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FULL TRANSCRIPT

   1                       Day 20, 19th May 1999
   2   (10.00 am)
   3   THE CHAIRMAN: Good morning. Mr Langstaff?
   4   MR LANGSTAFF: Good morning, sir. Today we have the
   5     evidence of Dr Mac Armstrong of the British Medical
   6     Association. He will be with us in the hearing chamber
   7     in just a moment.
   8        In the meantime, I wonder if we may have on the
   9     screen WIT 37/1, so it is ready for Dr Armstrong when he
  10     comes.
  11        Mr Hughes appears with him as representative.
  12        Dr Armstrong, would you like to come forward,
  13     please?
  14        Dr Armstrong, we stand to take the oath.
  15           DR ERNEST McALPINE ARMSTRONG (SWORN):
  16           Examined by MR LANGSTAFF:
  17   Q. Dr Armstrong, your full name is Ernest McAlpine
  18     Armstrong?
  19   A. Yes.
  20   Q. Known as Mac, I think, Armstrong?
  21   A. Yes.
  22   Q. You have on the screen in front of you, I hope, a copy
  23     of the first page of the statement which you made to
  24     this Inquiry?
  25   A. Yes.

   1   Q. If we can just go through to page 25, at the foot of it,
   2     your signature is at the bottom?
   3   A. Yes.
   4   Q. And the contents of the statement are your evidence to
   5     us?
   6   A. Yes.
   7   Q. Can I begin by focusing upon two particular areas which
   8     arise around your evidence and upon which we would
   9     welcome the view of the Medical Association.
  10        Before I deal with those two areas, let me just
  11     deal with the position of the British Medical
  12     Association as an organisation.
  13        It is, as you point out more than once in your
  14     statement, a Trade Union?
  15   A. Yes.
  16   Q. That means it is a voluntary association?
  17   A. Yes.
  18   Q. The fact that it is a voluntary association of those who
  19     join together with a view to the regulation of their
  20     terms and conditions of work with those who employ or
  21     engage them means, does it, that the organisation has to
  22     be responsive to its membership?
  23   A. That is correct. We have been in existence since 1832,
  24     but we were required by the 1971 Trade Union Act to
  25     become registered. We became registered under that Act

   1     in a special register, in order to continue the
   2     activities of representing our members on an individual
   3     basis.
   4   Q. So essentially the body is not only representative of
   5     the members, but reflective of their views?
   6   A. Yes. The objectives for which the BMA exists have been
   7     stated in our Articles since 1874. They are that the
   8     British Medical Association exists to promote the
   9     medical and allied scientists and to maintain the honour
  10     and interests of the profession.
  11   Q. That begs the question of how that should be done in any
  12     circumstance?
  13   A. Absolutely.
  14   Q. In the circumstances that arise, the burden of the
  15     questions I am putting to you is that the Association
  16     has to reflect the current views of the membership,
  17     whatever those views may be?
  18   A. That is correct, yes.
  19   Q. So it must necessarily follow, must it, that to
  20     a degree, at any rate, the British Medical Association
  21     tends to be responsive to changes in view in the medical
  22     world, rather than creative of those changes of view?
  23   A. The BMA has no embodiment other than its membership, but
  24     within any field of human endeavour, there is a spectrum
  25     of activity, a field of behaviour, there is a spectrum

   1     of behaviours. The British Medical Association
   2     therefore embodies within its membership doctors whose
   3     behaviour is at the leading edge of good practice, as
   4     well as doctors whose behaviour is at the trailing edge
   5     of good practice. The British Medical Association takes
   6     the view that it is part of its role of maintaining the
   7     honour and interests of the medical profession to make
   8     sure that its entire membership is constantly reminded
   9     of the leading edge of behaviour of the best in
  10     practice, of the best evidence, and of the best way of
  11     behaving as a doctor.
  12        Mindful and cognisant of the fact that within the
  13     spectrum of its membership there will always be people
  14     who are behind the leading edge and indeed, some who
  15     will be sadly at the trailing edge. That is the nature
  16     of humanity.
  17   Q. Does that perhaps beg the question of who it is that
  18     defines what is the leading edge and where it is to be
  19     found and what is the trailing edge and where it is to
  20     be found?
  21        Let me put it this way: if you were to ask
  22     a doctor whom some might say was at the trailing edge,
  23     "Are you at the trailing edge of medicine?" one might
  24     imagine a fairly shirty reply?
  25   A. That is correct, but doctors operate within a system of

   1     governance which is well understood, and has deep
   2     roots. Part of that governance has to do with the legal
   3     and organisational structures in which they operate;
   4     part of it, of course, has to do with a personal system
   5     of beliefs. Doctors certainly receive the due censure
   6     of society if they fail to carry their personal beliefs
   7     into their practice, but at the same time, those
   8     personal beliefs have to be set in a context of a set of
   9     professional ethics which comprises what medical ethics
  10     are all about and which gives the doctor bearings in
  11     which to carry on his practice and to set his personal
  12     beliefs.
  13   Q. If one were to try to distill the essential ethic, it
  14     would be that the care of the patient has primacy?
  15   A. That is correct.
  16   Q. But again, that may, possibly, given certain
  17     circumstances, beg the question how best that care is to
  18     be achieved and there may be different views as to that?
  19   A. That is absolutely correct and of course different
  20     doctors in different contexts have to weigh the primacy
  21     of interests of an individual patient in a different
  22     way. A public health doctor, for example, has to
  23     principally have regard to the health of the population
  24     and has to set the needs of the individual patient
  25     within the context of the needs of the whole population.

   1        On the other hand, doctors at the sharp edge of
   2     clinical practice have a duty to act as advocates for
   3     the needs of their individual patients. If they cannot
   4     speak for the patients and put their needs into words
   5     that their colleagues can understand, then the patient
   6     gets a very bad deal. So there is a spectrum within
   7     which this has to be set, and particularly in relation
   8     to the issue here, in which parents as well as patients
   9     who are children are involved, doctors have to be very
  10     sensitive in setting the needs of the patient in the
  11     context of the family.
  12   Q. May there be situations in which two doctors, taking
  13     different views as to what is in the best interests of
  14     the patient and patient care, may come to diametrically
  15     different opinions as to what is to be done, and yet, on
  16     the basis of what you are putting forward as the ethic,
  17     each having a duty to ensure that what he or she prefers
  18     is achieved?
  19   A. I would think it was actually unlikely that doctors
  20     would come, given that situation, to diametrically
  21     opposite views.
  22   Q. Let me put some flesh on it. Before I do, let me ask
  23     you about one further general proposition. It is this:
  24     as a Trade Union, the Association, no doubt, has
  25     a regard for the collective. In the industrial context

   1     it would be "unity is strength"; the idea that one needs
   2     to associate in order to achieve. You are nodding?
   3   A. I am nodding and I think I see where you are going, but
   4     I would put it to you that the nature of trade unionism
   5     has changed radically over the last 20 years and the
   6     reality of collectivism to trade unionism is now very
   7     much less than it was at the start of trade unionism.
   8     The value of trade unionism nowadays is much more in the
   9     direction of the value of the membership of the Trade
  10     Union to the individual member, and we know from
  11     membership surveys that the reasons why doctors join the
  12     British Medical Association are principally for personal
  13     reasons. They join to get access to our journals, to
  14     get access to our services and to get the personal
  15     advice that they can get as members. Only further down
  16     the list do they join for the kind of solidarity,
  17     collectivism reasons that you are talking about.
  18   Q. Let me put flesh on some of the principles you have now
  19     been discussing in general terms. Suppose, as we have
  20     heard evidence in this hearing chamber, suppose it is
  21     the general and perceived view of clinicians that it is
  22     for the benefit of patients generally that surgery of
  23     a particular sort should be localised in no more than,
  24     let us say, two or three centres in the country.
  25   A. Yes.

   1   Q. Suppose, as is the case, that facilities which might be
   2     used to provide such surgery outside those two or three
   3     centres exists: and suppose that one has a doctor,
   4     a member of the British Medical Association as is
   5     perhaps likely, who wishes to use his skills to provide
   6     that treatment outside one of those three centres: one
   7     has a situation, if that happens, does one not, where
   8     the clinical freedom, the freedom of the doctor to do as
   9     he wishes in what he sees as the best interests of the
  10     individual patient, is likely to conflict with the
  11     general and received view, the collective view, if you
  12     like, of what is in the best interests, collectively, of
  13     patients generally.
  14   A. Yes.
  15   Q. How does the BMA approach such a problem? Who does it
  16     support: the collective view of the individual doctor?
  17   A. I think you are putting a very hypothetical case. One
  18     of the most essential features of being a doctor, and
  19     this was reaffirmed in an examination of the core values
  20     of the medical profession for the next century which was
  21     published by the Association and others in 1995, is
  22     a spirit of enquiry. It is essential for the forward
  23     progress of medical science that doctors constantly test
  24     the outer edges of their abilities, and new treatments
  25     and new methods of approaching old problems are

   1     constantly coming to the fore.
   2        It is, therefore, on the one hand necessary for
   3     doctors to use their skills and to introduce new
   4     treatments as they go along, given the necessity for
   5     proper development, proper research and proper ethical
   6     approval for that.
   7        On the other hand, nobody would ever suggest that
   8     it is every doctor's right to do everything which is
   9     possible to him every time he thinks of it. For
  10     a general practitioner to attempt open heart surgery on
  11     a kitchen table just because he thought he could do it
  12     would attract the severest approbation (sic) of the
  13     whole profession and of society, it would be quite
  14     unthinkable. So the system is not quite out of control
  15     as you are suggesting.
  16        When you say what is it that the British Medical
  17     Association does to help to control the situation, what
  18     the British Medical Association does is to respond to
  19     the request of government to put forward good, honest
  20     and as expert doctors to take part in all the
  21     multiplicity of control mechanisms that government sets
  22     up, in our country, because we have a National Health
  23     Service, to attempt to control this, including the kinds
  24     of mechanisms that we have heard of in this Inquiry with
  25     the specialist services.

