the one hand and the Welsh people on the other hand;
  19     probably rather less so in relation to Scotland, because
  20     Scotland was more self contained, I think, in its
  21     services.
  22        That is the general picture.
  23   Q. So were there formal links between the Welsh Office and
  24     the Department of Health in respect of the planning and
  25     provision of health services, or not?

   1   A. That is a very good question, as to how you would
   2     describe it. I am dredging my memory for what we used
   3     to do in the 1980s when I was involved in this. I think
   4     the answer is that most of the contact and most of the
   5     discussion was done on a kind of "as required" basis, in
   6     other words, between colleagues and different
   7     departments on an "as required" basis.
   8        If what you are searching for is are there any
   9     kind of overarching committees that looked at services
  10     in England and Wales together, strictly within the
  11     Department, I do not think -- I cannot remember any.
  12        Obviously for supra-regional services, I do not
  13     know for sure, I imagine there must have been some
  14     arrangement for Wales to be played into those
  15     arrangements, because some of the services, as we have
  16     heard earlier, were provided for the citizens of Wales,
  17     so I imagine that Wales must have been involved in some
  18     way in the Supra-regional Services Advisory Group. I do
  19     not know how it was done.
  20   Q. What we have heard thus far is that no charge was made
  21     to Wales in budgetary terms for the provision of
  22     supra-regional services which would also as it happened
  23     serve Wales because of their location, and the Welsh
  24     Office had an observer although not a participant at
  25     meetings of the Supra Regional Services Advisory

   1     Group -- at least, they were entitled to have an
   2     observer.
   3   A. Yes.
   4   Q. I think we know that.
   5   A. Right.
   6   Q. To what extent did you, for your part, have meetings
   7     with, liaison with, someone like Mr Gregory from Wales?
   8   A. Again, I am dredging my memory. I think the contacts in
   9     the 1980s were irregular, if I can put it that way, and
  10     on an "as required" basis, although they did happen.
  11        In the 1990s and in my time as Permanent
  12     Secretary, we had a regular meeting that involved all
  13     four of the UK NHS Chief Executives -- Northern Ireland,
  14     Scotland, Wales and England -- and all four of the
  15     relevant Permanent Secretaries, so it was a meeting of
  16     eight people. It was quite an informal meeting, but it
  17     used to take place once or twice a year. That would be
  18     used obviously to talk mostly about general department
  19     policy or developments. It was not a business meeting
  20     in the sense of talking about particular difficulties or
  21     disputes or whatever there might be between, say,
  22     England and Wales in relation to a particular service.
  23     That would have been handled on an ad hoc basis,
  24     I think, by more junior people, generally speaking.
  25   Q. When you say "more junior" people, what sort of level do

   1     you have in mind?
   2   A. Well, depending on the subject: grade 3, grade 5, that
   3     sort of level.
   4   MR LANGSTAFF: Sir Graham, those are all the questions which
   5     I have to ask you, save one, which is: is there anything
   6     you would wish to say to add to or amplify the answers
   7     you have given to the Inquiry thus far? You will be
   8     given an opportunity, I know, by the Chairman, to let us
   9     know of anything which occurs to you having left this
  10     chamber, in writing, and you must feel free to take full
  11     advantage of that, if you please. But if there is
  12     anything you wish to add at this stage, please do so.
  13   SIR GRAHAM HART: No, thank you Mr Langstaff. I think if
  14     you take what I have said along with what I have said in
  15     my statement, in both those places, if you take them
  16     together, that is everything that I would want to say about
  17     this, and possibly more.
  18   MR LANGSTAFF: There may be some questions from the Panel.
  19   THE CHAIRMAN: Professor Jarman?
  20            Examined by THE PANEL:
  21   PROFESSOR JARMAN: I would like just to get your comments in
  22     general about a couple of things other people have said
  23     to us.
  24        Mr Stark, a cardiac surgeon, came to the hearing
  25     a couple of days ago and he was commenting on the role

   1     of the Department in making decisions. He said
   2     something like "because the profession can make
   3     recommendations as we have done in 1992 about
   4     supra-regional centres, we cannot enforce that, we
   5     cannot tell our colleagues in place A or B 'You stop
   6     it', that I think is something that should be done by
   7     authorities [your department]."
   8        Later on he said "I believe the recommendations of
   9     the [number of operations] that should be done or below
  10     which one should not go should rest with the
  11     professional organisations like the Society of
  12     Cardiothoracic Surgeons or College, but the
  13     implementation, I cannot see anybody else but the
  14     Department of Health."
  15        So he is effectively saying what you told us
  16     before: that recommendations clinically might come from
  17     the profession, but ultimately in terms of policy, he
  18     thought it would go back to the Department of Health.
  19        I wonder what you would say about that?
  20   A. In a kind of legal sense he is undoubtedly right.
  21     I think it is actually a bit more complicated or complex
  22     than that in the sense that I think that if the
  23     Department and a professional committee or the leaders
  24     of the profession or whatever you want to call them, are
  25     agreed on a common policy, I think that in the real

   1     world probably both have a part to play in getting it
   2     implemented, and if an important part of the
   3     implementation process is in fact to persuade
   4     professional colleagues to take a different course of
   5     action from that which they are currently taking, of
   6     course in the end their peers in the profession have no
   7     formal authority except that which comes from their
   8     position and their persuasive powers. They might
   9     reasonably be expected to take a part in that. But
  10     ultimately, of course, it is down to what legally the
  11     Secretary of State might do and what he chooses to do,
  12     which maybe falls short of what he can legally do
  13     because he does not think it is wise to use his powers
  14     to the full extent.
  15   Q. The next question is just going on to Dr Crompton, CMO
  16     of Wales, this is a general point, really, but he
  17     mentioned as you probably heard, to Sir Donald Acheson
  18     in 1986 about problems he had heard about Bristol and so
  19     on.
  20        His action was to refer Dr Crompton to go to the
  21     SRS Advisory Group, Dr Halliday?
  22   A. Yes.
  23   Q. In light of what you have been telling us, was this the
  24     appropriate action for him to have done? Is that the
  25     line that you were describing to us?

   1   A. I have no knowledge of this. Can I be sure I have
   2     understood? Dr Crompton from Wales spoke to Sir Donald
   3     Acheson, who was then the Chief Medical Officer, saying
   4     "I have heard about it, I am worried about it, what
   5     shall I do?"
   6   Q. Yes.
   7   A. You are telling me that the CMO said "Talk to
   8     Dr Halliday about it or talk to the Supra Regional
   9     Services Advisory Group"?
  10   Q. Yes. Would you see that as being the correct route?
  11   A. Yes, I think I would, because it was the place in the
  12     organisation, if you like, not the geographical place
  13     but the organisational place in the organisation that
  14     dealt with this designation, and that presumably knew if
  15     anybody, and indeed had some powers in relation to it.
  16     So I think that was an appropriate piece of advice.
  17   Q. Related to that, Sir Terence English in 1992 had
  18     a letter which spelled out similar concerns.
  19   A. Had a letter from --
  20   Q. The letter was from somebody in a local health authority
  21     near Bristol, and the letter actually went to the
  22     President of the Royal College of Surgeons which he had
  23     been, he had just left the job and the new Chairman
  24     passed it on to him. He reported this to the SRSAG to
  25     Dr Halliday, and also to the Department of Health.

   1        Would you have considered that that was also an
   2     appropriate action for him to take?
   3   A. It certainly was appropriate for him to do. Whether it
   4     was the only thing I think would depend very much on the
   5     circumstances of what the details were and how serious
   6     it was and how reliable it all was and so on and so
   7     forth. So I think whether that would suffice for
   8     a response is a question I cannot judge, but certainly,
   9     it was an appropriate thing to do.
  10   Q. We have been told by the Administrative Secretaries of
  11     the SRSAG, Mr Angilley and Mr Owen, and also the Medical
  12     Secretary, Dr Halliday, and also by Peter Gregory, who
  13     was the Director in Wales, that basically these concerns
  14     were the statutory responsibility of the local health
  15     authorities if there were concerns about it. Would you
  16     agree that was the case? They seem to be unified in
  17     that opinion.
  18   A. It must be the case that the primary responsibility for
  19     clinical practice, wherever it is, lies with the doctors
  20     actually carrying it out. They do not get a very good
  21     airing on this, but actually that is the foundation of
  22     this whole system. It is the personal responsibility of
  23     the consultant to carry out their work conscientiously
  24     and competently, and on the people who employ them,
  25     which in this case is the Trust or before that the

   1     Health Authority. So of course they have a primary
   2     responsibility.
   3        If I can just add a little, if I may, the answer
   4     to your earlier two questions is only what it is because
   5     those services happen to be within the supra-regional
   6     services arrangement. I mean, the great bulk of NHS
   7     services were never touched by those arrangements. If
   8     you had asked me what Sir Terence English should have
   9     done if somebody had come to him about something else,
  10     the answer is he might have taken it up with the
  11     Department, but equally he might have taken it up and
  12     probably should have done, with the local people. It is
  13     just that the SRS arrangements obviously add a dimension
  14     to it.
  15   Q. Just finally, you did say about the role of the
  16     Secretary of State, if things were pretty bad and
  17     something needed to be done, the Secretary of State
  18     would probably have to use legal powers, if it actually
  19     came to that?
  20   A. Yes.
  21   Q. At another stage, I think you said to us that really
  22     there were no proper measurements of the quality.
  23        How would the Secretary of State actually have
  24     known that he or she should have taken it further?
  25   A. I do not think I would want to quite subscribe to the

   1     "no proper measurements of quality".
   2   Q. I am just quoting what you said. You said the NHS had
   3     no proper measurement of the quality of care it was
   4     providing, had no proper measure of the quality of care
   5     it was providing.
   6   A. No comprehensive system certainly. There were ways
   7     I think of picking up issues. But of course it is true
   8     that the principal way in which I think one might become
   9     aware, one would be likely to become aware, and I think probably
  10     still does become aware, of deficiencies at local level,
  11     if they are uncorrected, is by people complaining in one
  12     form or another. It happens all the time, as you know.
  13     People do complain. People are not unaware, often, that
  14     there is a problem, whether it be colleagues or whether
  15     it be patients. People do complain all the time and
  16     raise issues of this kind.
  17        There is an array of techniques you can use to
  18     respond to that, to investigate or to set up inquiries,
  19     or whatever.
  20   Q. So you would more or less depend on complaints coming
  21     through and then set up whatever necessary investigation
  22     was needed?
  23   A. I think that was the main -- of course, the mainstay of
  24     quality, as I have tried to say throughout, the main
  25     safeguard as far as patients and the public are

