Home Page Search Final Report Interim Report Evidence - Transcripts - Witness Statements - Submissions - CCNR Report and associated documents - Statistical Reports and associated documents - Background Papers - Expert Papers Inquiry Seminars About the Inquiry Help		Daily transcripts   Hearing summary   12 July 1999   Inquiry hearings today heard evidence from Mr Hugh Ross, current Chief Executive, United Bristol Healthcare NHS Trust (UBHT) and Mr Ian Barrington, General Manager, Directorate of Children’s Services, UBHT. Issues under discussion today were post-mortems and inquests. Mr Ross began by saying that procedures relating to post mortems (PMs) at UBHT during the period of the Inquiry were consistent with elsewhere in the NHS. He went on to describe the difference between a hospital PM and a Coroner’s PM and explained the responsibility of clinicians to obtain informed consent. He also discussed the issue of retention of tissue following PM and the keeping of records in relation to this. Mr Ross then described UBHT’s reaction to the disclosure of information to parents about their child’s PM and the co-operation of the Bristol Heart Children Action Group in this matter.   Mr Ian Barrington then went on to describe his responsibility in relation to PM, saying that he would have only been involved if a concern had been brought to his attention. He then talked about his role in dealing with requests from parents for information about their child’s PM. He described the setting up of a help line and subsequent investigations assisted by Professor Berry (Consultant Paediatric Pathologist) to deal sympathetically and swiftly, but as accurately as possible, with the queries from parents. He concluded by discussing the information surrounding PM that is now discussed with parents following bereavement.

FULL TRANSCRIPT

   1                     Day 37, 12th July 1999
   2
   3   (10.45 am)
   4   THE CHAIRMAN: Good morning, everyone. Good morning,
   5     Mr Langstaff.
   6   MR LANGSTAFF: Good morning, sir. I am sorry for the slight
   7     hiccup in arrangements this morning. We are now in
   8     a position to begin the week's proceedings. Mr Ross,
   9     the Chief Executive of the UBHT, is going to give
  10     evidence to us as the first witness on the issue of
  11     tissue retention.
  12        Today we will hear from him and from
  13     Mr Barrington, the Director of Children's Services. We
  14     will not then revisit the issue of tissue retention
  15     until next week, when we will deal with the national
  16     scene and see what the position has been across the NHS
  17     during the years with which we are concerned, 1983 to
  18     1995. Then it is envisaged that in the first week in
  19     which we sit in September, we will hear from parents who
  20     themselves have been affected in a number of ways by
  21     their discovery that their children's hearts or other
  22     organs were retained, and we will hear from Professor
  23     Berry, who is the one person, perhaps, at the UBHT now
  24     who can speak as to what the practice was and what his
  25     practice as pathologist was, throughout the period with

   1     which we are concerned.
   2        We begin today, as I said, with Mr Ross, if you
   3     would come forward, please.
   4        Mr Ross, you have already taken the oath once
   5     before us, but if you would do so again, please?
   6            MR HUGH ROSS (affirmed):
   7            Examined by MR LANGSTAFF:
   8   Q. Mr Ross, you know our procedures, having given evidence
   9     before us on one previous occasion. Let us identify the
  10     statements that you make first in relation to this
  11     issue.
  12        Can I please have on the screen WIT 128/9?
  13        Is that the start of a supplementary statement,
  14     supplementary because it goes beyond your first
  15     statement?
  16   A. Yes.
  17   Q. In relation to this particular issue. If we turn,
  18     please, to page 16: your signature, and dated 2nd July.
  19     That is your signature, I take it?
  20   A. Yes.
  21   Q. Then there are two appendices to that. Then we come to
  22     your next statement at 128/25: that is the start of the
  23     statement, is it?
  24   A. Yes.
  25   Q. And page 28: again, that is your distinctive signature?

   1   A. That is correct.
   2   Q. Again, there are annexes or appendices to that which
   3     take us up and through to page 37.
   4        Can we begin by looking at one of those annexes,
   5     Annex 3 at page 34.
   6        I should ask you, the contents of your statements
   7     you adopt, do you, as your evidence before us?
   8   A. Yes, I do.
   9   Q. I will not ask you about much of the detail that is
  10     contained in those statements, because anyone can read
  11     that for themselves. What I want to focus on is
  12     a number of issues.
  13        What we have here, what you have given us as
  14     Annex 3, is headed "Staff guidance on postmortem
  15     examinations".
  16        It begins:
  17        "Recent events have led to the production of this
  18     brief guidance sheet ..."
  19        When was this sheet produced?
  20   A. In the early part of this year. It is dated
  21     25th February 1999.
  22   Q. Although it is produced by Lindsay Scott, the Director
  23     of Nursing, it has, I take it, the full authority of the
  24     Trust?
  25   A. That is correct.

   1   Q. You divide up the types of postmortem between those
   2     conducted on the instruction of the Coroner and those
   3     that might be described as "hospital postmortems"?
   4   A. That is correct.
   5   Q. There is I think unlikely to be any issue that the
   6     Coroner has the power, whether individuals consent or
   7     not, to require a postmortem.
   8   A. That is right.
   9   Q. It is also common ground, is it, that the hospital does
  10     not have the power to require whether or not anyone
  11     consents or objects?
  12   A. To the Coroner's postmortem, yes.
  13   Q. No, to any other postmortem. You distinguish between
  14     a Coroner's postmortem and a hospital postmortem?
  15   A. Could you just repeat the question?
  16   Q. So far as a hospital postmortem is concerned, can that
  17     be imposed, as it were, without the consent or at least
  18     the absence of objection of others?
  19   A. No, it cannot. It requires specific consent.
  20   Q. The present practice then is set out, is it, under
  21     "Coroner's postmortem "and "Clinicians postmortem."
  22        Dealing first with the present practice in respect
  23     of the Coroner's postmortem. The points are made in the
  24     document that consent is not -- the word "legally"
  25     appears, legally required, then it goes on to say it is

   1     good practice to explain to the next of kin the reasons
   2     for a referral to the Coroner, or the Coroner's
   3     requirement for a postmortem.
   4        If the next of kin has some requests about the
   5     postmortem and how it is managed, it should be recorded.
   6        When was it decided that it was good practice to
   7     explain why a Coroner's postmortem was required, even
   8     though it could not legally be refused?
   9   A. This document came out of a review that I asked the
  10     Director of Nursing to undertake in the light of the
  11     events being discussed today, because I wanted to be
  12     sure that our practice was consistent and up-to-date.
  13        As I have said in my statement, the findings of
  14     her review that were indeed our practice was consistent
  15     with the rest of the NHS and was up-to-date, and in fact
  16     in some cases was better than elsewhere in the NHS.
  17        Nevertheless, the Director of Nursing and
  18     I thought that we ought to try, in the interim
  19     guidance -- because we are awaiting all sorts of
  20     developments I guess on this front -- we ought to try
  21     and reinforce good practice. It was clear to us that
  22     a more informed type of consent was important, even if
  23     there was effectively no choice on the part of relatives
  24     that a postmortem was to be undertaken.
  25        I cannot really give you a specific date; that was

   1     just our feeling, our view, in the light of developing
   2     debate about this issue, that this was advice that we
   3     should give our staff, to reinforce what may well have
   4     been a practice in some parts of the Trust, but wanting
   5     to make sure it was best practice and reinforced right
   6     across the Trust.
   7   Q. Am I right in thinking that this staff guidance was
   8     issued because of recent events? By that I mean the
   9     furore which broke out when it was revealed that
  10     a number of hearts had been retained by the Trust
  11     following paediatric cardiac surgery over a number of
  12     years.
  13   A. That is right.
  14   Q. And it was evident, was it, that that had caused
  15     significant distress to a number of people?
  16   A. Indeed, it was, yes.
  17   Q. So what I therefore have assumed -- tell me if I am
  18     right or wrong about it -- is that this guidance is more
  19     up to date than anything which preceded it?
  20   A. That is a difficult question for me to answer, because
  21     I am not aware of all the details of the debates that
  22     have taken place in the Trust in the past about the
  23     issue of informed consent.
  24        I am aware that the consent forms specifically at
  25     the Children's and St Michael's Hospitals were made more

   1     specific and more detailed in 1996, and I know from
   2     discussions with some of the medical staff concerned
   3     that there had been really quite detailed discussions
   4     since that date with any parents in this situation. But
   5     I cannot be specific as to how that had translated
   6     itself into written guidance, because this, as far as
   7     I am aware, was the first updating of guidance there had
   8     been in the Trust since the 1996 change of form.
   9   Q. So did you see this updating of guidance as changing
  10     anything?
  11   A. No. I think more reinforcing current practice, which
  12     we reassured ourselves was in line with practice
  13     elsewhere.
  14   Q. The current practice dates, you say, from 1996?
  15   A. The current consent form at the Children's Hospital and
  16     St Michael's dates from 1996.
  17   Q. So far as what is said here was good practice, which is
  18     being reaffirmed, and good practice to explain to the
  19     next of kin the reasons for a referral to the Coroner,
  20     are you able to say from your own knowledge of this
  21     Trust whether that good practice has been aimed at, at
  22     least throughout the time of your tenure of the post of
  23     Chief Executive?
  24   A. I cannot say that I have specific knowledge of the
  25     detail of practice on a day-to-day basis with regard to

   1     this specific issue.
   2   Q. That is why I put the question as I did: do you know
   3     whether this at least had been aimed at, even if not
   4     necessarily achieved in practice?
   5   A. I think it is clear from the work that Professor Berry
   6     has done and the changes that he made to consent form
   7     and practice at St Michael's and the Children's
   8     Hospitals, that certainly the ethos there was of a much
   9     more informed debate about consent, regardless of
  10     whether it was a Coroner's or hospital postmortem.
  11        I do not think I could be quite as confident that
  12     the rest of the Trust had moved the practice forward in
  13     the same way. That was one of the reasons for trying to
  14     reinforce it with everybody through this particular
  15     note.
  16   Q. So are you telling me that there was a perception -- it
  17     may not entirely have been true, it may have been true,
  18     but a perception in your office that not everyone might
  19     be using good practice throughout the Trust?
  20   A. I think we, as a result of the Director of Nursing's
  21     survey, it became clear that not all staff are quite as
  22     confident in answering questions and dealing with these
  23     issues as we would have liked them to be, and we wanted
  24     to make sure they had that information and knew where to
  25     turn to for further advice. Basically in doing the

   1     survey, we found there were some areas we felt we could
   2     further improve.
   3   Q. So the answer is "Yes" to the last question, is it?
   4   A. Yes, I think so.
   5   Q. Why was it thought to be good practice to explain the
   6     reasons to the next of kin for a Coroner's postmortem?
   7   A. I think, as will become clear as the evidence about this
   8     issue unfolds, there has been quite a sea change in
   9     a whole range of views about the importance of informed
  10     consent in all areas of health care practice, and this
  11     issue around consent for postmortems and the
  12     consequences of postmortems is, I think we all
  13     recognise -- at least, I hope we all recognise -- that
  14     the NHS's practice is ripe for review and ripe for
  15     overhaul.
  16        In all of our dealings with our patients and our
  17     relatives, we increasingly try to give much better
  18     information about what it is we intend to do on the
  19     patient's behalf, the reasons for that, the consequences
  20     of that and, wherever possible, what might or might not
  21     happen subsequent to that.
  22        The whole debate is moving forward all the time.
  23   Q. So this is part of the general move towards giving the
  24     patient, in this case the next of kin, greater
  25     information?

   1   A. That is right. I think, if I look at the practice over
   2     my time in the NHS, it is clear that some aspects of
   3     practice in this area have moved forward far less slowly
   4     than public opinion has. This is perhaps one of the
   5     areas where perhaps for understandable reasons public
   6     debate is sometimes difficult and practice has not moved
   7     forward as fast as it should have done. I am sure many
   8     of my health colleagues will agree with me on that.
   9   Q. You used the expression a moment ago "with informed
  10     consent". Of course with a Coroner's postmortem consent
  11     is not necessary, as we have already discussed. So the
  12     purpose of the information, presumably, is not to enable
  13     someone to know what they are agreeing to or otherwise,
  14     but for some other purpose. Perhaps -- this is
  15     a suggestion you are free to accept or reject -- to
  16     spare or respect the feelings of the next of kin?
  17   A. No, I do not think that is the issue, really. I think
  18     the issue about informed consent for Coroner's
  19     postmortems is that although different Coroners
  20     interpret their responsibilities in different ways,
  21     I think it is the case that if the relatives do have
  22     particular objections or particular worries, that the
  23     Coroner has it within his or her power to take those on
  24     board and to adjust or alter their decision about what
  25     instructions they give to the pathologist about perhaps

   1     even the undertaking of a postmortem, but even more
   2     particularly about whether organ tissue should be
   3     retained or not.
   4   Q. So the idea is to give information to the Coroner upon
   5     which the Coroner can then exercise his various
   6     discretions?
   7   A. I think that is one of the benefits of an informed
   8     consent process. I think in the long-term, clearly
   9     there are benefits also for relatives being better
  10     informed and understanding that even within a Coroner's
  11     situation there may be some options. In a short term of
  12     course those benefits are quite hard to identify because
  13     of the general distress and difficulty of the situation.
  14   Q. Can we just move away from this for a moment to
  15     UBHT 308/85?
  16        It is 1985, so very close to the beginning of our
  17     terms of reference. If we go down, we can see in the
  18     third line:
  19        "A copy of Robert Johnson's letter", he was
  20     a lawyer, "to me of 2nd December 1985 is enclosed."
  21        You see he makes the very important point about
  22      "... the level of loss and bereavements of the sort
  23     that occur at children's and maternity hospitals and the
  24     need to balance legal requirements with an entirely
  25     sympathetic approach when consent for postmortems are

   1     being requested."
   2        It goes on to talk about postmortem consents.
   3        This is 1985. You have spoken about the change
   4     that there has been in approach, at least in terms of
   5     information, over the years from 1983 onwards. Reading
   6     this, one would perhaps see that there was, in 1985, at
   7     least consciousness of the particularly acute loss that
   8     parents might have in the event of the death of their
   9     child?
  10   A. Yes.
  11   Q. Is that how you read the fifth and sixth line? That is
  12     what it is referring to, I think, is it not?
  13   A. Yes.
  14   Q. "The need to balance legal requirements with an entirely
  15     sympathetic approach."
  16        That suggests that although there may be
  17     a requirement for a postmortem, nonetheless, one would
  18     approach it sympathetically, and would have to approach
  19     it sympathetically, even in 1985?
  20   A. That is what it suggests, yes.
  21   Q. So would it be fair to say that the approach you have
  22     been arguing as important for 1999 and beyond, was
  23     recognised within the Bristol hospitals at least by
  24     1985?
  25   A. It certainly appears to be recognised by Mr Harral.

   1   Q. Are you in a position to say whether in fact the
   2     approach advocated there was achieved in practice?
   3   A. No, I am not, really.
   4   Q. I will come back to that. I appreciate that you may
   5     have some difficulty in commenting, since you came to
   6     the Bristol Trust in 1995.
   7        Before, when you were Chief Executive in your
   8     previous post, again, were postmortems carried out?
   9   A. Yes.
  10   Q. Some of them being Coroner's, some of them being
  11     hospital postmortems?
  12   A. Yes.
  13   Q. Was tissue, so far as you know, retained?
  14   A. Yes, it was.
  15   Q. And in that Trust, are you able to say whether the
  16     position was that in general consents were sought
  17     sympathetically, or whether they were often ignored or
  18     what the position might have been?
  19   A. I would be able to say with confidence that no
  20     postmortems would be undertaken without the appropriate
  21     consent. I am sure that no pathologist would undertake
  22     a postmortem examination unless he or she was sure that
  23     the appropriate consent had either been obtained or in
  24     effect given by the Coroner.
  25        I cannot recall the detailed arrangements that

   1     applied on a day-to-day basis, but the Trust worked very
   2     hard to try and make sure that all of our points of
   3     contact with parents and relatives on difficult issues
   4     were handled as sensitively as they should have been,
   5     and I am sure this was one of the issues that would have
   6     been covered as part of that. I remember some specific
   7     work that the Trust did on bereavement issues and how
   8     they should be handled and I think I can recall that
   9     that would have wrapped-in issues around postmortem
  10     consent and so on but I cannot remember any more detail
  11     than that.
  12   Q. So far as Bristol itself was concerned, can we go back
  13     to WIT 128/34? We dealt with the Coroner's postmortem.
  14     If you can just have a look for a moment at the
  15     clinician postmortem: it begins with "The key points to
  16     remember are if the senior clinician wishes a postmortem
  17     to be carried out or confirmation of diagnosis or
  18     research", the next words are underlined,
  19     "the express and written consent of the next of kin is
  20     required."
  21        That is emphasised. Was it emphasised because of
  22     any feeling that it was not being done?
  23   A. Not at all, no. The Director of Nursing's review, as
  24     I mentioned in my statement that is attached to this
  25     appendix, reassured her and me that consents were always

   1     being appropriately sought when a hospital postmortem
   2     was carried out. I think her feeling was that
   3     nevertheless it was such a fundamentally important issue
   4     that it ought to be underlined to remind everybody that
   5     this must always be the case.
   6   Q. So if we just go overleaf, we see the underlining again
   7     in the first of the bullet points, the second of the
   8     paragraphs on the page: "The medical staff must ensure
   9     [underlined] that the next of kin understand the reasons
  10     for the PM [postmortem] request."
  11        So both consent and full information so that the
  12     individual giving consent knows they should give it?
  13   A. Yes.
  14   Q. The consequence was, then, with two systems of
  15     postmortem operating, the obligatory one where the
  16     Coroner says the postmortem must be performed, no issue
  17     of consent, but you recognise the need for information
  18     and a sympathetic approach; and secondly, the hospital
  19     postmortem where consent is, as you put it here,
  20     required, leave aside what the law says, because not
  21     being a lawyer, you would not be able to comment
  22     directly on the legal issues. In due course, no doubt
  23     the Inquiry will publish its own views of the law after
  24     consultation with the legal advisers of any participant.
  25        But if there is a critical distinction between the

   1     two -- the one does not need consent; the other does --
   2     was there any system that you are aware of for recording
   3     the fact that consent had been given?
   4   A. Yes, there was. There was the form on which the consent
   5     was recorded for a hospital postmortem, and it is
   6     recorded for a hospital postmortem. Without that form
   7     the pathologist will not proceed.
   8   Q. Was there any central register kept of those occasions
   9     when postmortems were conducted?
  10   A. The pathologist would keep records of the postmortems
  11     that they had conducted in the various locations in the
  12     Trust, the two locations where they were undertaken.
  13   Q. If tissue was retained after a postmortem, would there
  14     be a register of the retention of that tissue?
  15   A. Records would be kept: in quite what format, that might
  16     vary, but records would be kept, yes.
  17   Q. The reason for my asking you those questions is this:
  18     was it easy for you, when you had to enquire as to the
  19     number of hearts that had been retained from paediatric
  20     cardiac surgery, to identify with any precision what the
  21     number actually was?
  22   A. No, it was not easy initially, and that is because the
  23     way the records were kept did not lend itself to easily
  24     answering that question. There had been obviously
  25     a considerable number of postmortems over many years for

   1     a variety of purposes and the way that the information
   2     was stored and catalogued was based around other
   3     criteria than immediately identifying a particular group
   4     of postmortems. So it did take quite some time to be
   5     absolutely sure about the numbers of retained hearts and
   6     other organs that were related to the issue of
   7     paediatric cardiac surgery.
   8   Q. Equally, was it easy or difficult to know what
   9     percentage of tissues retained were retained following
  10     on the one hand a Coroner's postmortem and on the other,
  11     a hospital postmortem?
  12   A. That was easier to establish. The number of hospital
  13     postmortems in fact has been dropping steadily in recent
  14     years across the NHS for a variety of reasons, I think,
  15     so it was clear right from the start that the great
  16     majority of these were Coroner's postmortems. I think
  17     that is reflected in statements that you have received
  18     or will receive.
  19   Q. I think you yourself quoted some 85 per cent of the
  20     retentions were retained in consequence of or following
  21     a Coroner's postmortem?
  22   A. Yes. That would be a figure I suspect that
  23     Professor Berry can give you.
  24   Q. I was going to ask where it came from. The figure of
  25     85 per cent came to you from Professor Berry. Can