   1   Q. Can I ask you to look at WIT 37/133?
   2        Ignore the fact that this is about
   3     whistle-blowing. We will come back to it in that
   4     context later. If we go down to the bottom of the
   5     page under the heading "Freedom of speech" in the second
   6     paragraph, "The core values identified", this is perhaps
   7     the neatest short summary of the core values I have been
   8     able to find in the literature you sent us.
   9   A. Yes.
  10   Q. We see them identified, indeed including the spirit of
  11     enquiry you have just referred to. If you read on:
  12        "The conference also recognised, perhaps
  13     explicitly for the first time, that health care is more
  14     than the care of individual patients. Doctors also have
  15     a responsibility to the community."
  16   A. That is correct.
  17   Q. What I am trying to tease out of you is (a) whether the
  18     BMA has a view, and if not, (b), whether it has an
  19     approach, to the situation that we have heard about in
  20     this Inquiry in which it appeared that a service which
  21     was in the public interest, the community interest,
  22     restricted, with a view to better outcomes, to a number
  23     of centres, was in fact no longer able to be run in that
  24     particular way in the community interest, because, we
  25     have been told, doctors were able, unrestricted, to

   1     exercise their clinical freedom in other centres to
   2     conduct similar operations, and thereby defeat the grand
   3     aim of the project.
   4   A. Yes. What you are looking at here is the developing
   5     edge of medical thought and that is a very fair
   6     reflection of one of the outcomes of the conference.
   7        The conference did recognise, and it was said, and
   8     I think fairly, that this was perhaps the first explicit
   9     recognition of the fact, that even for doctors at the
  10     leading edge of clinical practice, that is to say,
  11     dealing directly with patients, they also have
  12     a responsibility to the community as a whole.
  13        It was pointed out at that conference that, for
  14     example, all of what one might call the "affirmational
  15     codes" that doctors used at the outset of practice, for
  16     example, the Hippocratic oath itself and the Declaration
  17     of Geneva, deal entirely with the doctor's duty to the
  18     patients in front of them. They say nothing about the
  19     doctor's responsibility to the community at large.
  20        That is a fact.
  21   Q. So pressing you for the (a) and the (b) that I was
  22     asking about a moment ago, in the situation which I have
  23     described to you, where the doctor in the exercise of
  24     what is his freedom to deal with the patient in front of
  25     him, albeit it may be in that patient's interests, will

   1     harm the interests of other patients generally, does the
   2     BMA have a view as to which is the primary value, the
   3     doctor's freedom to pursue his own professional desire
   4     and concern to operate, or the doctor's professional
   5     duty to the public at large which would suggest he
   6     should not operate?
   7   A. Mr Langstaff, you are putting this question to me in
   8     a way that I do not think doctors would understand.
   9     Doctors do not see this as a professional licence to do
  10     what they wish for the patient in front of them; they
  11     see it as a professional duty, a professional
  12     obligation, to deal to the utmost of their ability with
  13     the patient in front of them. What doctors are coming
  14     uncomfortably to realise is that that professional duty
  15     and obligation to the individual patient must now be
  16     exercised and particularly must be exercised in
  17     a National Health Service in a way that carries with it
  18     also, at least an acknowledgment of the wider
  19     responsibility to the community.
  20        That is not an easy thing to do, so when you say
  21     to me, "What does the BMA think of this? Which side
  22     does the BMA come down on?" it is absolutely impossible
  23     for me to say which side the BMA comes down on, because
  24     the BMA does not come down on any side; it recognises
  25     that among our 120,000 members, there will be a spectrum

   1     of opinion about which side of this equation ought to be
   2     the one that has primacy, and in addition, even doctors
   3     who think that the primacy ought to be given to one side
   4     in general, will, in some situations, fully recognise
   5     that the other side of the equation has to be carried
   6     more into balance.
   7   Q. So the BMA does not have a view, and in essence, you are
   8     saying to me, it cannot have a view because there are
   9     legitimate strands of opinion within it?
  10   A. Absolutely.
  11   Q. The second part of my question is, if the BMA does not
  12     have a view, or cannot have a view, does it have an
  13     approach?
  14   A. Yes, it does have an approach: the approach demonstrated
  15     in the document. The approach is to bring this problem,
  16     this new thought, this new approach, out of the back of
  17     people's minds and into the front of the debate and to
  18     recognise that this is a problem, perhaps a problem to
  19     which there is no answer, but it is a problem which has
  20     to be added to the context in which doctors treat
  21     patients.
  22   Q. Except in the wider context of those doctors who have
  23     a public health responsibility, because that is their
  24     appointment, for how long, as you see it, was the
  25     responsibility to take account of the community interest

   1     implicit before it became explicit?
   2   A. I think it has always been there. In my own clinical
   3     practice, for example, which was in the West of
   4     Scotland, there was a very large debate, I remember, in
   5     the early 1980s about the availability of maternity
   6     services locally to where I was in practice.
   7        From the medical point of view, doctors felt that
   8     it was not possible for us to provide a fully safe
   9     standard of practice, given the facilities that we had
  10     to hand and given the distance that we were from
  11     specialist services. The community, on the other hand,
  12     women in the community felt very vocally that
  13     nonetheless a maternity service should be continued.
  14        This debate about the balance between the
  15     individual safety offered to individual patients and the
  16     balance of good in the community as a whole has many
  17     facets and is not a new one, but the increasing
  18     pressures on resources in the National Health Service,
  19     the increasing focus on the primacy of individual
  20     patients' rights, the increasing codification of these
  21     rights in charters and so on, mean that the sharpness of
  22     this debate about what the individual patient is
  23     entitled to in the locality in which he lives and what
  24     is safe and appropriate, and in fact available to the
  25     National Health Service to provide in that locality, is

   1     becoming a very sharp one.
   2   Q. I said there were two situations I want to explore with
   3     you to put flesh on the principles we were talking about
   4     at the outset of your evidence.
   5        The second is this: suppose one has complaints
   6     made about a practitioner, a medical practitioner in
   7     a unit, and those complaints are made beyond the
   8     confines of the unit itself; they go to the Royal
   9     College or the Department of Health.
  10        The Royal College takes the view, it would appear
  11     from the evidence that we have had from, amongst others,
  12     Professor Strunin and Professor Sir Terence English,
  13     that the responsibility, the ultimate responsibility, is
  14     not theirs; it is the local management.
  15        The Department of Health appears, from the
  16     evidence we have heard, to take the view that it is not
  17     so much their concern as that of either the Royal
  18     College or, for that matter, local management.
  19        The British Medical Association, as I understand
  20     it, has the view that the contract, because any action
  21     against the medical practitioner concerned would have to
  22     be taken under the contract, the contract and
  23     responsibility for enforcing the contract in so far as
  24     it relates to clinical performance is not that of local
  25     management but that of the GMC. Have I got it right?

   1   A. I think you have not got that right.
   2   Q. Let me tell you why I say that. I would welcome your
   3     comment upon it.
   4        If you go on the screen, please, to 133, the
   5     bottom of the page, just read that through:
   6        "This is basically a reaffirmation of the
   7     traditional basis of the practice of medicine which puts
   8     doctors' first loyalty to their patients and recognises
   9     their wider societal obligations as secondary. The duty
  10     of confidentiality is particularly important. It arises
  11     from the unique position of trust held by doctors.
  12     Despite fears expressed at the time of the foundation of
  13     the National Health Service, these principles have been
  14     upheld within a state-run healthcare system because of
  15     the recognition that doctors must be free to exercise
  16     clinical judgment in respect of individual patients.
  17     Despite the fact that most doctors in the UK are state
  18     employees, the profession has maintained its
  19     self-regulating status and doctors therefore answer
  20     professionally to the GMC rather than to those running
  21     the service in which doctors work."
  22        That is what I had in mind. Does that not suggest
  23     that, so far as professional conduct is concerned,
  24     leaving aside the question of personal conduct, the
  25     doctor does not answer to the immediate local employer,

   1     he answers to the GMC?
   2   A. No, I think there are two separate levels of
   3     decision-making here. The employer has a role to be
   4     filled. The employer must ask himself the question of
   5     whether this role needs to be filled by a doctor. If
   6     the answer is yes, he must go to the GMC and he must
   7     look to the GMC to provide him with a doctor who is
   8     professionally accountable for the standards of service
   9     that are provided, who operates within a set of ethical
  10     guidelines and frameworks and to a set of professional
  11     accountabilities that guarantee to the employer that the
  12     person he is getting to do the job is the kind of person
  13     he requires.
  14        He then has a separate set of questions to ask
  15     himself: "Is this person who is a doctor, because I need
  16     a doctor, able to do the job?" That is a completely
  17     separate set of questions he needs to ask himself. It
  18     is not true to say it is the BMA's view that the
  19     doctor's contractual position relates back to the GMC.
  20     The doctor's contractual position between himself as an
  21     employee, if he is an employee, and his employer is one
  22     between the employer and the employee: can the doctor do
  23     the job the employer hired him to do? The question, "Is
  24     he fit to be a doctor?" is one for the GMC.
  25   Q. So, "Is he fit to be a doctor?" in general is the GMC's

   1     question?
   2   A. Yes.
   3   Q. "Has he or has he not been competent or incompetent?" is
   4     a question for who?
   5   A. That is one for the employer in the first instance: can
   6     he do the job? That is why, as we have pointed out in
   7     our evidence, it was in fact the profession which, as
   8     far back as 1987, was calling with the Department for
   9     a change in the disciplinary procedures, because all the
  10     employers could do up to that point with a doctor who
  11     had had doubts raised about his competence was either
  12     nothing, or to wait until that level of complaint rose
  13     to the extent that there was serious doubt as to the
  14     doctor's ability to continue in employment.
  15        It was an all-or-nothing situation, and as you
  16     will see from the Joint Working Party report which
  17     eventually led to Health Circular 99, the recognition
  18     was there by the mid-1980s and therefore must have had
  19     gestation long before that, that there was a crying need
  20     for employers to have a much more flexible set of
  21     procedures available to them through which they could
  22     properly question a doctor's competence.
  23   Q. I want to unpick that and explore it a bit further, if
  24     I may. If I can go back to the hypothetical position
  25     which I put to you, which may not be very far away from

   1     some of the matters we have to consider in this Inquiry,
   2     where complaints are made and raised, and raised outside
   3     the unit in which the subject of those complaints works,
   4     but made to a respectable professional body such as the
   5     Royal Colleges or, for that matter, the Department of
   6     Health, where, as you see it, does ultimate
   7     responsibility for resolving those complaints, in the
   8     interests of the patient, the patients generally, where
   9     does that lie?
  10   A. It is very difficult to say where it lies, because the
  11     question which is usually raised when that kind of
  12     question is brought forward is: well, but what can I do
  13     about it? What mechanism? What procedure is open to
  14     me, as President of the Royal College or senior officer
  15     in the Department of Health? What mechanism can I use?
  16     I recognise the problem you are presenting to me, but
  17     what mechanism can I use to pursue it, because although
  18     we may hear things from day-to-day in society, in our
  19     professional lives and outside our professional lives
  20     they may be of great concern to us, but if we have no
  21     mechanism, no locus for doing something about it, and no
  22     levers to pull, it may be a matter of great frustration,
  23     but the fact is, there are no levers to pull. What we
  24     are seeing in the mid-1980s is a realisation among the
  25     profession itself that there are problems over which it

   1     has very few levers to pull. All that can be done, and
   2     I must say, I was not involved in this kind of service
   3     at that time, but reading the evidence and talking to
   4     the people who were there, one of the most powerful but
   5     unwritten tools was the fact that there were people
   6     called Regional Medical Officers who would go and speak
   7     to doctors involved.
   8        That is not written down anywhere, other than an
   9     allusion to it in the report, that the so-called
  10     intermedial procedure that they were proposing should be
  11     brought in where informal mechanisms used by the
  12     Regional Medical Officer had failed. What were those
  13     informal mechanisms? Dr X would go along and see Dr Y
  14     and say, "I have heard there is a problem here. Should
  15     we be doing something about it?" but it was as informal
  16     as that.
  17   Q. The model which many people have in terms of how
  18     relationships in delivery of a service should work may
  19     be that the person delivering the service at the face of
  20     the service, as it were, has accountability for what he
  21     does to someone above him in a management line, and the
  22     co-relative of that is that the person above him in the
  23     management line has a responsibility for the delivery of
  24     the service by that individual, so that accountability
  25     to and responsibility for are, as it were, the other

   1     side of the same coin.
   2        When it came in the early 1980s to the way in
   3     which doctors worked in hospitals, to whom were the
   4     doctors accountable, first of all, for their general
   5     professional competence?
   6   A. They were responsible to their employer who, in many
   7     instances for consultants, would be a Regional Health
   8     Authority. For the consultants here, I think it was
   9     a teaching district, so they would be responsible not to
  10     the region but to a teaching district.
  11   Q. So somebody working in a unit would be accountable to
  12     someone outside the unit?
  13   A. Correct.
  14   Q. The responsibility for the delivery of the service by
  15     that individual within the units was whose?
  16   A. Usually for consultants there was not somebody within
  17     the unit to whom they were directly responsible. It is
  18     only in recent years that we have had the introduction
  19     of systems of clinical directorates and the introduction
  20     of medical directors in hospitals, which means that
  21     hospitals now have a system in which consultants are
  22     responsible clinically to somebody within their own
  23     specialty, within a clinical directorate, and ultimately
  24     as a consultant body to the Medical Director who is
  25     responsible to the Chief Executive. That of course has