   1     concerned, should lie in the qualifications and the
   2     professional conduct and whatever of the people who are
   3     chosen very carefully to carry out this work -- the
   4     consultants.
   5   Q. The doctors?
   6   A. The doctors, and the other professional staff who work
   7     with them. And in the hands of the people who employ
   8     them, the Trusts and so on and so forth. That is the
   9     main safeguard.
  10        The Department and the Secretary of State can
  11     never, however clever we are at measuring these things,
  12     can never as it were sit at the centre of the web and
  13     monitor in detail exactly what is going on in different
  14     places and always be sure of picking up whether there is
  15     a problem here or a problem there. It is not remotely
  16     practicable to do that. Certainly the more serious or
  17     at least the more persistent problems one would expect,
  18     even with a very unsophisticated monitoring system, that
  19     most of it would come to light. I think these days,
  20     quite quickly, because as I said earlier in my answers,
  21     I do think the whole atmosphere and environment of this
  22     has changed. I hope that is not too optimistic, but
  23     I think it has changed. I think people are readier to
  24     engage with these issues than they used to be, when the
  25     assumption was a bit inclined to be, "Well,

   1     everything is fine", you know.
   2   PROFESSOR JARMAN: Thank you very much.
   3   MR LANGSTAFF: Sir, before further questions are asked from
   4     the Panel, I wonder if I may just clarify what Professor
   5     Sir Brian Jarman had in mind in asking two of the
   6     questions which he did. If first I may have on the
   7     screen UBHT 52/289, it is a letter of 15th July 1992
   8     from Dr John Zorab, who was the Medical Director of the
   9     Frenchay Hospital.
  10        I take that to be, if it is not, perhaps Professor
  11     Sir Brian Jarman can indicate, the letter from somebody
  12     in the local Health Authority.
  13   PROFESSOR JARMAN: Yes, that is correct.
  14   MR LANGSTAFF: Because the record needs to be clear that
  15     it was in fact somebody occupying the post of Medical
  16     Director at Frenchay Hospital.
  17   A. Another Trust, in fact.
  18   MR LANGSTAFF: Not actually a local Health Authority
  19     official.
  20   A. Okay.
  21   Q. Secondly, just so that the record is plain for you,
  22     Sir Graham, a version of what we were told was put to
  23     you in order to hypothecate the question Sir Brian asked
  24     as to what information had been given to the government,
  25     to Dr Halliday of the Supra Regional Services Advisory

   1     Group. For the purposes of completeness, I should say
   2     that that is a version of the facts which is in
   3     contention and about which the Inquiry has yet to hear
   4     further evidence.
   5        It was put to predicate the question, but it
   6     should not be assumed by anyone who looks at this from
   7     a distance that any decision has been made or was
   8     intended by the question. I am sure it was not.
   9   A. Let alone that I should take any position on it.
  10   MR LANGSTAFF: Absolutely.
  11   THE CHAIRMAN: Thank you, Mr Langstaff. I have no
  12     questions. Just perhaps a comment, Sir Graham, that one
  13     of the features of our taking evidence is that no matter
  14     whom we have spoken to -- whether it be a Health
  15     Authority, a Trust, a Royal College and now the
  16     Department -- has always found someone else to be
  17     responsible. One of the major difficulties we confront
  18     is how in the future, if not in the past, we are able to
  19     recommend a system so that, reminding myself what I said
  20     on Thursday, if Florence Nightingale were to walk, as
  21     Roy Griffiths said, through the ward, she would at least
  22     know who was in charge, and hearing you from the point
  23     of view of the Department saying "ultimately it is back
  24     to the doctor", has effectively squared the circle of
  25     our difficulty. Do you have a comment?

   1   A. Yes, I do. I think the truth is that there is a shared
   2     responsibility but a lot of people, organisations and
   3     people are involved in this. It is the Secretary of
   4     State's responsibility, with his Department, for
   5     example, to make sure that enough money is provided so
   6     that the Health Service can be run properly. That is
   7     his responsibility. It is the responsibility of every
   8     consultant or every consultant in the NHS to practice
   9     according to good standards of professional conduct and
  10     competence. It is the responsibility of the Trust or
  11     the Health Authority or whatever that employs that
  12     doctor to make sure he is a suitably qualified person;
  13     that he or she has the necessary resources in order to
  14     carry out the work that he or she has to do; and at
  15     least to supervise in some way or other the quality of
  16     what is done.
  17        So I think it would be very simplistic, if I may
  18     say so, to suggest that there is one person or one
  19     organisation which is wholly responsible and has an
  20     undivided and total responsibility for this. But
  21     I think one can explain properly, and I hope I have done
  22     so but I may have failed to do so, pretty well precisely
  23     where the boundaries of responsibility are and how they
  24     fit together.
  25        One has to use words like -- I do think, just

   1     again to say it, the primary responsibility, when you or
   2     I or any of us puts ourselves in the hands of a doctor
   3     or the Health Service, the primary responsibility for
   4     what takes place lies with the individual doctor. But
   5     it is a responsibility which inevitably he shares with
   6     his employer, if he is working in a hospital. And the
   7     Health Authority or the Trust itself obviously has also
   8     to share some of the responsibility higher up the line,
   9     because higher up the line also has a part to play. But
  10     the centre of gravity, so to speak, has to be at the
  11     level of the individual patients. It cannot be
  12     satisfactorily discharged from someone sitting in
  13     Westminster or Whitehall. We are talking about, you
  14     know, millions of events per year of an intensely
  15     personal kind involving individuals which they
  16     passionately care about, and it is quite wrong, really,
  17     I think, in any sense, to overplay the central
  18     responsibility. I hope, I sincerely hope, that is
  19     a realistic description and a proper description of how
  20     things are and how they should be, rather than simply
  21     seeking to step aside from responsibilities.
  22   MEMBER OF THE PUBLIC (MR GERRISH): Mr Chairman, you see --
  23   THE CHAIRMAN: No, Mr Gerrish.
  24   MEMBER OF THE PUBLIC (MR GERRISH): What you are saying is,
  25     it is not you.

   1   THE CHAIRMAN: You and I have spoken before, Mr Gerrish.
   2   MEMBER OF THE PUBLIC (MR GERRISH): We have. And I have
   3     listened to this load of crap all day.
   4   THE CHAIRMAN: It is very important we have an opportunity
   5     to hear from witnesses who have been called for the
   6     day. You have expressed your views in the past and we
   7     are grateful to you. May I urge that if you have
   8     something to say, and I am sure you do, you do that
   9     through the Secretariat or through our colleagues
  10     outside the hearing chamber, so that we can hear the
  11     witnesses, some of whom have been waiting for some
  12     time. I appreciate your concern, Mr Gerrish, but it
  13     does not entirely help us.
  14   MEMBER OF THE PUBLIC (MR GERRISH): You should, because you
  15     are not in my position, are you.
  16   THE CHAIRMAN: Thank you very much, Mr Gerrish.
  17        Sir Graham, Mr Langstaff has already said that
  18     there were some matters on which you expressed some
  19     doubt as to whether --
  20   SIR GRAHAM HART: Yes, I will check that.
  21   THE CHAIRMAN: We are here for a while. If there are
  22     matters you would wish to clarify or indeed if anything
  23     calls to be corrected, please do so and we will be
  24     grateful to hear from you.
  25        Additionally, if there are other matters you think

   1     would help us and you would like to draw our attention
   2     to them, we invite you to do so, but for now, and on
   3     behalf of my colleagues, may I thank you very much for
   4     your assistance; you have greatly helped us and we are
   5     all very grateful to you for coming this afternoon.
   6   MR LANGSTAFF: Sir, I wonder if we might have no more than
   7     five minutes before our next witness, Ms Rickard?
   8   THE CHAIRMAN: Yes, of course. Shall we take five minutes
   9     and come back at 10 past 3.
  10   (3.05 pm)
  11               (A short break)
  12   (3.10 pm)
  13   MR LANGSTAFF: Helen Rickard, please. Ms Rickard, as you
  14     know, we stand to take the oath.
  15           MS HELEN RICKARD (SWORN):
  16           Examined by MR LANGSTAFF:
  17   Q. Helen, your full name is Tomasina Helen Rickard, and you
  18     would like to be called Helen?
  19   A. That is right, yes.
  20   Q. You have made a statement to the Inquiry which we can
  21     pick up at the start, WIT 177/1, in which you tell us
  22     about the birth, the life and then the tragic death of
  23     your daughter Samantha.
  24   A. Yes.
  25   Q. We see at page 41 your signature at the bottom of that

   1     page?
   2   A. Yes.
   3   Q. And the contents of that statement up to and including
   4     paragraph 117 are true and accurate, are they?
   5   A. Yes.
   6   Q. Subsequently, having read the response of John Gray from
   7     the UBHT to part of what you had to say, did you furnish
   8     a supplementary statement or comments which we pick up
   9     at 177/59? If we go to page 61, we see that you have
  10     signed that too.
  11   A. Yes.
  12   Q. And that also is true and accurate, is it?
  13   A. It is, yes.
  14   Q. In any part about which I do not ask you, you can assume
  15     that we will take your statement and your comments to us
  16     as read, and so you must not understand that we are
  17     missing or losing anything.
  18   A. I understand that, yes.
  19   Q. Inevitably in my questions I will focus on some matters
  20     more than others, and particularly, this week, we are
  21     focusing on Issue J, retention of tissue, so I shall ask
  22     you to say rather more about that than I will about the
  23     rest of what you have to tell us.
  24   A. Okay.
  25   Q. Samantha was born on St Valentine's Day 1991,

   1     14th February?
   2   A. Yes.
   3   Q. And at first did things seem to be going fine with
   4     Samantha?
   5   A. For the first few days after she was born, yes.
   6     I believe it was on the sixth day that she was seen by
   7     a paediatrician before we were to leave the hospital and
   8     it was then that I was told that she had a heart murmur
   9     but that it was nothing to worry about. I was given
  10     a percentage. I was told a percentage of babies, I do
  11     not remember the percentage I was given, they healed up,
  12     it was nothing to worry about and it would just
  13     disappear.
  14   Q. That was whilst you were still in hospital?
  15   A. That is whilst I was still in hospital, yes.
  16   Q. That was in Wales?
  17   A. Yes.
  18   Q. You took Samantha, as any mother would with a young
  19     baby, to the clinic to be weighed and watch the
  20     progress?
  21   A. Yes.
  22   Q. And you yourself took particular interest, obviously, in
  23     her progress over the weeks. Did she seem to be putting
  24     on weight?
  25   A. No, she did everything else but put on weight. It was

   1     very noticeable right from the beginning that she did
   2     not feed, she did not take large amounts of milk, she
   3     did not eat solids very well and she failed to gain
   4     weight. She was a very, very tiny baby right up until
   5     she died.
   6   Q. So what did you do about that?
   7   A. I used to go to the clinic which was at my doctor's
   8     surgery about every two to three weeks, if not every
   9     week, sometimes, and it got to the point where my
  10     doctor -- I would see my doctor while I was there,
  11     I would have Samantha weighed and see the health
  12     visitor, and then I would actually see my doctor. He
  13     would say to me, "If she does not start putting on
  14     weight, we will have to do something". This went on for
  15     months. I think about seven months in all.
  16   Q. So that takes us through to some time in September?
  17   A. Yes. It was his saying this all of the time made me
  18     think, "What are they going to do?" I got to the point
  19     when Samantha was about seven months old that I said
  20     "What will you do? When you say this, if she does not
  21     gain weight soon, we will have to do something, what
  22     will you do?" He said "We will refer her to
  23     a paediatrician". I said "I would like you to do that
  24     now and not wait any longer".
  25   Q. And did he?

