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Hearing summary21st October 1999 The Inquiry oral hearings focus this week on the concerns raised about paediatric cardiac surgery at the Bristol Royal Infirmary (BRI) between 1984 and 1995 and actions taken during the period to resolve those concerns. The Inquiry will also hear evidence which will illustrate the national scene and address the subject of post mortems and tissue retention. Today the Inquiry heard evidence from two Senior Medical Officers from the Department of Health (DOH), Dr Peter Doyle and Dr Jane Ashwell. Dr Doyle explained that one of his current responsibilities at DOH is to act as the Medical Secretary to the National Specialist Commissioning Advisory Group (NSCAG), formerly Supra Regional Services Advisory Group (SRSAG), which commissions specialist services nationally. He commented on whether DOH had the authority to restrict hospitals from providing specific services and the opportunities presented by the introduction of contracting and commissioning to define NHS services. He said the SRSAG contracts stated that services should meet local health authority quality standards. Dr Doyle told the Inquiry about an anaesthetic audit meeting he attended in Bristol in 1994 hosted by Professor Gianni Angelini and presented by Dr Steven Bolsin. He explained that following the meeting Dr Bolsin raised concerns with him about audit figures he had relating to mortality following complex paediatric cardiac surgery at the Bristol Royal Infirmary (BRI). He said Dr Bolsin asked for advice about what to do with this data. Dr Doyle indicated that he should follow well known procedures and bring his concerns to the attention of senior staff within the United Bristol Healthcare NHS Trust (UBHT). Dr Doyle explained that he raised Dr Bolsins concerns in a letter to Professor Angelini, who, he said responded by reassuring him that steps were being taken to resolve the issue. He also said that he received confirmation from Dr John Roylance, Chef Executive, UBHT, that the matter was in hand. He said that he was under the impression that complex paediatric cardiac surgery would be suspended at the BRI until the appointment of the new surgeon. Dr Doyle concluded his evidence by commenting on action that he took before and after the last switch operation, which took place in January 1995. Dr Jane Ashwell told the Inquiry about her role as a Senior Medical Officer at DOH in the late 1980s and 1990s. She commented on an audit meeting she attended in 1992 at which she met Dr Bolsin, who expressed his concerns to her about his audit figures for complex paediatric cardiac surgery at the BRI. She explained that she passed on these concerns to Professor Farndon, Clinical Director for Surgery at the BRI and commented that she subsequently heard no further comments about Bristol until a letter from Dr Bolsin in 1994 thanking her for her assistance.
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FULL TRANSCRIPT
1 Day 67, 21st October 1999 2 (9.30 am) 3 THE CHAIRMAN: Good morning, everyone. Good morning, 4 Mr Langstaff. 5 MR LANGSTAFF: Good morning, sir. Sir, this morning we have 6 first of all Dr Doyle, and then Dr Ashwell of the 7 Department of Health. 8 Dr Doyle, would you please stand to affirm? 9 DR PETER DOYLE (AFFIRMED): 10 Examined by MR LANGSTAFF: 11 Q. Dr Doyle, you are Peter Doyle? 12 A. That is correct. 13 Q. A Senior Medical Officer in Health Services 14 Directorate 2 of the NHS Executive? 15 A. Correct. 16 Q. And as such, you have a responsibility as the Medical 17 Secretary of what is known now as NSCAG: the National 18 Specialist Commissioning Advisory Group, is it? 19 A. That is correct. 20 Q. Which was the successor to the Supra Regional Services 21 Advisory Group? 22 A. That is correct. 23 Q. May we have on the screen, please, WIT 337/1? Is that 24 the first page of a statement which you have made for 25 the purposes of this Inquiry? 0001 1 A. It is. 2 Q. Can we go over, please, to page 3? Although your 3 signature does not appear in writing, that is 4 effectively your signature, is it? 5 A. It is, and there should be a hard copy, a signed copy, 6 somewhere in the system. I have sent one. 7 Q. And you adopt that statement as your evidence? 8 A. I do. 9 Q. Tell me, as a Senior Medical Officer in the Department 10 of Health, did you, in 1994 or 1995, have any authority 11 to stop a hospital doctor carrying out a procedure in 12 any part of the country? 13 A. I had no authority to stop any independent contractor 14 doing anything under the NHS, directly. 15 Q. I am going to ask you to speak up a little if I may. 16 It may be that we will have to adjust your microphone, 17 but let us see how we go for a moment or two. 18 Did anyone else, as you see it, in the Department 19 of Health, leave aside for the moment the Secretary of 20 State, have such a power? 21 A. Not that I am aware of. 22 Q. Was it your view at the time that the Secretary of 23 State, herself or himself, had such a power? 24 A. Not directly. 25 Q. If there was no direct power, what was, as you saw it, 0002 1 the indirect power? 2 A. Increasingly, through the then contracting, now 3 commissioning process, the services that individual 4 provider Trusts were contracted to deliver was 5 increasingly precise, and has been gradually better 6 defined over the last few years. 7 Clearly, if a provider Trust is not contracted to 8 provide a particular service for the NHS, and does so, 9 then the Secretary of State has the power to ask that 10 Trust, and can if necessary direct that Trust not to 11 provide that service. 12 As you know, in this country clinicians are 13 supposed to have so-called "clinical freedom". The 14 decision to intervene in an individual clinical decision 15 on an individual patient basis, that power I do not 16 believe lies to me or any other person, including the 17 Secretary of State. 18 The indirect form of control is what services 19 a unit, a Trust, are expected to provide. 20 THE CHAIRMAN: May I seek, Dr Doyle, clarification of your 21 original response to Mr Langstaff, when you said: 22 "I had no authority to stop any independent 23 contractor doing anything under the NHS." 24 Quite what did you mean by "independent 25 contractor" there? 0003 1 A. I have to be careful about the general language. 2 Strictly speaking the independent contractors are GPs, 3 but consultants are seen to be an independent practice, 4 which is slightly different. Consultants are normally 5 I think perceived as having the freedom to treat 6 patients referred to them as they think best, and it is 7 not for other clinicians necessarily to question those 8 clinical judgments. Certainly, it would not be for me 9 to question the clinical judgment of another senior 10 clinician. 11 MR LANGSTAFF: So we have, do we, the curious position, as 12 it may seem to some, that if a treatment or procedure is 13 carried out by a doctor which results in damage or harm 14 to the patient, litigation may follow. The professional 15 competence or conduct procedures may follow, but there 16 is no power in advance to stop the anticipated 17 procedure, no matter what the general clinical view is 18 of it? 19 A. This is a much broader question, an area where I do not 20 have particular expertise. I think in general, if an 21 individual consultant or an individual GP in this 22 country wishes to treat a patient in a particular way, 23 take a particular clinical decision, it is very 24 difficult, on a case by case basis, to find any means of 25 preventing them carrying out that clinical decision. 0004 1 Then, if things go wrong, clearly it then raises 2 questions of going through the various procedures you 3 have outlined. Clearly there are instances, 4 particularly in the case of junior doctors in training, 5 where more senior members of staff can heavily influence 6 their decisions, but even in the sort of directorial 7 system you have in the States or Australia, the director 8 of a unit cannot necessarily automatically stop an 9 individual consultant going ahead with an operation if 10 that is their decision. 11 Q. In any event, your own view, in 1994/95, which is the 12 period of time that I shall be asking about in 13 particular, was, as I understand it, that nothing could 14 be done in advance directly to prevent any proposed 15 procedure taking place. The most that could be done was 16 by way of influence. 17 Does that sum it up? 18 A. Yes. I mean, there is no doubt that colleagues could 19 try to influence the decision of a consultant, 20 particularly the colleagues that that consultant had to 21 work most directly with who might even be involved in 22 the procedure. But as to influence from without the 23 hospital, without the Department, that would be 24 extremely difficult. 25 Q. And the indirect route that you talk about is 0005 1 a question, is it, of the purchaser or the Secretary of 2 State exercising such powers as there may be arising out 3 of the purchaser/provider split? You are nodding to 4 that. The reason I have to say that is because 5 otherwise it does not go down on the transcript. 6 A. Yes. 7 Q. Which is an indirect pressure that is likely, is it, to 8 take effect some time after any event which may be 9 harmful to a patient? 10 A. The question of what services a particular provider does 11 or does not deliver at any time can come before or 12 after. In other words, the more directive the 13 commissioning process in terms of who provides services 14 so that you prevent proliferation, it could conceivably, 15 in certain circumstances, prevent those not as 16 experienced from setting up a new service. 17 It may, in certain instances, stop providers from 18 providing a service. Clearly the commissioning process 19 is not an instrument for the control of clinicians and 20 clinical work; it is for ensuring that only those 21 increasingly -- it is really only in the last few years 22 that the commissioning process has become as clearly 23 cut, as directional as it is now doing, by trying to 24 ensure that only those Trusts with the facilities, and 25 staff with the appropriate experience provide specific 0006 1 services. Clearly that is an element in trying to 2 ensure the quality of those services. That is 3 a relative new development. 