   1     now been codified further in the system of clinical
   2     governance which the current government have introduced
   3     in their recent White Paper, "Quality in the NHS".
   4   Q. So I think you are saying we now have something of
   5     a co-relative to accountability and responsibility for
   6     lines I was suggesting to you as management structures?
   7   A. We now have something which is exactly as you are
   8     describing it, but we did not have it at the time you
   9     are talking about relevant to this Inquiry.
  10   Q. So at the time we are talking about, the earlier period,
  11     at any rate of our enquiries, how was somebody who may
  12     be responsible to the public at large for the provision
  13     of a service, how would that individual manage to secure
  14     the services that he wished from the doctor concerned?
  15   A. I am sorry, I do not quite understand your question.
  16   Q. What controls were there to ensure that the
  17     accountability of the doctor to the region or the unit
  18     or whoever it may be, that that meant something? What
  19     sanctions may there have been upon a doctor?
  20   A. I suppose one of the strongest sanctions was finance:
  21     could the doctor secure -- I think you are trying to
  22     describe to me a doctor who wishes to do something which
  23     is off-base, something which is outwith --
  24   Q. I am asking the question in general terms.
  25   A. In general terms, what constrained a consultant's

   1     practice in the previous situation? He would be
   2     constrained by the facilities available to him in the
   3     hospital or hospitals in which he worked. That would
   4     depend on the finance available to the managers and they
   5     were general managers of the hospital, and of course
   6     even the concept of general management was a concept of
   7     the 1980s, before that they were administrators of the
   8     hospital, so there would be a constraint on his practice
   9     by the finance, the equipment and resources and
  10     ancillary staff that he was able to persuade the
  11     hospital to provide for him to use.
  12        The second constraint would be on his ability to
  13     persuade the primary care doctors, the general
  14     practitioners, to actually refer to him, and indeed, in
  15     many instances, his ability to persuade his colleagues
  16     to refer to him as consultants, colleagues within the
  17     consultant body, to refer to him.
  18   Q. So the first of those facilities, one understands. The
  19     second very much depends upon the knowledge that the
  20     referring clinician may have of the person to whom he
  21     intends to refer?
  22   A. Correct.
  23   Q. And can only be described as an informal system of
  24     regulation or constraint?
  25   A. Very informal.

   1   Q. So far as contractual constraints are concerned, am
   2     I right in thinking that when one looks at the number of
   3     consultants between 1980 and 1988 who appealed to the
   4     Secretary of State against a decision made to dismiss
   5     them, one is looking at very small numbers indeed:
   6     I think 37 within that 8 or 9 year period?
   7   A. Yes.
   8   Q. So that limited number: was that a reflection, perhaps,
   9     of the difficulties as operating in the system at the
  10     time, that faced a hospital manager or administrator in
  11     seeking to dispense with the services of a consultant?
  12   A. Yes. I have to say, I think it probably was
  13     a reflection of the cumbersomeness of the systems
  14     available to hospital managements and the Department
  15     itself and the profession, to do anything about
  16     a situation where a problem was identified. It was an
  17     all-or-nothing situation.
  18   Q. In a sense, what you said earlier was, you chose either
  19     to do nothing or wait until the problem became so
  20     intolerable that it was obvious that something had to be
  21     done?
  22   A. Yes. That is the construct which is identified by the
  23     profession itself in the introduction to the joint
  24     report in 1987.
  25   Q. Which is why the whole idea of suspension began to be

   1     promulgated?
   2   A. I suppose that was one of the drivers, yes.
   3   Q. In the same light, really, you show us the contracts
   4     which were recommended as a form of contract for
   5     consultants. It is WIT 37/50.
   6        Help me with the time of this. It is BM 79/11,
   7     but it has plainly been updated to take account of the
   8     Employment Protection Consolidation Act of 1978; and so
   9     on. When were these contracts in this form current?
  10   A. I think, if you will permit me, I would really have to
  11     defer -- I do not know the answer to that offhand. My
  12     representative might be able to advise me later, or we
  13     can supply that. I am not in any sense trying -- I just
  14     do not know the answer.
  15   Q. Do not worry about it. The important thing is that we
  16     can get what information you can give us. By all means
  17     later on let us know what you have to say. If you can
  18     do it later today, fine, but if not, let us know in due
  19     course, please.
  20   A. Sure.
  21   Q. The terms and conditions of this particular consultant
  22     as shown by the statement of terms and conditions here,
  23     if one looks through, says nothing about the standards
  24     of performance that are to be expected of the consultant
  25     concerned?

   1   A. That is correct.
   2   Q. Is it general, today, that contracts do descend to some
   3     particulars, at any rate, of the standard of performance
   4     to be expected?
   5   A. I do not think they actually descend to standards of
   6     performance. They are much more specific now in terms
   7     of what one might call "outputs" which are expected,
   8     rather than outcomes. They now specify what the
   9     employer can expect from the employee in terms of
  10     output, in terms of, for example, the job plan is now
  11     specified, the employer will know when the consultant is
  12     expected to be there specifically and when the
  13     consultant is expected to be available but not
  14     necessarily to be doing a particular job within the
  15     hospital, in an outpatient department or in a theatre.
  16        But contracts do not, as far as I understand it,
  17     and I stand to be corrected here, but I am pretty sure
  18     that they do not actually specify professional standards
  19     which must be maintained or outcomes which must be
  20     achieved.
  21   Q. Even what you describe, I think, I do not want to be
  22     semantic about it, but one might call it "better input
  23     than output"; it is the number of hours someone spends
  24     in a job?
  25   A. That is correct.

   1   Q. So nothing even in terms of measurement of cases done?
   2   A. Absolutely not.
   3   Q. Let alone any even general performance standards?
   4   A. That is correct.
   5   Q. So if one is going to look at the standards which are
   6     implicit, one would get them from where?
   7   A. One would get them from the duties of a doctor which are
   8     the guidance provided by the General Medical Council.
   9     That is in fact reinforced -- if I want to point you to
  10     something which reinforces that in the report
  11     maintaining medical excellence which was provided by the
  12     Chief Medical Officer, to which our evidence refers --
  13     this very point is raised and the question is raised as
  14     to whether a consultant's contract should specify
  15     explicitly an obligation to comply with the standards
  16     set out by the General Medical Council, the registration
  17     body. In other words, to take account, as I said
  18     earlier, of the principal and primary factor: is this
  19     person fit to be a doctor? It was the outcome of that
  20     report that the profession thoroughly endorsed it to the
  21     extent of saying that it was important, explicit, that
  22     doctors would comply with professional standards. The
  23     profession did not feel it was necessary to include this
  24     explicitly in contracts, but to recognise that because
  25     the contract specified a doctor, that a doctor would

   1     necessarily comply with the requirements set out in good
   2     medical practice, which define what a doctor does.
   3        Of course, that is now again fundamentally
   4     different from what it was even a few years ago. Until
   5     about 1994, the General Medical Council's guidance was
   6     very largely couched in negative terms, in what was
   7     called the "Blue Book". It said "if you are a doctor,
   8     thou shalt not do X, Y and Z". Now it says in explicit
   9     terms "if you are a doctor you will do the following
  10     things". That is I think a very big step forward and
  11     provides patients with a much better standard of
  12     protection.
  13   Q. So if we were looking at any given doctor up until 1994,
  14     the contract would say nothing in particular terms about
  15     standards of performance?
  16   A. Correct.
  17   Q. Anyone seeking to exercise the rights of the employer
  18     under the contract would have to go to the GMC Blue Book
  19     to see what was actually implicitly expected?
  20   A. Yes.
  21   Q. And in the GMC Blue Book, he would see negative rather
  22     than positive guidance?
  23   A. Yes. In fact, one of the other interesting developments
  24     to which I might draw attention at this stage is the way
  25     that the standards set for the profession by the General

   1     Medical Council, which is, after all, there to protect
   2     patients, have changed again quite dramatically in this
   3     respect. Even as recently as when I qualified, one of
   4     the strongest strictures in the Blue Book, the "thou
   5     shalt nots" was a stricture not to disparage
   6     colleagues. Doctors were very strongly discouraged by
   7     their registration body from indulging in any kind of
   8     comment or passing any kind of remarks that could be
   9     construed as disparagement.
  10        That changed over the years. It became couched in
  11     terms of making sure that disparagement was not made in
  12     order that a patient's confidence in a doctor should not
  13     be dented, but now has been stood entirely on its head
  14     by an absolute requirement by the General Medical
  15     Council on doctors to take every step available to them
  16     to protect patients at all times: "you must put the
  17     interests of patients first", including an absolute
  18     requirement on them to take steps to report what they
  19     believed to be adverse behaviour, adverse health,
  20     adverse conduct on the part of a patient (sic), if they
  21     believe that that puts patients at risk.
  22   Q. Looking at the majority of the time with which we are
  23     concerned, from 1984 to 1995 in this Inquiry, the
  24     position then would have been that the GMC, in terms of
  25     its standards, the standards to be expected under the

   1     contract, were saying to its members, to doctors at
   2     large, "Thou shalt not disparage a colleague"?
   3   A. For quite a lot of the time, I have seen the Blue Book
   4     for 1994 and that certainly couched the stricture on
   5     disparagement very much in the context of the doctor's
   6     duty to ensure that the patient had confidence in their
   7     attending physician.
   8   Q. So one consequence, I will come back to this, of the
   9     doctor whistle-blowing the colleague would be that it
  10     might be said that he was actually acting in breach of
  11     his own contract?
  12   A. Not in breach of his own contract, but certainly in
  13     breach of his own codes of professional conduct as set
  14     out by the GMC.
  15   Q. And those are those codes of conduct to be expected
  16     explicitly under his contract?
  17   A. Correct.
  18   Q. Because they are the only standards there are under his
  19     contract?
  20   A. That is correct. At the same time the GMC itself was
  21     shifting its ground, because it was in 1992 so the
  22     gestation period for this must also have started long
  23     before the actual issue surfaced, but it was in 1992
  24     that the GMC began the campaign to do something to bring
  25     into its own procedures a mechanism which would allow it

   1     to deal with standards of practice, with standards of
   2     professional competence, realising that, until that
   3     time, all that it could do was to strike a doctor off.
   4     It could either do nothing, effectively, or deprive
   5     a doctor of his livelihood, either under the
   6     professional conduct procedures, or under the health
   7     procedures, but the GMC itself was realising by the
   8     early 1990s that there was a big gap in its weaponry,
   9     and it was in 1992 that it began the campaign, very,
  10     very widely supported within the profession, to gain
  11     parliamentary time to amend the primary legislation to
  12     let it bring in the new procedures.
  13        I may say, it took five years to do that and they
  14     were not implemented until September 1997.
  15   Q. So just back-tracking a little, if the standards which
  16     are implicit in the contractual expectations throughout
  17     the 1980s and early 1990s were those which come from the
  18     GMC Blue Book in the negative form that you have
  19     described, it would follow, would it, that the arbiter
  20     of whether those standards had been transgressed would
  21     be the GMC itself?
  22   A. That is correct.
  23   Q. And the way in which one would get the arbiter to
  24     declare as to whether or not the standards had been
  25     breached would depend presumably upon the procedures of