   1   A. He did, yes.
   2   Q. So in October 1991, 8 months of age, Samantha would be,
   3     did you go to see a Dr Caudery at the Royal Gwent
   4     Hospital in Newport?
   5   A. I did, yes.
   6   Q. What was the upshot of the conversation that you had
   7     with him or her?
   8   A. It was a him. He examined Samantha. We undressed her
   9     and he gave her an examination. He asked questions
  10     about her feeding and her sleeping and general things.
  11     At some point during our meeting he said to me that he
  12     felt that Samantha was a naturally dinky baby and that
  13     he did not believe there was anything wrong with her.
  14     At the same meeting, he said he would like to do a sweat
  15     test, which I believe was for cystic fibrosis, which we
  16     did. That happened. I am not quite sure at which point
  17     that happened, but I do remember that we went back
  18     again, which I think was about four weeks later, and
  19     some time in-between there the sweat test had been done.
  20        When we went back to get the results of the sweat
  21     test, I did not see Dr Caudery, I saw a lady called
  22     Dr Davies. She examined Samantha again, undressed her,
  23     and said to me "Does she always breathe like this?"
  24     I did not really understand what she meant by that, but
  25     just said "Yes", because she breathed.

   1   Q. Noisily? Chestily?
   2   A. Yes, she was always fairly chesty, yes, but I did not
   3     know if she was referring to the actual movement of her
   4     chest or what, but my answer was "Yes", and following
   5     that, she said that we would need to take her down to
   6     the x-ray department to have a chest x-ray, and she
   7     asked us to wait for the x-ray to be given to us and
   8     then to return to the outpatients department to see her
   9     again following the x-ray, so the same day, which we
  10     did.
  11        She looked at the x-ray and then said that
  12     "Samantha will need to be admitted to hospital as she
  13     had a shadow on her lung".
  14        I kind of said, "Okay, when?" She said "Well,
  15     now". I refused and said that I just wanted to go home
  16     and I would come back again in the morning, which she
  17     agreed to. And Andy and I took Samantha home. We only
  18     lived at the top of the hill from the hospital. We got
  19     in the door and I think the phone was actually ringing
  20     and it was Dr Davies to say she had shown the x-ray to
  21     a colleague and they did not feel it was appropriate to
  22     wait until the following morning and would we please
  23     take her back in.
  24   Q. So you got the impression, did you, that something was
  25     seriously amiss?

   1   A. I actually asked her on the telephone, what was she not
   2     telling me?
   3   Q. And she said?
   4   A. "I am not not telling you anything, it is just that there is
   5     something wrong and we need to do further examinations
   6     to find out exactly what is wrong".
   7   Q. So straight back in?
   8   A. Straight back in, yes.
   9   Q. And who did you then see?
  10   A. I do not recall who I saw immediately. I know we were
  11     taken up on to a ward. I do not recall how I got there
  12     or who took us. The next recollection I have following
  13     that was being introduced to a Dr Ferguson, a man. We
  14     were taken into a small room and he came in and spoke to
  15     us. I do not remember what he said to us, but I do
  16     remember that he was holding a piece of paper which had
  17     "heart failure" written on it. I can remember looking
  18     at it and looking at Samantha --
  19   Q. Anything else or just that?
  20   A. Just "heart failure". That is all I can remember
  21     seeing, just "heart failure". I remember looking at the
  22     paper and looking at Samantha and thinking "Is she going
  23     to drop dead any minute? What does it mean?" But I did
  24     not ask him. I did not ask him what it meant and I did
  25     not ask him if it was in relation to Samantha, I assumed

   1     that it was.
   2   Q. It may be relevant when we come to later conversations
   3     that you had with other doctors: why did you not ask
   4     him? Were you too scared of what his answer might be?
   5   A. I think so. I think I was just shocked by seeing it and
   6     probably did not want to know what it meant, did not
   7     want to know the ramifications of what that really
   8     meant.
   9   Q. You were told, I think, were you, that she would need to
  10     see a cardiologist; the cardiologist came from Bristol?
  11   A. I was told that, yes.
  12   Q. And in consequence, did she, shortly after that, a week
  13     or so later, see a Dr Jordan?
  14   A. It was the same week Dr Jordan came over to Newport, to
  15     the hospital. I think we may have been in one or two
  16     days. I am sure it was a Friday that he came over.
  17     I think we saw him in the afternoon. I think we were
  18     taken downstairs back to the outpatients department,
  19     very close by there, to where he did a scan, which
  20     I think is an echo.
  21   Q. You talked to him?
  22   A. I do not remember there being a great deal of
  23     conversation at that point.
  24   Q. Someone told you it was a scan or an echo. Who would
  25     that have been?

   1   A. I think perhaps I know that now. I maybe did not know
   2     it then, but I could see that he was doing a scan
   3     because, being pregnant, you have scans and I could see
   4     the instrument that he was using was similar if not the
   5     same.
   6   Q. Did you ask him anything about Samantha's condition?
   7   A. I do not remember asking anything at that point.
   8   Q. Did he say anything?
   9   A. He said that she had a hole in the heart.
  10   Q. A hole?
  11   A. A hole, and that she would need to go to Bristol to have
  12     further examinations again, which I was told was
  13     a cardiac catheter.
  14   Q. Can we have a look at page 12 of your statement,
  15     paragraph 33? This is dealing with the consultation
  16     that you had with Dr Jordan. You say that the procedure
  17     was described as a scan at the time and your
  18     recollection now is you do not know whether anyone
  19     described it as such, but you recognised it as that?
  20   A. Yes.
  21   Q. "He told us that Samantha had two holes in her heart."
  22     A moment ago I said "A hole?" and you said "A hole". Do
  23     you remember which it actually was?
  24   A. I think it was two. I am sure because of the actual
  25     defect that Samantha had. It was a large hole covering

   1     the centre of her heart.
   2   Q. This is really just looking at what you can now remember
   3     and disentangle from what you have learned since, and
   4     trying to help you to remember, if you can, what
   5     Dr Jordan was actually saying to you and what you recall
   6     he said to you, or what you have since learned.
   7   A. No, he did tell me that there were two holes in the
   8     heart.
   9   Q. When you knew that Samantha had two holes in her heart
  10     and it was obvious that somebody else, Dr Ferguson had
  11     the letter saying "heart failure", and you had seen that
  12     she was not putting on weight and you had been naturally
  13     concerned for her, did that worry you?
  14   A. I am sorry, can you repeat that?
  15   Q. The fact you were told she had two holes in her heart in
  16     the context that somebody else had written down "heart
  17     failure" on a piece of paper and you knew she was not
  18     putting on weight and thriving in that sense, it must
  19     have worried you?
  20   A. Yes.
  21   Q. What did you think the consequence of this condition was
  22     going to be?
  23   A. I think at that point I was just kind of going along
  24     with the events that were happening and not actually
  25     seeking any clarification or asking any questions about

   1     anything. I think I was in a state of shock and unable
   2     to seek any further clarification on it, because of the
   3     consequences of what that might mean.
   4   Q. When you were with Samantha and Dr Jordan did his tests,
   5     was Andy there?
   6   A. Yes.
   7   Q. And he was your partner?
   8   A. Yes.
   9   Q. Did he ask any questions that you can recall?
  10   A. No, he did not. If anybody asked anything, it was
  11     generally me, not Andy.
  12   Q. So what did you understand was going to happen to
  13     Samantha now that Dr Jordan had carried out the scan and
  14     had identified the holes in the heart?
  15   A. Are we talking before or after the cardiac catheter?
  16   Q. This is immediately after the echo, after the scan.
  17   A. I remember leaving the hospital and going straight to
  18     where my family were, the family business, and phoning
  19     up the hospital and asking what Samantha's condition was
  20     called, because I had left the hospital knowing that she
  21     had holes in her heart and I wanted to know what the
  22     name of it was. I remember phoning the hospital and
  23     going through to the ward and asking somebody that
  24     question, and there was some reluctance to tell me, but
  25     the conversation --

   1   Q. This is the Welsh hospital, the Royal Gwent Hospital?
   2   A. Yes. The conversation by phone did end with them
   3     telling me that it was an AVSD.
   4   Q. Did they call it AVSD or did they give it the longer
   5     name?
   6   A. They gave the longer version and spelled it for me.
   7   Q. So you wrote it down, did you?
   8   A. I did, yes.
   9   Q. Did you know anything at all about it at that stage?
  10   A. No. Nothing.
  11   Q. So what did you understand would be the next step?
  12   A. Coming over to Bristol for a cardiac catheter.
  13   Q. When was that?
  14   A. That was in November.
  15   Q. So we are at the very end of November now, are we?
  16   A. Yes.
  17   Q. So Samantha would be 9 months old?
  18   A. Yes.
  19   Q. Both you and Andy were there when she had her catheter,
  20     were you?
  21   A. Yes.
  22   Q. Who did the catheter?
  23   A. Dr Jordan.
  24   Q. Was there any discussion following the catheter as to
  25     the results, what had been found during the

   1     catheterisation?
   2   A. No. There was definitely no conversation following
   3     that. Andy and I obviously waited at the hospital for
   4     Samantha to come back out of the theatre, or whatever
   5     the room is called. Dr Jordan came back up to the ward
   6     with Samantha, where we were waiting. We both looked at
   7     him expecting him to be forthcoming with some kind of
   8     information about what they had done, what they had
   9     found. That did not happen. Dr Jordan was not willing
  10     to talk to us. He said that he would need to discuss
  11     the findings with his colleagues and we would be
  12     contacted after that.
  13        I asked to see Samantha's medical records at that
  14     point and I was told no, that would not be possible. We
  15     were basically just left there with no information
  16     again.
  17   Q. So you had asked for information?
  18   A. Yes.
  19   Q. And you had been refused. Was there a reason given to
  20     you in any length as to why you were being refused? You
  21     say that Dr Jordan indicated he wanted to talk to his
  22     colleagues about what he had seen.
  23   A. No, that was the only information he gave us, that he
  24     would not be able to give us any information until he
  25     talked it through with his colleagues.