4 Q. For services which are supra-regional services, or were 5 supra-regional services, and now come under the umbrella 6 of the National Specialist Commissioning Advisory Group, 7 the Department of Health is, is it, effectively the 8 purchaser? 9 A. The commissioner, yes -- now commissioner. 10 Q. Yes, was purchaser, is now commissioner. 11 A. Yes. 12 Q. Does that then give it a power in such cases that would 13 be absent in the case of a procedure carried out in 14 a district hospital where there was a purchaser, in the 15 old days the district, or a commissioner in the 16 district? 17 A. There is a difficulty here because there are two 18 parallel processes going on, which historically are 19 interlinked, which means that the position in the last 20 few years is very different from the position as was, 21 say, ten years ago. 22 Clearly the responsibilities of -- whoever was, 23 some years ago, contracting for a service -- when 24 supra-regional services started there were Regional 25 Health Authority purchased services or directed 0007 1 services, the local health authority, and gradually the 2 system has changed and the responsibility for first 3 contracting after 1991 and then more latterly 4 commissioning services still falls to a number of 5 bodies. 6 In theory, the responsibility of each of those 7 bodies responsible for determining what services are 8 provided at what level are the same. 9 I think it is fair to say that certainly in the 10 1980s, the concern was purely in terms of determining 11 what services -- following the determination Griffiths 12 had to start to manage the NHS much more towards the 13 direction of those services that the people needed 14 rather than just allowing the thing to develop. The 15 focus has gradually changed over the last 15 years or so 16 in trying to be more and more specific about what 17 services individual groups of patients, individual 18 authorities, care groups need, and how those are best 19 delivered. This has been a very gradual process of 20 changing the focus. 21 In the early days of commissioning and managing 22 services, it was purely cost and volume: how much we 23 were getting, how many procedures were done. The 24 quality questions were entirely matters for the 25 profession and professional self-regulation. 0008 1 The need to manage the service and to be able to 2 manage better the health care workers in Trusts and 3 others to deliver the sort of services for which you 4 were being contracted was, if you like, the focus of the 5 management change, so increasingly, tools have been 6 developed to enable health authorities and providers, 7 including Trusts once they were developed, to employ and 8 manage the staff to deliver specific services, and that 9 process has gradually been refined, and was being 10 refined during the whole of this period. 11 So, certainly -- I cannot speak for the early days 12 of the SRSAG, I was not involved, but even when I took 13 over the secretaryship of SRSAG, it was still then 14 a matter that we were primarily financially responsible 15 for the funding, and to ensure that the activity was 16 delivered. 17 The questions about which units should be 18 designated, which were so-called centres of expertise 19 and whether there were any problems were matters that 20 the group sought advice from the appropriate 21 professional body, the Royal College or professional 22 association. 23 That position has not really changed today. Now, 24 as Secretary of NSCAG, if we have questions raised about 25 the capacity of a unit to deliver a part of the service, 0009 1 the group as a whole will still seek the advice of the 2 appropriate professional body or college, to go and 3 whatever, inspect the unit if necessary, look at the 4 results and report back to the group to say, "We think 5 this unit has the right facilities and expertise to 6 deliver this particular service". 7 Q. Can I try to unpick that? The question I began with, 8 that you began answering, was whether or not in the case 9 of a supra-regional service, the Supra-regional Service 10 Advisory Group, or NSCAG stood in the shoes of the 11 purchaser or commissioner, so it had the same powers in 12 theory, the same influence as the purchaser or 13 commissioner in other cases would have. Is your answer 14 to that, in theory that is so? 15 A. Not exactly. There are some differences. Specific, for 16 example, in the SRSAG contracts was a requirement that 17 the units providing the service met the quality 18 requirement of the local health authority. So a certain 19 amount of the requirement to meet quality standards, 20 those standards were not set by the SRSAG or, after 21 1996, by NSCAG. The units themselves were required to 22 meet the local quality standards, so there were some 23 differences between the contracting process -- minor, 24 but some differences -- on the part of the SRSAG and the 25 contracts required by local authorities. 0010 1 Q. So far as the monitoring of the quality of outcome is 2 concerned, during the period in which you were 3 responsible for SRSAG and after that NSCAG, is it the 4 case that that was a responsibility of the district 5 rather than SRSAG or NSCAG? 6 A. I think initially it was the responsibility of the 7 clinicians. Following the requirement in 1991 for all 8 clinicians to participate in audit, which was 9 essentially local activity, and the sort of activity 10 that SRSAG and latterly NSCAG would have expected as 11 part of the quality control procedures to be done at 12 local level. 13 However, about the time that I became the Medical 14 Secretary of SRSAG, the group started to recognise -- 15 and this would be 1994 -- that some at least of the 16 audit tools required under that circular could in effect 17 only be provided with help from the SRSAG. So 18 increasingly, since 1994, the SRSAG and latterly NSCAG 19 has tried to ensure that those designated units have 20 appropriate medical audit tools in place to enable them 21 to assess their own performance and to report back, for 22 instance to participate in inter-unit audit, where all 23 the designated units get together and compare results. 24 That has been, again, part of the process, that 25 gradually evolving sophistication of medical audit since 0011 1 the early 1990s, and increasingly, SRSAG looked to try 2 to fulfil its role in providing those audit tools and 3 started to include a requirement to participate in an 4 agreed audit programme in its contracts. 5 But that requirement was certainly not to my 6 knowledge, and I cannot speak for that time, but I am 7 not aware that it was in that sense formally part of the 8 contracts from the beginning. Do not forget, 9 contracting only came in formally in 1991. In 1992 most 10 health authorities and the SRSAG was still struggling to 11 find an acceptable form of contract and what elements 12 should be in it, and really -- well, the contract was 13 still evolving and the format of the annual report the 14 units were expected to bring back to the SRSAG was still 15 evolving in 1994/95. This was an evolving process which 16 gradually became more sophisticated. 17 I think there may be one point that is helpful to 18 the Inquiry, if I make it at this point, and it may not 19 have been clear, and that is that when I visited Bristol 20 in 1994, this was nothing to do with my role as 21 Secretary of SRSAG -- 22 Q. I think, with respect, Dr Doyle, you are going off the 23 point here. I will come to that in a moment, and we 24 will explore the circumstances that led to your coming 25 to Bristol, but for the moment, the question I was 0012 1 asking you was if, indeed, the arrangement was exactly 2 the same so far as the supra-regional bodies, if I can 3 call SRSAG and NSCAG that for the moment, were in the 4 position of purchasers or commissioners, save that 5 quality of service was a matter which the district had 6 to resolve with the unit. 7 What I was asking you was whether or not it was 8 the district rather than the central bodies that had the 9 responsibility for monitoring quality -- we will come to 10 what "quality" means in a moment, but broadly, is that 11 the position or not, broadly speaking? 12 A. Quality is a multi-faceted thing. 13 Q. We will come to the definition of quality in a moment. 14 A. You see, I do not think your question is capable of 15 a concise answer. There are elements of quality that 16 fall to different organisations, each of whom is 17 responsible -- 18 Q. Let us divide quality if you like, into "hotel" services 19 on the one hand and outcome on the other. So far as 20 hotel services are concerned, who would have the 21 oversight of that, beyond, obviously, the unit itself? 22 A. It depends on the hotel. I am not an expert in hotels. 23 I would not care to answer. 24 Q. So far as quality of outcome, who would have the 25 responsibility there? 0013 1 A. I have no idea. 2 Q. Did the Supra-regional Services, or NSCAG, review the 3 local unit monitoring of their own quality of outcome? 4 A. Not in a formal unit-by-unit basis. There is also, do 5 not forget, a distinct difference between SRSAG, which 6 is essentially an advisory group relying on external 7 advice, and a very small secretariat, from the average 8 two or three people in the secretariat, and the average 9 Health Authority with 30 or 50 staff responsible for 10 contracting over a wide area and having contracting 11 units that were formally monitoring and negotiating 12 contracts, which is why the requirement in the SRSAG 13 contract was that the major part of the quality control 14 for systems was that they had to comply with the local 15 quality criteria. 