   1     the GMC?
   2   A. That is correct.
   3   Q. So one has the position, does one, that the employer,
   4     however one categorises him, whether it is the State as
   5     a whole through the NHS, whether it is the region or
   6     whether in the latter part of the period it is the
   7     Trust, has to defer to the decision of another as to
   8     whether or not the contractual standards have been
   9     upheld or broken?
  10   A. In this sense, yes.
  11   Q. Did that, do you think, in general terms, place at least
  12     a hurdle in the way of those employers locally who might
  13     have had, in colloquial terms, reasonable grounds to
  14     think that a consultant was not delivering the service
  15     properly?
  16   A. I can only come to a conclusion, reading what is
  17     available to me, that there was a growing sense of
  18     frustration among the profession about the
  19     cumbersomeness of the mechanisms available to the
  20     profession as a whole, to do anything about standards of
  21     professional competence.
  22   Q. So the answer is really "Yes"?
  23   A. Absolutely.
  24   Q. Do you happen to know at all how many people -- we will
  25     ask the GMC this in due course -- were actually

   1     disciplined by the GMC on the grounds of their failure
   2     to deliver proper professional services, as opposed to
   3     their personal misconduct?
   4   A. The GMC does not normally discipline doctors on the
   5     grounds of personal misconduct, you know, other than if
   6     they have been through criminal proceedings.
   7   Q. I am thinking of the touching-up of a patient type of
   8     approach?
   9   A. Oh, I see what you mean. The answer to that is, yes,
  10     I do know, and the answer is zero, because of course it
  11     was not until September 1997 that the General Medical
  12     Council had available to it any kind of procedure which
  13     would allow it to examine professional competence as
  14     opposed to professional conduct, and in fact I can tell
  15     you the number of cases which they have fully dealt with
  16     and the answer is one. Only recently, this year, they
  17     have removed a doctor from the list on the grounds that
  18     not only was it obvious to the General Medical Council
  19     that his professional competence was in doubt, but, more
  20     importantly, his insight into that was so deficient that
  21     he could not be made to avail himself of any of the
  22     mechanisms which were available to bring his competence
  23     up to an acceptable standard, so they removed him from
  24     the list.
  25   Q. So throughout the period with which we are concerned, in

   1     effect there was no way of enforcing the performance
   2     standards which were implicit in a consultant's or
   3     doctor's contract with his employer?
   4   A. Absolutely. There were no levers available, so far as
   5     I can see, which could be pulled in the face of stubborn
   6     opposition to resist them. There were a number of
   7     unofficial and informal levers which could be pulled.
   8     Doctors could be visited by the Regional Medical
   9     Officer. It could be drawn to their attention that the
  10     concerns had been raised. Their Chairman could speak to
  11     them. Their Royal College representative could take
  12     them aside and question them. But in the face of
  13     stubborn opposition to do anything and to change
  14     behaviour, the answer is, precious little.
  15   Q. So one had the rather Alice in Wonderland, topsy-turvy
  16     position that the doctor who might very well be
  17     incompetent in particular areas could not be dealt with
  18     for that in any realistic way, other than through the
  19     Regional Medical Officer as you have described, the
  20     informal mechanisms, whereas another doctor complaining
  21     about him would, at least until the early 1990s, until
  22     the culture began to change, himself be transgressing in
  23     a clear and objective way the standards to be expected
  24     of him?
  25   A. That, sadly, is a very neat encapsulation of the

   1     doctor's dilemma.
   2   Q. And the resolution of that would presumably only come
   3     about either through a change in the way in which the
   4     profession governed itself, or through the contractual
   5     terms and conditions which individual doctors had of
   6     their immediate employer?
   7   A. Yes. Or both, as is actually happening nowadays.
   8   Q. If I can ask, these are related topics, although you may
   9     not immediately see the relationship. The British
  10     Medical Association today: does it support revalidation?
  11   A. Yes. In fact, can I put a supplementary to that? The
  12     BMA supports the moves which are being made towards
  13     revalidation. It is too early to say yet what the
  14     mechanism will be, so I think it would be premature to
  15     say whether -- it would be impossible for us to say we
  16     give our whole-hearted support to something which nobody
  17     has explained yet, but I would like to point out that
  18     calls for revalidation actually came from the medical
  19     body before they came from the GMC.
  20        In 1992 the General Practitioners' Committee of
  21     the BMA ran a very large opinion survey, an attitude
  22     survey, among doctors in the country, to which 25,000
  23     GPs replied, seeking their views on a whole range of
  24     issues affecting general practice. One of the questions
  25     was: did doctors believe that re-accreditation, regular

   1     re-accreditation, would improve standards of care.
   2     Two-thirds said yes. Two years later, the Conference of
   3     Local Medical Committees, which represents general
   4     practitioners, endorsed a call for re-accreditation of
   5     general practitioners to be brought into being.
   6        So the idea that the profession is being dragged
   7     kicking and screaming towards revalidation is not quite
   8     accurate. The profession itself has recognised for
   9     a long time that among the tools which we need to ensure
  10     that as many people as possible are kept near the front
  11     edge of practice is re-accreditation. We do not fully
  12     understand, yet, the best way to do this, the best way
  13     to bring it into effect so it helps patients and doctors
  14     and does not fall into disrepute by over-hasty
  15     implementation of something which does not work, but the
  16     profession has it very squarely in its sights.
  17   Q. The question which follows, and this is what does really
  18     draw the strands together of that which I have been
  19     discussing with you over the last half an hour or so:
  20     suppose revalidation. How, contractually, or for that
  21     matter professionally, does one enforce it? What
  22     sanctions are, broadly speaking, likely to be acceptable
  23     to the doctors whom you represent?
  24   A. I think the linkage will be very straightforward. The
  25     questions will be, as I say, in three parts: I mean,

   1     does this role require to be filled by a doctor? Yes.
   2     Does that doctor require to be registered? Naturally.
   3     Is his registration currently valid? Yes.
   4        So I think there is a natural linkage and not --
   5     I do not think we have to reinvent or invent something
   6     entirely new to cope with the linkage between validation
   7     and employment. What we need to look at is the extent
   8     to which that linkage relates to continued employment in
   9     the role in which he was originally employed, and
  10     continued employment itself.
  11        In the United States, for example, where various
  12     systems of re-accreditation have been in place for
  13     a number of years, there is no direct linkage between
  14     accreditation or lack of it and continuing admitting
  15     rights, because it is not an employment situation. What
  16     is more likely to happen is that if a doctor fails to
  17     maintain accreditation with his specialism in
  18     a particular aspect of his practice, his admitting
  19     hospital may very well ask him to change his practice;
  20     they may ask him to restrict his practice. They may
  21     suggest that they use his talents, his experience,
  22     elsewhere or in a different way; they do not necessarily
  23     deprive him of his livelihood. So I think we have
  24     a long way to go in exploring this issue, but I think
  25     ultimately there has to be a link between registration,

   1     revalidation and employment. How it will come about, it
   2     is too early to say.
   3   MR LANGSTAFF: I am going to change to a slightly different
   4     topic. It is a shade early, sir, but I wonder if this
   5     might be an appropriate moment for a break?
   6   THE CHAIRMAN: Yes. If it is of assistance, why do we not
   7     say 15 minutes? That will mean until just after 11.20.
   8     Thank you.
   9   (11.08 am)
  10               (A short break)
  11   (11.23 am)
  12   MR LANGSTAFF: Dr Armstrong, it occurs to me there was one
  13     matter I should perhaps have asked you about, which
  14     I did not, in the course of our exploration of the first
  15     issues to be dealt with.
  16   A. Yes.
  17   Q. You tell us in your statement -- page 6 -- that
  18     Dr Bolsin first contacted the British Medical
  19     Association on 5th April 1995?
  20   A. Yes.
  21   Q. So in the context of the events with which we are
  22     principally concerned in this Inquiry, there was
  23     actually a contact or complaint to you, as an
  24     association, from one of your members?
  25   A. That is right. There was a request for advice.

   1   Q. I wondered what it was; but no doubt you gave
   2     appropriate advice?
   3   A. I think we have sent you papers relating to that.
   4   Q. Suppose someone comes to the Association with
   5     a complaint, and this is the general question which
   6     arises, about somebody else in his unit: what, if any,
   7     duty would the BMA feel itself under in exploring or
   8     taking further that complaint?
   9   A. We are, of course, in a new situation, as I have
  10     explained, since the GMC's --
  11   Q. Let us deal with it in two stages: today, and then we
  12     will have a look and see what happened, as it were,
  13     yesterday?
  14   A. In today's situation, I have explored this with the
  15     General Medical Council itself, and I have issued to BMA
  16     staff instructions that, notwithstanding our duty to
  17     stand by a member in terms of the rights and privileges
  18     that he has under his membership, notwithstanding all
  19     that, we must be aware that if, in the course of our
  20     work, we find or unearth a problem which gives rise to
  21     a serious concern about patient safety, then we do not
  22     have the option of doing nothing; we are a medical body,
  23     representing doctors, and the staff of the Association
  24     are headed by a staff, me, who is a registered medical
  25     practitioner, and I have a number of doctors on my staff

   1     who are registered medical practitioners -- although not
   2     many.
   3        I have made it clear in the circumstances I have
   4     described where there was any serious concern about
   5     patient safety, staff have to have recourse through our
   6     management line to the opinion of a doctor as to whether
   7     anything more should be done, and of course, those
   8     doctors, including myself, have to have regard to our
   9     own duty to protect patients at all times.
  10        That very, very occasionally may lead us to take
  11     action. Normally, if the concern about patient safety
  12     has been raised, our normal course of action would be to
  13     point out to the member concerned his obligation or her
  14     obligation under their registration to do something
  15     about it. They have told us that they know there is
  16     a problem with patient safety; what are they going to do
  17     about it? If they will do nothing about it, then
  18     ultimately we will do something about it, and I have
  19     actually approached the General Medical Council and
  20     drawn their attention to the activity of members, over
  21     which they have taken action.
  22   Q. That is today?
  23   A. Yes.
  24   Q. As it were, yesterday, 1984 to 1995, what would the
  25     position have been then?

   1   A. I would like to think that it would be no different.
   2     I would like to think that this has always been our
   3     attitude. I have no evidence that there was any
   4     dramatic change in attitude among the medical staff in
   5     the British Medical Association since I became Secretary
   6     in 1993.
   7        What has happened since the Dunn case and the
   8     production of The Duties of a Doctor is that that
   9     obligation on registered medical practitioners to put
  10     the safety of patients first at all times is now crystal
  11     clear, and it has required me to actually now codify the
  12     position of the BMA in terms of instruction to staff
  13     which, therefore, makes my position and the position of
  14     the registered medical practitioners on my staff crystal
  15     clear.
  16   Q. You would like to think that it would have been no
  17     different. If you put yourself back into the mind-set
  18     of the 1980s, would it actually have been different?
  19   A. It would have been different but probably less formal.
  20     The problem would have been until 1997 there would not
  21     have been a mechanism to which -- well, there would have
  22     been very little -- there would only have been two
  23     mechanisms that the GMC could have used: either health
  24     or conduct. It would have to have been a pretty serious
  25     matter to refer to the Professional Conduct Committee.