   1   Q. So was that put to you as though he wanted to make sure
   2     he was giving you the accurate information rather than
   3     volunteer something off the top of his head which might
   4     be wrong, so that he was taking care about what he was
   5     saying to you; or did you think that it was along the
   6     lines of, "Well, you are just a parent, you do not need
   7     to know"? How was it put?
   8   A. I cannot say what his intention was, but the way I was
   9     left feeling was that I could not find out what was
  10     going on; that it is just he was not willing to give me
  11     that information. I was left feeling that I could not
  12     know.
  13   Q. Looking back on that, what would you rather had happened
  14     in terms of information? Let us suppose for a moment
  15     that Dr Jordan was not himself entirely certain and
  16     needed to discuss his findings with others to ensure he
  17     had as accurate a picture as possible to give you.
  18        Do you think, looking back on it, he should have
  19     told you what inaccurate picture he had and then come
  20     along and changed his mind later?
  21   A. No, I think it would have been fine for him to have
  22     said, "Well, we have done this and we have found certain
  23     things" and maybe say what they are, "but I cannot say
  24     for 100 per cent" or "I need to get a second opinion,
  25     get somebody else to look at it", but at least give us

   1     some information or tell us why he is unable to give us
   2     any information.
   3   Q. So give you some idea as to what the uncertainty was?
   4   A. Yes.
   5   Q. Did he say anything about what was going to happen next,
   6     as far as Samantha was concerned, apart from his
   7     discussing findings with colleagues?
   8   A. I would need to refer to my statement to know exactly,
   9     but I believe at that point we were told that we would
  10     be contacted, I think, or given an appointment. No,
  11     I was not told that at that time.
  12   Q. It is page 14; top of the page. You say in paragraph 38
  13     you left the hospital the next day, 27th November 1991.
  14     Did you get those dates from a diary?
  15   A. Yes.
  16   Q. "Still without knowing what the future held for us or
  17     Samantha."
  18        So what you are saying there is that you did not
  19     know, nobody told you?
  20   A. No, we were told that we would be contacted.
  21   Q. And you say there how you had to wait during Samantha's
  22     first Christmas?
  23   A. Yes.
  24   Q. For what the future was going to hold?
  25   A. Yes.

   1   Q. You say, the bottom of the page, you asked to see
   2     Samantha's records and with some reluctance you were
   3     shown them. Was that the second time you asked or the
   4     first time you asked?
   5   A. That was the first time I had asked at my GP.
   6   Q. But you had already asked at the hospital?
   7   A. Yes.
   8   Q. You describe how you learned from talking to your GP and
   9     seeing the letter which Dr Jordan had written that in
  10     fact Samantha required urgent surgery, but no-one had
  11     actually told you?
  12   A. No.
  13   Q. So it came as a shock?
  14   A. Yes.
  15   Q. You took that up, I think, with the hospital and
  16     complained about it, and you set that out in
  17     paragraph 41 of your statement. It is the next page,
  18     the bottom of page 15. You describe there the
  19     interaction you had at that time with the Trust and your
  20     feelings about it.
  21   A. Yes. It was a lady who answered the phone.
  22   Q. So you knew now from reading that letter, coming across
  23     that letter, that Samantha's condition required urgent
  24     surgery?
  25   A. Yes.

   1   Q. And at this stage you had seen that Dr Jordan had
   2     described to you how she had two holes in the heart, but
   3     had not been prepared to give you any further
   4     information following the catheterisation. You had seen
   5     her condition described as "heart failure" by somebody
   6     else and you knew yourself she was not putting on
   7     weight.
   8        Although it obviously came as a shock to know that
   9     she was in urgent need of surgery, was it a surprise as
  10     well as a shock? Or did you think perhaps in your heart
  11     of hearts, at the back of your mind, that this might be
  12     something she would need?
  13   A. I think somewhere in me I would have known that, but
  14     I think at that time it was yet a further step into
  15     deeper shock, really, that she was going to have
  16     surgery, and even at that time, reading that, I did not
  17     understand what having surgery meant in terms of what
  18     they would actually do to her.
  19   Q. Having been told that she had an atrioventricular septal
  20     defect, had you looked that up anywhere?
  21   A. No.
  22   Q. Had you asked any medical friend or person who might
  23     know, a doctor, what it was?
  24   A. We did go and see another Dr Davies who is somehow
  25     connected to somebody that my father knows, who is based

   1     at the Royal Gwent Hospital, and we did go and see him.
   2     But we did not actually seek information as to what
   3     atrioventricular septal defect meant; we went to him in
   4     terms of would Samantha have surgery at the Bristol
   5     Royal Infirmary or would we take her abroad?
   6   Q. So this must have been after you knew that surgery was
   7     going to happen?
   8   A. It was, yes.
   9   Q. So it is some time between --
  10   A. It is going ahead slightly.
  11   Q. It is some time between Christmas 1991 and February
  12     1992, in that two month window. Can you be any more
  13     precise about when it was? Was it before the new year,
  14     after the new year?
  15   A. I do not know. I do not know.
  16   Q. Had you asked your GP what AVSD or atrioventricular
  17     septal defect was?
  18   A. No. I had not.
  19   Q. So you had the label but you had not actually made any
  20     enquiries at that stage about it?
  21   A. No. At that point in time my GP, I had lost faith in
  22     slightly, and did not feel so able to go to him.
  23   Q. Or your health visitor who helped you to get the medical
  24     records?
  25   A. I remember talking to her at the time that I read the

   1     letter. She was with me, not my GP. She was in the
   2     clinic with me. I remember talking to her then.
   3   Q. Did you mention AVSD or atrioventricular septal defect
   4     to her?
   5   A. I do not recall.
   6   Q. So if you did not, and you cannot recall whether you did
   7     or not, was it perhaps because again you were putting
   8     that to the back of your mind rather than wanting to
   9     know?
  10   A. I think on the point of reading that letter the very
  11     fact that I had gone to the GP to ask to see Samantha's
  12     medical records, I was actively seeking information.
  13     I did not have any guidance as to how to go about it,
  14     and it was just by chance I thought "It has to be in her
  15     medical records, something about the cardiac catheter
  16     has to be in the medical records".
  17        So at that point I was actively looking for
  18     information about what was going on and what was going
  19     to happen to Samantha, in the way that I knew how to at
  20     that point.
  21   Q. The fact that you were talking to Dr Davies about the
  22     possibility of raising cash to take Samantha to America
  23     for treatment: that might indicate that you thought,
  24     "Well, this is big stuff; this is serious. She may
  25     need complicated state-of-the-art treatment". Were

   1     those the sort of thoughts that were going through your
   2     mind or not, can you remember?
   3   A. I think my mind at that point was blown away by the
   4     enormity of it, that she was going to have heart
   5     surgery. I think for me it is like you go to America
   6     for that kind of thing. People are always saving up
   7     money to go to America; "that is where it all happens,
   8     it does not happen over here, it happens over there,
   9     that is where we have to take her". That is kind of
  10     where my mind was at that time.
  11   Q. You came to see Mr Wisheart for the first time I think
  12     on 15th January 1992, you tell us in your statement.
  13     At that stage, Samantha was in hospital in Newport, she
  14     had had an infection. You told Mr Wisheart why it was
  15     that Samantha was not with you?
  16   A. Yes.
  17   Q. And what did he say to you -- you and Andy, I think --
  18   A. Yes.
  19   Q. -- on that occasion, about Samantha and her condition?
  20   A. He started by drawing a square and then did a cross in
  21     the middle of it to represent the four chambers of the
  22     heart and he said that Samantha had a hole right in the
  23     middle of those four chambers and that what he would
  24     need to do --
  25   Q. Where the four lines crossed?

   1   A. Yes, and what he would need to do was to effectively put
   2     patches in to make the chambers again, and that she also
   3     had additional holes that he would need to patch.
   4   Q. Additional holes, in the plural?
   5   A. I do not recall. I would need to look at my statement
   6     to know.
   7   Q. If you look at page 18, paragraph 48, you say there
   8     "a few smaller holes"?
   9   A. Yes. He actually said as well, which I do not believe
  10     I have mentioned before, that there may be one or two
  11     very, very tiny holes that may not be patched but would
  12     be so insignificant that they would not make any
  13     difference.
  14   Q. So you understood from him he was going to patch the
  15     bigger holes?
  16   A. Yes.
  17   Q. And may leave some of the smaller ones?
  18   A. Yes.
  19   Q. He gave you some idea that the operation had to be
  20     conducted, if it was ever to be conducted, as a matter
  21     of some urgency?
  22   A. Yes.
  23   Q. Because?
  24   A. Because she had pulmonary hypertension.
  25   Q. Did he tell you what the long-term results of that would

   1     be?
   2   A. That it would affect her lungs.
   3   Q. So that ...
   4   A. She would not survive.
   5   Q. So if she did not have the operation, you understood
   6     that she --
   7   A. Would die.
   8   Q. Did you have an understanding from what he said when
   9     that might be? How quickly?
  10   A. I had in my mind that she would have lived until about
  11     eight years old, but I do not recall whether I knew that
  12     then or whether that came up at a later meeting after
  13     she had died.
  14   Q. So he might have mentioned it then, he might not have
  15     done, you cannot remember?
  16   A. I cannot remember, no.
  17   Q. But he gave you to understand that unless something was
  18     done there and then pretty well, that that is what would
  19     happen, and an operation was her only chance of
  20     survival?
  21   A. Yes.
  22   Q. As you recall it, what else did he say about the
  23     operation and her chances?
  24   A. He said that there was a 75 per cent chance of success
  25     and that he would be more than happy to carry out the

   1     operation but that it was the decision of Andy and I.
   2     He also said that Bristol was one of the best places in
   3     the country for that operation to be performed.
   4   Q. The 75 per cent chance: let us look at paragraph 49 of
   5     what you say in your statement, the next page. The last
   6     sentence of paragraph 49 is what you put in. What you
   7     say there is that you felt you had to give her some
   8     chance of survival. It is the word "some" that I want
   9     to focus on. What you seem to be saying, as a matter of
  10     English in the sentence, is that you, in the operation,
  11     knew she might survive, but might not.
  12   A. If I am understanding what you are saying correctly,
  13     I would say "No" to that.
  14   Q. If you can remember why it was in your statement -- you
  15     have gone back to your statement whenever you have been
  16     uncertain about events?
  17   A. Yes. Well, sitting here, it is quite different to just
  18     having a chat about it.
  19   Q. It is just the wording, to make sure you are saying what
  20     you want to say in the statement. It might be suggested
  21     that if you were sure that she was going to survive, you
  22     would have used different words. In other words, "with
  23     the operation, she would survive; without it she would
  24     not", something along those lines. What you have said
  25     is "to give her some chance of survival", she had to

   1     have the operation?
   2   A. Yes, but meaning if we denied her that, we would be
   3     sentencing her to death.
   4   Q. But again, it is your words that I am asking about,
   5     really. I know it is not easy sitting there, but
   6     a natural reading would be that you understood,
   7     therefore, that by having the operation, she had some
   8     chance of survival, but not a certainty of it.
   9   A. When I wrote the statement, that is not how I meant it
  10     to be. That is not my interpretation of it.
  11   Q. Can I then look back into your mind at the time? You
  12     have been told by Mr Wisheart, 75 per cent chance of
  13     success for the operation?
  14   A. Yes.
  15   Q. The reverse of the coin, 25 per cent. Looking back on
  16     it, you would know that that is the chance of the
  17     reverse side of the coin?
  18   A. Yes.
  19   Q. You did not think so at the time?
  20   A. No. Believe it or not, no, I did not.
  21   Q. So you accept that you were told in effect that there
  22     was a 25 per cent chance of death, but that is not the
  23     way that you reacted to it?
  24   A. It was not the way it was put to me. I was told
  25     a 75 per cent chance of success; the 25 per cent never

   1     came into the conversation.
   2   Q. And you never asked?
   3   A. I never asked, no. My immediate thought was "75 per
   4     cent, it is near 100; we are home and dry". You know,
   5     "That is fantastic". I am not very good with
   6     percentages. It never occurred to me to even think
   7     about the other 25 per cent. But looking at it the
   8     other way, it is 1 in 4, that has been put to me since,
   9     but not at the time.
  10   Q. And Andy did not ask either?
  11   A. No. Andy did not communicate with Mr Wisheart.
  12   Q. You did all the talking?
  13   A. Yes.
  14   Q. Did Andy react to him in the same way as you did, and
  15     find him pleasant, charismatic?
  16   A. Yes.
  17   Q. You felt confident in him?
  18   A. Totally, yes.
  19   Q. So the way that he spoke to you did not seem to be
  20     dismissive as perhaps Dr Jordan would seem to be?
  21   A. No, not at all.
  22   Q. And you felt, did you, that you were getting the
  23     information in a way that you had not had from other
  24     doctors?
  25   A. Yes.