   1     I have a look at the date of that? It is UBHT 307/10.
   2     It is 11th February 1999, and it is addressed to local
   3     MPs and to Nick Harvey, and it is from you.
   4        If we just go to the bottom paragraph, where
   5     paragraph 1 is on the screen, we can see:
   6        "The majority (some 85 per cent) of the
   7     postmortems were ordered by the Coroner. The rest were
   8     requested by the hospital ..."
   9        So that is 85 per cent, a figure on 11th February
  10     1999.
  11        Can I look at page 308/76: an article published in
  12     the Journal of Clinical Pathology in 1989, so it is ten
  13     years earlier. It is from Mr Russell and Mr Berry,
  14     a senior pathologist throughout the period from 1985
  15     until now, was he not?
  16   A. Yes.
  17   Q. Can we scroll down, please?
  18        "Material and methods" on the left-hand side. We
  19     see that 76 cases from the Bristol paediatric cardiology
  20     unit had necropsies performed by the Paediatric
  21     Pathology Department during a three-year period, 1985 to
  22     1987. So it is three years, 76 cases. All children had
  23     a clinical diagnosis of congenital heart disease.
  24        If we look across to results "Results":
  25        76 consecutive cases from the Bristol paediatric

   1     cardiology and cardiac surgery departments were
   2     reviewed. The sex ratio was exactly equal, with 38 boys
   3     and 38 girls. "48 (16 per cent) of the necropsies were
   4     performed for Her Majesty's Coroner..."
   5        Going overleaf (UBHT 308/77), so we can see how it follows on,
   6     there is a comma and then it talks about those, and then
   7     it deals with the methods being used.
   8        If it was 63 per cent for the Coroner, it was
   9     37 per cent for the hospital, a ratio of 2 to 1, and
  10     very different from 85 per cent on the one hand and
  11     15 per cent on the other.
  12        I do not know whether you can help. Can you help
  13     at all as to why those figures should be so different?
  14   A. I think firstly the 85 per cent reflects the situation
  15     now, as I understood Professor Berry to explain it to
  16     me, and I think it reinforces the fact that consents for
  17     hospital postmortems have been much less in number as
  18     time has gone on. For a variety of reasons, we do far
  19     less hospital postmortems than we used to, which would
  20     obviously influence the ratio.
  21   Q. If the figure which he quotes is a reflection of all the
  22     cases, as it sounds as though it is and he can tell us,
  23     between 1985 and 1987, the three-year period we have
  24     identified, then there would be a change from roughly
  25     two-thirds/one-third down to 85 per cent/15 per cent of

   1     today, the average would be somewhere in between.
   2   A. Yes.
   3   Q. So do we know, actually, of the retained hearts and
   4     tissues, what percentage had the Coroner's postmortems
   5     and what percentage the hospital postmortems?
   6   A. I do not, but I suspect Professor Berry does.
   7   Q. We shall in due course ask him, and I mention that now
   8     so that anyone who is concerned with the point will be
   9     alerted to it.
  10        So far as the hospital postmortem is concerned,
  11     and the taking of consent, you say, in your statement --
  12     WIT 128/10 -- in paragraph 2, that you knew that
  13     hospital postmortems were not carried out without
  14     consent. One of your repeated themes throughout,
  15     I think, is that whatever the horror may have been for
  16     people seeing the retention of tissues, the Trust had
  17     done nothing which was illegal?
  18   A. That is correct.
  19   Q. And you go on to make the point that although the
  20     notification of a postmortem or the receiving of consent
  21     for one was not often accompanied by a detailed
  22     discussion and information -- you are making a plea
  23     there, are you, for greater information to be given to
  24     parents and relatives?
  25   A. Absolutely. I think, if I think back over a number of

   1     years, it would not be unfair to say that the NHS had
   2     perhaps handled these sorts of issues in a somewhat
   3     cavalier manner in the distant past, and I think
   4     practice, as I said, has been far too slow to change,
   5     and although there may have been a number of discussions
   6     over the years about the issue, I do not think practice
   7     generally moved forward as fast as it should have done.
   8     That reflects my belief that, as I say, really informed
   9     consent was not always the order of the day, which
  10     clearly it should have been.
  11   Q. I do not know if you can help with this or not, but
  12     would you please have a look on the screen at what we
  13     may get from a number of the documents as perhaps having
  14     been the practice here in Bristol.
  15        Could I have a look, please, at document
  16     UBHT 308/18?
  17        It is 6th August 1992, a letter from Mr Berry to
  18     Mr Dhasmana. Can we scroll down, please?
  19        " ... when we last discussed this matter it was
  20     left that you would ask your parent's permission for us
  21     to retain cardiac tissue from Coroner's postmortems.
  22     You will recall that the pathologist is only allowed to
  23     retain tissue for the purposes of establishing the cause
  24     of death and that for the Coroner's purposes the cause
  25     of death can be general."

   1        Just pausing there, the point Mr Berry is making
   2     is this, is it: although the Coroner may require
   3     a postmortem, if any tissue is kept afterwards, it has
   4     to be kept for purposes relating to the cause of death
   5     because that is what the postmortem is to establish, the
   6     cause of death.
   7        The point perhaps he is making is that there is
   8     therefore no permission, unless it is sought, for the
   9     retained tissue to be used for any other purpose, such
  10     as research or teaching.
  11        Is that what you would take from that paragraph,
  12     or not?
  13   A. Yes, I think so. I would not wish to second-guess
  14     Professor Berry on this issue.
  15   Q. Again it is something obviously I shall have to take up
  16     with him. The fourth paragraph:
  17        "In future, we will not be able to retain the
  18     heart unless there is a signed statement in the notes
  19     from one of the doctors looking after the child that
  20     they have satisfied themselves that the parents of the
  21     child do not object to the retention of tissue during
  22     the course of the Coroner's postmortem examination. In
  23     explaining this to parents, it may be helpful for you to
  24     emphasise that part of the heart will always be returned
  25     to the body and only that part involved in the

   1     malformation or surgery will be retained."
   2        So the words "in future we will not be able to
   3     retain the heart unless there is a signed statement"
   4     suggests that up until that stage it had at least been
   5     the practice of some not to record in writing and have
   6     signed by any relative that there was consent for the
   7     retention of tissue following a Coroner's postmortem?
   8        That is what it would imply, presumably?
   9   A. Yes, I think so.
  10   Q. There is a reply to that. Can we look at UBHT 308/17,
  11     26th August 1992:
  12        "Thank you very much for your letter dated
  13     6th August. Lately there has been some oversight on my
  14     part to discuss the matter with parents and relatives
  15     and therefore consent was not taken by my junior staff."
  16        Just pausing there, that looks as though he is
  17     saying that whoever the doctor was dealing with, the
  18     parent or relative, that on a number of occasions of
  19     which he is aware, none of the requisite consents were
  20     actually taken, whether orally or in writing?
  21   A. I think it means that he felt that the more detailed
  22     discussion about the purpose of the retention of tissue
  23     after a Coroner's postmortem was not being raised with
  24     parents and relatives. If these are Coroner's cases
  25     then clearly the issue of consent in general terms would

   1     not be relevant.
   2        That is a more narrow definition of the Coroner's
   3     powers and responsibilities than I believe to be the
   4     case.
   5   Q. That is a legal issue and we will have to leave that,
   6     I think, to the lawyers. Certainly, what Professor
   7     Berry appeared to be saying was, if you are going to
   8     keep tissue for purposes other than keeping it because
   9     it demonstrates the cause of death, if you are going to
  10     keep tissue for the sake of research or teaching, there
  11     needs to be some permission.
  12        We have looked at that letter. That appears to be
  13     what he was saying?
  14   A. That is right.
  15   Q. Mr Dhasmana's reply, the second sentence, the words:
  16        "Therefore consent was not taken by my junior
  17     staff."
  18        That suggests on some occasions consent had not
  19     actually been taken?
  20   A. That is what it suggests, yes.
  21   Q. You were not there, you cannot necessarily comment on
  22     what happened in Bristol, but two points arise. First
  23     of all, if that is the case -- and Mr Dhasmana will have
  24     to say what he meant by this and he has not yet had an
  25     opportunity to comment upon it, it needs to be said --

   1     does it follow that the Trust of 1992, depending on what
   2     the law actually was, was arguably in breach of the law?
   3   A. I do not know, because I do not know how specific the
   4     law is about what should or should not be retained after
   5     a Coroner's postmortem and what discretion the Coroner
   6     actually has. I do know --
   7   Q. So it all depends on a view of the law?
   8   A. Also the behaviour of the Coroner, to be honest, because
   9     I think it is the case that different Coroners interpret
  10     their responsibilities in different ways. Some leave it
  11     to the discretion of the pathologist to retain tissues
  12     if they wish, others are more specific. More than that
  13     I could not helpfully say, I do not think.
  14   Q. The second point which arises is that consent was not
  15     taken by "my junior staff". The author of the letter
  16     seems to think that the question of consent is
  17     a question for junior staff rather than for him as
  18     a consultant.
  19        Can I, with that in mind, just ask you to go back
  20     in time to 1991? It is UBHT 212/9. Can we scroll down,
  21     please, and go overleaf (UBHT 212/10) to paragraph 5, it is 5.3:
  22        "Support for paediatric services ... postmortem:
  23     all children who die in the peri-operative period should
  24     have a postmortem. Requests to parents for permission
  25     should be made by consultants."

   1        That was the draft, as you have seen from looking
   2     at the first page, the draft protocol. The date was
   3     9th April 1991. In September 1991 there is a slight
   4     change to paragraph 5.3.
   5        Can we have a look, please, at page UBHT 25/242?
   6        "Revised policy, September 1991".
   7        Paragraph 5 again, please (UBHT 25/243). There as we see in
   8     paragraph 5.3, the wording -- the first sentence is the
   9     same. Second sentence:
  10        "Requests to parents for permission should usually
  11     be made by consultants."
  12        So there is a shift from the April to the
  13     September drafts in the revised policy to "usually
  14     consultants".
  15        Three questions for you: first of all, so far as
  16     Bristol was concerned, when you came as Chief Executive,
  17     who was it that you understood generally speaking sought
  18     consent for either postmortems or for retention of
  19     tissue after postmortems?
  20   A. I think my assumption would have been that the same
  21     practice would apply as elsewhere in the NHS, whereas
  22     this was one of the responsibilities the consultant
  23     medical staff generally delegated to their juniors.
  24   Q. So you do not know but you assume that is what happened?
  25   A. Yes.

   1   Q. Secondly, do you know whether the policy which first of
   2     all looked for "consultants" and then "usually
   3     consultants", was actually honoured here in Bristol? It
   4     is something you may have found out since, you may not
   5     be able to comment on.
   6   A. I do not know. I have never seen this particular
   7     document before.
   8   Q. The third question was what you have already
   9     anticipated: what in your understanding was the practice
  10     throughout the NHS generally as to who, what status of
  11     person, would actually ask for the consent?
  12   A. Yes, I think the answer is that generally that would be
  13     delegated to junior medical staff, but sometimes
  14     a practiced and experienced patients' affairs officer or
  15     relatives' officer, someone like that, would undertake
  16     that task at the request of the consultant medical
  17     staff. It is a task I have done myself early in my
  18     career.
  19   Q. I suppose the fourth question is: do you understand
  20     there to be any particular reason -- if you cannot
  21     comment, please do not -- why the policy in 1991 should
  22     appear to emphasise the status of the person actually
  23     seeking the consent?
  24   A. No, I cannot imagine why that should have come up, or
  25     indeed what the reason for the document was.

   1   Q. Again dealing with the question of retention of tissues,
   2     you mentioned a moment or two ago the importance of the
   3     Coroner and the approach that the Coroner might take.
   4        Can we have a look, please, in respect of Bristol,
   5     at a document from August 1986, UBHT 308/50?
   6        It is from Dr Berry to Dr Parker. Because
   7     Dr Parker is head of the Homograft Department of the
   8     National Heart Hospital, it looks as though it may be in
   9     relation to Dr Parker wishing to have available for use
  10     therapeutically in his surgery homografts taken from
  11     patients in Bristol.
  12        Dr Berry expresses support in the first two
  13     sentences. Then says:
  14        "I see two difficulties: firstly, our Coroner in
  15     Bristol will quite properly not allow us to take tissues
  16     from cases in his jurisdiction without consent of the
  17     relatives, which can usually not be obtained."
  18        The "in his jurisdiction" probably relates, one
  19     would imagine -- Professor Berry can tell us -- to the
  20     scope of the Coroner's powers as opposed to his
  21     territorial jurisdiction.
  22        So the first point he makes is, the Coroner in
  23     Bristol at the time does not allow tissues to be taken
  24     without the consent of relatives.
  25        Secondly:

   1        "My clinical colleagues have not allowed me to
   2     change the form of our hospital postmortem request form
   3     to include permission for removal of tissues for
   4     teaching, research or organ donation."
   5        He asks for help in how to deal with it. So there
   6     is resistance, as it were, on two fronts to anything
   7     being done with tissues after death that Professor Berry
   8     was then talking about. One was the Coroner and the
   9     other was fellow clinicians.
  10        Does that appear to be a fair interpretation of
  11     what is said in the letter, do you think?
  12   A. Yes.
  13   Q. You probably cannot comment, but I should show you again
  14     for the sake of completeness and in order to identify
  15     that I should pick it up with witnesses to come, the
  16     reply that comes at 308/65 on 16th September 1986, three
  17     weeks later.
  18        We see at the bottom of the page it is from Robert
  19     Parker. Back a bit, please.
  20        He deals with the first point at the beginning of
  21     the second paragraph. He talks about discussions which
  22     have been held with the Coroner for Avon Area 2 about
  23     obtaining relatives' permission and says:
  24        "Further discussions are still taking place with
  25     the Coroner."

   1        Then he deals with the position with colleagues,
   2     and offers writing to the Chairman of the hospital's
   3     ethical committee.
   4        Can you help: were problems like this commonplace
   5     at all elsewhere in the NHS that you know of at this
   6     time?
   7   A. No. I was not aware at the time or now in retrospect
   8     that there was this debate about what the Human Tissue
   9     Act did say. I think Parker is saying something
  10     different there about the Human Tissue Act. But no,
  11     I was not aware of this particular debate.
  12   Q. To bring it a little bit nearer to date, can we have
  13     a look at a document some three years later,
  14     UBHT 308/20? It is from Mr Joffe to Dr Berry. It
  15     refers back to a letter we do not have and which we hope
  16     to obtain if a copy still exists. It appears to relate
  17     to "Coroners 'Cardiac' Postmortems" and talks about
  18     problems relating to the retaining of tissues long-term,
  19     so problems identified and aired in 1986 and 1989. Can
  20     we have a look now at 9th September 1992, which is
  21     UBHT 308/170.
  22        We saw a moment or two ago Mr Dhasmana's reply to
  23     Mr Berry's letter of 6th August. That was the letter
  24     saying "get consent". I am summarising it very briefly
  25     for identification purposes, but you will recall the

   1     letter.
   2        Here we have Mr Wisheart's response, the third
   3     line:
   4        "I was slightly surprised to receive this advice
   5     as I had been recently told by Dr Sheffield that this
   6     problem had eased a little under the jurisdiction of the
   7     new Coroner."
   8        Who is Dr Sheffield? Can you help?
   9   A. He is a pathologist at the UBHT.
  10   Q. The "jurisdiction of the new Coroner" one suspects is
  11     the way in which the new Coroner exercised his
  12     discretions within his jurisdiction?
  13   A. I suspect so, yes.
  14   Q. So it looks as if Mr Wisheart's view is that on the
  15     question of the retention of organs, in so far as it
  16     fell within the discretion of the Coroner obviously
  17     practises differed as between Coroners?
  18   A. Yes.
  19   Q. And the approach of the new Coroner appears to be easier
  20     for clinical purposes than of the previous Coroner, as
  21     he says it. Whether that is the case or not, we shall
  22     probably find out, but that is what he appears to be
  23     saying.
  24        Can you help as to the difference of approach
  25     Coroners take on these issues?

   1   A. I am not sure I can add more to what I have already
   2     said. Clearly there was a debate going on for a number
   3     of years between hospital clinicians, both locally and
   4     nationally, and Coroner's officers about what was
   5     required under the law or what was not required under
   6     the law and how that should be reflected in local
   7     practice. It is not a debate I have been aware of
   8     before. I do not think I can add anything to that,
   9     really.
  10   Q. An article was written in 1987, I think it was, by
  11     Bernard Knight, the Home Office pathologist. We can
  12     perhaps have a look at it. It is UBHT 308/44. That is
  13     where it begins.
  14        "Legal considerations in the retention of
  15     postmortem material."
  16        He describes the difference of approach. He deals
  17     with Coroner's autopsies first. We can go overleaf.
  18     Then "clinical autopsies" or what I have called
  19     "hospital autopsies".
  20        What, however, he says in respect of Coroner's
  21     autopsy -- it is the paragraph top left, about six lines
  22     down:
  23        "However, the retention of tissues for teaching
  24     and research is not covered by the Coroner's permission
  25     and the Coroner cannot grant such permission as it is

   1     not within his remit to do so. He can forbid the use of
   2     any tissue for such purposes, but positive permission
   3     must be obtained under the terms of the Human Tissue
   4     Act."
   5        Professor Knight, I hope I do not do him any
   6     disservice, but he is not a lawyer as such and it may be
   7     that the statement is not entirely accurate legally; we
   8     shall find out. As I say, it is anticipated by the
   9     Inquiry that the legal representatives of the
  10     participants will have an input into the view of the
  11     law.
  12        Certainly the view that was expressed to
  13     pathologists in the journal is as you see it: that the
  14     Coroner can order the postmortem, but retention of
  15     tissues beyond that for other purposes for teaching and
  16     research requires permission?
  17   A. That is what it says, yes.
  18   Q. That is what it says. Did you know of this article at
  19     all?
  20   A. No.
  21   Q. Did you know of those views?
  22   A. No.
  23   Q. Did you take your lead from people such as Professor
  24     Berry, who might have a greater familiarity with such
  25     views?

   1   A. Obviously one relies on the advice that one receives
   2     from people better qualified than oneself to give
   3     opinions on certain things, but I think the whole
   4     section of this evidence shows what a contrasting set of
   5     views there are about what the Coroner's powers actually
   6     are and how they are interpreted. I do not suppose
   7     Bristol was necessarily different from elsewhere,
   8     although I have no evidence about what did happen in the
   9     past.
  10   Q. Thus far we have looked at the requirements for consent
  11     as you understood them to be, and how they may have been
  12     understood locally before you came on the scene and your
  13     understanding of who it was that took the consent if and
  14     when it was needed, and also your understanding as to
  15     how the matter was or was not recorded.
  16        So far as recording is concerned, just one further
  17     matter to ask you about: would I be right in thinking
  18     that there may well have been no formal record made of
  19     consent in any given case, even although your belief is,
  20     as you have told us, that consent would have been
  21     obtained perhaps orally?
  22   A. No. I do not think -- in fact I am pretty sure that
  23     a pathologist would not proceed with a hospital
  24     postmortem unless he or she had written evidence of the
  25     permission of relatives.

   1   Q. Because they themselves would not be in direct contact
   2     with the relatives, presumably?
   3   A. That is correct.
   4   Q. So they would have to rely upon --
   5   A. A signature on a consent form.
   6   Q. Or somebody, a doctor, saying "I have spoken to X and
   7     I have got consent"?
   8   A. Well, my advice is that any pathologist who proceeded on
   9     that basis would be very foolish indeed.
  10   Q. Can I turn from those matters to matters relating to
  11     Coroner's postmortems and the way in which they
  12     happened?
  13        What is the present practice as to informing the
  14     Coroner of a child's death following surgery?
  15   A. It is generally the responsibility of the medical staff
  16     to inform the Coroner.
  17   Q. So the consultant in charge of a child's case?
  18   A. It might be the consultant, it might be one of his
  19     junior medical colleagues.
  20   Q. Is it a matter of practice nowadays for that contact
  21     with the Coroner's office to be recorded somewhere?
  22   A. I would suggest that good practice would ensure that
  23     such a contact was recorded in the medical notes, but
  24     I cannot give you a more definite answer than that.
  25   Q. Are you prepared to comment on how far good practice may

   1     or may not have been observed over the years since 1983
   2     in that respect?
   3   A. Not really, no.
   4   Q. So far as the reply from the Coroner is concerned, does
   5     the Coroner deal with such cases on an individual basis,
   6     saying "You told me about the death of X, carry out
   7     a postmortem?" (Interruption by mobile telephone in
   8     public gallery)
   9        Let me ask the question again: so far as the
  10     Coroner's response is concerned, would it be a response
  11     in each individual case such as "I instruct you to carry
  12     out a postmortem in the case of X", or is the practice
  13     that it is more general that the Coroner has, as it
  14     were, issued standing instructions in any case where
  15     a child dies, carried out a postmortem? (Interruption
  16     by mobile telephone in public gallery)
  17   A. I am sorry, Mr Langstaff, I will have to ask you to
  18     repeat it again.
  19   THE CHAIRMAN: Mr Langstaff, maybe looking at the time,
  20     that may be an appropriate time to take a break for
  21     15 minutes until 5 past 12, and then we can all check
  22     our electronic devices to make sure they do not go off
  23     again.
  24   MR LANGSTAFF: Certainly.
  25   (11.51 am)

   1               (A short break)
   2   (12.10 pm)
   3   MR LANGSTAFF: Mr Ross, I had just been asking you whether
   4     you knew whether or not the Coroner, when he was told by
   5     the hospital that someone had died, within two days of
   6     operations, whether the response was from the Coroner's
   7     office, "please conduct a postmortem", or "I require you
   8     to conduct a postmortem", something along those lines,
   9     "in respect of X", or whether there was, as it were,
  10     standing instructions from the Coroner to do so in such
  11     a case?
  12   A. I do not know what the practice was. My assumption has
  13     always been that each case would be considered on its
  14     merits so that a specific decision would be given. That
  15     emphasises my assumption rather than a fact that I know.
  16   Q. It could be a bit difficult perhaps for there to be
  17     merits, as it were, in any such case unless sufficient
  18     information was given to the Coroner to make
  19     a determination?
  20   A. Yes, I perhaps should be more specific in what I say.
  21     There may be occasions when, even though the case falls
  22     within the Coroner's jurisdiction, the Coroner is
  23     satisfied that enough is known about the cause of death
  24     for him or her to put aside the normal request for
  25     a postmortem to take place.