   1     Much more obvious would be a situation in which a doctor
   2     was found or suspected of being a danger to patients
   3     because of his health, and I suspect that there were
   4     a number of informal approaches made on those grounds,
   5     but in terms of conduct, the GMC has not actually had
   6     a mechanism it could use until, as I have explained,
   7     very recently.
   8   Q. Is what you are saying, although you might have liked to
   9     do something, there was actually nothing you could do?
  10   A. It is very possible that my predecessors not having
  11     levers to hand, would have felt there was nothing they
  12     could do, although I am quite sure that informal
  13     approaches to contacts of the GMC and the Chief Medical
  14     Officer and so on which would have been made were
  15     serious concerns raised.
  16   Q. I will deal with the informal matters in a moment, but
  17     in terms of formal matters, there would have been not
  18     much point, is what you are saying?
  19   A. I think that is probably right.
  20   Q. The probability of what you are gently suggesting is
  21     that nothing would have happened, although you
  22     personally do not know?
  23   A. I do not know.
  24   Q. But the probability is that nothing would have happened?
  25   A. That is a distinct possibility.

   1   Q. Dealing with the informal contacts which might then have
   2     been sparked, a concern comes to the knowledge of one of
   3     your predecessors, and I appreciate you are speaking of
   4     people presumably you know?
   5   A. Yes.
   6   Q. What informal mechanisms: there is the Regional Medical
   7     Officer you have mentioned?
   8   A. Yes.
   9   Q. You mentioned the Chief Medical Officer a moment ago?
  10   A. Yes.
  11   Q. What else?
  12   A. One of the great privileges of my kind of job is the
  13     ability to talk on first-name terms with a number of
  14     people who would have influence in this kind of
  15     situation, for example, the Chairman of the Joint
  16     Consultants Committee, Presidents of the relevant Royal
  17     Colleges, the President or Registrar of the General
  18     Medical Council, the Chief Medical Officer of whichever
  19     country within the United Kingdom was affected; through
  20     him either directly or indirectly with the Regional
  21     Director of Public Health, or Regional Medical Officer:
  22     a whole variety of informal contacts.
  23   Q. The two people you have not mentioned, perhaps for very
  24     good reason, are the immediate employer, and secondly,
  25     the doctor who might be subject of the concerns?

   1   A. Yes. It was perhaps an omission on my part. I cannot
   2     imagine that, were a concern raised, my predecessors
   3     would not have done exactly as I did when I first became
   4     aware of a problem in Bristol. When it was first
   5     brought to my attention my first act was to phone --
   6     perhaps I sent a memo, I cannot remember -- to our
   7     Bristol office to ask them to give me an update of the
   8     situation as they saw it, had they been approached?
   9     I am quite sure my predecessors would have done exactly
  10     that. We have a network of local officers throughout
  11     the United Kingdom whose role is to keep contact with
  12     local employers, and they would have known if a problem
  13     had surfaced, and particularly, if it had surfaced in
  14     any kind of formal procedural level in a committee in
  15     a disciplinary hearing in any kind of inquiry.
  16   Q. If it had not been raised by the employer, would the
  17     local office have raised it, saying, "Well, there are
  18     concerns about X or about Y"?
  19   A. They would probably have been able to tell me, as the
  20     local office here in Bristol has been able to tell me,
  21     concerning this Inquiry, of the kind of cultural
  22     background of the hospital and the kind of things that
  23     were being said and the kind of attitudes that were
  24     being struck, in addition to whether or not there was
  25     any formal proceedings going on.

   1   Q. It is those aspects of culture generally in the NHS and
   2     locally in Bristol to which I now want to turn.
   3     I appreciate there is a wide period of years: 1984 to
   4     1995, with which we are principally concerned.
   5        Can I ask you to go to page 7 of your statement?
   6     Paragraph 2.2:
   7        "The introduction of the internal market affected
   8     relationships between hospitals, between departments,
   9     between practitioners and also between individual
  10     patients and their doctors."
  11        You say that the BMA has consistently expressed
  12     the view that competition, intrinsic to a market, is
  13     inconsistent with co-operation which should characterise
  14     the provision of health care?
  15   A. Correct.
  16   Q. The opposition to the internal market was something
  17     which the BMA expressed very forcefully at the time that
  18     it was mooted?
  19   A. Correct.
  20   Q. Does it still, as a matter of policy, have that
  21     opposition?
  22   A. We still have an opposition to the elements of the
  23     internal market which is, as it says here, about the
  24     principle of competition being the basis on which the
  25     best type of health care is determined. We very firmly

   1     believe that the patient gets the best out of the system
   2     where that system is set up to be managed for quality,
   3     and that that quality should depend on the co-operation
   4     of all the best elements of the system.
   5        So we have not, for example, opposed the current
   6     government's decision to maintain a purchaser/provider
   7     split, so there is still an element of an internal
   8     market there. What we are much more happy with, and
   9     which doctors have welcomed, is the current recognition
  10     that what matters most is the quality of patient care
  11     and that managing for that should take primacy over
  12     managing for everything else.
  13   Q. How, in your view, had, in the years that it was at its
  14     strongest, the principle of competition in the internal
  15     market affected the relationships which you describe and
  16     deal with in 2.2?
  17   A. There were a number of ways. One of the principal ways
  18     and which may have relevance in Bristol -- it is for the
  19     Inquiry to decide -- is in terms of what one might call
  20     the "cultural climate" that it engendered. This is very
  21     dramatically illustrated in two BMA articles I have with
  22     me and I can make available to the Inquiry.
  23   Q. Can you simply identify them for the record, and then we
  24     will have them scanned in and made available in due
  25     course?

   1   A. Yes, I could. One is an article from the British
   2     Medical Journal, volume 295, December 1987. It is
   3     a leader by Richard Smith, then assistant editor,
   4     entitled "20 Steps Towards a Closed Society on Health".
   5        The second article, in fact a series of articles,
   6     in December 1994 by Naomi Craft, an editorial, and Sally
   7     Sheard and Richard Smith, are on the subject of "The Rise
   8     of Stalinism in the NHS", and both of those articles
   9     deal with the question of the culture of the National
  10     Health Service and the way in which the imposition of
  11     the internal market closed down further an already
  12     closed society, mitigated against openness and honest
  13     discussion of problems, and the way that, ten years
  14     after the first article, the second articles were able
  15     to produce an even greater litany of the ways in which
  16     the administration of the National Health Service took
  17     positive steps to prevent doctors speaking out about the
  18     kinds of problems that they saw around them.
  19   Q. You make the point in the context of your statement --
  20     and I think supported by those articles, if we can look
  21     at page 13, paragraph 2.20:
  22        "Nevertheless, there is no doubt that particularly
  23     during the early years of Trust status, there was a new
  24     climate of apprehension among consultants about the
  25     dangerous consequences of expressing doubts about any

   1     decisions or policies of the Trust. It was common for
   2     the BMA, when seeking views or information from
   3     consultants, for example about cuts in services or about
   4     policy on NHS issues, to be asked not to reveal the
   5     identity of respondents, who were afraid to 'put their
   6     head above the parapet'."
   7   A. That is correct.
   8   Q. Is that part, at any rate, of the culture of which you
   9     are now speaking?
  10   A. Yes, it is. A research which you have in the form of
  11     reference 11, the paper on whistle-blowing, shows that
  12     if you go through the number of times that Trusts
  13     actually sought to impose gagging clauses on or to take
  14     action under them was in fact very small, but
  15     nonetheless, the constantly reiterated mantra about the
  16     necessity of Trusts having the freedom to do just that
  17     was one of the factors contributing to this climate of
  18     apprehension which was recognised both by doctors and by
  19     managers, as inimical to the development of an open
  20     National Health Service.
  21   Q. You describe it as a "new" climate of apprehension?
  22   A. Yes. I think it was there -- Richard Smith's article
  23     certainly shows that everything was far from rosy in
  24     1987, but our impression is that, notwithstanding the
  25     aspiration to move to an open, accountable and

   1     consumerist society, which was articulated by the
   2     government, the effect of the reforms was the very
   3     opposite in the National Health Service; it was to close
   4     it down even further. You will see Richard Smith
   5     iterates 20 examples in his article in 1987. Naomi
   6     Craft has 30 in her article in 1994.
   7   Q. The examples you use in paragraph 2.20 are in relation
   8     to doubts about decisions of a Trust, or policies of
   9     a Trust?
  10   A. Correct.
  11   Q. And you exemplify that by cuts in services or policy on
  12     NHS issues?
  13   A. Yes.
  14   Q. So what you are focusing on here are what you might
  15     describe as "broad policy issues", and decisions in
  16     respect of those policies?
  17   A. Yes, but in terms of the way in which our members, who
  18     are after all working doctors, perceived these, they
  19     often devolve on to very mechanistic procedural points,
  20     whether or not a theatre is to be asked to continue
  21     operating in what the doctors construe to be a dangerous
  22     state of repair, whether or not a particular service is
  23     to be moved from location X to location Y, for very good
  24     commercial reasons, but with the result that patient
  25     care will, in the opinion of the doctor, suffer. Those

   1     kind of things. I do not think you should construe
   2     these words to mean that our members were solely
   3     concerned with high levels of policy on NHS issues; they
   4     were very concerned about the nuts-and-bolts results of
   5     those issues, as they saw them day-by-day in the wards
   6     and theatres up and down the country.
   7   Q. What you do not mention there is whistle-blowing about
   8     a colleague, that type of issue.
   9   A. It is not specifically mentioned there, but it is of
  10     course dealt with in our paper on whistle-blowing.
  11   Q. I follow; but the culture of secrecy, the culture of
  12     confidentiality, what you are saying in paragraph 2.20,
  13     it may seem -- this is what I would welcome your views
  14     on -- is that this is a restricting comment about the
  15     way a Trust is, if you like, commercially going to
  16     manage its health care provision in the locality in
  17     which it operates --
  18   A. Yes.
  19   Q. -- as opposed to the feeling that one cannot inform upon
  20     one's colleagues who are actually prejudicing the
  21     individual patients under their individual knives?
  22   A. Yes, I think that is a very fair comment. What we are
  23     seeing here is a situation where, as we described in our
  24     earlier evidence, throughout the late 1980s and early
  25     1990s, there was a growing frustration within the

   1     profession with the mechanisms available to it within
   2     its own self-regulatory frameworks to ensure good
   3     practice in the safety of patients. Part of that
   4     involved the very, very delicate business of evolving
   5     systems which would allow doctors to comment in a fair
   6     and open way about the conduct and performance of
   7     colleagues, and steps were beginning to evolve both in
   8     the disciplinary frameworks and within the General
   9     Medical Council, at the regulator level, to allow
  10     doctors to do that.
  11        These steps forward were not helped by the changes
  12     which took place in 1990, and which brought about this
  13     climate within hospitals which in fact tended to stifle
  14     discussion, as the papers in the BMJ show.
  15   Q. It might be asked in general terms that in so far as the
  16     complaint here is about the inability of employees to
  17     speak out against the policy of their employers, because
  18     they, as individuals, feel that the policy is not
  19     appropriate or right, it might be asked why health
  20     policy should be thought to be the preserve of doctors
  21     exclusively?
  22   A. I do not seek to suggest that at all. As our paper on
  23     whistle-blowing illustrates, this is by no means an
  24     issue reserved solely to doctors, and in fact one of the
  25     most courageous and outstanding actions, one of the

   1     landmark actions taken in this respect in the early
   2     1990s, was taken by a nurse, Graham Pink, in respect of
   3     his determination to speak out about standards in
   4     geriatric care.
   5   Q. Should the last word be with doctors?
   6   A. No, I do not think actually the last word should be with
   7     doctors at all. Proud though I am to be a doctor and
   8     proud though I am to be Secretary of the British Medical
   9     Association, I think doctors are now very well aware
  10     that we have a duty to contribute what our
  11     professionalism is all about to this debate, about
  12     health and health care, but we do not have a particular
  13     primacy in doing so; we have a particular duty to lead
  14     that debate where we believe others cannot take the
  15     first step, but we are now looking at a much more
  16     inclusive way of carrying forward that debate than we
  17     were even when I qualified.
  18   Q. I am diverting you a little from your description of the
  19     early 1990s and the change in culture which occurred as
  20     a result of the reforms then introduced. Can we have
  21     a look at page 139? It is headed "Organisational
  22     culture". So that we know what this comes from, it is
  23     your "whistle-blowing" paper to which you have just made
  24     reference, and there is a reference at the top of the
  25     page:

   1        "We would also like to see a change of culture in
   2     the new NHS to one of real openness."
   3        You describe there the making of specific
   4     provision for resolving conflict.
   5        "At present, we do not have good frameworks for
   6     decision-making and resolving different priorities. The
   7     potential dangers where values conflict and diverge has
   8     been described as follows by Marlene Winfield."
   9        That is the Consumer Association, is it?
  10   A. Yes.
  11   Q. "In an environment where decision-making is not shared,
  12     opinions and values tend to polarise. In hospitals
  13     coming to terms with controlling their own budgets,
  14     priorities can seem to diverge dangerously. Where the
  15     consultants' first priority may be to treat all those
  16     who need treatment and the nurses to ensure that each
  17     patient is cared for properly during treatment, the
  18     manager's first priority must be to enable the hospital
  19     to remain solvent so that it can go on treating patients
  20     in the near future."
  21        That is a fairly stark portrayal of the clash of
  22     aims and values?
  23   A. Absolutely.
  24   Q. To what extent does it encompass reality?
  25   A. It encompassed reality fairly starkly, I think, and of

   1     course it is the reason why there is now so much support
   2     within the NHS for the new approach in which that
   3     divergence is confronted, and managers' first priority
   4     now is not to enable the hospital to remain solvent, but
   5     to ensure the quality of care provided within it. That
   6     is what clinical governance is all about and why, very
   7     properly in my view, Chief Executives are identified as
   8     the people fully responsible for the delivery of quality
   9     standards in their hospital.
  10   Q. If one accepts as the starting point that the manager,
  11     whether it was in 1990 or whether it is today, may have
  12     a limited budget within which to operate, but wishes to
  13     achieve the best care that he can for patients, and the
  14     doctor wishes to achieve the best care that he can for
  15     patients, but must recognise that there is a limited
  16     budget available, why should the approach necessarily be
  17     in any conflict?
  18   A. What I think we are saying here, Marlene Winfield as
  19     much as we were, is that management in the early 1990s,
  20     in the National Health Service, was very focused on the
  21     financial approach. They were not as concerned, in our
  22     view, with the quality of approach; they did not have
  23     mechanisms with which to manage the quality; they were
  24     not encouraged to manage for quality, and it seemed to
  25     us that the overriding and largest part of the problem

   1     with the then approach, the internal market, the belief
   2     was that if you produce enough competition in the
   3     system, quality will inevitably follow; whereas we
   4     believe in a closed -- I mean closed in the best sense,
   5     I do not mean in secret - in a system like the National
   6     Health Service where increased consumption does not, as
   7     it does in other markets, suck in increased resource,
   8     but where the resource is fixed. We believe that within
   9     that kind of system, the important priority is to manage
  10     for quality, and to principles such as equity and equity
  11     of access, and to balance those and manage the budget as
  12     a secondary affair, following that, but get the quality
  13     right first.
  14   Q. How, if at all, does the BMA suggest approaching, at any
  15     rate, the policy issue of how one satisfies indefinite
  16     demand from finite resource?
  17   A. We believe that this can only be addressed by a proper
  18     partnership of decision-making between all of the
  19     parties involved, that is to say, the public,
  20     politicians, managers, and health professionals,
  21     including doctors. Doctors have a part to play in
  22     that. We have a particular role to play. We have
  23     a particular advocacy role for particular types of
  24     patients, and for particular types of problems which may
  25     seem less attention-grabbing and, to use a current

   1     phrase, less "sexy" than perhaps the others might do.
   2     It is a particular role on doctors to try and explain,
   3     from the depth of their experience, the whole field of
   4     problems which needs to be addressed, but in its
   5     ultimate analysis, the decision about what gets treated
   6     and what does not get treated within a national health
   7     service, within a health service which is managed
   8     ultimately politically, to principles, as I say, of
   9     equity, accessibility and openness and so on, these
  10     decisions have to be made in partnership. They cannot
  11     be made by any one party alone.
  12   Q. You complain in your statement about the fear that
  13     a number of managements were 'macho' in the 1980s and
  14     1990s. Was that the exception or reality?
  15   A. It was absolute reality. Our experience in our local
  16     offices, even here in Bristol, was that there was
  17     a spectrum of accessibility, a spectrum of approach
  18     taken by managements, some of which recognised very
  19     fully that doctors need both management direction and
  20     personal values, but in addition, need a framework of
  21     ethical values from their entire peer group within which
  22     to operate that framework provided by the GMC, by the
  23     BMA, by the Colleges and managements which therefore
  24     were encouraging of their medical staff to take part in
  25     these frameworks, and other management who took very

   1     seriously the exhortations coming from the governments
   2     of that time that they were independent commercial
   3     enterprises, they were independent commercial management
   4     and that doctors were employees like any other employee
   5     and they should be treated like any other employee and
   6     made to comply with their terms and conditions of
   7     contract and that was all that was required.
   8   Q. You make the point that the BMA set its face against
   9     local determination of terms and conditions and in
  10     particular, in respect of a number of aspects of the
  11     disciplinary content of contracts of service.
  12   A. Could I just correct you on that? We did not set our
  13     face against local negotiation; we pinned our flag very
  14     firmly to the mast that there should be national terms
  15     and conditions, but we very carefully took account of
  16     the fact that once Trusts did have the freedoms that
  17     they were given, it was absolutely necessary that in
  18     each Trust hospital there should be a local negotiating
  19     committee, properly advised by the professional body,
  20     the British Medical Association, in order that the
  21     doctors there could conduct such negotiations as would
  22     be required of them by their new employers, the Trusts,
  23     on the professional matters affecting them.
  24   Q. I am sorry, is the difference perhaps between having
  25     a set of national terms and conditions in which there

   1     may be local variation negotiated --
   2   A. Correct.
   3   Q. -- on the one hand, as opposed to having, as it were,
   4     completely different contracts up and down the country
   5     on the other?
   6   A. That is absolutely correct.
   7   Q. The objection to the latter was, was it, that if the
   8     ultimate objective is patient care to be derived from
   9     a national system, then certain aspects of the contract
  10     ought to be nationally determined in order to deliver
  11     a National Service?
  12   A. That is correct, but I think what I am trying to point
  13     you towards is the fact that these negotiations, these
  14     discussions by the consultant bodies within Trust
  15     hospitals, on one level they had a contractual basis,
  16     yes, but on another level, they usually moved seamlessly
  17     across the whole field of professional discussion, and
  18     the Association has always believed very firmly that
  19     doctors should have the right to organise themselves and
  20     to be advised and to properly discuss their entire field
  21     of professional concern from the purely contractual one
  22     end of the spectrum right through to the purely
  23     professional competence issues at the other end of the
  24     spectrum.
  25   Q. Did you have negotiating rights at Bristol?

   1   A. No. We still do not.
   2   Q. How rare was that?
   3   A. That was uncommon.
   4   Q. What was the view of the local office as to the local
   5     culture?
   6   A. I have been told by the local office that Bristol was
   7     a very difficult Trust to deal with. We were allowed to
   8     set up a local negotiating committee; we have a local
   9     negotiating committee in Bristol, but it is not
  10     recognised. The British Medical Association was very
  11     firmly kept at arm's length from the management at
  12     Bristol, who would have nothing to do formally with the
  13     BMA. I am told that the feeling was that this was
  14     a very insular management culture.
  15   Q. Very insular?
  16   A. Correct.
  17   Q. That obviously may be a complaint that you were not
  18     feeding into the culture?
  19   A. I fully acknowledge that, but you ask me.
  20   Q. I use that as a springboard for the next question:
  21     whether any other professional bodies or Trade Unions
  22     were themselves feeding into the culture?
  23   A. Not that I am aware of. I am aware that the view of the
  24     management at Bristol was that discussions with
  25     employees should be in general about contractual matters

   1     and that these should take place through the mechanism
   2     of a single table bargaining procedure, with which we
   3     disagree fundamentally, believing, as is set out in the
   4     guidance on the Department's own guidance on
   5     whistle-blowing from 1994, that consultants in their
   6     practice have a special position in relation to the
   7     hospital and therefore ought to have direct access to
   8     the Chief Executive on matters of concern, and we have
   9     never gone along with restrictions on the way that
  10     doctors should be able to approach managements, and
  11     therefore we have found Bristol a difficult hospital to
  12     deal with.
  13   Q. You use the word "insular"; it may have different
  14     meanings, different forces, for different people. Would
  15     you like to expand on it?
  16   A. I simply report what has been reported to me as
  17     a perception of the culture. We started off talking
  18     about the culture of Bristol, of the Bristol hospital.
  19     This was a hospital which was relatively closed in terms
  20     of the influences which could be brought to bear upon it
  21     from outside bodies, including the British Medical
  22     Association, which were regarded as unnecessary.
  23   Q. You had a number of members within the hospital?
  24   A. Yes, we have an active membership within the hospital.
  25   Q. Did you have any reflection of concern about the

   1     management style from that membership, apart from the
   2     insularity to which you have already referred?
   3   A. Yes. I mean, it has been represented to me that the
   4     management style was difficult; it has been represented
   5     to me, not specifically in relation to the matters under
   6     consideration by this Inquiry, but in other respects,
   7     that the management style was deeply divisive; that it
   8     maintained these divisions as a tool of management and
   9     there was an acceptance of such deep divisions as
  10     something which was part of the framework of the way
  11     things were done in Bristol.
  12        That is not necessarily the way that I think good
  13     management should proceed. I firmly believe that one of
  14     the things management should do is to build things
  15     together, not to maintain them apart, and therefore I go
  16     along with the fact that our people here found Bristol
  17     a difficult hospital to deal with.
  18   Q. In terms of the deep divisions, whom do you understand
  19     was being set against whom as a management tool?
  20   A. I have to tell you that I have been told that the core
  21     of the Local Negotiating Committee in Bristol were
  22     formed principally from one division, that is, the
  23     anaesthetic division, and there was a deep apprehension
  24     among the LNC members that they should not be seen as
  25     a single disciplined representative body. They did not

   1     wish to do that.
   2   Q. Why just from one division?
   3   A. I really cannot answer that. I think you will have to
   4     pursue that question directly with those involved.
   5   Q. I am sure you do not mind my pressing you as hard as
   6     I have on that.
   7   A. Not at all.
   8   Q. Are you able to make any further comment about the style
   9     and its success or failure, as has been reported to you,
  10     locally?
  11   A. No. I really cannot. I mean, I can only look at what
  12     I now know, because, as I say, our formal involvement in
  13     this particular issue dates from 1995, but one can only
  14     now look back at what has been said in other evidence,
  15     and that will put the comments that have been made about
  16     what was known and said within the hospital against that
  17     culture, that style, and put it in the context of the
  18     encouragements to what we would call 'macho' managements
  19     which were coming from the Department itself in the
  20     early 1990s, and to me it reads as a story of something
  21     which was going wrong which was not helped and in fact
  22     was hindered by the imposition of this new system of
  23     management in the National Health Service which in fact
  24     closed things down at the very time when it would have
  25     been helpful to open them up.