   1   Q. You have been happy to complain -- I say "happy" to
   2     complain; you had complained, you had been prepared to
   3     complain about the other doctors, but you did not feel
   4     that way after your consultation with Mr Wisheart?
   5   A. No, not at all.
   6   Q. So is that a reflection of the fact that you felt that
   7     he tried to tell you what the position was and
   8     appreciated your position as parents?
   9   A. I am sorry, I do not understand.
  10   Q. Let me put it again. Is that because you felt at the
  11     end of the consultation that he had done his best to
  12     tell you what it was all about?
  13   A. Yes, in very simple terms. Yes.
  14   Q. You came away, you tell us, thinking "75 per cent is
  15     near to 100 per cent", which of course it is not.
  16   A. No, not in this context, no.
  17   Q. Is that, do you think, because it is what you wanted to
  18     hear? You wanted to be reassured that it would be all
  19     right?
  20   A. I suppose there has to be an element of that, yes.
  21   Q. How far, then, do you think it is because of what was
  22     said to you and the way it was said?
  23   A. I am sorry?
  24   Q. How far do you think your feeling that "this is a near
  25     certainty" is because of the way that Mr Wisheart

   1     approached the percentages?
   2   A. I am sorry, I am not getting that.
   3   Q. Mr Wisheart in his comments, as you have seen, treats
   4     this as a complaint about the way that he dealt with the
   5     risks and the chances.
   6   A. Yes.
   7   Q. You say "I spoke to him, I felt assured that Samantha
   8     would survive the operation", in short?
   9   A. Yes.
  10   Q. In fact, you and he agree that he had said 75 per cent
  11     success rate?
  12   A. Yes.
  13   Q. And he, I think, treats you as complaining that he did
  14     not make it sufficiently clear that the downside of that
  15     was the 25 per cent, the 1 in 4, the risks, if you like,
  16     of death?
  17   A. Yes.
  18   Q. Is that a complaint which you make or are you just
  19     reflecting your own emotions at what you went through at
  20     the meeting?
  21   A. I think, yes, it is a complaint in that it was not
  22     focused on -- I mean, it has to be incredibly difficult
  23     for a doctor to be sat facing parents of a baby who is
  24     going to have open-heart surgery, but I think they have
  25     to make it clear to patients, parents, that there is

   1     a risk and what the risk is and to say the word "die",
   2     "death", which was never said at that meeting. It was
   3     never discussed. It was only the success that was
   4     discussed.
   5   Q. You think he should have said that, even although he
   6     would have known that you were conscious that the
   7     alternative to the operation was death sooner or later?
   8   A. Yes.
   9   Q. And you think he should have said that, even though he
  10     would have known that you had a view about heart surgery
  11     that it was obviously unusual, risky, one might go to
  12     America for it because that is where one goes for that
  13     sort of thing, with that sort of view, the horror of
  14     heart surgery that many of us might have?
  15   A. Yes.
  16   Q. You think that nonetheless he should have spelled it
  17     out, do you?
  18   A. I do, yes, however difficult. Difficult things have to
  19     be dealt with.
  20   Q. This is perhaps an impossible question and I simply ask
  21     you to do your best with it. If he had done, would you
  22     actually have made any different decision? If you
  23     cannot answer it, do not answer it.
  24   A. I think I can only answer it from now and say my
  25     instincts would be to grab her and run.

   1   Q. But that is, you very frankly acknowledge, looking back
   2     on it?
   3   A. I can only answer that from now.
   4   Q. I am not going to press you on it. You did, at the
   5     time, I think, say you were not put under pressure by
   6     him but by the circumstances you were in. And you were
   7     told nothing about any other hospital, nothing about any
   8     other type of operation, and nothing about the hospital
   9     except that you say you were told it was one of the best
  10     in the country?
  11   A. Yes.
  12   Q. What words were used, do you remember? How did it come
  13     up? You know that he challenges having said that to
  14     you.
  15   A. I believe that he said to me, "I am more than happy to
  16     do the operation. Bristol is one of the best in the
  17     country."
  18   Q. So was that at the beginning of the conversation, the
  19     end of the conversation, after you made your decision,
  20     beforehand? When was it?
  21   A. It was towards the end of the conversation. It was
  22     after he had drawn the diagram and having gone through
  23     that, it was towards the end.
  24   Q. You appreciate that he would challenge your recollection
  25     on that. Another thing you have a recollection about,

   1     you say in terms, it is the top of page 19, the very top
   2     sentence we see, the last sentence of paragraph 48. You
   3     say:
   4        "Mr Wisheart did not see Samantha at all until she
   5     was on the table in the operating theatre."
   6   A. That is right.
   7   Q. What happened I think after this consultation was that
   8     in fact you did come into the Bristol hospital with
   9     Samantha on 30th January?
  10   A. Yes.
  11   Q. And you were there, you went away again, came back just
  12     before the operation on the 3rd?
  13   A. Yes.
  14   Q. Are you sure that Mr Wisheart did not see Samantha on
  15     any occasion during her stay in hospital before the
  16     operation?
  17   A. I am completely sure. If Mr Wisheart had seen Samantha,
  18     he would have seen me.
  19   Q. Can you look at medical report MR 1636/69. These are
  20     nursing notes in respect of Samantha. You have seen
  21     these and I think had this drawn to your attention.
  22        "13th January: Routine admission for surgery on
  23     Monday, 2nd February. No investigations obtained.
  24     Arrived on ward at 1600 hours. Needs an investigation
  25     tomorrow. Seen by [S/B] 'JDW'. [Those are

   1     Mr Wisheart's initials and so far as we know, nobody
   2     else's.] Able to go home tomorrow afternoon and return
   3     home at lunchtime Sunday."
   4   A. Yes.
   5   Q. So the nurse, whoever it is, has recorded Mr Wisheart
   6     actually having seen Samantha?
   7   A. Yes.
   8   Q. Were you with Samantha all the time?
   9   A. Yes. She even slept in our room, she did not sleep on
  10     the ward.
  11   Q. Not at all on the 30th?
  12   A. No.
  13   Q. Might it be the case that since the nurse has recorded
  14     this at the time, that he saw Samantha, that in fact he
  15     did so and you have forgotten it?
  16   A. If Mr Wisheart had seen Samantha, he would have seen
  17     me. I would have seen him, and I did not.
  18   Q. And you are quite definite about that?
  19   A. I am quite definite about that.
  20   Q. While we have the medical records -- before I go to the
  21     next sheet, how was it that it came about that you were
  22     told you could go home and come back? Who actually did
  23     the telling?
  24   A. A nurse.
  25   Q. Not a doctor?

   1   A. No. A nurse.
   2   Q. When the nurse told you, did she say "The doctor says
   3     you can go and come back", or -- do you remember how she
   4     put it?
   5   A. I do not remember how she put it. I know it was a nurse
   6     who said we could go home. I remember vaguely having
   7     a discussion about what time to come back on the Sunday
   8     and I wanted to come back as late as possible, because
   9     this was the Friday that we were going home for the
  10     weekend and we had to come back on the Sunday for the
  11     operation on the Monday.
  12   Q. If we can go to page 70 of the notes, turning it
  13     sideways, you see this is a nursing care plan, much of
  14     which is in print and therefore common form.
  15   THE CHAIRMAN: Mr Langstaff, the top right-hand corner ...
  16   MR LANGSTAFF: Let us scroll down, please.
  17   THE CHAIRMAN: Tell me when I should bring it up.
  18   MR LANGSTAFF: It will not scroll. Can we enlarge, please,
  19     line number 3? Yes. (Line 3 on screen)
  20        From the nursing care plan, "fear of dying whilst
  21     anaesthetised", this is obviously a form designed for
  22     adults and those able to speak for themselves. In your
  23     case, being parents, the comment in the first box,
  24     "Parents have expressed no fears possibility that Sam
  25     could die", it must be "as to the possibility that

   1     examine could die", and in the right-hand
   2     column, "Evaluation: Parents being very positive about
   3     the operation."
   4        So support, here, for your recollection that you
   5     felt very happy about the chances and looking to the
   6     operation as being likely to be successful?
   7   A. Yes.
   8   Q. Can we go back from that, please, to 177/20? The foot
   9     of that, please.
  10        You describe the visit that you had to Ward 5A on
  11     the 30th, the shock, walking on to the ward, walking
  12     through where the adults were. Did you do that before
  13     you saw Helen Stratton, or did she take you through and
  14     show you?
  15   A. I am unclear.
  16   Q. In any event, you describe -- go over the next page,
  17     please -- how you felt alien and unreal -- the bottom of
  18     paragraph 56. "There was so much going on it was hard
  19     to keep up with it all."
  20        That is the way that you recall your emotions?
  21   A. Yes.
  22   Q. Did the hospital on the whole try to make things easier
  23     for you to come to terms with those feelings or not,
  24     would you say?
  25   A. I think they did, yes. Yes.