   1   Q. The pathologist who is required to conduct a Coroner's
   2     postmortem would obviously know it was a Coroner's
   3     postmortem?
   4   A. Yes.
   5   Q. How would he know that? There is some form put in
   6     front of him, is there?
   7   A. I believe he has a specific request for the Coroner to
   8     undertake the postmortem.
   9   Q. There is a difference -- we have explored it a little
  10     bit in the first part of this morning's questioning and
  11     it was apparent from what Professor Knight had to say in
  12     the article that we looked at, the difference between
  13     the conduct of the postmortem for the Coroner and the
  14     keeping of any tissue afterwards.
  15        My understanding of the point, so that those who
  16     listen to this at a distance can follow it, is that
  17     there is an obligation under the Coroners' Rules,
  18     rule 9, for any material removed for examination at
  19     postmortem to be retained if it bears upon the cause of
  20     death.
  21        But there is no such obligation in respect of any
  22     other tissue, so the argument is that tissue cannot be
  23     used even after a Coroner's postmortem for research or
  24     teaching without at least an absence of objection
  25     established so far as the relatives are concerned --

   1     a difference between the postmortem and the retention of
   2     tissue, in other words.
   3        If that is a proper description of the law, is it
   4     one which you yourself have understood to be the
   5     position, or is it not?
   6   A. No, it is not, and I think the evidence that you have
   7     shown this morning has made me aware of an ambiguity in
   8     this area, perhaps, a debate amongst professional staff
   9     and clinical staff that I was not previously aware of.
  10   Q. Whatever else may come out of this section of the
  11     Inquiry's proceedings, you would hope, would you, for
  12     the future, if the law is at all unclear, that clarity
  13     be provided?
  14   A. Absolutely. I think the Human Tissue Act of 1961 has
  15     been criticised for a long time for looseness of its
  16     drafting, and I am sure that we need to make sure that
  17     any new law or guidance on this issue is absolutely as
  18     clear as it can be.
  19   Q. The other point you were making this morning is the
  20     difference as it were between the legalities of the
  21     matter, where the Coroner can simply say "I will have
  22     a postmortem and it must be performed", and the approach
  23     which the Trust would wish to adopt, which is perhaps
  24     more of a moral approach in recognising some of the
  25     sensitivities of the situation.

   1        Would you wish or hope for any national guidance
   2     on how best to respect the moral position as well as the
   3     legal position?
   4   A. I think that would be very helpful.
   5   Q. So far as the development of this particular episode
   6     is concerned, I am going to ask you in a moment or two
   7     how the Trust handled the concerns when they broke. But
   8     first, can you tell me, from your experience of working
   9     elsewhere in the National Health Service, was the
  10     position in Bristol different or the same as the
  11     position elsewhere so far as both postmortems and
  12     retention of tissue was concerned?
  13   A. I believe it to have been the same as elsewhere.
  14   Q. What do you base that belief on?
  15   A. Conversations with other Trusts, Chief Executives of
  16     Trusts, conversations with senior pathology staff, and
  17     their accounts of their discussions with pathologists
  18     elsewhere and obviously all of the thinking we have done
  19     about this issue in recent months.
  20   Q. So is the realisation that Bristol was, in this
  21     respect, no different; is that a fairly recent
  22     realisation?
  23   A. I had cause to think very carefully about it, obviously,
  24     given the events of the last few months, but I was
  25     reassured in my assumption when the Department of Health

   1     confirmed that the practice in Bristol had not been
   2     different from elsewhere and that was confirmed by the
   3     Royal College of Pathologists as well.
   4   Q. So what we are talking about as having happened in
   5     Bristol over the years 1983 to 1995 reflects national
   6     practice rather than any particular local variation of
   7     it?
   8   A. I think, yes, and it is the case, I know, that large
   9     quantities, large numbers of organs and other tissues
  10     have been retained over the years and the degree of
  11     knowledge that parents and relatives have had about
  12     that, I think, has been partial, to say the least. So
  13     I do not think the Bristol practice was different --
  14     rightly or wrongly, but I do not think the Bristol
  15     practice was different from practice elsewhere.
  16   Q. You have told us you cannot speak as to how the
  17     practice which was supposed to operate in fact operated,
  18     which would obviously depend upon individual clinicians,
  19     although your belief is that in each case the clinician
  20     sought any consent that they believed to be required.
  21        Secondly, you have told us you cannot comment but
  22     you appreciate from the documents which I have shown you
  23     that there may have been a difference of approach as
  24     between one Coroner and another so far as the exercise
  25     of any discretions were concerned?

   1   A. That is correct, yes.
   2   Q. You have appreciated and commented upon the
   3     uncertainties that there may be in the law and people's
   4     appreciations of the law?
   5   A. Yes.
   6   Q. So that one Trust or one hospital attempting to follow
   7     the law might actually have been carrying out a practice
   8     slightly different from elsewhere, but you think not
   9     significantly so?
  10   A. That is correct, yes.
  11   Q. In 1996, did it become apparent that tissue had been
  12     retained in respect of at least one child who had died
  13     undergoing paediatric cardiac surgery?
  14   A. The first time the issue had specifically come to my
  15     attention was early 1996, yes.
  16   Q. May we have a look, please, at document UBHT 308/205.
  17        This appears to be a file note from Professor
  18     Berry.
  19        On May 8th 1996 Professor Berry records meeting
  20     Mrs ... (the name is blanked out) in response to her
  21     request to see her child's heart.
  22        Can we scroll down? The middle of the page:
  23        "Mr ... and Mrs ... asked whose responsibility it
  24     was to inform parents that tissue would be retained.
  25     I replied that in Coroner's postmortems there was

   1     probably no requirement in law, but that I would expect
   2     the clinician who reported the case to the Coroner to
   3     explain to relatives that there would be a postmortem
   4     examination and what it entailed."
   5        So once again we have the distinction between the
   6     legal position and what one might call the moral
   7     position?
   8   A. Yes.
   9   Q. And the expectation of Professor Berry that the
  10     clinician would actually discuss the issue with the
  11     relative concerned.
  12        It records how it was arranged that the heart
  13     would be taken. Permission was given; indeed, I think
  14     that the lady had a letter with her enabling her to take
  15     her child's heart away with her.
  16        Can we go to page 206?(UBHT 308/206) It is part of the same
  17     note. The postscript:
  18        "On Monday 10th June I spoke to HM Coroner who
  19     confirmed that retention of the heart from cardiac
  20     surgical cases is appropriate but that his
  21     responsibility for the tissue ceases once he has
  22     completed his investigation."
  23        That appeared to be a general view expressed by
  24     the Coroner as recorded by Professor Berry.
  25        From your experience elsewhere in the NHS, does

   1     that seem a standard view or are you not in a position
   2     to comment?
   3   A. I do not recall ever having had to consider that
   4     specific issue. Therefore, I would not really be able
   5     to comment.
   6   Q. The paragraph immediately above that:
   7        "... since received a letter from Mrs ... thanking
   8     me for what she said was a helpful interview. I have
   9     also received a letter from Mrs ... seeking
  10     clarification of an apparent discrepancy between our
  11     discussions and the subsequent television interview."
  12        What happened was, was it, that there were,
  13     following the giving back of the heart to the lady
  14     concerned, she was interviewed or filmed on TV?
  15   A. I believe so, yes.
  16   Q. Then Professor Berry was asked for his comments?
  17   A. That is correct, yes.
  18   Q. You were Chief Executive at this time?
  19   A. That is right.
  20   Q. So you knew what had happened?
  21   A. In general terms, yes.
  22   Q. What did you understand at that stage to be the position
  23     about the numbers of hearts that might be kept by the
  24     Trust?
  25   A. I do not think I had really formed a view on that at

   1     that stage. I knew that there were a number of retained
   2     hearts and other organs from my discussions with
   3     Professor Berry and Mr Barrington about this particular
   4     issue. I do not think at that stage I had any feeling
   5     for the number, although I am pretty sure I understood
   6     it was not just one or two.
   7   Q. If we go to UBHT 308/11, 3rd June 1996:
   8        "I received a telephone call from the mother of
   9     a child who had died while in open heart surgery --
  10   THE CHAIRMAN: Mr Langstaff, I am holding it back for the
  11     moment while one looks at it very carefully. (Pause).
  12   MR LANGSTAFF: I am grateful. Can we scroll down to the
  13     bottom of the page to make sure it is okay? (Pause).
  14        I think we will concentrate just on the top of the
  15     page. That is the portion.
  16   THE CHAIRMAN: I may say, my intervention is not to do
  17     with withholding information but checking the
  18     confidentiality of all the material that appears in
  19     public.
  20   MR LANGSTAFF: Sir, yes. As will be apparent from the
  21     black markings on a number of these documents, they are
  22     put there quite deliberately in order to protect
  23     confidentiality in proper cases.
  24        Could you read through the item on 3rd June,
  25     please, to yourself?

   1   A. Can I just ask whose file note it is?
   2   Q. I think it is Professor Berry's. I may be wrong.
   3     (After conferring): It is Ian Barrington, I am told.
   4     (Pause).
   5   A. Okay.
   6   Q. The position, if it is accurately recorded, which
   7     presumably it is, is that the Dispatches programme
   8     excited a certain amount of interest?
   9   A. Yes, it is fair to say that, yes.
  10   Q. For confidentiality reasons I am not going to ask you
  11     the question I was originally going to ask you about
  12     this particular note, but can I put it generally: did it
  13     emerge that at least one other parent was in contact
  14     with the Trust asking if there were any retained tissue
  15     from his or her child?
  16   A. Yes, that is correct. We had a conversation, more than
  17     one conversation, I suspect, about what we should
  18     actually do in the light of the approaches that we were
  19     now receiving, and we decided there was no sensible or
  20     viable way that we could contact all of the parents,
  21     potentially who would be affected by this. We decided
  22     that the best policy was to respond as quickly and as
  23     sensitively as we could to any specific requests that we
  24     had, but that we would not seek out parents to tell them
  25     about the situation. Hopefully, that is clear in my

   1     statement. So there were in fact more than -- I think
   2     there were probably several, three or four parents or
   3     individuals who came forward in the months following
   4     the issue in I think February 1996.
   5   Q. What was the reason that the Trust did not say publicly,
   6     "We have a lot of retained hearts"?
   7   A. I think our prime concern was the distress that it
   8     would cause to parents concerned, bearing in mind that
   9     the first public report from the Trust about what had
  10     happened in the past in paediatric cardiac surgery had
  11     only been published a few weeks before this and the
  12     reverberations of that were huge and were continuing
  13     very strongly at that time.
  14        We felt, and felt for some considerable time after
  15     that, that to seek out parents who were understandably
  16     extremely distressed, in many cases, at a reawakening of
  17     deep and painful memories would be entirely the wrong
  18     thing to do, and therefore we should be passive in one
  19     sense about it, but obviously very quick, ready and open
  20     and sensitive to respond if people approached us.
  21   Q. Forgive me for asking what is perhaps a difficult
  22     question, but you were here not wishing to disturb
  23     people because of the sensitivity of the issue and the
  24     distress which it might cause. If you are right in
  25     believing, as you do, that every consent that was needed

   1     to keep tissue had been obtained and if the policy was,
   2     as Professor Berry had described it, expecting the
   3     clinician in each case to explain the conduct of the
   4     postmortem and the retention of tissue, then presumably
   5     every parent of every child from whom there may have
   6     been a kept heart would at least have been asked about
   7     it in advance, would have known that the tissue might be
   8     retained and have agreed to it. Why should they be
   9     particularly distressed by finding out now that that had
  10     happened?
  11   A. You have mixed in your question things I know now and
  12     things I knew then. At the time it was my understanding
  13     that nothing improper had been done in terms of
  14     legality; it was my understanding, as I said in my
  15     statement, that a number of the parents would not be
  16     aware that tissues had been retained, either because
  17     they had not been told, although nothing illegal had
  18     been done, or because they had been told and quite
  19     understandably, with everything else that was going on,
  20     or they had given consent perhaps in a hospital
  21     postmortem and they no longer remembered that that was
  22     the case. So our view, my view and our view, was that
  23     to raise the issue at a time like this, knowing full
  24     well how difficult it would be to get the information to
  25     all the parents concerned -- they had maybe moved on

   1     more than one occasion and were hard to contact -- would
   2     be a very distressing and difficult exercise for the
   3     parents.
   4        Therefore the issue was now in the public domain.
   5     There was no doubt that the issue would be raised again
   6     in the General Medical Council hearings that were
   7     becoming increasingly certain, and it was really
   8     thinking about the parents' feelings and whether they
   9     would wish to be approached by the Trust in these
  10     circumstances that guided us. We made the decision that
  11     many parents, as in fact has been proved by subsequent
  12     events, would not wish to know about it and would not
  13     necessarily wish to pursue it with us. Therefore to
  14     raise it with them would be wrong.
  15   Q. Going back to the start of your answer to me: why was it
  16     that at the time you thought a number of parents might
  17     not have been told?
  18   A. Because as I said in my statement, I knew that what
  19     I have described as "informed consent", my belief is
  20     that that would not have been in place on all occasions,
  21     and although parents would have signed a form and given
  22     permission for the retention of organs in the case of
  23     a hospital postmortem, it might not have been explained
  24     to them quite fully what that entailed. In the case of
  25     a Coroner's postmortem, I thought it less likely perhaps

   1     that there had been an informed discussion. Therefore
   2     I thought many of the parents, although nothing illegal
   3     had been done, would not be aware of the fact of
   4     retention of organs, as in fact subsequently proved to
   5     be the case.
   6   Q. So you thought then that would be the case. Has your
   7     view as to that changed at all?
   8   A. No. I think that subsequent events have shown that
   9     for a variety of reasons, many parents did not
  10     understand and appreciate that organs had been retained
  11     and, indeed, some parents who were aware of it at the
  12     time had subsequently forgotten it and, even though
  13     there were discussions at the time, had not realised as
  14     time had gone on, perhaps it had not sunk in or they had
  15     not taken it in or whatever -- I do not mean to imply
  16     any criticism at all, of course -- there was some
  17     understanding and that became clear.
  18   Q. You are not suggesting any fault on the part of the
  19     parent?
  20   A. None whatsoever.
  21   Q. One category is parents who had never been told and
  22     never knew; or the second category, parents who had been
  23     told in such a way or at the time, or in circumstances
  24     of unhappiness or distress that they had not taken it
  25     in?

   1   A. Thank you, that is a good summary.
   2   Q. There is a third position, is there, of parents who,
   3     if they had been told, and told in the way in which you
   4     advocate, the moral way of informing a parent, might
   5     have understood that the heart would be used or retained
   6     for a period of time for the purposes of research, for
   7     the purposes of teaching, or, for that matter, to
   8     establish the cause of death, but might not perhaps have
   9     appreciated that their child's heart would have been
  10     kept for 8, 10, 12 or 15 years and could still be found
  11     preserved within the Trust?
  12        In other words, people who, although they might
  13     have known it was going to be retained, would have
  14     naturally understood that it would only be for a short
  15     period?
  16   A. Yes, certainly. There is a category of parents also who
  17     have made it clear to me, yes, they did understand about
  18     the retention, they did understand why and they did give
  19     fully informed consent for that.
  20        Whether the length of retention was discussed with
  21     those parents is not something I have asked them, but
  22     I think it is perhaps reasonable to assume that they
  23     might not have expected the length of keeping of tissue
  24     and so on that you refer to.
  25   Q. Again, is this something upon which you, from your

   1     present perspective, would welcome guidelines and
   2     advice?
   3   A. Yes. I think it would be helpful, and I am sure it
   4     is something that the Royal College of Pathologists will
   5     address. I am told by my pathology colleagues that the
   6     rarity of certain conditions is such that retention for
   7     lengthy periods of time may be necessary for comparative
   8     studies to be made, but I would not want to go further
   9     than that. It would be outside my specific knowledge if
  10     I did.
  11   Q. We dealt with the way in which you first of all looked
  12     at the question of telling others of the scale of the
  13     retention of hearts.
  14        Can we have a look, please, next at UBHT 307/58?
  15        This form I think was produced at a later stage to
  16     ask for information about the retention of the heart.
  17     You have described some of the process in the statements
  18     you have given. Can I ask you to take a look, please,
  19     next at UBHT 309/40, which is the start of the document,
  20     page 41 I am going to take you to, but let us identify
  21     the document first. It is a letter to you of
  22     18th August 1998, and can we go over, please?
  23   THE CHAIRMAN: I think lower down in the letter.
  24   MR LANGSTAFF: Can we scroll lower down, please? If we
  25     scroll back up, if we could have the bottom of

   1     paragraph 4 at the bottom of the page, please, what we
   2     see here is a letter to you about the concern of
   3     a number of parents in August 1998, and suggestions as
   4     to arranging meetings with a cardiac counsellor and
   5     impartial cardiologist. Then point 5 I think begins to
   6     talk about operations Mr Wisheart and Mr Dhasmana were
   7     concerned with, and it goes on I think to deal with the
   8     question of identity of some people who had lost
   9     children whose hearts had been retained, and made the
  10     suggestion that Professor Berry had taken hearts without
  11     permission to do so.
  12        That letter in August 1998 came at a time after
  13     this Inquiry had been announced but before it had first
  14     sat, so your thoughts, no doubt, were turned towards the
  15     Inquiry and towards the future?
  16   A. Yes, although of course there have been many issues
  17     associated with this which have been running
  18     concurrently. Certainly this letter, we had had a first
  19     meeting I think with the Action Group, I think it was in
  20     June of that year and from that, a sequence of meetings
  21     and correspondence and points and so on were raised by
  22     the Action Group and this is one of those letters
  23     raising a number of issues that I was attempting to
  24     respond to as best I could.
  25   Q. You will have seen that it will be said in evidence by

   1     Mrs Michaela Willis that at this stage, so far as the
   2     Action Group were concerned, they knew only of two cases
   3     definitely where hearts had actually been retained.
   4        What was your idea, in August 1988, of the scope
   5     of the numbers of retained hearts?
   6   A. I do not think the scope of my knowledge then was any
   7     greater than it had been in 1996.
   8   Q. So you knew it was more than two, you knew it was
   9     several?
  10   A. I knew it to be a substantial number and we were still
  11     pursuing the policy that I outlined that we adopted in
  12     the early part of 1996. Then the Action Group, through
  13     Mrs Willis, said that they wished to advance the issue
  14     because of a number of parents raising it with them, and
  15     we then set out together to try and find ways in which
  16     we could take it forward.
  17   Q. By November of 1998, did you have an idea that there
  18     may be something like 200 hearts retained?
  19   A. That is right, following the meeting and the specific
  20     raising of this issue by the Action Group. We set in
  21     hand the work to identify -- which was no easy matter,
  22     given that we wanted to be as precise as possible -- the
  23     actual number of retained hearts and other organs, and
  24     by November, that is correct, I knew that the number was
  25     in the order of 180, I think, was the state of my

   1     knowledge by the middle of November 1998.
   2   Q. If we have a look at UBHT 309/169, this jumps forward
   3     to February, but the reason I do that is to give
   4     a perspective of what is happening between August 1998
   5     and February 1999. This is a letter to you from the
   6     Heart Action Group and it expresses concern at the
   7     information and says:
   8        "We have attempted to work with you to lessen the
   9     impact of the information especially on those people who
  10     are members of our group."
  11        Indeed you pay tribute to the members of the Heart
  12     Action Group in the last paragraph of your statement and
  13     the support and help each of you had from the other.
  14   A. Yes.
  15   Q. There are however unhappinesses expressed in the second
  16     paragraph:
  17        "I am unhappy at the way the further facts keep
  18     appearing, such as the revelation that not only hearts
  19     but brains and lungs have been removed. It is our
  20     opinion that it would have been far better if the Trust
  21     had been totally open with us from the start and implied
  22     both the number and size of the problem."
  23        I think two points are being made. One is the
  24     nature of the tissue, the fact that it may not just have
  25     been hearts but also brains and lungs, and secondly, the

   1     question of the scale of it, the number of it.
   2        When was it that you first indicated, as you
   3     recollect it, to anyone in the Action Group what the
   4     overall scale of the problem was as you saw it?
   5   A. I think it was early in February 1999.
   6   Q. You knew, you told us, in November 1998, the approximate
   7     size of the problem?
   8   A. Yes.
   9   Q. Why was it that you did not tell anyone in the Action
  10     Group then, since you were then working with them to
  11     a resolution of the sensitivities necessarily involved
  12     in an issue like this?
  13   A. A number of reasons. Firstly, we were aware that the
  14     Trust had been told that nothing that could be of use to
  15     the Inquiry in terms of evidence must in any way be
  16     released or disposed of, and I was conscious that it was
  17     possible that the material retained from postmortems
  18     might fall and probably would fall within that category,
  19     and I knew that if I told the Heart Action Group at that
  20     time what the number of requests was, the Trust would
  21     have been in a position not perhaps to fulfil that which
  22     we wanted to do, which was to return such material to
  23     the parents if that was their wish. I could foresee
  24     a situation whereby we were on the receiving end of
  25     many, many requests for return of organs that we were

   1     not in a position to oblige.
   2        So that was an important issue.
   3        The advice I received from the Inquiry, having
   4     told them of the scale of the problem in November 1998,
   5     was that the Inquiry team themselves had no reservations
   6     about the return of this material, but that the
   7     permission of every other group involved would be
   8     required. That permission took many weeks to obtain,
   9     and in some cases, a good deal of pressure to obtain
  10     before we finally knew, late in January, that all of the
  11     parties concerned had no objection. That was one reason
  12     why I did not tell the Action Group the scale of the
  13     problem when I became aware of it in November 1998.
  14        Another reason was that although we had better
  15     information all the time, our information was not at
  16     that time sufficiently complete for us to be able to
  17     answer all of the questions that would have been raised
  18     by all of the parents potentially, and I thought it
  19     would reflect very badly on our joint efforts if, having
  20     informed parents of the situation, we were then unable
  21     to answer the questions that they raised with any degree
  22     of certainty and a further period of checking and
  23     cross-checking of something in the order of 2,800
  24     pathology records was required before we could be
  25     definitive about what we could tell people.