   1   Q. Do you have anything in particular in mind as to that
   2     which was coming out of central government which was
   3     encouraging 'macho' management locally?
   4   A. There were a number of statements and circulars which
   5     were coming out, supported very strongly from the top,
   6     from the political direction, which encouraged doctors
   7     to feel extremely threatened by the new system. If you
   8     wish to have some examples of these, we would be happy
   9     to provide them for you.
  10   Q. I would be grateful. Threatened in which respect?
  11   A. Threatened professionally, because it was made very
  12     clear at the beginning of the whole roll-out of working
  13     for patients -- can I digress for one moment to put the
  14     change of 1990 in context? The story, as doctors
  15     perceived it, was thus: that there was, in the 1980s, as
  16     there is now, a huge debate about priorities and
  17     resources in the National Health Service. This surfaced
  18     in the late 1980s in a number of extremely difficult
  19     issues. Interestingly enough, issues around rare
  20     expensive treatments.
  21        There were headline cases, for example, of
  22     children who could not receive what was regarded as life
  23     saving but very leading-edge liver surgery, for example,
  24     and who then died before they could be treated.
  25     Mrs Thatcher found herself on the receiving end of

   1     a late-night interview and was forced to concede that
   2     this was not a situation which was in keeping with the
   3     founding aspirations of the NHS or of the way that the
   4     people of this country wished to see it performing and
   5     in response, she said yes, it was, and she was going to
   6     do something about it. What she was going to do was to
   7     conduct a personal review of the National Health
   8     Service. That review was conducted by a cabinet
   9     committee who took very select advice as to the way
  10     forward and the result was the launch of the 1990 paper,
  11     "Working for Patients".
  12        As far as doctors could see, the story was,
  13     "things are going wrong and it is largely doctors'
  14     fault and we are going to take steps to bring them into
  15     line and make sure they do things right in future".
  16     That was actually a complete travesty of what was
  17     happening. The service was under-funded and
  18     under-resourced as well as having very weak management
  19     structure as we discussed this morning. Very little of
  20     what was going wrong was due to bad doctoring. Doctors
  21     resented the implication that it was, and resented the
  22     implication that everything was going to be put right by
  23     the imposition on hospitals or on the Health Service of
  24     a system in which the hospitals would be the employers,
  25     and everybody in these hospitals would be run in

   1     a business style by business people who really knew what
   2     the world was about and would make very sure they
   3     managed these hospitals tightly, including managing the
   4     doctors.
   5        That, in broad outline, was the message coming out
   6     of the 1990 reforms so far as doctors were concerned and
   7     that is the kind of message which contributed to the
   8     anxieties and apprehensions around culture to which we
   9     have been referring in the last few minutes.
  10   Q. We have, page 134, the very foot of the page in your
  11     paper on whistle-blowing, a comment taken from that
  12     which Jeffrey Hunt said:
  13        "The market world of consumers, expressing their
  14     choices by making purchases in which illness, disease,
  15     disability and infirmity are market opportunities and
  16     health care is a commodity, flattens all roles into
  17     buying and selling. This radically undermines a welfare
  18     system supported by an ethic of public service,
  19     democratic representation and the separation of powers.
  20     Health care professionals can no longer expect clinical
  21     judgment to take precedence, because market demand and
  22     supply intrude more or less directly into clinical
  23     judgment."
  24        That is a view which appears, I think, consistent
  25     with the fears of doctors you have just been

   1     expressing. Am I right in drawing that conclusion?
   2   A. It is entirely consistent with the fears that doctors
   3     were expressing.
   4   Q. The one aspect in which it may be thought to differ,
   5     possibly, is in the last sentence:
   6        "Health care professionals can no longer expect
   7     clinical judgment to take precedence", which he, Jeffrey
   8     Hunt, is putting forward with a note of regret, "because
   9     market demand and supply intrude more or less directly
  10     into clinical judgment."
  11        Reformulated, that might be "We cannot do what we
  12     like clinically if we do not have the resources to do
  13     it"?
  14   A. That is correct.
  15   Q. From what you were saying, that has always been the
  16     position, before the reforms as well as after?
  17   A. There has always been an element of that. The question
  18     of clinical judgments taking precedence has meant that
  19     doctors have taken many of these very difficult
  20     decisions to treat, not to treat, to use this type of
  21     treatment as against that type of treatment, very
  22     carefully, but very much as far as possible with
  23     patients, and of course the climate on the involvement
  24     of patients and decision-making is changing also. But
  25     they have taken these judgments as part of what is

   1     stated here to be "clinical judgment", "judgment" being
   2     the right word, judgment being the appropriate
   3     professional input to these types of decisions, as
   4     opposed to a task which is buying and selling, which is
   5     what this paragraph describes. This is why many health
   6     care professionals, including doctors -- it does say,
   7     after all, "health care professionals", not "doctors" --
   8     all health care professionals, and I think nurses and
   9     the professions allied to medicine, as well as doctors,
  10     have felt that one of the phenomena of the early 1990s
  11     was the financial manager sitting on one's shoulder as
  12     one took a clinical judgment, whether that was
  13     a judgment in a physiotherapy clinic or in an intensive
  14     nursing area, or indeed in an outpatient department.
  15   Q. It is plain, from what you were saying not 15 minutes
  16     ago, that nowadays doctors, certainly the vast majority
  17     of doctors as represented by you, accept that decisions
  18     need to be made, and they are for others as well as
  19     doctors, as to how to allocate the finite resources
  20     against the indefinite demands?
  21   A. Yes.
  22   Q. Is there a sense in that which Mr Hunt is expressing
  23     here that at least before 1990, before the reforms may
  24     have demonstrated the tensions all the more clearly
  25     between resources on the one hand and demands on the

   1     other, was there a sense in which doctors felt that so
   2     long as they, for all good proper professional reasons,
   3     thought there was a treatment which should be pursued in
   4     the interests of an individual patient, that somehow the
   5     resources would be available to fund it?
   6   A. You put it very starkly, and the way you put it carries,
   7     I think, more of a hint that doctors wish to behave
   8     arrogantly than I would --
   9   Q. That is not my purpose.
  10   A. I know it is not your purpose, but I wish, for the
  11     record, to make it clear that I do not think that the
  12     profession had, certainly not in the 1980s, just as much
  13     self assurance and arrogance about its own preeminence
  14     in decision making as I think you may be hinting at.
  15        What is certainly true is that if I had to pick
  16     one good thing which came out of the 1990 reforms, it is
  17     that realisation encapsulated in core values for the
  18     medical profession to which we alluded earlier, that
  19     doctors at whatever level, and in whatever role in the
  20     health care system, have to realise the impact of what
  21     they do for the patient in front of them on the patient
  22     waiting outside the room, on the next patient and on the
  23     community as a whole, within a system in which the
  24     resources are contained as they are in a national health
  25     service like we have in Britain.

   1        The system is -- it is a different situation if
   2     you are in a liberal market situation where the payer
   3     pays whether the payer is an insurance company or
   4     a private payer, and particularly you are in a different
   5     situation if you are in a free-for-all market where the
   6     patient is actually paying. Then he has the difficult
   7     choices to make about whether he bankrupts his family or
   8     gets the treatment. But in the system we have, doctors
   9     and other health care professionals are on the front
  10     line of that judgment and they now, I think, realise
  11     much more fully than they did, the difficult decisions
  12     that have to be made, and of the difficulty they have in
  13     juggling their professional duty to care for the patient
  14     who is in their care with their professional duty also
  15     to have regard to how that care impacts on the rest of
  16     society.
  17   Q. It was the absence of that realisation in the 1980s and
  18     1990s which I was suggesting to you, rather than any
  19     arrogance. The last thing I would want anyone to read
  20     into my question was any view, particularly from me,
  21     that doctors who were doing their professional best for
  22     the patient had anything other than the interests of
  23     that particular patient, as they saw it, in mind. I do
  24     not suggest any arrogance at all.
  25   A. Good, I am grateful to you.

   1   Q. It is the absence of realisation, which I think you are
   2     suggesting is a feature?
   3   A. That is correct.
   4   Q. It may be a consequence, whatever one may think of the
   5     1990/1991 reforms, may it, that that realisation has, if
   6     I say "dawned", it is perhaps insulting, but has become
   7     clearer?
   8   A. I think it has. Priority, however you describe it,
   9     whether you call it "rationing" or "priority setting",
  10     I think no-one in society is now unaware that there is
  11     no great "them" up there somewhere who are going to make
  12     all the decisions and get everything right on this.
  13     These are difficult societal decisions which will have
  14     to go on being made and will become more difficult in
  15     the years to come and not less difficult.
  16   Q. One further aspect, a different aspect of the culture to
  17     which I want to take you, page 16 of your statement: it
  18     is paragraph 3.6:
  19        "The majority of staff who choose to work in the
  20     care of critically ill children and adults". This is
  21     a section of your statement, so the wider audience can
  22     understand, which deals with whether or not there should
  23     be or should have been appropriate counselling services
  24     provided.
  25   A. Yes.

   1   Q. "The majority of staff .... come to the work with
   2     appropriate sensitivity and commitment. However, the
   3     burden of this work is frequently not recognised and
   4     many staff are subject to burn-out which may manifest
   5     itself as an apparent lack of sensitivity."
   6        It is the only reference in your statement to us
   7     to "burn-out".
   8        In general terms, has burn-out been a serious
   9     problem with those in the medical profession since, at
  10     any rate, the start of the 1980s?
  11   A. It is certainly a subject which has become talked about
  12     in a way that it was not talked about before. It is
  13     certainly, in this particular regard, a subject which is
  14     a reality, not only in relation to the subjects under
  15     enquiry by this particular Inquiry, but I have, for
  16     example, earlier this week seen a piece of work from the
  17     Down's Syndrome Association making exactly the same
  18     point: that, sadly, caring and conscientious and
  19     obviously competent doctors and nurses dealing with
  20     Down's syndrome children may still, in this day and age,
  21     occasionally display lack of sensitivity towards either
  22     the children or the parents. That is regrettable, but
  23     it is a statement of fact, and simply underscores what
  24     this paragraph calls the "burden of this work". Doctors
  25     are in the death and disease business, notwithstanding

   1     what people may see in television soaps about the lives
   2     of doctors. Doctors work in the death and disease
   3     business, and particularly where death and disease
   4     affects young children, it can be extremely
   5     distressing.
   6        I heard an extremely eminent specialist on a panel
   7     only last week, when confronted with an ethical issue
   8     relating to the surgery of children, simply say, "Thank
   9     God I am not in that field. I just would not have the
  10     bottle to spend my life doing that kind of thing. We
  11     must respect the courage of people who do."
  12        I think that is a fair statement of the burdens
  13     which people who work in this kind of field carry.
  14   Q. Does it go beyond that; because plainly the man to whom
  15     you refer had a choice whether he did the work or not,
  16     and he chose, because of the particular problems of the
  17     work, not to do it?
  18   A. Yes.
  19   Q. Is there perhaps an institutional, an organisational
  20     point you are making here, that the work is demanding,
  21     not only on a time basis but on an emotional basis? And
  22     that can be, I take the hint from paragraph 3.6,
  23     institutionally or organisationally addressed?
  24   A. Yes. The British Medical Association has pointed to the
  25     fact for a very long time that, really by comparison