   1   Q. Moving on to the operation, to the topic of the
   2     operation, you came in again on the Sunday afternoon,
   3     2nd February. The operation was to be on the Monday;
   4     is that right?
   5   A. Yes.
   6   Q. And you had a room off the ward to stay in overnight?
   7   A. Yes.
   8   Q. Samantha stayed with you?
   9   A. Yes.
  10   Q. You were taken in to see the ICU by Helen Stratton?
  11   A. Yes.
  12   Q. She said something to you which you recall?
  13   A. "Do you think you will get used to this?"
  14   Q. And your reaction to that?
  15   A. It is not something I ever wanted to get used to, or
  16     I felt it was possible to get used to. It was
  17     a ridiculous question.
  18   Q. Was she endeavouring to be sympathetic and helpful?
  19   A. I am sure she was, yes. I believe that was her
  20     intention.
  21   Q. What was the effect on you?
  22   A. I thought she was from another planet. It was a totally
  23     ridiculous question.
  24   Q. You describe how you spent the night with Samantha. She
  25     had a feed, she went down to the theatre and that was

   1     8 o'clock in the morning and how you went to say goodbye
   2     to her at the door of the theatre. Then she was gone
   3     and you and Andy went into town as you were told to do
   4     and spent what I imagine must have been an unreal few
   5     hours waiting to come back to find out what had
   6     happened?
   7   A. Yes.
   8   Q. You went up to the ward. You were told to come back at
   9     about 2 o'clock, so you had understood it was going to
  10     be a fairly lengthy operation?
  11   A. I was told 10 to 12 hours by Mr Wisheart.
  12   Q. Having started at 8, you knew the operation was not
  13     likely to be finished until what, 6 o'clock in the
  14     evening?
  15   A. Yes.
  16   Q. When you got back, did anyone speak to you about what
  17     was happening?
  18   A. Andy and I got back to the hospital and we went up on
  19     to the ward. I do not remember whether Helen Stratton
  20     was immediately available, but ultimately it was her who
  21     said that she would find out what was going on.
  22   Q. So at some stage you spoke to her?
  23   A. Yes.
  24   Q. And she did find out, did she?
  25   A. She did.

   1   Q. And came back to you?
   2   A. Yes.
   3   Q. And did she tell you straight what was happening?
   4   A. She said that Mr Wisheart was having problems.
   5   Q. And you were told to go away and come back again?
   6   A. To come back at 4.
   7   Q. And you did?
   8   A. Yes.
   9   Q. Did you have an explanation from anyone as to what had
  10     been happening in the interim?
  11   A. I was told that they could not get her off the bypass
  12     machine and that they would have to re-do patches.
  13   Q. Who was telling you that?
  14   A. Helen Stratton.
  15   Q. So she found out some more information to let you know?
  16   A. Yes.
  17   Q. You I think describe in pages 26 and 27 -- we do not
  18     need to go to them but they are there should anyone wish
  19     to see -- how you took that information and asked
  20     questions about it and reacted to it, and how you waited
  21     for more information?
  22   A. Yes.
  23   Q. What time? It was about 8 o'clock, was it, when you
  24     heard eventually what had happened?
  25   A. Yes.

   1   Q. When was your first realisation? Was it when you saw
   2     Mr Wisheart out of his operating gown, in his suit?
   3   A. That is when I first knew for sure. Intuitively I knew
   4     beforehand.
   5   Q. Did he take you somewhere private to break the news?
   6   A. We went into our room where we had slept.
   7   Q. You had an explanation which you could not focus on,
   8     you tell us, because you were screaming, I think, with
   9     the anguish of it. You wanted to see Samantha, you
  10     demanded to see her?
  11   A. Yes.
  12   Q. You were taken down to see her, given a piece of her
  13     hair, or asked if you would like a piece of her hair to
  14     keep, and that you did. Andy took the scissors and cut
  15     a lock which you kept?
  16   A. I could not touch her.
  17   Q. At some stage someone mentioned to you that there might
  18     be the need for a postmortem?
  19   A. Helen Stratton said to me that there would be
  20     a postmortem.
  21   Q. Was that after you had seen Samantha to say your
  22     goodbyes, or was it later, or before?
  23   A. I believe it was after. But I am not entirely sure.
  24   Q. Because you can remember it being said, which means you
  25     must have been in a position to take something in?

   1   A. Yes, I remember it being said.
   2   Q. So it must presumably have been later, I gather from
   3     what you said in your statement, you did not take much
   4     in, apart from the fact of death?
   5   A. No, not initially, not when Mr Wisheart first tried to
   6     tell me that she was dead.
   7   Q. Do you remember what it was that she said about the
   8     postmortem, roughly?
   9   A. There would need to be a postmortem because she died in
  10     theatre, and I accepted that.
  11   Q. Did you understand what the postmortem might involve:
  12     that it might involve the examination of the heart?
  13   A. I knew they had to cut her open. I knew that is what
  14     happened in a postmortem, that they cut the body open
  15     and they look at things inside. At that point, I do not
  16     think I thought any more of it.
  17   Q. Did anyone mention to you that the postmortem might
  18     involve having to take the heart out and leave it for
  19     a while until it was in a state when one could examine
  20     it and learn some lessons from it about what had
  21     happened?
  22   A. No.
  23   Q. Samantha was buried I think a week after the operation,
  24     on the 10th?
  25   A. The 10th.

   1   Q. And at that stage, apart from knowing that she had
   2     a postmortem, had you any clue as to whether her heart
   3     had been kept for examination later as part of the
   4     postmortem, or whether it was with the body that you
   5     buried?
   6   A. So far as I knew, I had buried the heart with Samantha.
   7     It never occurred to me they would have taken it out.
   8   Q. You had asked questions before about the medical
   9     condition that Samantha suffered from. You had asked
  10     for the notes -- your health visitor helped you to get
  11     the notes at that stage. You asked questions again,
  12     I think, after the death, and you went to see
  13     Mr Wisheart on 10th March. Did he give you an
  14     explanation which you set out in your statement which at
  15     that stage you accepted?
  16   A. Yes.
  17   Q. Was it your seeing of the Dispatches programme that
  18     first made you question what had happened, what had been
  19     said?
  20   A. Yes.
  21   Q. And that was what, some four years later?
  22   A. Yes.
  23   Q. So within that four years, as best one could, you try to
  24     put the events behind you?
  25   A. Yes. They got progressively worse, but, yes.

   1   Q. And -- this is a question -- it is put as a statement:
   2     you had no reason to remember things that had been said
   3     to you in particular by anyone about Samantha or the
   4     prospects of success or how good Bristol was, or
   5     whatever, until you saw the Dispatches programme and
   6     started thinking again about it?
   7   A. That is right, yes.
   8   Q. You tell us that an explanation was given by
   9     Mr Wisheart. You say in your statement that you took
  10     legal advice following the Dispatches programme, and
  11     that led to medical opinions and your medical opinion
  12     was to the effect that the surgery had been at fault,
  13     the treatment had been at fault. You accept, I think,
  14     that that is a matter about which you yourself cannot
  15     comment, except from what others have told you?
  16   A. Yes.
  17   Q. That is a matter, really, for experts as opposed to you,
  18     but you set out what you have been told is the position?
  19   A. Yes.
  20   MR LANGSTAFF: What I am going to turn to now is what you
  21     have discovered subsequently about Samantha's heart. It
  22     is 20 past 4; you have been giving evidence for
  23     a while. It may not have been entirely easy. Would you
  24     like a short break before we go on?
  25   MS RICKARD: I would appreciate that, yes, if possible.

   1   THE CHAIRMAN: Yes, Mr Langstaff, I think that is a good
   2     idea, if I may say so. Shall we say 10 or 15 minutes?
   3     I am in your hands.
   4   MR LANGSTAFF: Whenever we are told by Helen she is ready to
   5     come back again.
   6   MS RICKARD: 10 minutes, yes.
   7   THE CHAIRMAN: I will be guided by you. Shall we say 10,
   8     but in the knowledge that it may extend a little beyond
   9     that? Thank you.
  10   (4.20 pm)
  11               (A short break)
  12   (4.35 pm)
  13   MR LANGSTAFF: Following the Dispatches programme, you got
  14     hold of the medical notes in relation to Samantha?
  15   A. Yes.
  16   Q. Can we look, please, at MR 1636/44, the last sentence.
  17     It is highlighted, you may be able to read over it, the
  18     last sentence:
  19        "We have retained the heart and would welcome the
  20     opportunity to discuss it further with you."
  21        This is the letter dated 6th February you
  22     mentioned in your statement, is it?
  23   A. Yes.
  24   Q. So this would be three days after the death, four days
  25     before the burial?

   1   A. Yes.
   2   Q. Was it actually that, or was it, if you look at the
   3     postmortem report which you also, I think, had
   4     available, if we go to MR 1636/13, the very bottom:
   5        "The pericardial sac had been opened and left open
   6     anteriorly. The heart has been retained for further
   7     examination and has not yet been weighed ..."
   8        The date of this, if we go to page 16, 2nd March.
   9     Again, for the sake of clarity, was it the letter of
  10     6th February which was the recollection when you wrote
  11     the statement which made you realise the heart had been
  12     retained post the burial of Samantha on the 10th or was
  13     it perhaps looking at the postmortem report dated
  14     2nd March which obviously is almost a month after
  15     Samantha's burial where it says in terms "We have kept
  16     the heart for further examination"?
  17        Do you remember now which of those it was that
  18     made you realise the heart might still be retained?
  19   A. I do remember now, it was the letter.
  20   Q. It was the letter?
  21   A. Yes.
  22   Q. So you had not heard from anyone else at any stage that
  23     the heart of Samantha's might be retained?
  24   A. No. It never occurred to me.
  25   Q. When you understood that might be a possibility, such

   1     that you wanted to make further enquiries about it, what
   2     was in your mind? Why were you wanting to enquire about
   3     it?
   4   A. The first thing I needed to know after reading the
   5     letter was, did "retained" mean that they kept it? That
   6     was the first thing that I wanted to understand. Is
   7     that what they were saying in that sentence? Did that
   8     mean that they kept her heart? I just had to know.
   9   Q. So you contacted Ian Barrington?
  10   A. Yes.
  11   Q. Did you ask him?
  12   A. Yes.
  13   Q. Was he able to answer?
  14   A. No.
  15   Q. So he arranged, did he, for you to meet Professor Berry?
  16   A. Yes.
  17   Q. You did actually meet Professor Berry face-to-face?
  18   A. I did. My son had an outpatients appointment at the
  19     Children's Hospital and through conversations with Ian
  20     Barrington I made him aware I would be there on this
  21     particular day, and he came and sought me out and took
  22     me back to his office where Professor Berry was.
  23   Q. So there was Mr Barrington, Professor Berry and
  24     yourself?
  25   A. Yes.

   1   Q. And what did he say to you?
   2   A. He confirmed that he had got Samantha's heart.
   3   Q. Did he say why the heart had been retained?
   4   A. I do not recall if it was at that meeting or at the
   5     subsequent meeting on 8th May where he explained why
   6     they kept it, but his reasoning was that it was good
   7     practice, that is what they did, and that they would use
   8     it for research.
   9   Q. So we have from him a file note, it is 177/67, let us
  10     see what he says and how far you find yourself able to
  11     agree or disagree with it. This is a note he says made
  12     contemporaneously, therefore either at the time or
  13     certainly on the day of your meeting.
  14        He records having been contacted by Mr Ian
  15     Barrington and having, at 2.30 pm on 16th April, met you
  16     with Mr Barrington to discuss the postmortem
  17     examination.
  18        He says that he told you, confirmed, the
  19     examination was carried out by Dr Denton. That was the
  20     name at the bottom of the postmortem report we have
  21     already seen.
  22   A. Yes.
  23   Q. He confirmed it was done under his supervision.
  24     He explained the major postmortem findings. Did he do
  25     that? Do you remember?