16 The SRSAG Secretariat at that stage normally 17 visited each unit, both with clinicians and the 18 administrators responsible for the service, Chief 19 Executive or whoever, Medical Director, each year, in 20 order to determine where the service was going and what 21 sort of developments, if any, were needed the following 22 year. So there was a constructive dialogue and there 23 was certainly at that stage strict monitoring of the 24 performance against contract, that is, in terms of the 25 numbers and some limited question of outcomes in terms 0014 1 of the fact that the right number of patients were being 2 assessed, going through the system, being discharged 3 from the system and followed up. 4 The detailed quality appraisal of any unit was 5 a matter of wherever concerns were raised the College 6 was asked, and still is asked, to answer specific 7 questions about quality raised about the unit, and we 8 would certainly have been concerned if potentially it 9 had been brought to us that any unit or any us Trust was 10 not complying with the local health authority quality 11 criteria. But there were no staff. You are talking 12 about three staff compared with 30 to 50 in the average 13 Health Authority. There was no way we were able to 14 monitor, line by line, detail by detail, every aspect of 15 the performance. The clear performance parameters we 16 monitored and were reported back to the group and they 17 had to report back to us in their annual report. The 18 annual report was scrutinised to make sure they had 19 reported back on whatever patient satisfaction surveys 20 or rather initiatives had been agreed upon in 21 conjunction with the local Trust. 22 Q. You were saying that if an issue in relation to quality 23 of outcome arose, that the group or NSCAG would take 24 advice from the Royal Colleges. It would, of course, 25 expect in any event that the standards reached would 0015 1 meet local requirements. 2 Is that a fair summary, or not? 3 A. Yes. As I said before, there are multiple questions 4 about quality, about the facilities, maintenance, 5 safety, fire safety, all sorts of regulations which 6 Trusts have to meet. All those we left to the local 7 health authority to monitor. If there had been 8 a question about the specific outcome of a service 9 brought to our attention, then we would, and still do, 10 ask the appropriate professional body or College to 11 properly investigate that question and report back to 12 the group. 13 Q. And having sought the advice of the Royal College, the 14 expectation would normally be that the group would 15 follow that advice? 16 A. On the performance of a specific unit, yes. 17 Q. Before I leave this area and focus on your visits to 18 Bristol and discussions that you have had, can I just 19 ask you, so far as controlling the performance or not by 20 a clinician of a particular procedure, is it your 21 perception that the Regional Medical Director or 22 Director of Public Health of a region or district would 23 have any role to play? 24 A. At what stage? 25 Q. In advance. 0016 1 A. No, but when are we talking about? 2 Q. In chronological time? From 1994. 3 A. From 1994, if there were still consultants who retained 4 regional contracts, then possibly in those circumstances 5 the Regional Medical Director, up to the time they 6 became part of the department, may still have had some 7 residual responsibilities for performance or matters 8 pertaining to that consultant, as they had -- this was 9 a hangover from the earlier mechanism. 10 Q. If it was a teaching hospital, one would not, of course, 11 have that position? 12 A. And those Trusts that had taken over the contracts with 13 their consultants would have taken on, with that, the 14 responsibility for performance, discipline, et cetera. 15 Q. So in so far as there was any power to direct 16 a consultant to do or not to do a particular procedure, 17 would that seem to you, on reflection, to rest with the 18 local management, that is, in the case of a hospital, 19 the teaching unit, the local Trust? 20 A. The organisation which held the consultants' contracts, 21 as their employer, clearly had the right to determine 22 what NHS duties and responsibilities fell under that 23 contract. If anybody had the power to prevent 24 a consultant from embarking on what some might consider 25 injudicious practice, then it is only the employer. 0017 1 Q. You went down to Bristol on 19th July 1994, you tell us, 2 and you went there in connection with a meeting, I think 3 relating to audit. In what capacity did you go? 4 A. I had three main areas of responsibility. I had just 5 come into a new post in April which covered not just the 6 SRSAG but also responsibility for the policy in relation 7 to cardiac services, liver and renal services, and also 8 organ transplantation, so the capacity in which I went 9 down to Bristol was in my wishing to pick up, as fast as 10 possible, all the key developments in relation to 11 cardiac surgery and cardiology, which may or may not be 12 important for the Department of Health to start 13 developing new policies for, or to amend the existing 14 policy, because the medical world is continually 15 changing. 16 Q. So you attended the meeting as part of your official 17 duties? 18 A. Absolutely. 19 Q. At the time that you went, you were already the 20 Secretary of the Supra Regional Services Advisory Group, 21 but we know from the evidence that we have heard that at 22 the stage that you took over as Secretary, Bristol no 23 longer was designated in respect of neonatal and infant 24 cardiac services? 25 A. That is correct. 0018 1 Q. Because the services as a whole had been de-designated? 2 A. That is correct. 3 Q. So you had no particular responsibility for infant and 4 neonatal cardiac services? 5 A. No specific responsibility for those units. Some 6 general policy interest. 7 Q. You took over from Dr Halliday? 8 A. I took over some of Dr Halliday's responsibilities. 9 I think I actually inherited cardiac services from 10 Dr Ashwell. Dr Halliday had retired about three months 11 earlier. 12 Q. When you read yourself into your new post, did you look 13 through their files to get a feel? 14 A. Only the most recent "hot" topics that were still 15 awaiting some attention. I cannot say I read back, 16 except in relation to those topics, in detail the 17 previous files, no. 18 Q. What, if anything, did you know about neonatal and 19 infant cardiac services at Bristol before you went on 20 your visit on 19th July? 21 A. Nothing at all. 22 Q. Did you know that there had been a supra-regional unit 23 at Bristol? 24 A. I was aware that the neonatal and infant cardiac surgery 25 had been de-designated recently and that all the units 0019 1 around the country -- and Bristol was one of those 2 units, but other than that as a passing fact, no. 3 Q. The meeting that you went to on the 19th: who hosted it? 4 A. That is an interesting question. I was clearly given 5 the impression at the time that Professor Angelini as 6 the Professor of Cardiac Surgery was hosting the 7 meeting. 8 Q. What was the central topic? 9 A. The developing National Association of Cardiothoracic 10 Anaesthetists audit system. 11 Q. And roughly how long were you in Bristol? 12 A. As far as I can recall, I arrived sort of middle to late 13 morning. I was there for several hours, presented with 14 various aspects of the thing, had lunch: probably about 15 four hours. 16 Q. Part of your job was making and maintaining contact with 17 clinicians, was it? 18 A. Indeed. 19 Q. So you spoke to a number of people? 20 A. I spoke to most of the people at that meeting. 21 Q. Not, I take it, solely about anaesthetic audit? 22 A. Primarily. Indeed, at that particular meeting, almost 23 exclusively about anaesthetic audit and the options and 24 developments and statistical methods that they were 25 exploring. 0020 1 Q. Do you recall talking to Professor Angelini personally? 2 A. I spoke to most of the people there personally at some 3 stage during the meeting, particularly over lunch. 4 Q. Do you recall whether he said anything to you which you 5 now recall as being of importance or relevance? 6 A. I do not recall anything. I recall saying something 7 very general to him because he was the first Professor 8 of Cardiac Surgery that I had met in my new post, that 9 I would probably be wanting to talk to him at some other 10 stage about general issues in cardiac surgery, but it 11 was only about my new role and interest in what 12 developments were going on in cardiac surgery. But I do 13 not recall -- I have thought about it -- him saying 14 anything to me at that time, or me saying anything to 15 him at that time, other than of a very general nature. 16 Q. So there was something along the lines of, "I must have 17 a chat with you about cardiac services"? 18 A. "What is happening in cardiac surgery", that sort of 19 thing. 20 Q. And you meant nationally and generally? 21 A. Where is cardiac surgery going? What is developing? 22 What are the new techniques that the NHS is going to 23 adapt to? Here is a Professor I assumed was at the 24 forefront of or wishing to be at the forefront of 25 development in cardiac surgery. 0021 1 Q. When you finished the meeting, you went back by train? 2 A. Yes. 3 Q. What happened on the way to the station? 4 A. As I was leaving the meeting, Dr Bolsin asked if he 5 could accompany me to the station. I am fairly certain 6 we shared a taxi. I cannot exactly remember. 7 Q. Pausing there, had you met and spoken to Dr Bolsin 8 before? 9 A. Not before that meeting. I had spoken to him during the 10 course of the meeting, but I had had no contact with him 11 before that. 12 Q. So as you see it, what would he have known of you? That 13 you came from the Department of Health? 14 A. Yes. 15 Q. That you had a particular interest in anaesthetic audit? 16 A. No. I had a particular interest in cardiac services and 17 this audit was particularly important in relation to 18 cardiac services. 19 Q. And would he have known, as you think about it, that you 20 were the Medical Secretary of the Supra Regional 21 Services Advisory Group? 22 A. I have no idea, but it is unlikely. He might have. 23 I have no way of knowing. 24 Q. So he asked to accompany you to the station. Did you 25 think that odd? 0022 1 A. No. In my job, that is almost a normal occurrence. 2 Wherever I go to meetings, clinicians take the 3 opportunity to seek my advice on an enormous variety of 4 subjects, and it is not unusual, in the coffee breaks 5 before or after meetings that I go to, that individual 6 clinicians take me to one side to discuss anything. It 7 can be anything from their own career prospects to 8 developments in the field: have I heard about...; did 9 I see this article; anything. 