   1        Those were the two main reasons why, in November,
   2     although I shared the information with the Inquiry team,
   3     I did not think it appropriate to share it with the
   4     Action Group.
   5   Q. Two questions in respect of that: so far as the Action
   6     Group were concerned in November 1998, your
   7     understanding was, was it, that they had not told their
   8     membership that there were a vast number, or even
   9     a large number of retained hearts as such, but were
  10     working with you towards a sensitive approach to the
  11     problem?
  12   A. That is correct. The initial approach of the group
  13     was that we should make the matter relatively public,
  14     and write to all of their members to tell them this may
  15     be the case. I did not think that was appropriate,
  16     partly because the Action Group did not represent all
  17     the parents concerned and partly because as I say I did
  18     not think we had the right sort of information available
  19     to be precise in what we said.
  20        So we continued to work with them in a very
  21     constructive way through those months to try and make
  22     sure we got ourselves to the point at which we could be
  23     quite sure we could answer all the questions that were
  24     raised and could be quite correct on the information
  25     that we gave.

   1   Q. The ultimate discovery of the scale of the problem
   2     plainly, it appears, from the 24th February letter, has
   3     caused some distress?
   4   A. Yes.
   5   Q. What you have said in relation to the difficulties of
   6     dealing as it were with parental enquiries presuppose
   7     that the parents making enquiries would have known
   8     themselves some idea of the scale of the number of
   9     retained hearts.
  10        Why is it, just pressing a little, that you felt
  11     the need, it may be said, to keep the executive of the
  12     Heart Action Group "in the dark" as to the numbers?
  13   A. I think I felt that once I told anyone from the Heart
  14     Action Group the scale of the problem, any chance that
  15     we had of managing it in the way that I wished it to be
  16     managed, which was with the maximum sensitivity, and the
  17     maximum correctness of information to parents, would be
  18     prejudiced if I did it too early. We worked very well
  19     and very constructively with the Action Group and they
  20     were extremely helpful to us through a long series of
  21     discussions about how we might handle this problem, but
  22     I genuinely felt that I wanted to establish the
  23     principles of how we did it and be quite clear that we
  24     were in a position to do what we set out to do before
  25     I mentioned the scale of it. And the question of the

   1     answer implies that this was something that I pondered
   2     over and then made a decision not to do. In fact, the
   3     first time I was ever asked the question by the Heart
   4     Action Group as to the numbers was in February 1999 and
   5     I gave that information as soon as it was requested.
   6   Q. So is what you are saying to me that you did not trust
   7     the executive of the Action Group to be as sensitive as
   8     you would be in respect of breaking the news to
   9     parents?
  10   A. No, I am not saying that.
  11   Q. Because what you have said, in effect, is you wanted
  12     to handle matters sensitively in your own way --
  13   A. I wanted to handle the matter in the way that had been
  14     agreed between ourselves and the Heart Action Group,
  15     which was to make sure we only approached those parents
  16     through the Heart Action Group who wished to be
  17     approached. We devised with us a mechanism, as far back
  18     as November, as to how that could actually be done.
  19        We then worked on all the documents, and drafts of
  20     letters went to and fro in order to identify our way
  21     forward that would meet the Action Group's requirements
  22     and requests that every parent who wished to know would
  23     have the opportunity to know the full facts, and the
  24     Trust's obligations as I saw them were that we did not
  25     prejudice the confidentiality of any individual patient

   1     and were in touch with people who wanted to know, and
   2     were able to give all the people the information they
   3     wanted when they wanted it, which was not the case until
   4     February 1999.
   5        So my judgment was that I needed to establish, as
   6     I say, those principles and the exact modus operandi we
   7     were going to use before we got into the debate about
   8     the numbers.
   9   Q. What was it that changed the position between November
  10     1998 when you knew there were something like 180 to 200
  11     cases involved and February 1999 when, again, you had no
  12     great certainty about the exact numbers?
  13   A. By February the state of our knowledge was much better
  14     and we agreed that the time was now ready to start and
  15     if my memory serves me correctly, on February 4th we
  16     agreed to go forward along the lines we had discussed.
  17     At that meeting the number of hearts was discussed and
  18     we agreed to go forward. I had a telephone call the
  19     following day from -- I forget whether it was the Action
  20     Group or a representative of the Action Group, saying
  21     that they felt the time was now appropriate to place the
  22     issue in the public domain and they were going to make
  23     a press release about the issue.
  24   Q. So was it the fact that it was going to be placed in the
  25     public domain that brought the numbers to light, or had

   1     you mentioned it beforehand?
   2   A. No, I had mentioned it before. We were told the
   3     following day they were going to make a press release
   4     about it.
   5   Q. So the gap between November and February is explained by
   6     your getting increasing knowledge of the exact cases, is
   7     it?
   8   A. Yes, and a good deal of detailed work with the Action
   9     Group on drafts of letters to be sent to parents
  10     identifying the way we could make sure that only those
  11     parents who wished to have information could receive
  12     information, us thinking about how we would handle the
  13     requests when they came in, and really wanting to get to
  14     the point at which we could say it was time to start.
  15     It was at the meeting of 4th February that we finally
  16     agreed the way forward. Our intention was then the
  17     following week to get the whole process rolling.
  18   Q. Between November and February you and the Action Group
  19     were busy drafting and agreeing letters, were you?
  20   A. Yes, there were a number of drafts.
  21   Q. -- which had not therefore been sent. They were in
  22     draft, being formulated?
  23   A. That is right. We wanted the Action Group's advice as
  24     to how we could phrase the letters in such a way as
  25     would minimise distress and be as sensitive as possible.

   1   Q. So you knew that the Action Group were aware of the
   2     problem, were handling it sensitively and
   3     co-operatively?
   4   A. Yes.
   5   Q. That although these letters were in draft, none had been
   6     sent and indeed, parents represented by the Action Group
   7     might not have known that their own child was, or
   8     potentially was, a child in respect of whom tissue had
   9     been retained?
  10   A. That is possible, yes, that is right.
  11   Q. So the question which appears suggested by the letter of
  12     24th February 1999 is that if the executive could be
  13     trusted to help to formulate letters before they were
  14     sent to make sure that the policy was in place, the
  15     matters were handled sensitively, why could they not be
  16     trusted with the knowledge that there were probably
  17     about 200 cases, even although later on it may become
  18     clear that there were 179?
  19   A. I think I can only say that I had to make a judgment
  20     about what order in which best to do things to try and
  21     reach the right result, which I have described had to be
  22     the sensitive release of appropriate and correct
  23     information to the people who wished to have it. My
  24     judgment was that if we could do as much work as
  25     possible to establish the principles and the ground

   1     rules with which we worked, protect confidentiality of
   2     patients and parents to make sure we did not approach
   3     people who did not wish to be approached, then all of
   4     that work was best done without the scale of the
   5     retention, which I knew would come as a surprise to the
   6     parents. Without that being there -- because I think
   7     I feared that our attempts to reach a joint solution and
   8     a way through might well be compromised by that
   9     information, as indeed happened partially at least to be
  10     the case.
  11   Q. Was there to any extent a personal reaction by you, as
  12     a human being, to the size and scale of the problem?
  13   A. Yes. I was surprised.
  14   Q. So you were alarmed by it, were you?
  15   A. I would say "surprised".
  16   Q. And you are telling us that you expected others to
  17     share, inevitably, that surprise?
  18   A. Yes.
  19   Q. Can we have a look at page 309/78?  This is a note of
  20     the meeting with the Heart Action Group of 4th February,
  21     the meeting that we have had the date of.
  22   THE CHAIRMAN: Do we have permission for those names to
  23     be --
  24   MR LANGSTAFF: If you will just give me one moment.
  25     (After conferring): Yes.

   1   THE CHAIRMAN: I am grateful, thank you.
   2   MR LANGSTAFF: The minute says "Agreed Way Forward".
   3     Let us scroll down. Two individuals were to contact
   4     parents to explain that "over the years, hearts and
   5     other body tissue were sometimes retained".
   6        In the left-hand margin there is a note. Whose
   7     writing is that?
   8   A. It is mine.
   9   Q. It is probably easy for me to read but it may not be
  10     so easy on the public screens. Would you read it out?
  11   A. It was a note made on the evening of 5th February 1989.
  12     It says:
  13        "Subsequently changed. Instead, BHCAG will supply
  14     a list of parents and ask us to confirm those with no
  15     retention", i.e. that no material had been
  16     retained, "then write to them. Letters to material
  17     retained will follow ASAP".
  18   Q. So the process had actually changed from being one of
  19     parents being told there might be a position where part
  20     of their child was being kept by the Trust, and they
  21     would have to write to find out if that was the case, to
  22     your actually telling the Heart Action Group in respect
  23     of a list of parents they submitted whether there was
  24     anyone who did not have a heart retained?
  25   A. That is right. We agreed the text there on 4th February

   1     and we had a telephone conversation the following day,
   2     where the Action Group told us they wished to do it in
   3     the way outlined there on the left.
   4   Q. On that same day, 4th February -- can we look at
   5      307/88? Perhaps if we go back to the page before, just
   6     to put it in context, and over again, please -- back to
   7     88.
   8   THE CHAIRMAN: Mr Langstaff, others did not see that
   9     because I was checking it. Do you want to go through it
  10     again?
  11   MR LANGSTAFF: I want to go through this, just checking
  12     it first. Can we go to the bottom of the page. There
  13     is nothing in the top half. It is fine.
  14   THE CHAIRMAN: Do you want to go back to the other
  15     page to put it in context?
  16   MR LANGSTAFF: No, it is all right.
  17        Again, can you help with the writing on this,
  18     Mr Ross?
  19   A. No, I am afraid I cannot. What is the document?
  20   Q. It is a document which comes from Professor Berry's
  21     papers. Can we scroll down?
  22   A. It looks like it is a briefing put together to try
  23     and assist in some kind of public statement on the
  24     issues, but I do not know whose writing that is.
  25   Q. It became apparent that not only hearts but also

   1     lungs and on occasion brains were being retained.
   2        When was that information given to the parents?
   3   A. It must have been in February 1999.
   4   Q. And again, I have shown you the letter of
   5     24th February. Plainly the information had come through
   6     by then. So again, something which was likely to come
   7     as a hammer blow to many, no doubt?
   8   A. Yes, indeed.
   9   Q. Had you thought to indicate beforehand that that
  10     might possibly be the case, to prepare members of the
  11     executive for the revelation that it was the case?
  12   A. I think I found out myself relatively late in the day.
  13     Perhaps I should have asked some harder questions myself
  14     about the exact content of the retained material but it
  15     was only relatively late that I found out myself the
  16     material was not only limited to hearts.
  17   Q. Who told you?
  18   A. It was either Professor Berry or Mr Barrington.
  19     I do not recall which one it was. The information would
  20     have come from Professor Berry, even if it was via
  21     Mr Barrington.
  22   Q. Earlier on you may remember about five or ten minutes
  23     ago I was asking you why it was that the representatives
  24     of a number of the parents had not been told what the
  25     scale of the problem was.

   1        One of the reasons you gave was this Inquiry
   2     might itself require the retention of tissue, and you
   3     said that the Inquiry had written to you and had said,
   4     "Well, we do not, but you had better make sure that
   5     other people do".
   6        Can we have a look, please, at the letter just so
   7     that the record is straight? It is UBHT 309/60.
   8        If we go to the bottom of the page, there is no
   9     problem of confidentiality on this one: it is signed by
  10     the Secretary to the Inquiry and it is addressed, at the
  11     top of the page, to you.
  12        It records how it is in response to a letter of
  13     23rd November saying that the Trust would be willing to
  14     release retained hearts to parents and to seek this
  15     Inquiry's views on the proper course of action.
  16        The second paragraph:
  17        "Section 84 of the NHS Act ... pursuant to which
  18     the Inquiry is set up does not give the Inquiry any
  19     jurisdiction over the retained hearts. As
  20     a consequence, it is the Trust's responsibility to
  21     decide on an appropriate course of action regarding the
  22     hearts."
  23        That is clear, is it not, as a statement of what
  24     the position was so far as the Inquiry was concerned?
  25   A. It is. I think I had in mind also, when I wrote the

   1     letter, that the then Chairman had received a personal
   2     letter from the Secretary of State which spelled out
   3     very clearly that absolutely no item that could be of
   4     use to the Inquiry, whatever it was, should be disposed
   5     of.
   6   Q. That, I think, was a reference to evidence?
   7   A. Correct.
   8   Q. That came at the very beginning of the Inquiry process,
   9     did it not?
  10   A. Quite some time ago now, yes.
  11   Q. Here was the Inquiry saying, "Well, leave aside
  12     evidence, so far as the hearts are concerned, we do not
  13     have any jurisdiction over it" and setting it out
  14     absolutely clearly in the second paragraph.
  15   A. Yes.
  16   Q. What you had in mind in saying the Inquiry had said you
  17     must ask other people first, if you have a look in the
  18     third paragraph, the Inquiry makes observations, so
  19     plainly these are observations:
  20        "We understand and are in sympathy with the desire
  21     of the parents to obtain the hearts and of the Trust to
  22     return them. However, we would wish to be inclusive in
  23     the sense of the Inquiry considering any material which
  24     those taking part feel it is relevant to the Inquiry to
  25     consider. Before returning the hearts therefore, the

   1     Trust may wish to make appropriate enquiries of all
   2     those others who are affected by the Inquiry or by any
   3     civil litigation in relation to the deaths of the
   4     children concerned so as to obtain their views."
   5        It expresses a hope as to what their actions may
   6     be.
   7        Your earlier answer, I think, must be modified,
   8     must it not, along these lines -- tell me if you think
   9     I have got it wrong: the Inquiry had said "The question
  10     of retention or otherwise is not within our
  11     jurisdiction; it is a matter for the Trust"?
  12   A. Yes.
  13   Q. Everything else is merely advice, is it not?
  14   A. Yes, albeit coming from the Inquiry itself. It is
  15     advice that you would not ignore.
  16   Q. It leaves the ultimate decision up to the Trust, no
  17     doubt having considered what other people may have to
  18     say to the Trust about the retention of tissues?
  19   A. Yes.
  20   Q. I think it is fair to say you got a letter from
  21     solicitors in London which, for a while at any rate,
  22     wished to retain hearts because they might be used as
  23     evidence?
  24   A. We approached through our own legal advisers quite
  25     a substantial number of legal representatives who were

   1     involved, various bodies and so on, and some had
   2     immediately made no objection. Others had objected for
   3     quite some time. I remember passing the name of one
   4     individual who was being "obstructive", in inverted
   5     commas, to the Heart Action Group so they could apply
   6     pressure to assist us to resolve the situation.
   7   Q. Did they do so?
   8   A. I do not know, but I suspect they did.
   9   Q. The situation was resolved, was it?
  10   A. It was.
  11   Q. The statement of Mrs Willis, if you just give me
  12     a moment, do you seek to criticise the executive of the
  13     Bristol Heart Children's Action Group for what you
  14     consider to be precipitate disclosure of information as
  15     to the number of hearts and the retention of other parts
  16     of the body?
  17   A. If I can just refer to my statement ...
  18   Q. It is paragraph 17. Perhaps we can have it on the
  19     screen. It is scanned in at WIT 221/8. The foot of the
  20     page.
  21   A. No, I have no criticism whatsoever to make of the
  22     executive of the BHCAG on this issue so my words in my
  23     own statement were chosen very carefully indeed and
  24     I said I had concerns about this disclosure of
  25     information because it meant that for a substantial

   1     number of parents the first they would find out would be
   2     through the media, and even though I knew that the
   3     Action Group themselves would be able, I am sure, to get
   4     information to all of their members, there would be
   5     a substantial number of other parents who would only
   6     find out through the media. Given that we had worked so
   7     long to try and avoid that type of situation occurring,
   8     I was very concerned. But I entirely recognised their
   9     right to make whatever statement they said they saw fit,
  10     and I would not criticise them for that at all.
  11   Q. Can we go overleaf? The fourth line down:
  12        "The Trust and its managers deliberately withheld
  13     the scale of the retention of the children's hearts for
  14     over 10 weeks."
  15        You have told us that is actually accurate because
  16     there was a deliberate decision by you not to reveal the
  17     scale of it?
  18   A. That is correct.
  19   Q. She goes on:
  20        "This led to the press being aware of the story by
  21     a Trust leak and caused the events which I have
  22     described."
  23        Did the press become aware of the scale by a trust
  24     leak?
  25   A. Not to my knowledge, no. The number of people who were

   1     actually engaged with the process within the Trust was
   2     very small and I would trust them to maintain
   3     confidentiality on such an important issue, so I have no
   4     knowledge of any such leak.
   5   Q. The last sentence of that paragraph argues that the
   6     Trust is paying lip-service to the need to give parents
   7     full information and not in fact doing so.
   8        Do you accept that as a criticism of the way the
   9     Trust behaved over this particular issue?
  10   A. No, I do not, actually. I think I could point to many
  11     examples and many documents in which the Action Group
  12     and other representatives of parents have congratulated
  13     the Trust on the way it has handled many difficult
  14     issues in recent years, and the regular meetings we have
  15     had and the way we have covered, between us, so many
  16     problems and resolved so many problems I think shows
  17     that the Trust has earned the compliments that it has
  18     received on many occasions from the parents and their
  19     representatives for doing things very differently from
  20     the way they were done in the past.
  21        I think to draw a general conclusion like that
  22     from the specific issue of the scale of retention is
  23     harsh to the Trust. I was particularly disappointed, as
  24     you would expect, to see that part of the statement.
  25   Q. To what extent do you think that parents or patients

   1     should be given full and frank information about
   2     anything which relates to their or their children's
   3     hospital treatment?
   4   A. I think individual parents should receive whatever
   5     information they request and that of course had been the
   6     Trust's stance on this particular issue since 1996 when
   7     Professor Berry said to the media that it was common for
   8     organs to be retained following postmortems.
   9        In terms of giving information on a general basis,
  10     though, it raises far more difficult issues. I hope
  11     I have managed to get across just what a complex issue
  12     it was to try and resolve in a way that was fair and
  13     proper to all concerned.
  14        Throughout this period, if any individual parents
  15     had approached us about their personal situation, and
  16     indeed, some of the parents did during these
  17     discussions, then we would immediately try and give them
  18     whatever help and advice and information that we could.
  19   Q. At the start of paragraph 18:
  20        "Finally, I want to say that the Trust asked me to
  21     withhold information about retention from BHCAG
  22     members. I was not prepared to do this."
  23        Is she right?
  24   A. Without having had the opportunity to discuss this with
  25     Mrs Willis to see precisely what she is saying, I do not

   1     know. I cannot understand what it refers to. I cannot
   2     imagine that Mrs Willis would in any case take any
   3     notice of a request like that from the Trust, because
   4     she would do what she felt was the proper and the right
   5     thing to do, but I cannot recall any occasion where we
   6     asked her to withhold information. I can only think
   7     what she is referring to, we suggested that
   8     notwithstanding the fact of the scale of retention was
   9     now known, that we still try and put in place the
  10     mechanism we have agreed, and I expect that is what she
  11     is referring to. I basically wanted to buy a bit more
  12     time to handle the issue in the way we agreed. It may
  13     be that she refers to that.
  14   Q. We have the position on February 4th that you knew
  15     before the meeting the scale of the problem; nobody else
  16     did. It had not leaked?
  17   A. Not to my knowledge.
  18   Q. At the meeting, you tell us, you told the
  19     representatives of the parents and the Heart Action
  20     Group of the scale of the problem?
  21   A. Yes.
  22   Q. And they appreciated that for the first time.
  23   A. Yes. Although I do reiterate that it had been certainly
  24     in the public domain for some time that it was common
  25     practice to retain organs and other tissue after

   1     postmortems and it had been referred to during the GMC
   2     as well, but I fully accept that the connection between
   3     that and the precise numbers and scale would not have
   4     been made by the parents necessarily.
   5   Q. The point you are making, it would not have been just
   6     one or two hearts, but on the other hand, the exact
   7     scale was not known?
   8   A. That is right.
   9   Q. When you appreciated -- because you told us you did --
  10     the revelation of the scope and scale, it would have
  11     come as a shock to many people?
  12   A. Yes.
  13   Q. Does it follow that you were hoping to discuss with the
  14     Heart Action Group ways and means of handling the
  15     revelation of that knowledge so far as parents were
  16     concerned?
  17   A. I hoped that notwithstanding them now knowing the scale,
  18     we could still put in place the plans that we had been
  19     working on together over a number of months and I was
  20     also conscious at this stage, as the Bristol Surgeons'
  21     Support Group increased their activities and I became
  22     more aware of their views, I was also conscious that
  23     I had to try and give them time also to make contact
  24     with the members of their group who might be affected by
  25     this situation.