   1   A. He certainly did at the subsequent meeting, but I do not
   2     have a recollection. My main recollection from this
   3     meeting is my outrage and disbelief that they had it.
   4   Q. So he may very well have explained it at this meeting?
   5   A. He may well have, yes.
   6   Q. But your general feeling was one of outrage?
   7   A. Complete outrage, yes, and disbelief.
   8   Q. Does that mean you may not have taken in everything he
   9     was saying to you because you obviously felt very
  10     annoyed?
  11   A. I was very annoyed, yes. I can remember just repeatedly
  12     asking him why he still had it, why they had done that.
  13     It was just a huge shock to imagine that they had it.
  14     I asked to see it.
  15   Q. He says, if you look at the fourth paragraph down:
  16        "Mrs Rickard asked me why the heart had been
  17     retained", so obviously that is something he knew you
  18     were emphasising?
  19   A. Yes.
  20   Q. He says he explained the difference between hospital
  21     postmortems undertaken with parental consent and
  22     postmortems carried out at the direction of the Coroner
  23     which do not involve consent.
  24        Did he say something like that?
  25   A. Yes.

   1   Q. He says he stressed that when doing a Coroner's
   2     examination, he was independent of the Trust and
   3     answerable to the Coroner?
   4   A. Yes.
   5   Q. Did he say something like that?
   6   A. Yes. I understood that.
   7   Q. Did he stress that because he did not have parental
   8     consent, he regarded those examinations as a particular
   9     responsibility which he tried to carry out to the
  10     highest standards within the resources available?
  11   A. Yes.
  12   Q. He says he gave three reasons for retaining Samantha's
  13     heart. Let us have a look down the screen. Let me give
  14     you a moment to read that on the screen.
  15        Leave aside for the moment whether he is right or
  16     wrong as to the law, which again is not an issue you
  17     want to get involved in, but whether he said what is set
  18     out there.
  19        Have you read them through?
  20   A. I have. I do not recall number 2 ever being raised, but
  21     I do recall a discussion about the Coroner and also
  22     about meetings with surgeons and cardiologists, hence
  23     Dr Denton's letter.
  24   Q. Then he goes on to say that you asked why he still
  25     retained the heart and he says his reply was that it

   1     would still be available should any question arise so
   2     that others might learn and benefit from her death.
   3        Again, did he say that, or something like that?
   4   A. Yes, he did say something like that.
   5   Q. That, at least, the latter part of that, learning and
   6     benefit from her death is perhaps looking at research,
   7     is it?
   8   A. Yes.
   9   Q. From speaking to parents, mainly those who suffered
  10     a cot death, he learned that most parents feel if their
  11     child has a postmortem, "If we can use the opportunity
  12     to help others, we should do so".
  13        Did he say something like that about his contact,
  14     not with parents who had a child's heart death, but with
  15     other parents of children who had unfortunately died?
  16   A. I do not recall that being raised at that first meeting,
  17     but the meeting of 8th May, I remember him saying that
  18     he was not responsible for having Samantha's heart
  19     retained, it was the responsibility of the person who
  20     carried out the postmortem, and I pointed out that he
  21     was present, it says on the postmortem report form that
  22     he was present. He also said he did not come into
  23     contact with parents of children who had died. We did
  24     not discuss how they died, but he said he did not come
  25     into contact with parents.

   1   Q. One of your concerns about Professor Berry and what he
   2     said to you was that, at the second meeting, I think,
   3     you went there with Maria Shortis; is that right?
   4   A. That is right, yes.
   5   Q. And you were told, or came out understanding that he had
   6     not had regular contact with parents of children who
   7     died. I think you gave a TV interview and then he gave
   8     a TV interview?
   9   A. Yes.
  10   Q. And you heard when you saw his TV interview, that he was
  11     claiming to know what parents felt. You thought to
  12     yourself, "How can he know what parents feel when he
  13     told me he had not spoken to them?"
  14   A. That is right, yes. I wrote to him.
  15   Q. You have seen what he said about your recollection in
  16     this respect and his recollection. May there have been
  17     an element of cross-purposes here, do you think: that he
  18     may either have said or meant to have said, "I have not
  19     spoken to parents whose children have had heart surgery
  20     and died", whereas what you took from that was that he
  21     had not spoken to any parents of any children who died?
  22   A. That was my understanding, yes.
  23   Q. Might he then, do you think, have said that he had not
  24     spoken to parents of children who had had heart surgery,
  25     qualified it in that way, and you picked it up as being

   1     general?
   2   A. I do not believe so.
   3   Q. He tells us -- it is WIT 177/64, the middle of the page,
   4     please -- that he accepts that he told you that he had
   5     not come into contact with parents who had lost a child
   6     after cardiac surgery, but would not have said that he
   7     never came into contact with the parents of children who
   8     had died, and then goes on to explain how he had in fact
   9     met parents before postmortem examinations, taken them
  10     to see their child afterwards, had taken part in parent
  11     support groups and how those parents had come to lose
  12     their children?
  13   A. He says there he had seen parents who lost children from
  14     miscarriage, accident, cot death, cancer and other
  15     causes. Why had he not seen any who had died through
  16     cardiac surgery?
  17   Q. That is a question I cannot answer, you understand why
  18     I cannot answer it, but it is one we shall certainly ask
  19     Professor Berry.
  20        He goes on to say he would not intentionally have
  21     given the impression that he never came into contact
  22     with parents of children who had died.
  23        So if the situation is that he did give you that
  24     impression, he is saying you were at cross-purposes or
  25     it was unintentional on his part.

   1   A. Yes.
   2   Q. Given what he sets out, which must presumably be
   3     a matter of record, his meeting other groups and so on,
   4     if it is, the fact he has done that, then are you, upon
   5     reflection, despite your shock of seeing the interview
   6     he gave, prepared to accept that there may well have
   7     been a misunderstanding between you as to that?
   8   A. I am confident in the statement that I have made, in
   9     that he told me he did not come into contact with
  10     parents of children and I think that the subsequent
  11     letter I wrote following the interview shows that that
  12     is what was in my mind; that is what I left that meeting
  13     with.
  14   Q. So you cannot speak for what he meant to say, but you
  15     can say that is what was in your mind as a result of
  16     what he said?
  17   A. Yes.
  18   Q. If we turn over the page of his note which is 177/68, go
  19     back to that, he describes your asking if you could see
  20     Samantha's heart. This is on the first occasion you
  21     met. You asked then if you could, did you?
  22   A. Yes, I did.
  23   Q. Did he promise to arrange it?
  24   A. Yes.
  25   Q. Did he apologise for any additional distress that he

   1     caused by keeping the heart?
   2   A. He did, yes.
   3   Q. As it happened, he had done so, had he: caused
   4     additional distress?
   5   A. Yes. Enormously.
   6   Q. Can I ask you -- I have asked you a number of questions
   7     about distress: following Samantha's death, did you get
   8     any offer of support from the hospital at all?
   9   A. No. I walked out of the hospital with Andy and my Mum
  10     and his Mum, and other than going back in March to see
  11     Mr Wisheart, I had no other dealings with the hospital,
  12     nor anyone in it, for any reason. And I left there
  13     believing, strangely enough, that I was the only person
  14     to have ever lost a child. It did not occur to me that
  15     it happened to other people at that point. I think that
  16     feeling shows how isolated I felt at that time.
  17   Q. Did anyone else in a professional capacity offer you
  18     assistance? Did you ask anyone else in a professional
  19     capacity for assistance by counselling or otherwise at
  20     that stage?
  21   A. My GP called to see me, I believe the following day that
  22     we had returned back from the hospital. He had
  23     obviously been notified by the hospital of Samantha's
  24     death, and he called to my house, which was next-door to
  25     the surgery, and asked if there was anything that he

   1     could do. I initially asked him for medication, which
   2     I was given.
   3   Q. Tranquillisers?
   4   A. Valium, and then I sought counselling, but I do not
   5     recall the exact timing of that.
   6   Q. Was that arranged through your GP?
   7   A. Yes.
   8   Q. Did it help?
   9   A. Yes. Difficult, but it helped.
  10   Q. Subsequently you lost your partner and after that you
  11     came to hear about the hearts and to have the shock of
  12     the Dispatches programme and bringing back the
  13     memories. You were the first I think of parents so far
  14     as you know to ask about whether any heart had been
  15     retained?
  16   A. As far as I know, yes.
  17   Q. You described the way it affected you. Were you offered
  18     by anyone counselling at that stage?
  19   A. No.
  20   Q. Have you had some since?
  21   A. I have had an awful lot of counselling, yes.
  22   Q. That has helped, has it?
  23   A. Yes. In September 1996 I went into therapy. I have
  24     been there ever since.
  25   Q. Going back to the question of the hearts and what in

   1     respect of Samantha's heart was said to you, you
   2     returned and again, this is looking at his file note
   3     which he has sent to us, you returned to see him on
   4     8th May 1996 and you went back to see Samantha's heart?
   5   A. Yes.
   6   Q. With Mrs Maria Shortis?
   7   A. That is right, yes.
   8   Q. And he says you had a lengthy discussion and that he
   9     repeated many of the points that you have already
  10     mentioned. I think you cannot really recall whether
  11     they were mentioned at the first meeting or the second,
  12     from what you are saying earlier?
  13   A. I do not know.
  14   Q. Certainly one or the other: it may well have been the
  15     one; it may have been both?
  16   A. The second meeting, the meeting on 8th May, was
  17     certainly a longer meeting than the one before.
  18   Q. You had had a chance to come to terms of a sort with the
  19     news by this stage, so there was not such an anger
  20     masking anything, although anger there may have been,
  21     I suspect. Is that right or not?
  22   A. I think at that stage I was more able to be constructive
  23     in my comments.
  24   Q. Yes. So he says how you explained about the letter
  25     written by his senior registrar to Mr Wisheart shortly

   1     after the postmortem examination. That would be the
   2     letter of 6th February which we have seen, I think?
   3   A. Yes.
   4   Q. He says he explained that to you and apologised for any
   5     misunderstanding; is that right?
   6   A. Yes.
   7   Q. He says he briefly showed you Samantha's heart and
   8     pointed out the surgery and the various aspects of the
   9     anatomy. Did he do that?
  10   A. He did, yes.
  11   Q. He says he pointed out the potential toxicity of
  12     formalin?
  13   A. He did, yes.
  14   Q. You both, he said, asked whose job it was to tell
  15     parents that tissue would be retained, whose
  16     responsibility it was, at any rate?
  17   A. Yes.
  18   Q. And he sets out a reply there, that with a Coroner's
  19     postmortem there is probably no requirement but he would
  20     expect the clinician who reported the case to explain to
  21     relatives that there would be one and what it entailed.
  22        You had been told there would be a postmortem?
  23   A. Yes.
  24   Q. But from what you say, you had been left to your own
  25     knowledge, general knowledge, as to what it might have