10 Q. You yourself: had you had any prior clinical involvement 11 in cardiac services? 12 A. I had a brief rotation as a Registrar in my surgical 13 training on the cardiothoracic surgical unit in Glasgow, 14 where I trained. 15 Q. How many months? 16 A. Three months. 17 Q. And that was it? 18 A. That was it. 19 Q. So you had nothing particularly to offer in the 20 specialty as a clinician, but you did because of your 21 responsibility given by the Secretary of State? 22 A. At that time, my, if you like, clinical knowledge about 23 the subject was limited, yes. 24 Q. So if a clinician wished to talk to you about cardiac 25 services, they obviously had in mind the position that 0023 1 you occupied in the Department of Health. That is why 2 they were talking to you -- probably? 3 A. That was certainly a strong possibility, but not always 4 the case, because I had wide experience in the NHS 5 before I became a Department officer, in various aspects 6 of not just the clinical services, but I negotiate for 7 the BMM and various other things, so that there were, if 8 you like, areas of my knowledge that were considerably 9 wider than anything that relates to my work in the 10 department. 11 As I say, because I was by then in a position to 12 have a much broader national view on a whole variety of 13 issues than some other doctors, then people would come, 14 for instance, to talk about their own career prospects: 15 did I think that moving to a particular centre was 16 a sensible move? It is very difficult to say questions 17 like that are anything to do with my responsibilities in 18 the Department. It might have been, because if the 19 centre, for instance, was a designated centre... So one 20 always had to make a judgment about why I was being 21 approached and when I was approached, and particularly 22 where people asked me to speak to me in the strictest 23 confidence, which they frequently do, being another 24 doctor, and therefore bound by the rules of medical 25 confidentiality, that I reserve, and have always 0024 1 reserved, the right to say "If this is something serious 2 I may not be able to preserve that confidentiality, 3 because of my job within the Department". 4 Q. In any event, you are in the taxi, then, with 5 Dr Bolsin. Anyone else? 6 A. The driver. 7 Q. What happens? 8 A. I cannot repeat verbatim, but he said he wanted to 9 discuss with me a problem they had been having in 10 Bristol. The substance of the conversation was that he 11 had conducted an audit and was not happy about the 12 results and that he had tried to draw those results to 13 the attention of people in the Trust without a great 14 deal of success. He was concerned. 15 This is not an unusual type of question for people 16 to ask me. There are clearly agreed mechanisms for 17 resolving that type of issue. This was the first time 18 I had met the chap. I had no way of knowing what his 19 background was, other than he had obviously established 20 some sort of national expertise in audit, so it was in 21 my -- 22 Q. Just pausing there, how did you know that? 23 A. Because he was running a national anaesthetic audit 24 project, so he must have developed some recognition and 25 expertise in audit. Therefore on the balance of 0025 1 probability, if he was concerned about audit result, it 2 was more likely that he had some genuine concerns and 3 was not, as sometimes happens, one is approached by 4 disgruntled clinicians who have very different reasons 5 for wanting to talk to me. 6 Q. Can I try and split this into two parts. First of all, 7 what do you remember as a matter of fact being said and 8 secondly, the way in which you evaluated it, which is 9 what you are now going on to? 10 As a matter of fact, you say that he said that he 11 had concerns because he had conducted an audit, and the 12 effect of it was that he had spoken, or tried to get 13 people to listen. Did he say when the audit had been 14 conducted? Did he say what it was -- 15 A. I cannot remember exactly what he said, but something 16 about in the early 1990s or something, but he did not go 17 into great detail. He actually handed me an envelope 18 which he said contained the audit results. He did not 19 go on to be particularly specific about what those 20 results showed or when the audit was conducted. He just 21 said, "I have done an audit." 22 Q. "I have done an audit", but nothing that you can recall 23 about the date? 24 A. Not specific about the date, no. 25 Q. What did he say about the difficulties of having his 0026 1 audit accepted? 2 A. I explained if there were questions about the -- it was 3 a matter for the Trust and there were well recognised 4 mechanisms. He said he had tried to bring the results 5 to the attention of people in the Trust, so far without 6 success, so I went on to explain in greater detail about 7 HC(90)9 and the exact mechanism by which questions of 8 performance and/or interprofessional disputes -- because 9 at this stage all I knew was that there was clearly 10 a dispute here. He was representing one side of the 11 argument -- 12 Q. What you actually said was -- 13 A. "This is how to solve your problem". 14 Q. Which was to do what? 15 A. To follow the guidance set out in HC(90)9. 16 Q. You had in mind Appendix E, did you? 17 A. Yes. 18 Q. So you were suggesting to him, were you, that he should 19 follow the guidance and get a joint consultative 20 committee established? 21 A. Assuming that there was sufficient grounds for that to 22 be -- yes, exactly that, and that that really, getting 23 an outside independent view, was the only way to resolve 24 this type of issue. 25 Q. If you were recommending an outside independent view, 0027 1 does that mean that he said to you words to the effect 2 that the results of the audit were a matter of clinical 3 or professional dispute? 4 A. No, that was my judgment. He was convinced that his 5 audit results were clearly correct. That is only his 6 word for it. 7 Q. He handed you, you say, a brown paper envelope. 8 Sealed? 9 A. Sealed. 10 Q. With your name on it? 11 A. I honestly cannot remember. 12 Q. Did he say why he was giving it to you? 13 A. Yes. 14 Q. Why did he say? 15 A. He said, "Here is a copy of the audit, my audit 16 results". I think he said it contained a couple of 17 letters he had already written. 18 Q. Did he say what he wanted you to do with that material? 19 A. No, not specifically, because I in a sense prevented him 20 from doing so, because I said it would not be 21 appropriate for me to make any judgment about the 22 material. 23 Q. But you took the material, did you? 24 A. I took it, yes. 25 Q. The advice you gave him: was it simply to have in mind 0028 1 the provisions of HC(90)9? 2 A. I went on to say that the alternative was to discuss his 3 concerns with other senior members of the profession, 4 who would have the skills and expertise to judge whether 5 the findings he had were correct or not. That again is 6 a not infrequent resort that clinicians have, to turn to 7 their senior figures and discuss it. 8 Q. Which is it, senior bodies or senior figures? 9 A. Senior figures within the bodies, either a College or 10 the appropriate professional association. 11 Q. So you were advising him to go to a senior figure in an 12 association or in one of the Colleges? 13 A. Indeed. 14 Q. Or to use the procedure set out in HC(90)9? 15 A. Primarily to use HC(90)9 because that is the agreed 16 mechanism that the Department and the profession had 17 agreed and set out a procedure there to be followed, 18 which was the way that these things should have been 19 resolved. 20 Q. How did the conversation in the taxi end? It would take 21 you five or ten minutes to get from the Infirmary down 22 to the station? 23 A. Something like that. I did indicate to him that I would 24 also give some thought -- because -- are we now talking 25 about fact or evaluation? 0029 1 Q. Fact. 2 A. I did indicate to him before I got out of the taxi that 3 I would give some thought as to whether there was 4 anything else I could do to ensure that the proper 5 procedures were followed. 6 Q. Turning from the facts, is there anything else you can 7 recollect now about the nature of the conversation, 8 either what you said to him or what he said to you? 9 A. No. 10 Q. Did you not, then, say to him: "Have you spoken to the 11 Chief Executive or the Medical Director about this?" 12 A. In explaining HC(90)9, I think I indicated that the 13 original requirement set out in that circular is for the 14 District Medical Officer to take action in the first 15 place, but because Trusts had intervened, the 16 responsible doctor would now be the Medical Director of 17 the Trust, and if for any reason that was not 18 appropriate, then you would go to the Chief Executive. 19 That was only in general terms. I knew nothing 20 about Bristol or the Trust setup at all at that time. 21 Q. So do you think you actually said to him that he should 22 raise the matter with the Medical Director of his Trust? 23 A. As far as I can recall, I almost certainly said that, 24 yes. 25 Q. Do you recall, as best you can remember it, that you 0030 1 said he should raise the matter with the Chief Executive 2 of the Trust? 3 A. I cannot recall at this stage exactly what I said to 4 him, but knowing the guidance as I did, I would almost 5 certainly have said to him something like, "Instead of 6 the District Medical Officer, you should raise the 7 matter with the Medical Director, or possibly with the 8 Chief Executive of the Trust", just in those general 9 sort of terms. 10 Q. I am pressing you on this for the accuracy of your 11 recollection. When you say you would have raised it in 12 those terms, do you think you actually did raise it in 13 those terms, or is your memory perhaps vague on that? 14 It is some time ago. 15 A. It is a long time ago, nearly five years. As I recall, 16 I simply walked him through the outlines of what the 17 guidance said. 18 Q. You knew the guidance well because you had had a hand in 19 drafting it, had you? 20 A. Indeed. 21 Q. So what you had in mind, just so there is no later 22 misunderstanding about it, may we have on the screen, 23 please, WIT 37/96, the intermediate procedure from 24 HC(90)9. This is the part you had in mind, is it? 25 A. Indeed. 