   1     with any other major employer, the amount of resource
   2     invested by the National Health Service in the care and
   3     maintenance of its human resources is laughably small;
   4     in fact, they just do not do it. I am on record as
   5     saying that if I were a shareholder in any other company
   6     and I went along to a general meeting and I was
   7     confronted with evidence of the sort of demoralisation,
   8     burn-out and lack of enthusiasm for the business in hand
   9     which my employees were displaying, similar to that
  10     which is constantly coming out of the National Health
  11     Service, I would be calling for the managing director
  12     and the director of human resources' head on a plate.
  13        The National Health Service does not take
  14     seriously enough the health and welfare of the people
  15     that work in it and particularly not the health and
  16     welfare of the people who work in the more arduous parts
  17     of the business, and the BMA has pointed out, for
  18     a number of years, that, for example, the occupational
  19     health service available to doctors, nurses and other
  20     health care staff in the Health Service, is virtually
  21     absent; there virtually is not one, notwithstanding
  22     protestations of the Health Service management that they
  23     value staff and wish to do everything possible to
  24     support them.
  25   Q. To what extent to you consider that we in this Inquiry

   1     should be looking in the 1980s and the early 1990s at
   2     the hours which people worked, the conditions under
   3     which they worked and the emotional load that they
   4     carried, in the work that they did in caring for sick
   5     and very poorly children, as a problem which may have
   6     related to the ultimate outcome of care?
   7   A. I find that difficult to answer, because the evidence of
   8     other witnesses which I have seen seems to me to
   9     suggest, putting it at its broadest, that Bristol was
  10     different, and therefore I think that your enquiries as
  11     to hours, arduousness and load to which you are
  12     referring would have to be centered on the degree to
  13     which Bristol was different in those cases, in those
  14     respects, as well.
  15        I am not sure to what extent addressing the
  16     problem of Bristol would be helped by a general
  17     discussion of hours and stress, although it, I think,
  18     would be very informative from you, from the point of
  19     view of understanding the kind of rate of
  20     decision-making and the load that that produces, to hear
  21     firsthand from people who were involved as to just what
  22     life in Bristol in those days was like. You have heard
  23     some allusions to it in the evidence that you have heard
  24     about the way that junior doctors, for example, had to
  25     work in Bristol; the way that their duties were

   1     constrained by the physical nature of the place, and so
   2     on. I think you may find it helpful to explore these
   3     further directly with the people involved, but I cannot
   4     pretend that I think you will find the kernel of the
   5     problem there.
   6   Q. In general terms, just pursuing this before we leave
   7     it, is it the view of the BMA that beyond a certain
   8     point, the hours that a doctor works affected
   9     performance?
  10   A. Absolutely. I think there is very good evidence for
  11     that, and for that reason, you will know that the
  12     Association is currently considering very carefully its
  13     position in respect of junior doctors, because of recent
  14     evidence that, notwithstanding its protestations to the
  15     contrary, the government has actually taken steps,
  16     together with the Irish government, to ensure that for
  17     the next 15 years junior doctors will work -- will
  18     actually work, up to 65 hours a week as part of the
  19     contracted position, with on-call and educational
  20     activity on top of that. We do not believe that that is
  21     anything but a contrary step in relation to patient
  22     care. It has an effect on doctors, yes, but most of
  23     all, it has an effect on patient care.
  24   Q. What is true of junior doctors must, must it, be true of
  25     senior doctors, both in terms of the workload of hours

   1     as well as the content of the workload?
   2   A. That is absolutely true. And as the work of doctors
   3     becomes more technical as the demands of patients for
   4     the presence of a senior doctor to cope with immediately
   5     arising problems -- I am thinking, for example, of the
   6     very justifiable aspirations of women in labour to have
   7     a consultant obstetrician available to them at all times
   8     during a labour and not merely during what would be
   9     regarded as normal working hours -- as these pressures
  10     come on fully trained doctors, we are increasingly
  11     seeing doctors throughout their working lives being
  12     required to be on-call and, more importantly, during
  13     that on-call to turn up in the hospital on a regular 1
  14     in 3, 1 in 4 basis, throughout their entire working
  15     lives.
  16        This is not the basis on which the workforce
  17     planning for the Health Service was done, and it is
  18     contributing to a worsening of workforce planning,
  19     because the result, as you might readily appreciate, is
  20     that doctors are nowadays virtually completely unwilling
  21     to work beyond the earliest point at which they can
  22     retire, at 60, and in a planning situation in which
  23     workforce planning is predicated on doctors working
  24     through to 65, it is knocking a hole right through the
  25     middle of planning figures.

   1   Q. Does it follow from the start of that answer, if you can
   2     remember that far back, that doctors who have not
   3     only hours but a difficult and draining clinical job to
   4     do, who are themselves involved in management, may have
   5     additional responsibilities which are unlikely to
   6     enhance performance and may hinder it?
   7   A. That is absolutely true. I think that is evident.
   8     Management decisions are often the most difficult
   9     decisions of all, and they need a clear head and time
  10     for reflection, most importantly, and these are the two
  11     things which are most at risk at the end of a 65 hour
  12     stint.
  13   Q. You have emphasised throughout your evidence the need
  14     for doctors to be involved in decision-making policies,
  15     at least as part of the information and exchange of
  16     views which is necessary.
  17        You are recognising in the last passage of
  18     evidence the problems it may give to the individual in
  19     terms of workload responsibilities and the impact it may
  20     have on what else that individual personally is doing.
  21        Does the BMA have a view as to how best to
  22     reconcile the problem, if I can call it that, of doctors
  23     having not only a clinical but also a managerial role?
  24   A. No, I think the BMA, the membership feels it very
  25     important that doctors contract at both levels, not that

   1     all doctors should and not that all doctors would want
   2     to. In fact, many doctors make the view very forcefully
   3     known that they do not wish to contribute to
   4     a managerial role, and I think it would be unwise to
   5     push them to do so, because not everyone is suited to do
   6     that.
   7        What we I think are finding too much of is that
   8     doctors are in the managerial sense forced to do both,
   9     and I meet daily doctors who are, for example, coming to
  10     London to take part in important government organised
  11     decision-making fora, only to be getting back on the
  12     train to go back and be back on call that night in their
  13     theatres or clinics; or indeed are coming along having
  14     spent the night on call and indeed in theatre.
  15        This is not a good recipe for good
  16     decision-making; it is not good for doctors and it is
  17     not good for patients.
  18   Q. How does one best achieve the balance? Does it have to
  19     be an individual matter, or can one take a general view
  20     about it?
  21   A. If I might be allowed to step into a personal mode and
  22     make it quite clear I am not in this sense speaking for
  23     the BMA, I think that the problem is that the medical
  24     profession has a very strange and very flat career
  25     structure, which does not recognise that a properly

   1     organised professional career should take account of the
   2     fact that one is at one's best in terms of, shall we
   3     say, front line shop-floor activity and manual skills at
   4     an early stage in one's career and one has an aptitude
   5     and experience in terms of higher level decision-making
   6     and managerial skills towards the end of one's career.
   7        I think we do not properly allow doctors to
   8     progress from one stage to another. Far too many
   9     doctors are forced either to make the choice and
  10     therefore do not find themselves with the time to take
  11     part in managerial matters to the extent to which they
  12     could contribute, or are forced to do both and ... and
  13     in fact do so to the detriment of family and social life
  14     and at the expense of even longer hours in the surgery
  15     or clinic.
  16   Q. Just to encapsulate that last answer, speaking
  17     personally, you would like to see, in effect, a career
  18     progression which meant that as the consultant got older
  19     or the doctor got older, he did less clinical work and
  20     more management?
  21   A. I think that would be of benefit both to doctors and the
  22     Health Service.
  23   Q. Can I turn from the culture and the various questions
  24     I have been asking you about that to what you have to
  25     say about clinical audit.

   1   A. Yes.
   2   Q. It may be that a number of the questions which arise you
   3     have already answered one way or another in the answers
   4     which I have given.
   5        May we, please, have a look at what you say at
   6     page 24. The bottom of the page :
   7        "The following BMA policies may help to indicate
   8     the changes in attitude to audit and quality improvement
   9     from 1990".
  10        You set out in your statement the changes which
  11     there have been.
  12        In 1995 there is the quote made:
  13        "This meeting welcomes the movement made towards
  14     clinical audit which must remain confidential and
  15     clinically led."
  16        It is that last part.
  17        Why do you say that clinical audit must remain
  18     confidential first, and second, clinically led?
  19   A. Can I, for the purposes of the Inquiry, and for the
  20     record, explain that what we are looking at here are
  21     three policy statements which are described as BMA
  22     policy and they are in fact policy statements from the
  23     annual representative meeting of the British Medical
  24     Association which is our superior policy making body and
  25     which produces year by year a running tally, a running

   1     list, of policies which, taken together, encapsulate
   2     issues of concern to doctors at that time.
   3        What this series is demonstrating is the movement
   4     over those five years from a focus on ensuring the
   5     methodology of medical audit at the top in 1990, towards
   6     a situation where doctors recognise in 1995 that because
   7     most doctors worked in teams and because the outcome of
   8     care for any individual patient depended not so much on
   9     what an individual doctor did as on what the
  10     organisation provided for the care of that patient and
  11     what the team did, that the real type of audit which
  12     mattered for patients was not medical audit, audit of
  13     what doctors did, but clinical audit; audit of what the
  14     team did, both the doctors and the other members of the
  15     health care team.
  16        The sentence also emphasizes that it be clinically
  17     led. That does not say medically led, it says
  18     clinically led. That is to say, it is a recognition by
  19     doctors of the reality of the fact that in many
  20     hospitals the audit lead was often not a doctor. Any
  21     directors auditing in hospitals and in other Health
  22     Service organisations, have been nurses, and doctors
  23     have accepted that the organisation of audit within
  24     a unit is often best led by somebody who is not
  25     a doctor.

   1        It does say that it should be confidential and
   2     that is because the most important feature of audit is
   3     to, as we say, "close the loop". I think this was an
   4     issue which you have already covered, I think, in the
   5     evidence you have heard from both Dr Halliday and
   6     Sir Terence English: that at the point in which they
   7     were talking, the late 1980s, there was a lot of audit
   8     activity, but it was very largely concerned with
   9     gathering data, and Dr Halliday I think at various
  10     points made the point that his concern was to close the
  11     loop, to make sure that the data was not only gathered,
  12     but also presented in a form which could be then
  13     analysed, and most importantly that some action could be
  14     taken as a result of the analysis.
  15        Within clinical teams, what this is saying is that
  16     the audit should first of all be the property and within
  17     the ownership of a team. If a team does not feel it has
  18     any ownership of the audit, it is very unlikely to
  19     change its behaviour as a result of the audit, and the
  20     feeling in 1995 was that if audit is going to achieve
  21     its aim of changing behaviour, or at least of ensuring
  22     that behaviour was up to defined standards, it should be
  23     inside the ownership of the clinical team, be clinically
  24     led, and that action should then be taken by the
  25     clinical team.

   1   Q. My understanding from the first part of your last answer
   2     is that the word "clinically" is a critical word in
   3     that?
   4   A. It is absolutely critical.
   5   Q. Because it is used in contradistinction to the word
   6     "medically" that appeared earlier?
   7   A. Correct, that is it.
   8   Q. So the development in 1993 to 1995 is the recognition of
   9     the broader input?
  10   A. Correct.
  11   Q. And the second aspect of your answer was directed
  12     towards the confidentiality?
  13   A. Yes.
  14   Q. The point you are making there is that confidentiality
  15     is important in giving ownership --
  16   A. Correct.
  17   Q. -- to the clinical team?
  18   A. Yes.
  19   Q. So that the clinical team feel they can draw the
  20     appropriate conclusions with their own data for their
  21     own purposes?
  22   A. Correct. The feeling is that if audit is going to
  23     change behaviour, then the one way not to achieve that
  24     is to impose it from above.
  25   Q. Are you, or was the BMA, I should say, saying in its

   1     emphasis on confidentiality, that there should be no
   2     proper comparison of the data as between units, service