   1        So, notwithstanding the fact that the Action Group
   2     now knew the scale of retention, I wanted to try, as
   3     I say, to find a bit more time if possible in order to
   4     set in motion what we had agreed, although I knew
   5     inevitably it would become more public at some stage.
   6   Q. So it would be fair to say that in that meeting you were
   7     seeking to persuade those at the meeting to allow for
   8     a staged process of revelation of the scale of the
   9     problem?
  10   A. I wanted still -- perhaps with hindsight it was too
  11     optimistic of me, but I wanted still to try and handle
  12     it on an individual, sensitive basis with each family,
  13     giving them information if they wanted it and not giving
  14     them information if they did not want it. That is what
  15     I still hoped to try and bring about.
  16   Q. She can speak to it herself, but if what Mrs Willis
  17     means, paragraph 18, is that at that meeting you were
  18     asking her to agree to parents generally, the parents
  19     she represented amongst them, not knowing of the full
  20     scale of the problem immediately, but learning of it
  21     only over time, then what she says would be accurate,
  22     would it? Does it follow?
  23   A. Yes. I mean, that is the only explanation I can think
  24     of for that sentence.
  25   Q. If that is the understanding to be gained from that

   1     sentence, then leave aside for the moment any question
   2     of justification, but is that withholding information at
   3     least for a period of time as opposed to being, as it
   4     were, full, frank and up-front with it at that
   5     particular moment?
   6   A. I am sorry, I do not quite understand.
   7   Q. Withholding information is withholding information.
   8     Delaying information is withholding information, is it
   9     not?
  10   A. Yes.
  11   Q. If you were delaying information, that is withholding
  12     information, leaving aside whether it is for good or bad
  13     reason --
  14   A. Yes.
  15   Q. -- you were saying "This is what I was doing for good
  16     reasons", and the reasons are those you have given?
  17   A. Yes.
  18   MR LANGSTAFF: Mr Ross, sir, may we now perhaps take
  19     a break?
  20   THE CHAIRMAN: Yes. Shall we say until 2 o'clock? Thank
  21     you.
  22   (1.23 pm)
  23            (Adjourned until 2.00 pm)
  24   (2.00 pm)
  25   MR LANGSTAFF: Just before we had the break for lunch,

   1     Mr Ross, I was asking you to comment upon parts of the
   2     statement which Michaela Willis had given to the
   3     Inquiry.
   4        Can we have a look, please, at WIT 221/1.
   5        There is one other matter I should raise, at the
   6     very bottom of this page. What she says is that during
   7     the dialogue she had with you, and specifically since
   8     October 1998, she raised the question of retained hearts
   9     on a number of occasions.
  10        Pausing there, that presumably would be right,
  11     would it?
  12   A. From August 1998 onwards, yes.
  13   Q. She says:
  14        "I was seeking reassurance from Mr Ross that the
  15     cases that we knew of were the only cases of their
  16     type. I was assured by", and there is a gap, "that the
  17     cases that we knew of were the only cases of their
  18     type. I was assured by Mr Ross that Professor Berry was
  19     undertaking extensive research to ascertain the correct
  20     position and we would be given the information as soon
  21     as possible."
  22        It may not be absolutely clear what is aimed at by
  23     that paragraph, but can I take it in stages.
  24        In fact were the two cases that she knew of the
  25     only cases of their type?

   1   A. Well, no.
   2   Q. Unless, presumably, one defines "type" in some narrow
   3     way.
   4        Did you give any assurance that the cases were the
   5     only cases of their type?
   6   A. Well, no. The purpose of the discussions was to handle
   7     the issue of the retention of tissues and organs and
   8     that was the purpose of the series of meetings that we
   9     were holding. I do not recall the question arising. It
  10     was clear to me, and I thought to the Action Group, that
  11     there were more cases and that was the purpose of the
  12     discussions.
  13   Q. If we read, however, the sentence at the top of that
  14     page:
  15        "I was assured by Mr Ross that Professor Berry was
  16     undertaking extensive research to ascertain the correct
  17     position and we would be given the information as soon
  18     as possible."
  19        Is it right that you did assure her that Professor
  20     Berry was undertaking extensive research to ascertain
  21     the correct position?
  22   A. Yes.
  23   Q. So it may be the fact that there were only two people
  24     that you could identify at the stage you first began to
  25     talk to her; even though you knew there were other

   1     cases, you did not know whose cases they were. Is that
   2     a possible reconciliation?
   3   A. No, I do not think so. There had been several cases of
   4     hearts being returned to parents at their request before
   5     August 1998, and I assumed that the Action Group were
   6     aware of those and as I say, clearly, there were more
   7     cases because that was the purpose of our discussions.
   8   Q. In any event, moving on from the Action Group to the
   9     Surgeons' Support Group, did you have contact with them
  10     too?
  11   A. Yes, but not until fairly late in the process.
  12   Q. Members of the Surgeons' Support Group, as we know,
  13     because we have heard evidence from some, have
  14     themselves lost children?
  15   A. Yes.
  16   Q. Did the Trust make any attempt to contact the Surgeons'
  17     Support Group in, let us say, August/September of last
  18     year, when it was known that there might be a problem
  19     over retained hearts?
  20   A. We had some contacts with the Surgeons' Support Group
  21     in around September 1998, but that was specifically on
  22     the issue of Mr Dhasmana's future employment in the
  23     Trust. I remember that they had made representations on
  24     his behalf at the time that the Trust was considering
  25     what his future employment position should be.

   1        The next contact that I recall I had with them
   2     was in February when I made a telephone call to ask them
   3     to urgently discuss the situation with me in the light
   4     of the fact that I then knew that the matter would be in
   5     the media within a few days.
   6   Q. So there had been no discussions at all with the
   7     Surgeons' Support Group as to the question of any
   8     retained hearts. The first they would have known about
   9     it was when you phoned 24 hours or so before the news
  10     broke in February?
  11   A. No, because they were aware of the reports that had been
  12     in the media in 1996 and were aware of the general
  13     issue, and indeed, one of the leading members of the
  14     Surgeons' Support Group is one of the parents who had
  15     given consent for retention of organs personally in the
  16     past, in the belief that this would be helpful.
  17        So I was not in any doubt that they did not know
  18     about the issue. I knew that they knew about the issue,
  19     but I did not engage them in detailed discussions about
  20     the way forward and brief them on where we had got to
  21     with our discussions with the Action Group until the
  22     week commencing February 8th, I think it was -- 7th or
  23     8th.
  24   Q. Again, is there a reason why they were not approached by
  25     you but the Heart Action Group were?

   1   A. Our dialogue with the Heart Action Group had been going
   2     on for a much longer period and I think constructive
   3     personal relationships and dialogue had been established
   4     for some time.
   5        It was not until relatively late in the day that
   6     I was aware that the Surgeons' Support Group contained,
   7     amongst its members, parents who might be affected by
   8     this particular issue. Perhaps that is my fault for not
   9     realising more quickly that they, too, had an interest
  10     in the issue, although clearly not of the same scale as
  11     the members of the Action Group.
  12        I think that is why I did not include them in the
  13     discussions quite as early as I might have done.
  14   Q. Can I now turn to a number of smaller points? The
  15     figure that we have of I think 179 retained organs: is
  16     that a figure which relates to hearts only, or does that
  17     figure include cases where lungs and brains may also
  18     have been retained?
  19   A. I think it would be more accurate to say 179 cases.
  20     Within that would be, as you suggest, both retentions of
  21     parts of organs only and quite limited material, to more
  22     extensive retention such as you have outlined.
  23   Q. The figure: do I take it that relates to the numbers
  24     from 1983 or 1984 onwards --
  25   A. The period covered by the Public Inquiry.

   1   Q. Thank you, that is what I was trying to ask,
   2     inadequately.
   3        So before that, before the period of our terms of
   4     reference, there are more hearts?
   5   A. Indeed, yes.
   6   Q. And roughly the number?
   7   A. The number in total, including the period of the
   8     Inquiry, is something in the order of 300, I am told.
   9     Some of them are going as far back as the 1960s.
  10   Q. In each of the cases where there has been retention, we
  11     know from what you have told that you say the
  12     pathologist would not have carried out his postmortem
  13     without there being a form of consent, or something in
  14     writing which gave him authority?
  15   A. Yes.
  16   Q. Where was it practice, do you know, for those
  17     authorities to be stored?
  18   A. My knowledge on this issue comes only from what I have
  19     seen in Professor's Berry's statement to the Inquiry,
  20     which indicated that the forms were normally retained in
  21     pathology records but were sometimes within wider
  22     medical records, if my recollection serves me.
  23   Q. So sometimes in the patient's clinical records, but
  24     normally the pathology record as such?
  25   A. I would prefer not to be quite so specific, and say

   1     they would be in either place, but I would not be sure
   2     about the proportions.
   3   Q. So that is something we will have to ask Professor Berry
   4     about?
   5   A. That will be best, I think.
   6   Q. Picking up one of the themes of the morning, Rachel
   7     Ferris wrote a note -- let me see if I can locate it.
   8     It is 309/109, on 9th February, just as the issue
   9     I think was breaking --
  10   THE CHAIRMAN: Is there anything on that --
  11   MR LANGSTAFF: No, there is not. If we can move down:
  12        "Retention of hearts following postmortem."
  13        What she describes is:
  14        "In some cases, either problematic or interesting
  15     cases, the heart will be retained following postmortem.
  16     It will then be discussed at the next
  17     clinical/pathological conference (usually within two
  18     weeks of the postmortem) and will then be disposed
  19     of ..."
  20        So certainly the practice that she knew of at that
  21     time was not for retention but for disposal following
  22     postmortem.
  23   A. Yes.
  24   Q. She says:
  25        "We do not have a protocol ... for dealing with

   1     requests from relatives to obtain retained hearts and
   2     they will have been disposed of within the two-week
   3     period. Relatives are not informed ..."
   4        She says this, in the next paragraph:
   5        "The retention and disposal of organs in this way
   6     takes place in accordance with statutory regulations,
   7     but I am concerned that we do not inform relatives."
   8        So that there is no misunderstanding, what do you
   9     think she is talking about when she says she
  10     is "concerned that we do not inform relatives."?
  11   A. I think it is the fact that relatives are not informed
  12     necessarily. The heart will be retained, even though it
  13     actually says that on the hospital consent form. She
  14     was concerned that we were not giving as good
  15     information to relatives as we should. This document
  16     was one of the pieces of evidence the Director of
  17     Nursing collected as part of her review.
  18   Q. That is something you hoped would be rectified?
  19   A. A whole series of actions I have given in my statement
  20     have either taken place or are taking place to make sure
  21     that we are both consistent and right up to date in our
  22     practice in this area and this is one of the areas that
  23     is being addressed.
  24   Q. The only other matters I think I need ask you about
  25     are these: in the statements which you have given to us

   1     you emphasise a number of times that you have surveyed
   2     other Trusts; that the Trust here has kept revising its
   3     procedures.
   4        It follows that over the period of time from 1983
   5     to now, there has been quite a change, possibly, in
   6     people's approaches to the issues of retention of
   7     tissue.
   8        First of all, is that your perception?
   9   A. Yes.
  10   Q. Secondly, is that the perception as see you see it in
  11     the NHS generally?
  12   A. I think so, yes.
  13   Q. How do you see the NHS generally changing in response
  14     to "modern demands", if I can call them that?
  15   A. I think I am right in saying that an early draft of new
  16     guidelines from the Royal College of Pathologists had
  17     been or was about to be circulated. I know that there
  18     is great interest within the NHS as to any
  19     recommendations that may come from this Inquiry as to
  20     about how this whole issue can be much better handled in
  21     future, and I suspect that the combination of the views
  22     of the Royal College and the views of this Inquiry will
  23     be a powerful stimulus to a review of the current
  24     legislation and making clear what from our discussion
  25     today is patently not clear, exactly what the law is and

   1     exactly what the obligations of National Health Service
   2     institutions and individual practitioners are, not to
   3     mention the possible position of the Coroner, which
   4     again seems to be not entirely clear in relation to some
   5     of these matters.
   6   Q. I have asked you a number of questions. I do not
   7     propose to ask you any more, save two questions. In
   8     your case, before I come to the general one, "Is there
   9     anything else you would like to add?" can I ask, if you
  10     had any particular points which you want to get across
  11     from your evidence, what briefly would they be?
  12   A. I think that probably is summed up in what my answer
  13     will be to your second question.
  14   Q. Which is: is there anything else you would like to add?
  15   A. Yes, just a couple of points, if I may. I just wanted
  16     to emphasise -- I am sure it is not in any doubt -- just
  17     what a very difficult and sensitive issue this has
  18     been. I wanted to assure the Inquiry that although we
  19     were in uncharted territory in NHS management terms and
  20     to quite a large extent, that the UBHT management has
  21     really striven extremely hard to try and handle the
  22     issue as sensitively and as well as it could.
  23        There are just three points I would like to make,
  24     if I may. They are in my statement, but I would like to
  25     reiterate them. They really are summed up in the last

   1     three paragraphs of my statement.
   2        The first is -- I wanted to make this point
   3     because some of the national reporting of this issue has
   4     been insensitive and flamboyant, to say the least, and
   5     not very accurate. I did want to say as I understand
   6     it, notwithstanding any discussions we have had today,
   7     the UBHT and its predecessor bodies have done nothing
   8     illegal. I think it is very important to state that,
   9     and the Department of Health has confirmed that is the
  10     case.
  11        Of course, this was always going to be an
  12     extremely sensitive and difficult issue because of the
  13     particular circumstances in Bristol.
  14        The second thing I wanted to say was that we have
  15     tried to draw some positives out of a terribly difficult
  16     situation. We have, as you have heard, continued to
  17     review our practice, benchmark it against other Trusts,
  18     make sure it is as up-to-date as possible, make sure we
  19     reflect the sensitivity and if you like the moral issues
  20     that we have discussed, that the situations, demand and
  21     will continue to review our practice and put into place
  22     whatever improvements we think are necessary.
  23        Importantly, we are arranging for a much more
  24     proactive liaison with the Coroner's Office than has
  25     been the case in the past, so we can particularly make

   1     sure that decisions emanating from the Coroner's Office
   2     are handled in a sensitive way and that parents and
   3     relatives generally are as fully informed as possible.
   4        The final thing I would like to say, if I may, is
   5     just to stress my personal respect and gratitude to the
   6     parents' representatives linked to the various groups we
   7     deal with, who have worked very hard and long with us on
   8     a whole range of issues, not just this issue, to try and
   9     minimise distress to parents, to keep people informed,
  10     and have given us much valuable advice on how we can
  11     continue to improve our practice in the long term.
  12        I hope we can maintain a productive and continuing
  13     dialogue with those groups and those parents and their
  14     representatives, because already it has been of
  15     considerable benefit to the Trust in improving things
  16     for the future.
  17        Thank you.
  18   MR LANGSTAFF: There may be some questions from the
  19     Panel.
  20   THE CHAIRMAN: There are no questions from the Panel.
  21     Mr Miller?
  22            RE-EXAMINED BY MR MILLER:
  23   Q. Mr Ross, there are just two matters I would like to deal
  24     with, and deal with them quite shortly.
  25        The first is this. You were asked to look at some

   1     correspondence between Professor Berry and Dr Parker
   2     from the National Heart Hospital. Lest it be thought
   3     that this was a free-standing concern that Professor
   4     Berry was responding to, I wonder if you could just have
   5     a look at UBHT 308/49, which is the letter which I think
   6     starts the correspondence.
   7        It is a letter of 1st August 1986. It is from
   8     Dr Parker from the National Heart Hospital, and it
   9     appears from the first paragraph that it is a plea, if
  10     you like, for supplies of homografts from regional
  11     hospitals to meet an increased demand.
  12        He sets out the criteria in the second paragraph
  13     as to what type of tissue he would require and it is
  14     healthy heart tissue where the death has been as
  15     a result of accident and non-thoracic illnesses, and the
  16     age range is 1 to 45 years.
  17        Is this anything to do with the hearts of children
  18     who died as a result of heart disease, this
  19     correspondence?
  20   A. There are two issues that come to mind. One is that
  21     clearly the criteria between 1 and 45 years of age would
  22     exclude a number of the children, their cases which are
  23     the subject of this Inquiry's investigations.
  24        My sketchy clinical knowledge makes it difficult
  25     to answer the second question because thoracic illnesses

   1     and cardiac disease, I am not entirely sure whether some
   2     of the categories of children that we have been
   3     discussing would fall within that criteria or not.
   4   Q. In any event, on the face of it, it looks as though it
   5     is a request from Dr Parker. We saw the response, not
   6     the request before. You are asked to comment on the
   7     response, which is, "I do not think it is appropriate
   8     for us to be involved in this under the current terms of
   9     reference of the Coroner in Bristol"?
  10   A. That is correct, yes.
  11   Q. The second matter is this: you were asked about
  12     Mrs Willis's statement, WIT 221/1, in which she says she
  13     was given an assurance, although she does not identify
  14     the source, that the cases that had come to light at
  15     that stage were the only cases of their type.
  16   THE CHAIRMAN: Forgive me if I interrupt, Mr Ross; I think
  17     you asked for page 1, did you not?
  18   MR MILLER: Yes, it goes over the page, does it not?
  19   THE CHAIRMAN: Yes, it is just that page 9 came up.
  20   MR MILLER: It starts at the first page and goes over
  21     the top to the next. It does not make complete sense
  22     because it does not identify who the source is, but was
  23     any such assurance given by you that the ones that had
  24     actually come to light were the only ones of their type?
  25   A. No, and I cannot understand why that statement should be

   1     made. It is clear to all concerned that there were
   2     further cases. That was the entire purpose of our
   3     discussions over a number of months, as to how we could
   4     best handle those cases.
   5   Q. Would you put up WIT 128/18?
   6        This is a letter which is annexed to your second
   7     statement as Appendix 1, which deals with a number of
   8     issues. It is dated 6th November 1998. The first
   9     paragraph and subheading relates to retention of organs.
  10        Was this to be an agreed protocol to deal with
  11     requests from parents through the Group for information
  12     about their children?
  13   A. That is correct, yes. The initial approach of the
  14     Action Group was that the Trust should make it generally
  15     known by writing to all the parents that they
  16     represented. In discussion we agreed this would perhaps
  17     involve, within the discussions, people who did not wish
  18     to be. So we then agreed on this approach with the
  19     Action Group actually themselves writing to the parents
  20     who had expressed concern to them, and then taking them
  21     through the process listed here. This was the way we
  22     were then going to tackle it. This was designed to make
  23     sure, as I said previously, that we only entered into
  24     detailed discussions with parents whom we were reassured
  25     actually wished to have those detailed discussions.