0031 1 Q. We have been to this on other occasions. I do not need 2 to take you through it, but it was just so that your 3 evidence is completely clear. 4 Your evaluation, then, of what had taken place was 5 what? 6 A. Initially, this was a not unusual occurrence, this type 7 of approach by clinicians with some concern or other. 8 In all these situations, one has no way of knowing 9 whether the individual concerned is entirely honest, 10 correct, and doing it from the best motives, or is 11 someone who has a grudge and is disgruntled or whatever, 12 particularly when you do not know the individuals 13 concerned and have met them for the first time. But it 14 is not unusual in my job for advice to be sought about 15 handling a very wide variety of situations. 16 My first reaction is always to give people advice 17 as to how they cope with the problem, how they should 18 solve it, what the agreed mechanisms are, to inform them 19 how to do it, and that is exactly what I did in this 20 case. 21 I was rather more concerned in this case than 22 I would have been in many others, because of the 23 seriousness of the allegations he was making. If those 24 allegations were correct, then clearly there was 25 a matter of considerable concern here. I say "if" those 0032 1 allegations were correct. 2 Q. Could I stop you there? The allegations then went 3 beyond him saying, "I have had an audit and no-one will 4 listen". Something was said about the substance of it? 5 A. He said he had done an audit of the outcomes of 6 paediatric cardiac surgery and that he felt that the 7 outcomes were poor. That is what he said he had done 8 the audit about, during the conversation. 9 Q. That might mean many things? 10 A. Of course. 11 Q. What did you understand him to be saying? 12 A. That if his figures were correct -- do not forget we are 13 talking about the very early days of audit, when 14 statistical methods were still questionable, to say the 15 least, and even nowadays, expertise in evaluating 16 clinical audit, particularly when numbers are small, it 17 is not easy even now. The statistical methods are not 18 as good as we would wish. At that stage they were 19 certainly rudimentary. This was one of the reasons why 20 I was not prepared to look at the statistics myself, 21 because I am not an adequately trained statistician to 22 determine whether a particular set of outcomes is 23 accurate or not. 24 The question was, here is a man claiming expertise 25 in audit, who says he has done an audit, who says the 0033 1 results, the outcomes, are poor. If that is the case, 2 the implications of what he is saying could be 3 potentially serious. 4 Q. You were going to go on with your evaluation. 5 A. Therefore, I was concerned to see whether there was any 6 way one could, if you like, "nudge" the process of 7 resolving this issue. One thing I was clear about is 8 that he was one side of an interprofessional 9 disagreement or dispute of some sort. Whether right was 10 on his side at that stage, I had no way of judging 11 adequately. 12 There was clearly a mechanism laid out, one which 13 I was fairly familiar with, for resolving these 14 disputes, so the first initial concern on my part was to 15 make sure that the appropriate mechanism was used, was 16 expedited to get on with resolving this dispute. 17 The question was, I have asked myself this many 18 times, whether I could nudge the process forward and 19 ensure that the Trust took action fairly speedily to 20 resolve the dispute and to get to the bottom of the 21 argument as to whether there was or was not a case to 22 answer. 23 Q. The fact that you derived from your conversation that 24 there was an interprofessional dispute may suggest that 25 you had been told or it had been indicated to you that 0034 1 there was one other or one or two others in the clinical 2 area concerned who took a different view? 3 A. That was my judgment, that from previous experience, 4 when somebody comes to you with a story of the sort that 5 Steve Bolsin did, and this is not unusual, this happens 6 to me not infrequently, there is always at the basis -- 7 and from my experience in clinical practice before the 8 Department, these disputes occur and you have to have 9 some sort of independent mechanism for resolving it. 10 Q. Because HC(90)9 really deals with disputes relating to 11 individuals, rather than to systems or units, does it 12 not? 13 A. Well, it is intended, and there was a Working Party 14 report to cover those situations where there was clearly 15 a breakdown in professional relationships and one side 16 were claiming one thing and the other were claiming 17 another. Where that was between two individuals or two 18 departments, you had to have a mechanism to resolve 19 those breakdowns in any hospital. 20 Q. In any event, it is one individual saying something 21 about the other, and perhaps having something to say in 22 return? 23 A. There may be one or two against one or two others, but 24 it is clearly a dispute on clinical matters between two 25 parties within a hospital. 0035 1 Q. So because of your experience, you saw this as 2 indicating such an area of disagreement in this 3 department? 4 A. And one that needed speedy resolution, because of the 5 potential seriousness. 6 Q. When you left on the train, you had in your possession 7 the envelope. Had you looked at it with Dr Bolsin? 8 A. No. 9 Q. Did you look at it in the train? 10 A. No. 11 Q. Did you look at it afterwards? 12 A. No. 13 Q. So the envelope remained sealed? 14 A. Yes. 15 Q. How do you know what it contained? 16 A. Only from what Dr Bolsin told me. 17 Q. So your knowledge that it contained figures and 18 statistics and a couple of letters was what he told you 19 it contained? 20 A. Exactly. 21 Q. So he had given you a letter, obviously designed for you 22 to read, and you never read it? 23 A. That is correct. As I told him I would not. But he 24 would not take it back. I could have -- 25 Q. He would not take it back? 0036 1 A. No. 2 Q. So you offered it back to him? 3 A. Yes. 4 Q. Why did you say you would not take it? 5 A. As I explained to him, I was not in a position, I did 6 not have the skills or expertise to come to a judgment, 7 nor was it appropriate for me to come to a judgment. 8 There were mechanisms, there were appropriate people, as 9 set out in HC(90)9, who had the skills and expertise to 10 examine the material and come to a judgment about the 11 truth or otherwise of his allegations, and that I could 12 not make that judgment. It was not within my area of 13 responsibility. There are other bodies who have clear 14 legal and other responsibilities for taking a view upon 15 those matters. 16 Q. Before we leave the conversation of 19th July, do you 17 recall what his response to you was when you mentioned 18 that he might, should, raise the matter with the Medical 19 Director? 20 A. I do not recall him saying anything specific, or not in 21 more general terms, "I have already tried to raise the 22 matter within the Trust". I do not recall him making 23 any specific remark about the Medical Director. 24 Q. But you did, and he -- 25 A. I explained the nature of the circular: that the person 0037 1 in the case of a Trust who had taken over responsibility 2 from the District Medical Officer would have been the 3 Medical Director of the Trust, the person responsible 4 for implementing HC(90)9. No more than that. That is 5 a factual matter arising from the circular itself. 6 Q. Would he have understood from what you were saying that 7 he had to raise the matter with the Medical Director of 8 the Trust? 9 A. I assume so. 10 Q. And he never said to you anything to identify any 11 individual as the other side of the argument? 12 A. No. 13 Q. So it follows he never said to you, in response to 14 anything you might have said, "Well, I cannot raise it 15 with the Medical Director because the Medical Director 16 is Mr Wisheart and that is where I have my problem"? 17 A. I do not recall anything as specific as that, no. 18 Q. So you go back to London, back to the office. You filed 19 the letter? 20 A. I filed the envelope in my filing cabinet, yes. 21 Q. And what happened to it? 22 A. It sat there. 23 Q. You still have it? 24 A. I think so, yes, in the file. 25 Q. Is it still sealed? 0038 1 A. No. 2 Q. So you have looked at it since? 3 A. Yes. This is jumping forward now. Some months later 4 when the matter became generally known, after the 5 January, then copies of all my correspondence and the 6 papers concerned went on to the file, the official 7 departmental file. 8 Q. And you filed it in the office? 9 A. Yes, with the papers from the meeting, the agenda, and 10 so on. 11 Q. So you regarded it, do I take it, as something which had 12 been handed to you because you had attended the meeting 13 in your official role as a doctor in the employment of 14 the Department of Health? 15 A. I think that is a very grey area. I cannot speak for 16 why Dr Bolsin had chosen to hand it to me or in what 17 capacity he was handing it to me. It was for him -- 18 Q. You cannot speak to him. I am asking you about you and 19 the way you regarded your role in the matter. 20 A. I was concerned that there appeared to be a problem that 21 was not being addressed in the way it should have been 22 addressed. 23 Q. The question I asked was whether you had filed it in the 24 office together with the material you had got from the 25 meeting which you had attended as part of your duties 0039 1 because you took the view that this had been handed to 2 you as occupying a role as a doctor in the employment of 3 the Department of Health? 4 A. I do not think I was conscious of any such decision at 5 the time. I just put the papers from Bristol into the 6 filing cabinet, all of them. 7 Q. It is just a question of, "I have this, I am not going 8 to look at this but I will file it"? 9 A. I just took the papers from Bristol -- I had made my 10 decision I was not going to look at it in the taxi and 11 explained that to Dr Bolsin. When I got back to the 12 office, I simply took the file containing all the papers 13 from Bristol and put them in my private filing cabinet 14 in the Department. 