   1     involved?
   2   A. Yes. I never enquired.
   3   Q. Do you think you should have had to enquire or do you
   4     think you should have been told?
   5   A. I think I should have been told.
   6   Q. If this Inquiry is to make recommendations for the
   7     future, what, as you see it, is the sort of information
   8     that should have been given to you after Samantha's
   9     death as to what might happen to her heart? In broad
  10     terms, what would you expect someone like yourself to be
  11     told?
  12   A. I would expect to be told that in the case of
  13     a Coroner's postmortem, where I have no say in what
  14     happens, I expect to be told that that is the case and
  15     what powers the Coroner has and that it may well be that
  16     they retain a heart or brain or every organ in the body,
  17     but to be told that that is a possibility and then if it
  18     is going to happen, to be told that it is going to
  19     happen.
  20   Q. If you had been asked at that stage "We may want to
  21     retain the heart but we have a choice over it", suppose
  22     something like that had been said to you, a hypothetical
  23     question following Samantha's death, "It may be very
  24     valuable in order to learn lessons for other children or
  25     the future so that we may be able to save more lives",

   1     something along those lines, do you have any idea how
   2     you might have responded?
   3   A. I would have said "No".
   4   Q. You would have said "No"?
   5   A. I would have said "No".
   6   Q. You got a box containing her heart. It came to be in
   7     the possession of Professor Anderson. Your
   8     understanding I think now is that it is part of
   9     a collection at Great Ormond Street?
  10   A. At Brompton.
  11   Q. And you would wish it to go with Professor Anderson to
  12     Great Ormond Street?
  13   A. Yes.
  14   Q. But during the time that you had it in your possession,
  15     you could have disposed -- I do not mean to be offensive
  16     by the use of that word -- of it in one way or another
  17     if you had not wished to pass it on to Professor
  18     Anderson?
  19        May I just ask why it was that you chose to give
  20     the heart to him rather than to deal with it in some
  21     other way?
  22   A. I buried Samantha believing that I had buried Samantha,
  23     all of her, as she came into this world. I then had to
  24     deal with the prospect that I had not and that her heart
  25     had been removed. Learning that, I then had to deal

   1     with seeing her heart and the decision of what to do
   2     with it when I initially got it back, I was terrified of
   3     it, absolutely terrified that there was an internal
   4     organ in this box in front of me in my house. I put it
   5     in the care of my solicitor and I took Samantha's heart
   6     to Professor Anderson to be examined. He spent a lot of
   7     time with me and he explained as simply as he could what
   8     Samantha's defects were and what had gone wrong and how
   9     it all worked and he showed me a lot of other hearts
  10     that he had in his collection at the Brompton. My gut
  11     feeling is, I want to bury Samantha's heart where it
  12     should be -- where it should be, but to do that, because
  13     of the burial arrangements I have with my husband and
  14     daughter, the prospect was too complicated and too
  15     traumatic, and because I felt so warmed to Professor
  16     Anderson and he had explained that Samantha's heart was
  17     very unusual and it could make a lot of difference,
  18     I felt that I had no option, because the other option of
  19     burial was so abhorrent to me, because of what it would
  20     mean in terms of exhuming my husband's body to put the
  21     heart back with Samantha, I came to the decision that
  22     I should give it to Professor Anderson.
  23   Q. He says, if one goes down to the bottom of the page,
  24     that he again apologised for any additional distress.
  25     Did it seem to you, before you raised the issue and

   1     expressed your concerns, that he had had any concept of
   2     the idea that retention of hearts might cause distress
   3     to parents?
   4   A. I do not think he had any concept of it at all. I think
   5     he was very aware of my distress and very apologetic on
   6     the occasions that I met him. I think the concept of
   7     the impact that it had had on me was beyond his
   8     comprehension.
   9   Q. You say -- this is going back to your own statement,
  10     page 39, paragraph 109 -- that during the course of the
  11     meeting where you were with Mrs Maria Shortis and he is
  12     there with Mr Barrington, you asked how many hearts he
  13     had and you said he and Mr Barrington looked at each
  14     other and said "We could not possibly say, we wouldn't
  15     know" and they were obviously evasive.
  16        You have seen an explanation from Professor Berry
  17     that that was information that related to others and not
  18     to Samantha and therefore it would not be right for them
  19     to reveal that information to you as you then were.
  20        Whatever you may think of that response, you have
  21     since I think had two official positions in the Bristol
  22     Children's Heart Action Group?
  23   A. Bristol Heart Children Action Group.
  24   Q. I am sorry, it is my fault entirely. In that capacity,
  25     have you in fact pushed and pressed the issue of the

   1     number of retained hearts, and you have in fact been
   2     given that information?
   3   A. Yes.
   4   Q. You described in the rest of your statement just
   5     a couple of matters I want to pick up with you. You
   6     have described -- this is the bottom of page 40 -- that
   7     as a surprise out of the blue you received a letter from
   8     John Gray dated 20th August 1998, which you did not
   9     reply to.
  10        You have seen WIT 177/44, his response to your
  11     statement, paragraph 2: no recollection and no record of
  12     having sent a letter to you in August 1998.
  13        Would you turn, please, on the screen to page 63?
  14        This is a letter dated 20th August 1998, and if we
  15     go down to the bottom, we will see who it is from. It
  16     is from John Gray?
  17   A. Yes.
  18   Q. So you have the evidence and he has an absence of
  19     recollection or record.
  20   A. Yes.
  21   Q. This leads you, I think, to make a comment at page 60,
  22     paragraph 10, commenting on the letter he exhibited
  23     which was sent to an address you were living at as being
  24     a letter he had sent.
  25        The letter of 20th August is in the same terms, is

   1     it not? It is in the same content?
   2   A. Yes, the second paragraph is slightly different.
   3   Q. But essentially we are talking about the same sort of
   4     information, the same letter?
   5   A. Yes.
   6   Q. It is just a question of the date and record-keeping?
   7   A. Yes.
   8   Q. We see what you think about it at paragraph 10. Is that
   9     a bit over the top or not, do you think?
  10   A. It is a slightly flippant comment, but he has taken the
  11     time and trouble to dispute my statement on the accuracy
  12     of a date. I have that letter. It is correct
  13     information. What is the motivation for his comment in
  14     disputing a date that is clearly correct? He clearly
  15     states he has no recollection and no record. I think
  16     somebody who is in a position who has no recollection
  17     and no record should not be making further comments on
  18     the accuracy of my statement on that point.
  19   Q. His statement may be entirely right so far as it goes,
  20     but I think you are commenting on what might be
  21     a subtext, which is "Well, this simply is not the case",
  22     whereas it plainly is?
  23   A. Yes.
  24   Q. I do not propose to ask you any more about what you put
  25     in your statement because we have it and we can read

   1     it. I have asked you a number of questions covering
   2     a number of areas, of which some were difficult, but is
   3     there anything you would like to add so that we have
   4     a clear idea of what you want to say to this Inquiry?
   5   A. I think what I would like to say is I was put in that
   6     position where I could make the choice of whether I saw
   7     my daughter's heart or not and I have held her heart in
   8     the palm of my hand and I feel highly privileged to have
   9     been able to do that because of who my daughter was. It
  10     is a situation that I did not want to be in. And I do
  11     not think it is fair for people to be put in that
  12     situation, to deepen the distress that is already
  13     there. I would just like the Inquiry to be aware of
  14     that. Thank you.
  15   MR LANGSTAFF: Thank you very much. There may be some
  16     questions from the Panel. I am told that Mr Lissack has
  17     no re-examination for you. But can I emphasise that you
  18     have obviously found it easier to write your statement
  19     than to give evidence here and it may be that you will
  20     find it easier, therefore, to think of things out of the
  21     position you are now in when you have time. Please feel
  22     free to do so and to send them in to the Inquiry when,
  23     as you know, and as we said to others, it will be
  24     accepted and be part of the evidence before the
  25     Inquiry. So even if you would, do not be constrained in

   1     doing that.
   2   MS RICKARD: Thank you.
   3   THE CHAIRMAN: For our part, the Panel wants very much to
   4     thank you for coming and telling us Samantha's story.
   5     We are very grateful and we have been helped. Thank you
   6     very much indeed.
   7   MR LANGSTAFF: Sir, there are two important notices to give
   8     as to the arrangements for tomorrow. The first is that
   9     we begin not at 9.30 but at 9 o'clock in the morning.
  10     So that is important. Secondly, the Barnstaple
  11     Community Health Centre, to which we have been
  12     transmitting under the closed circuit TV arrangements,
  13     will not be open tomorrow for the purpose of viewing
  14     this Inquiry. The system there is "down" tomorrow, if
  15     I can put it in that way. It will be back up on
  16     Wednesday. But can I apologise to anyone who would
  17     otherwise have wanted to go to Barnstaple tomorrow to
  18     see it, because they will not be able to do so.
  19        Tomorrow we will hear from three parents. We will
  20     focus upon the issue of the retention of tissues and we
  21     will not, therefore, explore their stories in quite the
  22     same detail as we have explored today with Helen
  23     Rickard.
  24        We begin with Mr Paul Bradley at 9 o'clock.
  25     He will be followed by Sharon Tarantino, and then by

   1     Brenda Rex. We anticipate that tomorrow we will finish
   2     by 1 o'clock, if not before.
   3   THE CHAIRMAN: Mr Langstaff, thank you. I am grateful to
   4     you and all of those behind you and elsewhere. It has
   5     been a long day and it has been a hard day for many, but
   6     it has been a very helpful day for us. Thank you. We
   7     shall adjourn now and reconvene at 9 o'clock, I remind
   8     everybody, tomorrow morning.
   9   MR LANGSTAFF: Perhaps there is one further thing I should
  10     say. It has been indicated to me by Mr Lissack that he
  11     would wish to make an application in due course to say
  12     something orally in summary of those parents who will
  13     have given evidence this week, and he hopes that it will
  14     not be inappropriate or inconvenient that that should be
  15     done following the evidence of Mrs Willis on Thursday of
  16     this week.
  17   THE CHAIRMAN: Yes, I am sure that can be accommodated,
  18     thank you.
  19   MR LISSACK: Thank you.
  20   (5.20 pm)
  21     (Adjourned until 9.00 am on Tuesday, 21st September,
  22     1999)
  23
  24
  25

   1                I N D E X
   2
   3
   4     SIR GRAHAM HART (SWORN)
   5        Examined by MR LANGSTAFF.................... 1
   6        Examined by THE PANEL...................... 97
   7
   8     MS HELEN RICKARD (SWORN)
   9        Examined by MR LANGSTAFF.................... 110
  10
  11
  12
  

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Published by the Bristol Royal Infirmary Inquiry, July 2001
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