   1   Q. Was it anticipated that as a result of requests by
   2     parents, other examples of retained tissue would be
   3     brought up?
   4   A. Well, yes. I mean, to me that was a given, otherwise
   5     we would not have been having the discussions.
   6   Q. Of the 179 cases that have ultimately been identified,
   7     are they all represented by the Heart Group?
   8   A. No.
   9   Q. Mr Langstaff asked you about your decision not to
  10     disclose the numbers, although we have seen from the
  11     letter to Miss O'Brien of 13th November that you wrote
  12     to her and at that stage thought it was, I think, at
  13     least 200 cases. You had to take a decision. Was it
  14     your intention to hide the number from the parents or
  15     the public at large?
  16   A. Not at all, no. Had I wished to hide the number I do
  17     not think I would have written to the Public Inquiry to
  18     give them information about the situation. What I was
  19     trying to do, and I hope I explained it carefully this
  20     morning, was trying to make sure that the release of
  21     that information to the parents did not derail the
  22     process that we had so carefully worked out over
  23     a number of months to try and meet the objectives that
  24     we had both agreed were the right objectives:
  25     i.e. personal individual cases being addressed with full

   1     information and specifically with each parent or pair of
   2     parents.
   3        So I think any suggestion that I somehow did not
   4     wish to make the number public, I think it does not
   5     stand up when you look at the correspondence with the
   6     Inquiry team.
   7   MR MILLER: Thank you, Mr Ross.
   8   THE CHAIRMAN: Thank you, Mr Miller. Mr Ross, that is the
   9     questioning for today. Thank you very much indeed for
  10     coming again to talk to us. We have been helped by your
  11     evidence. As has been said to you in the past, if there
  12     is anything else that comes to light as regards this
  13     very sensitive matter that you would wish to bring to
  14     our attention, we would be grateful to you if you were
  15     able to do so. But for today, thank you very much
  16     indeed.
  17            (The witness withdrew)
  18   MR LANGSTAFF: Sir, the next witness is Mr Barrington. He
  19     is here at present now. I suggest, if you wish, that we
  20     simply carry straight on with his evidence. Miss Grey
  21     will be asking him questions.
  22   MISS GREY: Mr Barrington, as you are aware, we have been
  23     taking evidence on oath or affirmation in the Inquiry.
  24     Could I therefore ask you to stand, please, while that
  25     is done?

   1           MR IAN BARRINGTON (AFFIRMED):
   2             Examined by MISS GREY:
   3   Q. Mr Barrington, you have provided the Inquiry with two
   4     statements to date. The first is at WIT 76/1. This is,
   5     is it not, a statement that you have provided dealing
   6     with your general responsibilities as the General
   7     Manager of the Bristol Royal Hospital for Sick Children,
   8     as of 1991?
   9   A. Yes, that is correct.
  10   Q. Then you provided a second statement, which starts at
  11     page 10 of WIT 76.
  12        This is your comments more specifically on the
  13     issue which we are concerned with today, issue J, or
  14     postmortems and inquests; is that right?
  15   A. It is.
  16   Q. That part of your evidence starts at page 10 and it
  17     ends, we see, at page 20, your signature.
  18        Can I ask you to confirm that the contents of that
  19     statement and also of your previous statement are true
  20     to the best of your knowledge and belief?
  21   A. I confirm that, yes.
  22   Q. In your first statement, of course -- we will go back,
  23     please, briefly, to page 10 -- you set out your
  24     responsibilities within the hospital at Bristol.
  25        You say in particular from October 1988 you held

   1     the position of Assistant General Manager of Children's
   2     Obstetric Services but from 1991 you were appointed
   3     General Manager for Children's Services, which included
   4     responsibility for the Bristol Children's Hospital.
   5        Can you just tell us what other parts of the
   6     UBHT and its hospitals you were concerned with in that
   7     post?
   8   A. Yes. As well the Children's Hospital, I had and
   9     retained responsibility for the special care baby unit
  10     in St Michael's Hospital, and also for community child
  11     health services.
  12   Q. So your knowledge, your involvement in the issue of
  13     postmortems and inquests would stem from your work both
  14     in regard to the Children's Hospital, but also in
  15     relation to the work related to the Special Care Baby
  16     Unit?
  17   A. That is right, yes.
  18   Q. If we go back, then, please, to page 10, you say at
  19     paragraph 1 that you were broadly aware of arrangements
  20     in place whereby hospital staff and pathologists would
  21     report deaths to HM Coroner, including the legal
  22     obligations, but you had no detailed knowledge of this
  23     issue until about 1996; is that correct?
  24   A. Yes, it is.
  25   Q. Can you just outline to us what the extent of your

   1     involvement in this whole issue of the arrangements for
   2     postmortems, the arrangements for obtaining consent and
   3     managing that process would have been until 1996 and the
   4     particular events which arose then?
   5   A. My responsibilities in detail did not include any work
   6     related to consent or to postmortems. Where they may
   7     have been involved would have been in terms of any
   8     review of consent forms, et cetera, that took place, but
   9     I know that such a review did take place and I was not,
  10     at the time, involved; but more so if there were any
  11     complaints arising from any issues surrounding
  12     a postmortem or consent to postmortem, then if
  13     a complaint was made by a parent or member of the family
  14     to the hospital, then I would have been responsible for
  15     investigating that, together with other clinical staff
  16     and responding on behalf of the Trust.
  17   Q. Taking the second issue first, that of responding to
  18     complaints, I think you confirm in your statement that
  19     until 1996 when this issue arose via the programme
  20     "Dispatches", you were not aware or had to deal with
  21     any complaints relating to the process of obtaining
  22     consent for postmortems; is that correct?
  23   A. That is correct.
  24   Q. Going back to the subject of involvement in the review,
  25     if you turn over to page 2 of your statement, to the top

   1     paragraph there, page 11, please, page 2 of the
   2     supplementary statement, if we see there the second
   3     sentence:
   4        "I am now aware that in 1995 (sic) Peter Homa was
   5     involved in the review of the form and content of
   6     consent forms for postmortem examinations."
   7        Is that the review you were referring to a few
   8     minutes ago, or were you referring to a different
   9     review?
  10   A. I am sorry, you said "1995" and it is 1985. I was not
  11     aware of that until very recently, but I was aware that
  12     Professor Berry undertook a review I believe in 1987,
  13     and I was aware that a further review of the consent
  14     form was undertaken in 1996, but I did not have any
  15     direct involvement in either of those reviews.
  16   Q. In fact you have identified three reviews: 1985,
  17     referred to at paragraph 2 here; 1987; and I think it
  18     was 1996 that you mentioned. You had no direct
  19     involvement in any of them?
  20   A. I was only at the hospital from the end of 1988, but
  21     Peter Homa would have been in a similar position to the
  22     one I am in now in 1985.
  23   Q. Can you help us with his position?
  24   A. I believe he was the administrator for children's and
  25     obstetric services.

   1   Q. You say there at paragraph 2 that had there been a need
   2     perceived by clinicians for something to be done about
   3     the consent forms then, as General Manager from 1991
   4     onwards, you would have been involved in their
   5     drafting.
   6        The implication of the sentence there is that this
   7     was something for clinicians to take the lead upon. Can
   8     you help us as to why you perceive that to have been the
   9     case?
  10   A. The implication is that if the clinicians had decided
  11     there needed to be a review of the content of the
  12     consent forms, in terms of helping with the process
  13     I would expect to have been involved, or may well have
  14     been involved, as was Peter Homa in 1985.
  15   Q. Why is this an issue which would be driven by clinicians
  16     raising it?
  17   A. It is my opinion that it is a clinical issue.
  18   Q. If there had been complaints about the process of
  19     obtaining consent, you would have been involved as
  20     a General Manager?
  21   A. That is right.
  22   Q. If there had been an allegation, for instance, that
  23     a consent had not been properly obtained, as before
  24     a hospital autopsy, for instance, that would at least in
  25     part have been a legal issue, would it not, which could

   1     potentially expose the Trust to liability? You are
   2     nodding but that does not necessarily go on the
   3     transcript. Was that agreed?
   4   A. I am sorry, I was listening.
   5   Q. Can I ask you: would you agree that if there had been
   6     an allegation that consent had not been properly
   7     obtained for hospital autopsies, that that would be
   8     a legal issue which might potentially expose the Trust
   9     to legal action?
  10   A. Yes, I agree.
  11   Q. That would be something that you would be concerned
  12     about as a General Manager, would it not?
  13   A. That is correct, yes.
  14   Q. Does that not imply that there is some responsibility
  15     for managers in seeking to be sure to ascertain that the
  16     process of obtaining consent is properly handled within
  17     the hospitals which it is their responsibility for
  18     managing?
  19   A. I think it is the responsibility of General Managers to
  20     ensure that the proper policies and decisions are in
  21     place to both support the clinical service and also to
  22     protect the interests of the patients, and if an issue
  23     about this matter had been raised with me, then I would
  24     have dealt with it. As it was, an issue was not raised.
  25   Q. You have just agreed I think that the responsibility of

   1     the General Manager is to ensure there are structures in
   2     place to ensure that happens all the time. Why is it
   3     that you imply that your responsibility only "kicks in"
   4     when there is a complaint and a problem or a potential
   5     problem may be uncovered, rather than this being
   6     something that you have an obligation to be proactive
   7     about and to ascertain for yourself that everything is
   8     being properly handled?
   9   A. I agree that in an ideal situation we would be
  10     constantly reviewing all our policies and procedures and
  11     we do make some effort to do as much as we can, but that
  12     unfortunately is not the reality and often we review
  13     policies and decisions when an issue has been raised
  14     internally or when a complaint or an external issue has
  15     been raised.
  16   Q. In any event, it is your evidence that no complaints
  17     were raised with you until 1996; is that right?
  18   A. That is correct.
  19   Q. And that the result of that was that you were not
  20     yourself involved in any review or did not yourself
  21     consider the question of consent of postmortems or
  22     autopsies until that date?
  23   A. That is right.
  24   Q. If we go down to the bottom of the page to paragraph 4,
  25     we see there a repetition of really the same theme as

   1     you have set out at the top of the page, when you say it
   2     was solely the responsibility of the consultant clinical
   3     staff and their junior staff to obtain consent.
   4        Is it fair to say that reflects the same theme?
   5   A. Which theme?
   6   Q. The theme that it was primarily a matter for clinicians
   7     and that you yourself would not get involved with
   8     overseeing this process unless there was a complaint
   9     that would draw it to your attention?
  10   A. Or if an internal issue was raised or a matter came from
  11     another source that raised that matter, or if it was one
  12     of the policies or procedures we were reviewing at the
  13     time, but in this case it was not.
  14   Q. Does it follow, therefore, that unless any of those
  15     contingencies arose, there was no management scrutiny of
  16     the process whereby consent forms were obtained, was
  17     being handled?
  18   A. From the years that I was General Manager, there was not
  19     an issue raised and we did not look closely at the issue
  20     of consent. We did not look at the issue of consent
  21     from the management point of view.
  22   Q. Can I ask you, please, to look at UBHT 14/249.
  23        This is just the first page, to give you the
  24     focus, of a meeting of the Patient Care Standards
  25     Committee held on 3rd June 1997. A number of attendees

   1     are there. They do not, of course, contain yourself;
   2     you were not present.
   3        If we go down a little and turn over the page (UBHT 14/250), we
   4     see there that there is a presentation on the subject of
   5     death and bereavement and the services provided by the
   6     bereavement group are outlined.
   7        If we go down to the bottom of the page, please,
   8     there is there a discussion of the process of obtaining
   9     consent and the matter has been reviewed.
  10        We see there that the main problem encountered by
  11     pathology was that postmortem consent forms were not
  12     always correctly processed.
  13        Was that something that you had any awareness of
  14     before 1997 when this meeting was held?
  15   A. No.
  16   Q. When did you first become aware of that as a potential
  17     problem?
  18   A. I was not aware that the processing of postmortem
  19     consent forms was a problem, until I have seen this
  20     document.
  21   Q. Which you saw at what stage?
  22   A. This morning.
  23   Q. Looking at that review and its findings, then, do you
  24     not think that it should have been part of your
  25     obligation, looking back on the period from 1991 to

   1     1995, to initiate some sort of regular review or audit
   2     of postmortem practises to ensure that that was not
   3     a problem?
   4   A. I would say that with the benefit of hindsight, yes,
   5     I wish we had done that at the time.
   6   Q. The note on this page, the minute, suggests that there
   7     is a problem here with clinicians not always
   8     understanding correctly the nature of their obligations
   9     to complete postmortem forms.
  10        Do you know or can you help us as to the state of
  11     awareness of the clinicians with whom you dealt at the
  12     Children's Hospital, the Maternity Hospital, the Special
  13     Care Baby Unit, regarding the obligations for obtaining
  14     consent?
  15   A. My understanding is that clinicians had a very clear
  16     knowledge of the fact that when a Coroner's postmortem
  17     is required, then consent was not required, but that for
  18     a hospital postmortem, then a signed parental consent
  19     was required.
  20   Q. When you say you had that understanding, is that your
  21     present understanding? If we push things back to 1991
  22     to 1995, i.e. before recent events, what would have been
  23     your understanding of the situation then?
  24   A. The same.
  25   Q. On what would that have been based at that time?

   1   A. General knowledge that I have about consent to
   2     postmortem examinations.
   3   Q. Had you discussed the issue with any of the clinicians
   4     at the time?
   5   A. Not directly, no.
   6   Q. Not directly? So whatever you knew about what
   7     clinicians were doing was indirect, was it?
   8   A. Yes, that is correct, yes.
   9   Q. Can you help us a little bit further, then, as to the
  10     basis for your confidence or understanding through those
  11     indirect sources of information that matters were being
  12     properly handled?
  13   A. Because it was my clear understanding with hospital
  14     postmortems that if a signed parental consent was not
  15     obtained and a postmortem was undertaken, then that was
  16     illegal.
  17   Q. But you are telling us of the obligation rather than
  18     telling us ways in which you could be satisfied that it
  19     was being properly fulfilled or carried out?
  20   A. Yes. As I have already said, that was not something
  21     that we considered, or that I was involved in between
  22     1991 and 1996. I was trying to explain what my
  23     understanding broadly was of the situation.
  24   Q. Does it follow from the fact that you were not
  25     involved in this issue until 1996, that you would not be

   1     able to help us as to what training of staff, including
   2     perhaps in particular junior medical staff, might have
   3     been undertaken to enable them to know what the legal
   4     obligations in the field were, what the ethical issues
   5     were?
   6   A. I am not aware of any training that was undertaken.
   7   Q. When you say that you are not aware, does that mean you
   8     simply do not know whether any training took place at
   9     all, or does it mean that you think that no training
  10     took place?
  11   A. I am fairly certain that no training was organised
  12     through the hospital, but I am not aware whether any
  13     training of this nature was given during doctors'
  14     training.
  15   Q. In other words, it could still have taken place either
  16     within the formal structure of undergraduate/
  17     post-graduate medical education, or via a consultant to
  18     their junior medical staff; is that right?
  19   A. That is right, yes.
  20   Q. If we turn, then, to UBHT 308/18, this is correspondence
  21     which the Inquiry has already looked at this morning and
  22     which I think you have now had an opportunity to look at
  23     as well.
  24        This letter is a letter to Mr Dhasmana from
  25     Professor Berry, discussing the subject of obtaining

   1     patients' permission for the retention of cardiac tissue
   2     from Coroner's postmortem.
   3        If we could, please, turn on to page 17, this is
   4     the reply from Mr Dhasmana to Professor Berry. We have
   5     looked at it already this morning. There is
   6     a suggestion there, at any rate, that Mr Dhasmana's
   7     reply may indicate that consent has not been fully taken
   8     by his junior staff of late.
   9        The context of that letter, therefore, is some
  10     discussion between the pathologist, Mr Dhasmana, perhaps
  11     others, of the necessity or possibility that consent
  12     might need to be obtained for the retention of cardiac
  13     tissue following a Coroner's autopsy.
  14        Is this a debate that you were aware of in any way
  15     at the time?
  16   A. No.
  17   Q. So you are unable to help us as to what might have been
  18     the outcome or resolution of these discussions?
  19   A. No, I am sorry.
  20   Q. If we turn back to your statement, page 12 of WIT 76,
  21     you say there that to the best of your knowledge and
  22     recollection no complaint about consent to postmortem or
  23     retention of tissue organs was brought to your attention
  24     between 1988 and 1995.
  25        Can I ask you this: what is that recollection and

   1     knowledge based on? Is that based on a search of
   2     documents or is it simply your recollection from your
   3     own memory?
   4   A. It is a combination of my recollection and a review of
   5     the complaints files that we have at the hospital.
   6   Q. If we scroll down, please, you start there to discuss
   7     the more recent events concerning information on organ
   8     retention. At paragraph 7 you tell us it was your
   9     overwhelming aim, you and other staff at the UBHT, to
  10     avoid adding to the inevitable distress of parents by
  11     any of your actions in this matter.
  12        You go on to set out a view of the legality of the
  13     removal of the organs, which is based on an
  14     understanding, you say, "I understand that the relevant
  15     professional bodies were of the view that it was not
  16     necessary to obtain express consent to retain organs or
  17     tissue after postmortem" and that your clinicians acted
  18     in accordance with that advice.
  19        May I ask you, firstly, on what information is
  20     that understanding based?
  21   A. When this issue first arose, to my knowledge in 1996,
  22     there were discussions with Professor Berry, Professor
  23     of Paediatric Pathology, and also with the Trust's Legal
  24     Department. It was from there that I gained that
  25     information, from those discussions.

   1   Q. So your understanding is a post-1996 understanding, is
   2     it, based upon events and discussions at that stage?
   3   A. That is correct.
   4   Q. When you say that "the relevant professional bodies ..."
   5     and then you set out their view, can you help us
   6     a little further as to which professional bodies you are
   7     referring to there?
   8   A. Primarily, the Royal College of Pathologists.
   9   Q. Is that a view that is set out in any documents that you
  10     have seen?
  11   A. I have seen documents relating to obtaining Coroner's
  12     consent, but I do not know who produced that document.
  13     But I have not actually seen any other documents; that
  14     is information I have been provided with by Professor
  15     Berry and by the Trust's Legal Department.
  16   Q. So again -- I do not mean to sound in any way
  17     derogatory, but simply to state an accurate fact -- it
  18     is really, as it were, second-hand assurances you are
  19     relying upon in that part of your statement?
  20   A. I was attempting to give some background to my
  21     understanding at that time.
  22   Q. I think the answer to my question is "Yes"; is that
  23     right?
  24   A. Yes.
  25   Q. When you say again, setting out your understanding

   1     of others' views there, that it was not necessary to
   2     obtain express consent to retain organs or tissue after
   3     postmortem, is that a reference both to Coroner's
   4     inquests and hospital inquests?
   5   A. Yes, although I am aware that when the consent form for
   6     hospital postmortems was reviewed in 1996, that there
   7     was a little section put in specifically relating to
   8     retained organs or tissues, giving parents the
   9     opportunity to indicate that they did not wish their
  10     child's whole organs to be retained.
  11   Q. You may need to speak up just a little bit,
  12     Mr Barrington; I am not sure everyone can always catch
  13     what you are saying.
  14        Just returning for a moment back to the relevant
  15     professional bodies, were you able to ascertain whether
  16     their views had ever formally been sought?
  17   A. I am aware that when this issue arose in 1996, Professor
  18     Berry spoke to a number of his colleagues around the
  19     country and also spoke to the Royal College of
  20     Pathologists.
  21   Q. So that is a matter, then, that we should take up
  22     further with Professor Berry, who will be able to give
  23     us firsthand knowledge of that?
  24   A. Yes.
  25   Q. Thank you. You go on there to say that your main

   1     concern was, and remains, to be honest with the parents
   2     and to ensure that they received the fullest
   3     information.
   4        Again, should I take it that that is really
   5     a commentary on events post-1996, or during and
   6     afterwards?
   7   A. I think I would like to say that we always attempt to
   8     be honest with any parents that have children who are
   9     involved with children's services, but in this context,
  10     yes.
  11   Q. There is, is there not, a contrast between what had to
  12     be done, what was done when this issue surfaced as one
  13     entering the public domain, and what the practice was
  14     prior to that happening?
  15   A. Yes.
  16   Q. If we turn over the page, you set out there the record
  17     of your involvement in this matter and in particular,
  18     your meetings with Mrs Rickard in relation to this
  19     issue.
  20   A. Yes.
  21   Q. And again, if we look at paragraph 9, page 13 of your
  22     statement, you set out there, at the bottom of the
  23     paragraph, your understanding of the requirements of the
  24     Coroner to retain tissues and organs.
  25        I have asked you a series of questions about your

   1     understanding set out on the previous page and you told
   2     us that they came through discussions with the Trust's
   3     legal advisers and Professor Berry.
   4        Would the same be true also of the understanding
   5     as set out in that paragraph?
   6   A. Yes, with the only addition that I saw a document
   7     relating to the Coroner's role and responsibility where
   8     this was clearly stated.
   9   Q. Can you help us a little bit further as to the nature of
  10     that document and its date?
  11   A. I am sorry, but I cannot.
  12   Q. You have obviously had, throughout the course of
  13     investigating this matter, a number of discussions with
  14     Professor Berry on this issue. Can you tell us, has he
  15     ever raised with you any concerns about whether or not,
  16     before 1996, an order from the Coroner was properly
  17     obtained or authorisation from the Coroner was properly
  18     obtained before every postmortem took place?
  19   A. Never at any time have issues been raised regarding
  20     Coroner's authorisation.
  21   Q. Equally well, did he ever raise with you any concerns
  22     or queries as to whether or not parents' consent had
  23     properly and routinely been sought for private or
  24     hospital autopsies?
  25   A. In 1996 when we first discussed this issue, and in some

   1     detail, Professor Berry made me aware that some years
   2     earlier he had had concerns about whether parents were
   3     being informed that organs were being retained and that
   4     he had entered into some correspondence with the
   5     surgeons. I never saw that correspondence, but he
   6     informed me that was the case. His view was that it was
   7     now being handled appropriately.
   8   Q. So looking back on it, may that be a reference to the
   9     correspondence or some of it that we looked at briefly
  10     a few minutes ago?
  11   A. I believe so, but I never saw that correspondence.
  12   Q. You go on, then, to outline the discussion of your
  13     involvement and your discussion with Mrs Rickard. If
  14     I could just take you over the page to events a little
  15     further on, where, after this issue had been raised in
  16     this fashion, you became involved in working closely
  17     with Mr Ross in trying to action the matter further with
  18     the Action Group.
  19        Can you just tell us a little about your
  20     involvement in that matter?
  21   A. The meeting that Mr Ross referred to that took place
  22     with the Heart Action Group in November 1998, I was not
  23     present at, but I was given a copy of the minutes and
  24     the proposed documentation that was going to be sent
  25     out.