15 Q. Did you speak to anyone else at the Department about the 16 substance of the meeting you had had on the 19th? 17 A. In indirect terms, my then head of the section was 18 Dr Jeff Graham and he just asked me how I got on at 19 Bristol. I said it had been a very interesting meeting 20 but there could be a problem down there. I said I had 21 explained how to sort it out, and he said "Fine", so 22 I did not go into any specifics with him at all. 23 Q. How frequent was it to have a conversation of that sort 24 with him? 25 A. Fairly frequent. 0040 1 Q. At any stage in the course of the meeting on the 19th, 2 was it mentioned to you by Dr Bolsin that he had 3 approached Dr Ashwell at an earlier occasion? 4 A. No. 5 MR LANGSTAFF: I am going to move on from the 19th to what 6 happened thereafter. Sir, it may be a convenient moment 7 to take a break? 8 THE CHAIRMAN: Yes, Mr Langstaff, but before we do, may 9 I just go back to one response from Dr Doyle? 10 You said that you understood Dr Bolsin was talking 11 to you as a doctor and you used the expression "in the 12 context of medical confidentiality". What does that 13 mean to you? 14 A. The strict rules of medical confidentiality, as you 15 know, relate to patient and patient data -- 16 Q. Some would say those are the only rules. Explain the 17 other. 18 A. There was a clear -- there used to be, should I say, 19 a clear statement on the part of the GMC that one did 20 not comment in public about one's colleagues and did not 21 traduce one's colleagues, so many people chose to 22 interpret medical confidentiality extending to 23 discussions not just about individual patients but also 24 about concerns with individual colleagues. As 25 I explained, I reserved the right, if the issue was 0041 1 serious enough, not to break that. That confidentiality 2 was not absolute, if you like, with the patient 3 confidentiality, but nonetheless, one did treat those 4 requests, as far as it is possible to do, entirely in 5 medical confidence or strictly discussing those matters 6 only with other doctors. 7 THE CHAIRMAN: Thank you. 8 MR LANGSTAFF: Sir, if I may just ask a couple of questions 9 before we take the break, arising out of that exchange? 10 You say part of your role, and we have heard from 11 Dr Halliday, that part of his role was networking? 12 A. Indeed. 13 Q. In other words, picking up information about what was 14 going on from chatting to other doctors in corridors, 15 over lunch, that sort of thing? 16 A. Our role is, like any doctor, to be as informed as it is 17 reasonably possible to be, about those areas for which 18 you have any responsibility. If you are a clinician, 19 a cardiac surgeon, you should be reading the journals 20 about cardiac surgery. If I have responsibility for 21 cardiac surgery services, I need to be informed as I can 22 about cardiac services, clinical developments, the whole 23 thing. So the question of networking is primarily one 24 of trying to ensure that we are aware primarily of 25 developments in the specialty that may have a big impact 0042 1 on NHS service in the future. 2 In order to do that, one has to talk to lots of 3 doctors, including a friendly relationship with lots of 4 clinicians, so that they will come to you and explain to 5 you, or raise questions with you, and send you articles 6 that are important, so that you keep abreast of your 7 subject. 8 Q. Did doctors talk to you about other doctors? 9 A. From time to time, yes. 10 Q. From time to time, or frequently? 11 A. In lots of contexts. 12 Q. In the context that they did so, chatting about other 13 clinicians, that would, on the definition you have just 14 given us, be, on their part at any rate, a breach of 15 medical confidentiality? 16 A. It depends what you are talking about. A lot of the 17 substance of the conversations is "Have you seen the 18 research so-and-so is doing? Have you seen this?" and 19 they were not specific conversations where they asked me 20 to keep confidence, but from time to time, people came 21 up and said "I wish to talk to you in confidence about 22 a difficult issue" and that may involve individual 23 clinicians, treatment of patients, concerns they have 24 about a particular research programme, or whatever. 25 Q. Effectively, you are encouraging them because of your 0043 1 need to know, to say this sort of matter to you, I take 2 it? 3 A. One encourages people to talk to you about issues of 4 importance in cardiac surgery. From time to time, 5 coming along with that, will be people wishing to seek 6 your advice in confidence about difficult issues they 7 face, either personal or professional. 8 Q. The second matter which arises out of the question the 9 Chairman asked you is this: you say it was your practice 10 to explain to those who raised issues with you that you 11 may not be able to keep it confidential and you may have 12 to raise it with others? 13 A. If the matter was such that it impinged on matters that 14 were clearly important to the department, and I usually 15 did that as a "health warning" up front from 16 experience, when people say "I wish to come and speak to 17 you in confidence", I usually, as I did with Dr Bolsin 18 on this occasion, offer that health warning. 19 Q. So does it follow from that answer that Dr Bolsin had 20 asked to speak to you on a confidential basis? 21 A. Yes. 22 THE CHAIRMAN: Shall we break for 15 minutes, and therefore 23 reconvene at 10 past 11? 24 (10.55 am) 25 (A short break) 0044 1 (11.10 am) 2 MR LANGSTAFF: Dr Doyle, when you came back, then, to 3 London, you filed the sealed envelope in your file. Did 4 you regard what had been told to you as a fairly serious 5 matter? 6 A. Potentially very serious. 7 Q. You wrote two days later in a letter which we see, 8 UBHT 52/287. If we scroll up to the address, we see it 9 is addressed to Professor Angelini and if we scroll up 10 to the top of the page, on Department of Health 11 notepaper. So obviously you were writing from the 12 Department of Health. 13 Let us look at the text. 14 "Dear Gianni", so you were on first name terms 15 with him? 16 A. After the very helpful and pleasant meeting we had had, 17 yes. 18 Q. What was the principal purpose of writing this letter to 19 him? 20 A. As I said in my earlier statement, I was under the 21 assumption that he had hosted the meeting, so the 22 primary purpose of writing the letter, I would have 23 written a letter to him as the host in any case, to 24 thank him for his hospitality, so I would have written 25 the letter in any case. 0045 1 Q. The second purpose we see beginning to evolve in the 2 second paragraph. You say: 3 "It has recently been brought to my attention..." 4 That is a reference, is it, to the taxi-cab 5 conversation? 6 A. It is. 7 Q. "... that there are concerns about the mortality rates 8 for paediatric, especially neonatal and infant, cardiac 9 surgery performed at the BRI. I further understand that 10 some sort of audit has been carried out which confirms 11 a greater than expected mortality rate for certain 12 procedures." 13 "Some sort of audit": why describe it in those 14 terms? 15 A. Because I had no detailed knowledge at that stage of the 16 exact audit methodology, the type of audit that had been 17 undertaken. 18 Q. And you had not looked at the documents? 19 A. No. 20 Q. "Which confirms a greater than expected mortality rate 21 for certain procedures", in the plural. 22 What had you been told by Dr Bolsin that made you 23 think it was more than one procedure? 24 A. Because he had said they had audited the paediatric 25 surgery and the results, some of the outcomes, were 0046 1 poor. I had no way of knowing, from his conversation or 2 any knowledge on my part at that stage, what particular 3 bits of paediatric cardiac surgery were concerned, 4 whether it was one procedure or all procedures. 5 Q. It obviously was not all procedures, was it, because 6 otherwise you would not have used the words "greater 7 than expected mortality rate for certain procedures"? 8 A. This was written almost immediately after the 9 conversation in the taxi, so I would imagine I was 10 quoting reasonably accurately the position as had been 11 put to me by Dr Bolsin in the car. In other words, 12 I was repeating the substance of the conversation. 13 Q. You say "dictated" so your habit was to dictate a letter 14 and have it typed up, was it? 15 A. Most of these things I dictate rough to my secretary who 16 sends it back to me and I polish it, and then it was 17 sent off. 18 Q. The reason I ask that is that there is no secretarial 19 reference on this, but that is just the way it was, was 20 it? 21 A. No, because depending on what time I was in my office, 22 if my secretary was there, I would dictate a rough 23 draft, she would send it back to me for editing and 24 polishing. If she was not there, I would print it off 25 myself. If it went back to her, she might or might not 0047 1 put a reference number on it. 2 Q. So what had been said to you in the taxi, it would 3 follow, because this is the nearest one has to 4 a contemporaneous note, is that it was more than one 5 procedure, but less than the whole of paediatric cardiac 6 surgery? 7 A. Yes. 8 Q. The next paragraph: 9 "I am sure you will agree this is a matter for 10 very great concern". 11 That really fits with your idea that this was, 12 indeed, a very serious matter. 13 "If the position proves to be as reported to me, 14 the excess deaths are in themselves a tragedy." 15 What was it that Dr Bolsin had said to you about 16 excess deaths? 17 A. This is my assumption, that if his allegations were 18 correct, it is a matter of concern because there would 19 have been by definition excess deaths. 20 Q. So you understood that it was outcomes in terms of 21 deaths, mortality? 22 A. In cardiac surgery it normally is. 23 Q. "If the problem has been recognised and adequate 24 remedial steps have not been taken, it becomes an 25 unacceptable tragedy." 0048 1 What were you trying to say there? 2 A. That as Steve Bolsin had pointed out, the audit results 3 were not just immediate. He said in the taxi it was 4 something like four years. My understanding at that 5 time was that he had been working on this problem for 6 three to four years. Clearly if his further allegations 7 which he made in the taxi, that he had tried to bring to 8 the attention of the people from the Trust and without 9 great success so far, were also correct -- and again, 10 I had no way of knowing, it was only his word at the 11 moment -- if the Trust had not taken action to address 12 this situation, then that, to me, was unacceptable, 13 because the procedures were clearly laid out, the duties 14 of the Trust were there, they should have acted, if 15 concerns had been raised. 16 Q. So what you are saying is the perhaps obvious position, 17 that if the audit is accurate, then there have been 18 unnecessary deaths? 19 A. Exactly. 20 Q. If the audit is accurate and has been drawn to people's 21 attention and they have done nothing, then not only are 22 there excess deaths, but it is completely unacceptable? 23 A. Absolutely. 24 Q. Indeed, that would be one of the most serious of any 25 matters that you would have to deal with? 0049 1 A. This is, shall we say, fairly strong language from 2 somebody from the Department to write. 3 Q. Because you took it so seriously? 4 A. If the allegations were correct, this was clearly a very 5 serious problem -- if the allegations were correct. 6 Q. Yes. 7 A. It was further my duty to ensure that those allegations 8 were properly looked into by the appropriate 9 authorities. 10 Q. So you go on, and the next paragraph suggests that you 11 are saying the proper authority to look into it in the 12 first instance is the profession. By that you meant the 13 local clinicians, did you? 14 A. This directly referred to the audit circular, HC(91)2, 15 which set out the duties locally of clinicians to audit 16 themselves. If that mechanism had been up in place and 17 working, then it should have been able to answer the 18 questions. That circular clearly stated that audit 19 remained at that stage, a professional matter. It was 20 for the Trust to give the professional the tools with 21 which to do the job. 22 Q. So were you, by the fourth paragraph, saying "Sort 23 yourselves out and report back to me that a future audit 24 shows that the problem has gone away"? 25 A. Exactly. I draw your attention to the last sentence, 0050 1 where I am clearly, by implication, saying "I expect you 2 to be able to prove to me in the near future that your 3 audit results are comparable with any other unit in the 4 country". Many would assume this is overstepping the 5 mark. 6 Q. You were doing this because you saw this as a serious 7 problem which needed to be addressed? 8 A. Potentially very serious problem. Possibly, if the 9 allegations were correct. 10 Q. If the allegations were correct. The last paragraph of 11 the page: 12 "If there is a problem and for any reason you are 13 not able to reassure me that it has been resolved, the 14 circumstances are such that I would be obliged to seek 15 the help of colleagues in the Performance Management 16 Directorate, who would doubtless raise the matter 17 formally with the Trust. It is highly likely that some 18 sort of formal inquiry would follow." 19 What is the Performance Management Directorate? 20 A. The climate at the time was that Trusts were independent 21 and the Secretary of State had very little power to 22 intervene, but there was a Performance Management 23 Directorate which ensured the legal obligations of the 24 Trust were being met in terms of accountability. 25 If you like, this is a not-too-subtle threat to 0051 1 say that at this point I was writing to a person who 2 I assumed was a senior professional, a medic, keeping it 3 on the confidential medical net. My assumption is that 4 the Professors of Cardiac Surgery in most institutions, 5 in my experience, are people of considerable influence 6 who are normally able to ensure that either through the 7 academic net or -- 8 Q. Again, could I come back to your motivation in 9 a moment? I was asking you what the Performance 10 Management Directorate was. 11 A. I beg your pardon. The Performance Management 12 Directorate was an element of the Department which was 13 responsible for ensuring that the Trusts accounted for 14 their legal responsibilities. It is primarily 15 a financial matter. 16 Q. So the performance is to be understood in the sense of 17 keeping to financial targets, is it? 18 A. Primarily financial, but there are also other elements, 19 other guidances that have gone out to Trusts, so if 20 there is a clear failure of Trust management in any 21 issue, then the performance directorate would certainly 22 want to be involved because in whatever area of Trust 23 management there is a clear breakdown, this then becomes 24 the responsibility of the Trust Board, the Chairman, the 25 Chief Executive, to deliver on those bits of guidance 0052 1 that have gone out to the Trusts. 2 So they would certainly want to know about clear 3 evidence that a Trust had failed in its duties. If 4 a Trust failed to resolve a situation like this, that is 5 a failure of Trust management. 6 Q. So performance management, largely financial but also 7 other management aspects. What would they do? What 8 could they do? 9 A. I think that would depend on the circumstances. Clearly 10 the Secretary of State has the right to set up any form 11 of investigation or enquiry. 12 Q. That is the Secretary of State. What about the 13 Performance Management Directorate? 14 A. The Performance Management Directorate is an arm of the 15 formal mechanisms for managing the NHS. 16 Q. What could they do to alert the Secretary of State that 17 you could not? 18 A. If they had become aware of the problems, presumably 19 they would have alerted other colleagues in the 20 Department to the problem. 21 Q. Why could you not do that? 22 A. At this stage -- 23 Q. Not why did you not, but why could you not? 24 A. I could have done. 25 Q. So the Performance Management Directorate is 0053 1 a directorate which exists for the purposes you have 2 mentioned. It had no more power -- I think is what you 3 are implying -- than you did to act, the acting in 4 circumstances where there is a failure of management 5 control consisting of notifying other people who may be 6 able to apply such pressure as they have at their 7 disposal? 8 A. Their formal job within the responsibility of the 9 Department was to look at the management of Trusts. 10 Mine were very difficult responsibilities, to look at 11 policy development in cardiac services. So they did 12 have a formal requirement to look at the performance of 13 Trusts. 14 Q. What was it about the problem as you understood it to be 15 that made you think there may be a failure of 16 management? 17 A. If the Trust failed to tackle a clear issue for which 18 there was a clear mechanism for dealing with it and 19 allowed that problem to go unresolved, that, in my book, 20 is a failure of Trust management. 21 Q. Let me ask you a general question and then try and bring 22 it down to the particular. Audit, you have told us, was 23 in part of its process of evolution at this stage. The 24 results of any set of figures produced would have to be 25 interpreted? 0054 1 A. That is correct. 2 Q. It was well known, was it, that there was scope for 3 different interpretations of the same figures? 4 A. This is a hypothetical question. If there was clear 5 statistical significance in any set of figures, then it 6 was difficult to interpret them in any other way. The 7 problem is that where numbers are small, the confidence 8 intervals become very large and it is very difficult to 9 know whether a particular set of statistics is or is not 10 significant. 11 Q. That only relates to excluding chance as a reason for 12 the apparent discrepancy in the figures. It does not 13 imply one explanation for the discrepancy rather than 14 another. There may be presumably different views about 15 that? 16 A. There may be lots of different views: was case mix 17 adequate? Were they properly stratified? Was the data 18 period correct? There are lots of reasons why you can 19 challenge a statistical analysis, if you are going to 20 get robust valid outcomes that everybody accepts, and 21 part of the peer review process is to ensure you have 22 a comprehensive and complete data set for the specific 23 question you are asking. 24 Q. So why would a difference of view about the way in which 25 particular figures require to be interpreted be 0055 1 a management problem? 2 A. Because the argument over those figures, over the 3 significance of those figures, is an interprofessional 4 dispute. Ipso facto, if the two sides cannot agree as 5 to the meaning of those figures and the importance of 6 those figures, then management has on its hands an 7 interprofessional dispute. That interprofessional 8 dispute requires to be resolved. You cannot allow 9 clinicians in the departments to carry on disputes for 10 many years. It damages the effectiveness of the unit. 11 So management has a requirement to bring in 12 outside independent people who have the skills to look 13 at that, to peer review in effect what is going on and 14 to make recommendations. 15 Q. I will come back to that in a moment. I just want to 16 explore those last couple of answers. 17 Suppose that there are two clinicians in 18 a particular department, both of them, let us say, 19 surgeons, who in respect of a particular condition have 20 a disagreement about appropriate treatment, so that one 21 of them wants the department to adopt a policy of 22 conservative treatment for a particular condition, the 23 other wants to advise a policy of operative 24 intervention. 25 That is an interprofessional dispute? 0056 1 A. Indeed. 2 Q. Is a dispute such as that also a management problem? 3 A. Clearly. I mean, there were other disputes. The people 4 here must know about the Wendy Savage inquiry. It is 5 exactly that kind of professional dispute that came to 6 a formal inquiry. At that time there were other Trusts 7 who were more or less successfully using the mechanism 8 to resolve problems they had with individual clinicians: 9 one at the same time, at least another cardiac surgeon 10 in the country. The Trust had used the mechanism and 11 come to a resolution of the problem. 