   1        I was also involved with meetings with Hugh Ross
   2     and Professor Berry regarding the detailing and analysis
   3     of the information required by Professor Berry to
   4     provide parents with information. I was then present at
   5     a meeting that took place on 4th February with the Heart
   6     Action Group where we discussed how to move this process
   7     further forward and then a further meeting on
   8     8th February, I believe, with the Heart Action Group,
   9     and then following the press release, I led the handling
  10     of it by the Trust in terms of the Helpline and in terms
  11     of the written responses to parents' Inquiries, be they
  12     through telephone calls or through letters received via
  13     the Heart Action Group.
  14   Q. If we look, then, at paragraph 17 of your statement,
  15     page 15, where this matter is first taken up, you talk
  16     there about the letter from Mr Ross of 6th November.
  17     You mentioned then a meeting that you were not present
  18     at.
  19        Is it right that you then, after that meeting,
  20     start to draft letters to go out potentially to parents?
  21   A. No, that is not correct. The letters were drafted,
  22     I believe, by Mr Ross, and the views of the Heart Action
  23     Group were received. I was also asked to comment on the
  24     draft letters. My involvement in the letters came after
  25     the meeting of 4th February.

   1   Q. If we turn over the page, then, page 18, you speak there
   2     about the question of the manner in which the
   3     information about this issue was first made public.
   4        What was your state of knowledge as to the number
   5     of children's hearts that might have been retained prior
   6     to the meeting on 4th February?
   7   A. I was aware, in 1996, from the discussion with Professor
   8     Berry and having watched the television interview, that
   9     it was common practice to retain organs following
  10     postmortem examination. I was aware in the lead-up to
  11     the meeting on 4th February of the broad numbers
  12     following the detailed work that Professor Berry had
  13     done. My knowledge developed as we got further
  14     information from the work that Professor Berry was
  15     doing.
  16   Q. So at what stage were you aware of the full number of
  17     cases that were involved in this matter?
  18   A. I am not sure that if you ask me now that I could add up
  19     the numbers. When we were getting queries from
  20     patients, we were giving individual queries to Professor
  21     Berry and he was responding. He developed a database in
  22     the department from which he could provide information
  23     to enable me to respond parents' queries. But I know
  24     the number was significant.
  25   Q. You mentioned in that paragraph of your statement that

   1     the Action Group told the Trust that they had decided to
   2     "go public", quote/unquote, on 5th February 1999.
   3        I just wonder if that sequence of events is
   4     entirely accurate?
   5        If we could look firstly, please, at UBHT 309/78,
   6     this is a note of a meeting that you were present at on
   7     4th February 1999. It appears, if we could scroll down
   8     the page, please, that at this stage there is still an
   9     agreed process between both the Trust and the Action
  10     Group that would manage things without the necessity for
  11     the media being first contacted; is that right?
  12   A. That was very much the understanding at the end of that
  13     meeting. That was on a Thursday. I received a phone
  14     call from Mr Ross on the Friday to say that the Heart
  15     Action Group had been in contact following that meeting
  16     and indicated that they were going to make a press
  17     release relating to this issue.
  18   Q. There is a note dated "5.2.99 evening", which we heard
  19     this morning is Mr Ross's own handwriting. He does not
  20     appear at that stage to be suggesting that the Action
  21     Group will be going, as it were, "public"?
  22   A. Well, that was my understanding. I would say that it
  23     was a very frenetic period, and I may be out by a couple
  24     of days, but that was my understanding.
  25   Q. There was a further meeting on 8th February, if we look

   1     briefly at UBHT 309/106, please. This appears to be, if
   2     one scrolls down the page a little, an agenda for
   3     a meeting. It may be this does not relate to the same
   4     occasion. Perhaps I should ask you more generally.
   5        Were you present at a meeting on 8th February, on
   6     the Monday after the various events you referred to on
   7     the 5th took place?
   8   A. Yes, I was.
   9   Q. At that meeting, was there a discussion of the Action
  10     Group going, as it were, "public"?
  11   A. My recollection is that I was informed at that meeting
  12     that the press had information and they were "on to",
  13     for want of a better phrase, the Heart Action Group.
  14     They had contacted the Heart Action Group because they
  15     had some information relating to this issue.
  16   Q. Who informed you of that?
  17   A. It was one of the representatives -- am I allowed to use
  18     names here?
  19   Q. Was it a representative of the Action Group?
  20   A. Yes.
  21   Q. Because if we look at the statement -- can you tell us,
  22     whilst we have it on the screen, UBHT 309/106, are you
  23     able to help us as to what that document is?
  24   A. I believe it was a draft agenda for the meeting on
  25     Monday, 9th, or whatever the date was, of February.

   1   Q. So in fact, although the date says at the bottom
   2     "8th January" --
   3   A. That is incorrect.
   4   Q. And it is in fact an agenda?
   5   A. I am sure that is the case.
   6   Q. There does not appear to be any immediate suggestion in
   7     that agenda that the Trust at that stage knew that the
   8     Action Group were contemplating "going public", to use
   9     the phrase in your statement?
  10   A. My understanding is that the actual press conference was
  11     held on the Wednesday of that week --
  12   Q. The 10th?
  13   A. -- and between the Monday, the day this meeting was held
  14     on, and the Wednesday, we knew that the Heart Action
  15     Group was sending out a press release. They agreed to
  16     show it to us before it went out and at the same time
  17     the Trust wrote its own press release to go out
  18     simultaneously.
  19   Q. If we look at the statement provided by Mrs Willis in
  20     the matter, it is to be found at WIT 221/3.
  21        If we look at paragraph 6, she is relating events
  22     after 4th February when she was told of the number of
  23     hearts that had been retained. She talks about the
  24     discussions taking place on 8th February, and says:
  25        "Unfortunately the Trust was not able to assist us

   1     in identifying the families because Professor Berry's
   2     research had not been completed."
   3        She says there that during the meeting the Trust
   4     was informed "that we could no longer await their
   5     further deliberations because we had been informed that
   6     the press had become aware of the story by a Trust
   7     leak."
   8        Can I ask you firstly: do you recognise that as
   9     a description of the Trust's position at the time?
  10   A. Certainly Professor Berry was continuing with the work
  11     he was doing, which was incredibly detailed work, and we
  12     felt that it was of the utmost importance to ensure that
  13     the information we provided to parents was completely
  14     accurate, knowing the amount of distress this was
  15     already going to cause. We did not want to add to that
  16     by giving incorrect information that we later had to
  17     correct.
  18        I think the issue about confirming identification
  19     and going through the data, it was a problem faced by
  20     both the Heart Action Group and the Trust in terms of
  21     patient confidentiality in that the Heart Action Group
  22     felt unable, rightly so, to give the Trust the names of
  23     all their members so we could provide the information
  24     that way, and the Trust felt unable to give names of
  25     parents for whom we had retained organs for their

   1     children without knowing which of those were members of
   2     the Heart Action Group and without having the parental
   3     consent.
   4        So we were both faced with that difficult
   5     situation.
   6   Q. Can you help us further as to the way in which you
   7     attempted to work with the Action Group to resolve those
   8     problems?
   9   A. Yes. It came to a meeting the following Monday, which
  10     I believe was 15th February, where we again were facing
  11     the same issue. We agreed at that meeting that the
  12     Trust would write a letter that would be given to the
  13     Heart Action Group so that they could send it out to
  14     their members; there would be a consent form included in
  15     that letter for them to send back to me, so we would
  16     know the parents that wished to know about their child's
  17     situation. That is indeed what happened.
  18   Q. So that was an attempt, was it, to reconcile both the
  19     Action Group's concerns of its membership being informed
  20     with the Trust's concerns over patient confidentiality
  21     and only contacting those who expressed some interest or
  22     who might wish to know more about their child?
  23   A. That is correct, and I believe that it worked well in
  24     that respect. Clearly, when we had the consent forms
  25     back, we knew that they were members of the Heart Action

   1     Group, but they had given consent for us to provide the
   2     information regarding their child.
   3   Q. Can you tell us: during the meetings, it says in this
   4     statement, "we informed the Trust that we could no
   5     longer await their further deliberations, because we had
   6     been informed that the press had become aware of the
   7     story by a Trust leak".
   8        Do you recollect being told at that meeting that
   9     there had been a Trust leak?
  10   A. I do not believe I was told at that meeting. I believe
  11     I was told that the press had a story they were trying
  12     to pursue, but I do remember being telephoned by the
  13     Chair of the Heart Action Group, it might have been the
  14     next day or some time soon thereafter, informing me that
  15     they had been told it was a Trust leak and I ought to
  16     know that, and was I aware of it.
  17   Q. Did you investigate whether or not there might have
  18     been a Trust leak?
  19   A. I discussed it with Hugh Ross and we did not
  20     investigate it because the people that were directly
  21     involved in it who had the information, I do not believe
  22     would have given that out, and anyway, the information
  23     was in the press by that time, so we were more geared to
  24     dealing with the situation rather than trying to find
  25     out how it got to the press in the first place.

   1   Q. So far as you are aware, is there any truth in the
   2     suggestion that there might have been a Trust leak?
   3   A. I have no knowledge that there was a Trust leak.
   4   Q. In any event, by the time that was raised, you were no
   5     doubt fully engaged with handling the publicity and the
   6     calls that had arisen as a result of it?
   7   A. That is correct.
   8   Q. Turning over the page from Mrs Willis's statement, she
   9     talks in general terms of her dealings with the Trust
  10     and in particular, at paragraph 11 of her statement she
  11     deals a little further with contact with you.
  12        If we could turn, please, to page 6 of the
  13     statement, to the top of the page, she speaks there of
  14     being a go-between between the Trust and the strains of
  15     coping with traumatised parents whilst coping with her
  16     own grief. She says she had "torn herself apart" to do
  17     the best for everybody, and I think it must read, "and
  18     had thought that Ian Barrington and myself had mutual
  19     respect. On reading some of the Trust documentation,
  20     this is quite obviously not so."
  21        We do not know from the statement precisely what
  22     documentation she is referring to, but can you comment
  23     a little on the relationship between yourself and
  24     Mrs Willis?
  25   A. Yes, having seen this statement this morning, my first

   1     feelings were sadness and disappointment, really,
   2     because I have enormous respect for Michaela Willis in
   3     her capacity as chair of the Heart Action Group. The
   4     amount of work undertaken by the Heart Action Group has
   5     been incredible over the last year and probably beyond
   6     that. I am very sorry if it was felt there was no
   7     respect, because I have enormous respect.
   8        I also think the relationship between the Heart
   9     Action Group and the Trust was, and I hope remains,
  10     a very constructive relationship in terms of a number of
  11     issues that Mr Ross referred to this morning. But more
  12     than that, I think that during the issue of informing
  13     parents and getting queries from parents, Mrs Willis
  14     regularly telephoned me with information and queries
  15     from particular distraught parents and we tried to work
  16     together to deal with the information for those parents
  17     as quickly as possible. I believe we worked well
  18     together and I believe that was of help to some of those
  19     families. I very much hope so.
  20   Q. You are stressing now in your responses that you
  21     attempted to deal with these matters as sensibly as
  22     possible. Can I ask you to look at UBHT 309/187?
  23        This is a letter which the recipient has
  24     redacted. If I could ask you to read through it as it
  25     scrolls down the screen, it is a letter from you in

   1     apology to a family who appear to have been contacted in
   2     an inappropriate form. It would appear that a complaint
   3     has been made that your approach on the telephone
   4     appeared insensitive.
   5        There is a note at the bottom which I think must
   6     be in your handwriting?
   7   A. That is my handwriting, yes.
   8   Q. What did you mean by that?
   9   A. It is difficult for me to answer that question without
  10     relaying who was the recipient of the letter. But
  11     I think perhaps what I can say is that we were dealing
  12     with more than 200 families, a number of queries and
  13     a series of letters often for each family, and I believe
  14     we did everything we could to be as sensitive as
  15     possible, to respond as quickly as possible, and our
  16     core aim was not to add to the distress that these
  17     parents were feeling, quite understandably, by any of
  18     our actions, deeds or words. If we did do that at any
  19     stage, clearly in this example the family was upset,
  20     then I am very, very sorry. I regret that deeply.
  21   Q. The tenor of this letter is apologetic, but the note
  22     appears to indicate that you did not feel any need to
  23     apologise and did not truly feel that your manner ought
  24     to have caused any distress?
  25   A. No, I think if you put it into context at the time,

   1     all I have just said is absolutely true, but I think
   2     that we had worked every day, all day, to try and
   3     provide this information, to try and respond as quickly
   4     as possible, to try and be as open as possible, and
   5     I felt on this occasion that the criticism was slightly
   6     unfair.
   7        But the fact that we upset a family obviously was
   8     the paramount issue and I am very sorry for that
   9     happening.
  10   Q. If you felt that the criticism was slightly unfair,
  11     what did you want to write?
  12   A. I cannot remember exactly now what I wanted to say, but
  13     I might have wanted to say something along those lines:
  14     that I felt the criticism was harsh under the
  15     circumstances, with the family probably knowing the
  16     issues we had been dealing with, undoubtedly.
  17   Q. How do you feel in general you succeeded or failed in
  18     handling the enquiries that the parents were making at
  19     this stage?
  20   A. Before we set up the Helpline, I was very clear that we
  21     were going to be dealing with distressed parents,
  22     clearly, because this is a very difficult issue. I do
  23     not think I could have actually known how distressed
  24     people were going to be and how difficult they were to
  25     deal with over the telephone.

   1        All I can say is that myself and my colleagues
   2     did everything within our power to be as sensitive as
   3     possible, to respond as quickly as possible and whilst
   4     we had to give factual information that was very
   5     difficult, we did, where possible, ask the Heart Action
   6     Group to look at copies of the letters that we sent and
   7     to see if they were appropriate.
   8        If we were back in the same situation again, I do
   9     not think we could have done anything more, although,
  10     having said that, in hindsight you can always look at
  11     some small issues and think you might have done them in
  12     a slightly different way, because I think it is
  13     important to review those processes.
  14   MISS GREY: Chairman, I have approximately five more minutes
  15     of questioning. It may be that this is an appropriate
  16     place to break, depending on the stresses that are
  17     placed on other members of the Inquiry team.
  18   THE CHAIRMAN: I think in the circumstances, having received
  19     some indication, we will carry on, Miss Grey.
  20   MISS GREY: Thank you. Mr Barrington, just to go further
  21     through your statement, a little further towards the
  22     end, you have dealt with and helped us again today about
  23     the manner in which questions were dealt with after this
  24     issue entered the public domain.
  25        If we turn, please, to the summary of your

   1     evidence at paragraph 30, page 19 of the statement, you
   2     set out there, again, your belief that in the past the
   3     clinicians had acted within the legal and ethical
   4     principles governing the conduct of postmortems, the
   5     retention of tissues and organs, and the obtaining of
   6     appropriate consents.
   7        Can you tell us, again, what is the basis of that
   8     belief?
   9   A. I will try and answer without going over what I have
  10     already said, but I believe that the clinicians in this
  11     case acted in exactly the same way as clinicians
  12     throughout the NHS, and I believe that that was within
  13     the legal framework.
  14        Whether on scrutiny now that was appropriate in
  15     terms of the issues of consent is a matter that I know
  16     is being looked at very carefully.
  17   Q. When you say they acted in the same way as other
  18     clinicians throughout the NHS, is that based on any
  19     direct knowledge of practice in other hospitals?
  20   A. No, but it is gathered knowledge from the experience
  21     I have gained since 1996.
  22   Q. Is that based on discussions with Professor Berry or
  23     those others within the UBHT, or have you had at any
  24     stage discussions with other clinicians or practitioners
  25     in other Trusts or hospitals?

   1   A. It is based on discussion with Professor Berry, the
   2     legal team within the Trust, Mr Ross, and also from
   3     reading documents, articles and seeing television
   4     coverage of statements by other pathologists around the
   5     country.
   6   Q. Because at all times, I think, your relevant experience
   7     as a manager has been within the UBHT?
   8   A. That is true.
   9   Q. If we can turn over the page, please, you say that you
  10     are aware that the practice is currently under review,
  11     and then you set out the UBHT's current practice, and
  12     you refer there to a copy of an information leaflet to
  13     parents to accompany discussion of postmortem and
  14     tissue/organ retention. There is a copy provided and
  15     annexed thereto.
  16        If we could look at that briefly, it is at
  17     page 56. We can rotate it, please. This is simply the
  18     first page. It looks as if it is a national document
  19     produced in consultation with the confidentiality
  20     enquiry into stillbirths and deaths in infancy; is that
  21     right?
  22   A. Yes, it is.
  23   Q. So not produced by the UBHT itself but used by it. Are
  24     you able to help us at all with the date of the
  25     document?

   1   A. This is quite a recent document. Over the last few
   2     years quite a lot of work has been done on bereavement
   3     support and counselling. There is another document that
   4     is produced within the Trust by the clinical management
   5     of the Intensive Care Unit together with a parent about
   6     dealing with death and some other practical
   7     arrangements. This is other national leaflet we have
   8     adopted, although a fair amount of the work that has
   9     gone into it has been initiated at the hospital.
  10   Q. When you say it has been adopted by the UBHT, can you
  11     help us on the date?
  12   A. Within the last year.
  13   Q. I am being told although it has been chopped off by the
  14     scanner, the document is in fact dated July 1998. That
  15     would match your recollection, would it?
  16   A. Yes.
  17   Q. To follow up the other point we were making, you say
  18     there was another leaflet that has been produced in
  19     discussion with parents and others.
  20        If we turn to UBHT 307/122, is that the booklet to
  21     which you were referring?
  22   A. It is.
  23   Q. I will not trouble you with every page of it, but if one
  24     went through it, I think it is fair to say that you
  25     would not find there any mention of the subject of

   1     tissue retention or the retention of organs, although
   2     there is brief mention of postmortems generally.
   3        Why would that be?
   4   A. This booklet, as I indicated, was produced by our
   5     intensive care team, together with some parents, and it
   6     is to do with the aftermath of a child's death, and
   7     children die at the hospital sometimes who do not then
   8     go to postmortem examination, so it is to cover the
   9     whole issue of dealing with a child's death. That was
  10     the emphasis placed on that document.
  11   Q. So you have talked about this document being used in
  12     conjunction with the one we have just seen. Is it to
  13     the earlier document that one must go if we are to look
  14     at the current statements in information leaflets being
  15     made to parents about this particularly difficult issue?
  16   A. I am sorry, could you repeat that?
  17   Q. Is it to the earlier document we were looking at -- we
  18     will go back to it, page 56 -- that one would need to go
  19     if we were looking for the current information supplied
  20     in leaflets by the UBHT on the subject of organ tissue
  21     retention?
  22   A. Yes.
  23   Q. If we turn, please, to page 59 of the document, the
  24     leaflet there describes what happens to a child during
  25     a postmortem investigation. I hope you can read it?

   1   A. Yes.
   2   Q. Please say if you cannot. There is a general
   3     description of the procedures carried out in the first
   4     paragraph, and then it talks about small samples of
   5     tissue being kept and examined under a microscope. Then
   6     in the next paragraph, it says:
   7        "To get the most information about an organ, it is
   8     sometimes necessary to keep it for further examination.
   9     The organs most likely to be kept are the heart when
  10     there are complicated problems, and the brain. If this
  11     is thought to be important for your baby, your doctor
  12     should discuss the reasons with you. If your doctor
  13     asks you, you do not have to give your consent."
  14        The next paragraph says that "after the postmortem
  15     your baby's body will be carefully restored and you and
  16     your family can hold the baby again".
  17        Just reading those two paragraphs together, could
  18     I suggest that they are potentially at least for some
  19     parents ambiguous in that it appears to leave open the
  20     possibility that the heart and other organs referred to
  21     in the third paragraph may be restored to the body
  22     before it is returned to the family?
  23   A. I can understand your point. I think that this document
  24     was put together with a lot of consultation nationally,
  25     and had been thought about very carefully, but I do

   1     understand what you are saying there.
   2   Q. So how can you be confident that parents now would be
   3     receiving the fullest and proper information about what
   4     might happen to organs that are retained if this leaflet
   5     still leaves the matter ambiguous?
   6   A. I would like to stress that bereavement support and
   7     counselling does not simply mean this leaflet being
   8     handed out and that we have a very active bereavement
   9     group that runs at the Children's Hospital which
  10     includes the clinical staff and the Chaplains and the
  11     councillors who constantly review or practice and look
  12     at how we can improve things. I think that this is one
  13     aid to the information, the support, the counselling,
  14     the follow-up that is given to parents after they have
  15     lost a child.
  16   Q. This document appears to stress "discussion with your
  17     doctor" as being the mechanism by which parents will be
  18     properly informed.
  19        Is that a fair reading of it?
  20   A. I believe that there should always be a discussion with
  21     the doctor, but I think there is a team that supports
  22     families after bereavement these days, which includes
  23     the nursing staff who have looked after the child and
  24     whom the parents often build up a very strong
  25     relationship with, and also the Chaplains and other

   1     members of staff.
   2   Q. Because you say at an earlier stage in your statement
   3     that you reviewed the procedures put in place to cover
   4     bereavement counselling. I am looking at page 14 of
   5     your statement, paragraph 14: you have reviewed the
   6     policies for bereavement support and counselling with
   7     the relevant staff at the BCH and concluded they were
   8     appropriate. Is that a reference to the team that you
   9     have just been talking about?
  10   A. Yes. On reflection, reading that sentence, I think that
  11     the last phrase is somewhat presumptuous. I think
  12     I asked the people with far more knowledge on this issue
  13     than me to review the procedures and policies, and it
  14     was generally felt that they were good and supportive,
  15     and indeed, last August, I believe, we met with the
  16     Heart Action Group and presented on our bereavement
  17     support and counselling arrangements which they also
  18     supported.
  19   Q. If we turn back to page 12 of your statement,
  20     paragraph 5, you talk about providing information to
  21     patients being essentially clinical matters dealt with
  22     by clinical and nursing staff. Just with a mental eye
  23     back to the leaflet we have just been discussing, is it
  24     essentially your evidence that you are confident that
  25     that team can be properly trusted to handle the subject

   1     of information to parents on this particular issue?
   2   A. Yes, I believe so, but I think that they do so not in
   3     isolation. They do so with a large and growing body of
   4     information from national and international sources and
   5     certainly at the Children's Hospital we are fortunate in
   6     having a leader in that field, Professor Fleming. He
   7     feeds back on issues that are being discussed nationally
   8     and internationally on this.
   9   Q. You give that evidence now as a result of the
  10     investigation of this issue from 1996 onwards. Do you
  11     think that in retrospect, looking back at the period
  12     from 1991 to 1995, you could and should have done more
  13     to investigate the issue at the time?
  14   A. I believe that approach to information to parents and
  15     issues around bereavement support and counselling has
  16     been changing in the NHS over the last ten years and
  17     I think they were changing in the Children's Hospital as
  18     they were elsewhere.
  19        In fact what I did in 1996 was review that process
  20     as it was then, having evolved over the years, and
  21     I think that the view at that time was that although we
  22     needed to continually review that process, we were doing
  23     what was felt to be appropriate. Clearly, we involved
  24     parents' views in that as well.
  25   Q. You have described it as being an evolving situation,

   1     but is it not right that prior to 1996, you, as
   2     a manager, and indeed perhaps other managers, were not
   3     yourself involved in any process that could have picked
   4     up the evolution and discussed it with clinicians
   5     without waiting for a complaint or for the issue to be
   6     raised by a clinician before any review of the subject
   7     took place?
   8   A. I do not think that you necessarily have to have
   9     a complaint or an issue, that people who were involved
  10     in this area, the nurses and the doctors who deal with
  11     bereaved families, are always looking to improve the way
  12     in which they can support families. It is part of that
  13     process. It is my role, I believe, to support that
  14     process and become involved if I am asked, and I have
  15     been asked to be involved.
  16   Q. Mr Barrington, I have been asking the questions so far.
  17     Is there anything that you would like to add arising out
  18     of your statement or the evidence on this issue which we
  19     have not covered this afternoon?
  20   A. No, there is nothing I would like to add, about I would
  21     really like to restate and perhaps emphasise the fact
  22     that I believe that the Trust did all it could to deal
  23     with this most distressing of issues and I hope that we
  24     did everything that we could, and I hope that in no way
  25     we added to the distress of parents in the way that we

   1     dealt with it.
   2   MISS GREY: I do not know if the Panel have any questions?
   3   THE CHAIRMAN: There are no questions from the Panel.
   4     Mr Miller?
   5            RE-EXAMINED BY MR MILLER:
   6   Q. There are just two very small points and they arise out
   7     of documents we have had a look at already.
   8        Can we have UBHT 309/106? This is a draft agenda,
   9     I think, for the proposed meeting of 8th February,
  10     although you say that the date is wrong; it is dated
  11     8th January.
  12        Could you scroll down, please. Is that your
  13     handwriting, or is that somebody else's handwriting?
  14   A. That is mine.
  15   Q. So you had put together this agenda?
  16   A. I did, and I faxed it to Hugh Ross because my
  17     recollection is that the meeting was between myself,
  18     representatives of the Heart Action Group and Professor
  19     Berry on that morning and that Hugh actually joined the
  20     meeting at my request in the afternoon. So I was
  21     informing him about what we were going to be discussing
  22     in the morning and asking if it had any input.
  23   Q. So the list of five topics are the matters you hoped to
  24     discuss during the meeting?
  25   A. Yes.

   1   Q. If you look at UBHT 309/187, this was put to you by
   2     Miss Grey, a letter: is it in fact a letter to
   3     Mrs Willis?
   4   A. Yes.
   5   Q. You know you ought not to identify the person about
   6     which the letter is written and the problems, but can
   7     you say what the particular problem was, what you had
   8     done which had caused offence? Again, please try to
   9     avoid any reference to identities.
  10   A. We were faced with the difficulty that when we received
  11     queries from parents, either by telephone or by letter,
  12     and we took down details, we were told either "Mr" or
  13     "Mrs", or "Mr and Mrs," and we responded exactly to the
  14     information that we were given. So if someone phoned up
  15     in their own right and said they were a "Mr", we wrote
  16     to that "Mr" because we did not know the family
  17     circumstances, whether they were divorced or what the
  18     situation was. We were not able to check that out, so
  19     we responded directly to "Mr" or "Mrs" in those
  20     circumstances.
  21        I understand that on occasions clearly the family
  22     was still together and it was "Mr and Mrs" and that we
  23     may have upset the partner by not including them in the
  24     information we were sending, but we did not know the
  25     situation.

   1   Q. It is being suggested I think that you were disingenuous
   2     in your letter, but did you have any way of knowing if
   3     parents were still together at the time you were
   4     writing, unless they wrote as "Mr and Mrs"?
   5   A. Some, but we tried to respond purely to the information
   6     that we actually had.
   7   MR MILLER: Thank you, Mr Barrington.
   8   THE CHAIRMAN: Thank you, Mr Miller. Mr Barrington, thank
   9     you for coming to talk to us this afternoon. We have
  10     been assisted by what you have to say. If you want to
  11     stand down now, please do so, and then Mr Langstaff is
  12     going to talk to us a little bit more.
  13   MR BARRINGTON: Thank you.
  14             (The witness withdrew)
  15            MR LANGSTAFF RE TIMETABLE
  16   MR LANGSTAFF: Sir, tomorrow we begin the last two days of
  17     this week, because on this week we do not sit on
  18     Thursday. For the next day and a half, because we
  19     finish at 1 o'clock on the Wednesday, we will be dealing
  20     with the question of statistics and our approach, as has
  21     been set out in documents already published on the
  22     Internet, is to deal with the statistics available,
  23     which may help this Inquiry, in a number of stages.
  24        The first of those stages is to conduct
  25     a critical, albeit preliminary, overview of the

   1     available data sources to see in particular what their
   2     strengths are, what their weaknesses are as data sources
   3     and whether, and if so to what extent, they are likely
   4     to provide assistance in further helping this Inquiry.
   5     That is from two particular perspectives: first of all
   6     helping this Inquiry to understand what happened, so far
   7     as figures can give us a picture, at Bristol, and
   8     secondly, to help us to understand, again so far as the
   9     data sources can tell us, how what happened at Bristol
  10     compares with what happened at other places in the
  11     United Kingdom.
  12        The programme tomorrow is to address two of those
  13     principal data sources: the first is the data source
  14     kept by the Department of Health itself. At the time
  15     this Inquiry's terms of reference began, the data source
  16     was known as "HIPE", Hospital Inpatient Enquiry, which
  17     our preliminary view suggests is unlikely to be of any
  18     great assistance to the Inquiry, in part because it only
  19     lasted for about a year during our term of reference.
  20        The second, which may very well prove of
  21     assistance, which needs to be examined with care, is
  22     "HES", standing for Hospital Episode Statistics, which
  23     we anticipate examining from 1988 when it began up until
  24     1995, but with the caveat that the period from 1988
  25     until 1991 or 1992 is unlikely to be of very much

   1     assistance because in those days there are a number of
   2     criticisms, which will be explored tomorrow, of the
   3     accuracy of the data source.
   4        The second data source will be the Register of
   5     Cardiothoracic Surgery which is held by the Society of
   6     Cardiothoracic Surgeons. Richard Willmer, the chief
   7     statistician of the Department of Health, will speak to
   8     the statistics. Mr Keogh of the Society for
   9     Cardiothoracic Surgeons will speak as to the
  10     cardiothoracic register, and there will be present in
  11     the hearing chamber two independent experts, Dr David
  12     Spiegelhalter, whose principal area of interest and
  13     expertise is the cardiothoracic register, and Dr Paul
  14     Aylin, whose principal area of concern and expertise is
  15     the HES data.
  16        We hope that the presentation tomorrow will be
  17     less in the form of questions asked of a witness by me
  18     to explore what he has to say, and more in the form of
  19     a symposium to which the witness and the expert will be
  20     the principal contributors, stimulated no doubt by me
  21     and even perhaps by yourself, sir, or members of the
  22     Panel.
  23        That is what is in store for us tomorrow. Much
  24     the same process will continue on Wednesday 14th when,
  25     to anticipate ahead, we will hear from Mr Hooper at

   1     10 o'clock. He is the Health Records Manager in the
   2     Bristol Royal Infirmary and manages a system known as
   3     the Patient Administration System, "PAS", within the
   4     Bristol Trust. The experts will be Anne Harding, the
   5     Acting Director of the NHS Information Authority, and
   6     Dr David Spiegelhalter will also be in attendance.
   7        We anticipate by the time the principal data
   8     sources have been explored and other data sources
   9     referred to, which I hope to do shortly and briefly
  10     tomorrow morning, picking up largely on the work on the
  11     Internet which the Secretariat provided, that
  12     Dr Spiegelhalter will be able to discuss with any
  13     questioner the way in which the Inquiry would wish to
  14     take matters forward, or that he would advise the
  15     Inquiry to take matters forward, the idea being that we
  16     would hope that those who listen will themselves be
  17     prepared, not necessarily on Wednesday but prepared
  18     within the near future to make constructive suggestions
  19     as to how the process which he envisages as appropriate
  20     might possibly even be improved, so that you, the Panel,
  21     are in the best possible position to get the best out of
  22     any available data, albeit that it may in part be
  23     flawed.
  24        Sir, would you just give me one moment? (Pause)
  25        Sir, the process of this afternoon is not entirely

   1     closed, because as you know, at the end of the day,
   2     there is a period of time which is set aside for
   3     applications, should they be necessary.
   4        It may well be that something will need to be said
   5     to you by a representative of one of the parties. May
   6     I ask, in order to clarify what is in issue and any
   7     response that may be necessary by any other party to
   8     that, that you rise now and give our stenographers
   9     a break for, if I dare say, 10 minutes? I anticipate
  10     that the matter will fairly quickly be resolved beyond
  11     that.
  12   THE CHAIRMAN: Mr Langstaff, thank you. That is helpful.
  13        I just wanted to reiterate what you said when we
  14     began this morning, namely, we are by no means finishing
  15     the area of tissue retention today; we have only begun
  16     to hear the evidence, and we will revisit it and in that
  17     process of revisiting, there may be things that have
  18     occurred today which need further clarification which
  19     can of course be filtered through you and put to us in
  20     due course when we do revisit it.
  21        Secondly, to apologise to those who think that the
  22     fact that we are picking up a subject and then moving on
  23     to another subject and coming back looks to a degree
  24     disordered. In part I am responsible for that because
  25     of my own circumstances recently, but also, of course,

   1     many of these things do depend upon availability. But
   2     I give everyone the assurance that the Panel can and
   3     will join up, if I can use that expression, the evidence
   4     that we have heard, even though we have not heard it on
   5     consecutive days and there should not be any concern on
   6     that point.
   7        But now we will adjourn, it being 3.50, we will
   8     come back at 4 and hear how you can help us further.
   9     Thank you.
  10   (3.50 pm)
  11               (A short break)
  12   (4.08 pm)
  13   MR LANGSTAFF: Sir, thank you for giving us some minutes.
  14     Mr Lissack has an application to make.
  15           APPLICATION RE CONFIDENTIALITY:
  16   MR LISSACK: I am sorry to have kept you. This is
  17     the 37th day of the Inquiry sitting, and up until about
  18     20 minutes or so ago, everyone has carefully observed
  19     the rule that that which is blanked out or redacted, as
  20     the word has it, remains confidential.
  21        In re-examination of the last witness, Mr Miller
  22     chose to go behind that principle. I should underline
  23     that in doing so, whilst he has caused, as he knows, as
  24     has been explained privately, considerable upset to
  25     Mrs Willis and her husband, no actual harm has been

   1     done. But my application is this: that I would invite
   2     you, sir, if you think it appropriate, to underline,
   3     lest at a more sensitive time some other party does the
   4     same again, that matters which this Inquiry has gone to
   5     the trouble to redact remain private unless and until
   6     some other agreement is reached to the knowledge of the
   7     Counsel to the Inquiry and if necessary, you, sir.
   8        It is fortunate that Mr and Mrs Willis are able to
   9     take this matter as being not in any way powered or
  10     driven by mala fides or anything of that sort, but for
  11     some other motive, although it is difficult to see,
  12     perhaps, from the reading of the re-examination quite
  13     what, but they are willing to accept that. But they are
  14     very, very anxious, as am I on behalf of those
  15     I represent, that there is no repetition.
  16   THE CHAIRMAN: Mr Lissack, thank you. I will respond in
  17     a moment. Should I hear Mr Miller first?
  18   MR MILLER: Sir, very briefly, we discussed this with
  19     Counsel to the Inquiry and Mr Lissack. It must have
  20     been clear to the Panel why I returned to that document
  21     in fairness to Mr Barrington, who had been criticised
  22     effectively about the genuineness of his response. One
  23     can see from the document precisely what he is saying
  24     and explaining the problems he had in responding to
  25     particular individuals. That was the reason for doing

   1     it. In our view, it did not, in this particular
   2     instance, involve any issue of patient confidentiality,
   3     identified as such, but we are happy to accept that if
   4     there is a need or perceived need to go behind any of
   5     the redaction that has been done by the Inquiry staff,
   6     the safest course, if nothing else, is to discuss that
   7     first with Counsel to the Inquiry and if necessary, any
   8     other interested parties, and that is the line that will
   9     be taken in the future.
  10   THE CHAIRMAN: Mr Langstaff, just to help me?
  11   MR LANGSTAFF: Sir, I think what you need to perhaps say in
  12     response to Mr Lissack's application is to emphasise the
  13     last point which has been made, which is that this
  14     having happened, we need to ensure that it does not
  15     happen again in a case where it could do some damage,
  16     that a redaction is unwittingly opened. I think the
  17     message needs to be made clear and emphasised to other
  18     counsel not here today, because it is plainly apparent
  19     to those who are here today, that if a document is on
  20     the face of it redacted, the redaction has to be assumed
  21     to be there for some good reason, and enquiries and
  22     discussions ought to take place before anything is said
  23     which effectively takes away that which is redacted.
  24        That seems to be the only practical principle
  25     which the Inquiry could work. I feel confident that if

   1     any such issue arises and I ask you for a moment or two
   2     as a break before re-examination takes place, without
   3     necessarily mentioning what the matter is, that you will
   4     trust me or Counsel to the Inquiry at the time and grant
   5     that adjournment so that those discussions can take
   6     place.
   7   THE CHAIRMAN: Mr Langstaff, thank you. We have absolutely
   8     no difficulty in acceding to Mr Lissack's application.
   9     He is right and he must be right, that any redaction of
  10     documents which appears on our screens has been made for
  11     a purpose. That purpose is so as not to disclose that
  12     which is redacted.
  13        If any desire is expressed to disclose it, then
  14     clearly some indication ought to be made to all those
  15     who are involved, not least yourself or any other
  16     relevant Counsel to the Inquiry, but also other legal
  17     representatives if they may be interested.
  18        So I have no difficulty in acceding to that
  19     application. Indeed, I am grateful for its having been
  20     made, if only because it allows us to catch the
  21     circumstance before it may happen in even less
  22     appropriate circumstances.
  23        I hear what Mr Miller said. I must say, at the
  24     moment I was a little unsure why we needed to do that.
  25     Let us say that we will now move on.

   1        What is important for me to say, and I speak on
   2     behalf of all the Panel, is that we have been so
   3     singularly impressed by the capacity of all legal
   4     representatives involved to work together to assist the
   5     Inquiry through you, that it would be unfortunate that
   6     this one single incident should in any way affect our
   7     capacity to continue to do so. I would hope it would
   8     not, and I look to all of you to help us in that way.
   9        But thank you very much, Mr Lissack, for making
  10     that point.
  11        I think now we may adjourn for the day. We
  12     reconvene tomorrow morning at 9.30. You have set out
  13     for us the programme for tomorrow; we do not need to say
  14     it again. So we reconvene tomorrow morning at 9.30.
  15     Thank you all.
  16   (4.16 pm)
  17     (Adjourned until 9.30 on Tuesday, 13th July 1999)
  18
  19
  20
  21
  22
  23
  24
  25

   1
   2                I N D E X
   3
   4
   5     MR HUGH ROSS (affirmed):
   6        Examined by MR LANGSTAFF ..................... 2
   7        Re-examined by MR MILLER ..................... 90
   8
   9     MR IAN BARRINGTON (affirmed):
  10        Examined by MISS GREY ........................ 96
  11        Re-examined by MR MILLER ..................... 137
  12
  13     MR LANGSTAFF re TIMETABLE .......................... 139
  14
  15     APPLICATION re CONFIDENTIALITY ..................... 144
  16
  17
  18
  19
  20
  21
  22
  23
  24
  25

Return to top of page

Published by the Bristol Royal Infirmary Inquiry, July 2001
© Crown Copyright 2001