12 So we are not talking about an isolated problem 13 here. We are talking about a problem which had 14 significant parallels beforehand, several other 15 enquiries, several consultants, RHAs who were the 16 employers, if you had gone into the 1980s and asked how 17 many consultants they had suspended pending these types 18 of enquiries, it would not be difficult for the Inquiry 19 to ask how many consultants were suspended on full pay 20 in the 1980s as a result of some allegations of this 21 sort, of interprofessional disputes or poor performance. 22 One of the reasons they were so difficult to cope 23 with was the reason we had the Working Party in the 24 1990s to come up with a clearer mechanism for addressing 25 just this type of problem. 0057 1 So what I am trying to put in context is that this 2 was clearly a potentially very serious set of 3 allegations. But the situation was not unusual in the 4 sense that, from time to time many health authorities 5 and/or Trusts or hospitals had had similar problems and 6 found the one mechanism or other for resolving the 7 problem. 8 As I was aware at the time I went down to Bristol, 9 there was at least one other case currently going on 10 where a Trust had used the mechanism to resolve another 11 allegation of poor performance. 12 Q. Everything you are saying, I think, is consistent with 13 a view, in this particular case, that there had been 14 a disagreement between one side and another about 15 figures. That, I think, underlay your view, from what 16 you are saying? You are nodding. 17 A. Yes. 18 Q. So you understood, did you, from what you had been told 19 by Dr Bolsin, that whether it was right or whether it 20 was wrong you did not know, but you had been told he had 21 discussed his figures with what you might describe as 22 the "other side"? 23 A. He told me words to the effect that he had raised the 24 matter with people in the Trust and so far had not made 25 a great deal of progress. In other words, up to that 0058 1 point, nobody had instituted the mechanism as set out in 2 HC(90)9, a formal action had not been taken by the Trust 3 up to that time. 4 Q. You understood from his description of this -- "I have 5 shown this but not made any progress", coupled with the 6 events of having a sealed brown envelope handed to you 7 in a taxi, the private conversation, you being an 8 outsider -- as indicating that there had been and was an 9 ongoing dispute between clinical professionals and the 10 unit? 11 A. His allegations were sufficient assertion that if there 12 was any basis in them at all, the other professionals 13 and the Trust had an absolute duty to resolve that 14 problem as speedily as possible. 15 Q. In the last paragraph there, by reference to Performance 16 Management Directorate, "highly likely some sort of 17 formal enquiry would follow": is this a form of emphasis 18 to reinforce your advice that something needed to be 19 done quickly? 20 A. What I am indicating is that the consequences of failing 21 to address and resolve the problem would be serious. 22 Q. So this is a -- "threat" may not be the appropriate 23 word, but it was a warning, was it? 24 A. It was a very strong warning. 25 Q. This letter as a whole, having looked at the first page: 0059 1 is that an unusually strong letter for someone in the 2 Department of Health to write? 3 A. Very. 4 Q. How often would you say in your tenure of office have 5 you written a letter as strong as this? 6 A. No more than two or three times. 7 Q. And it would follow that anyone receiving such a letter 8 should have been in no doubt as to the seriousness of 9 the position? 10 A. No doubt at all. 11 Q. Shall we go overleaf to what we have as UBHT 52/288. 12 "I recognise this letter may put you in a very 13 difficult position personally. If there is anything 14 I can do to help, please do not hesitate to get in 15 touch." 16 You were writing, in respect of the concerns, to 17 Professor Angelini as a Professor of Cardiac Surgery? 18 A. Correct. 19 Q. You took it, did you, that he had responsibility of some 20 sort for the provision of the service? 21 A. In my experience -- and again, one has to speak from 22 general experience -- Professors of Surgery and 23 Professors of Cardiac Surgery are normally persons of 24 influence, both academically in terms of the academic 25 performance, this is a major teaching hospital, and also 0060 1 with the Board and Medical Director. 2 So if one, shall we say, makes it clear to 3 a Professor where the duty lies, you would expect them 4 to be in a position to engage all the other senior 5 people in the medical school or the Trust with the 6 required process. 7 Q. So what you are saying is that you viewed Professor 8 Angelini as having influence, but not necessarily having 9 responsibility? 10 A. Well, I had no knowledge at that time of Professor 11 Angelini's standing within the Trust. From general 12 experience, academic Professors usually do have 13 significant experience, are in a position to give a lead 14 in matters of audit and performance management. He 15 would have been the appropriate senior person. 16 Q. So it is right then to describe your view of him as 17 somebody who had influence, perhaps considerable 18 influence, but no control as such? 19 A. I am not sure my analysis went that far. My assumption 20 was that he was a senior academic member of staff. 21 Q. What was going to be difficult about his personal 22 position? 23 A. Because he was relatively new, that I was aware of, and 24 clearly if you come in as a relatively new Professor and 25 start raising difficult issues, it might not be quite 0061 1 the best foot on which to start in a new Trust. 2 On the other hand, as far as I was concerned at 3 that stage, it is the duty of people like Professors to 4 take a lead in matters like this. 5 Q. Did you know where his sympathies might lie in the 6 dispute that you had perceived as continuing? 7 A. At that stage, none at all. 8 Q. That letter, as we have seen, is 21st July. 9 On 19th August you got a reply, DOH 1/12. This is 10 now more than three weeks later. You had written on 11 a matter which you regarded as very serious, one of 12 those letters you had written only once or twice in your 13 tenure of office, which related to unnecessary deaths 14 and possibly a complete failure of management to resolve 15 a difficult position, if the allegations were true. 16 Did you raise it with anyone else in the 17 Department of Health before you got Professor Angelini's 18 reply? 19 A. No. 20 Q. In your statement to us, WIT 337/2, paragraph 10: 21 "If I think a problem is urgent or serious, it is 22 part of my responsibilities to alert colleagues to the 23 situation either within the Department or elsewhere in 24 the NHS. It is not unusual for me to contact people in 25 positions of authority to ensure they are aware of 0062 1 problems and that appropriate action is being taken." 2 This problem was, as you saw it, serious. Indeed, 3 you described it as "very serious", so it was part of 4 your responsibility to alert colleagues to the situation 5 either within the Department or elsewhere in the NHS? 6 A. Correct. 7 Q. You did not alert colleagues in the Department to it, 8 except by passing reference you made to the problems at 9 Bristol? 10 A. Correct. 11 Q. Which colleagues elsewhere in the NHS did you alert to 12 the problem? 13 A. Professor Angelini. 14 Q. Only? 15 A. Only. 16 Q. You say it is not unusual for you to contact people in 17 positions of authority, which you said to the best of 18 your understanding he did not occupy, except that he had 19 an interest? 20 A. My assumption was that he was in a position of authority 21 as a Professor of Cardiac Surgery. 22 Q. Given the provisions of HC(90)9, of which you were aware 23 having some input in the drafting, did you not think it 24 appropriate to alert the Chief Executive or the Medical 25 Director of the Trust to the problem? 0063 1 A. That would have depended on the response I got from my 2 first initial warning shot. 3 Q. How long were you going to give it? 4 A. In a situation like this, clearly I would not have 5 expected an instantaneous reply, because, again, if one 6 assumes what would normally take place following 7 a letter like that is that the person to whom I had 8 written would then go and discuss the contents with 9 a number of colleagues, they would want to determine 10 what course of action they would have taken, how they 11 were going to resolve the problem, before writing back. 12 So I would have expected maybe a month, six weeks, 13 because what I wanted was a clear reassurance that the 14 issue was now being tackled according to an effective 15 mechanism for so doing. 16 Q. In other words, either the allegations are not true, or 17 they are true and they were taking steps to resolve it? 18 A. It set up a process to resolve the problem, to look at 19 the allegations, to determine what needed to be done and 20 to take appropriate action: a management action on 21 behalf of the Trust. 22 Q. The letter of 19th August, DOH 1/12: was this the first 23 you heard back from Professor Angelini in response to 24 your letter? 25 A. It was. 0064 1 Q. So there was no phone call. He did not ring you up and 2 say "What is this all about?" 3 A. No, but he did -- I think it was either just before or 4 just after this letter -- ring me to confirm more or 5 less the contents of the letter. 6 Q. This letter? 7 A. This letter, yes. 8 Q. So that would have been some days after? 9 A. There were a number of phone calls around that time. 10 I have to say, I am hazy about exactly their order. 11 I think it was probably after this that he rang me. 12 Q. So to the best of your recollection, and I appreciate it 13 is not always easy to go back five years, but to the 14 best of your recollection, this was the first further 15 contact there had been? 16 A. (Witness nods) 17 Q. Did you hear anything further from Dr Bolsin? 18 A. Not at all. 19 Q. He did not chase you up and say "What are you doing 20 about the conversation in the taxi?" He just left it in 21 your hands, or you had left it in his? 22 A. I had not left it in his, because I had taken the 23 opportunity -- 24 Q. No, so far as he was concerned? 25 A. What he did, I have no knowledge. 0065 1 Q. Indeed, jumping ahead for a moment, did you ever speak 2 to him again before the events of early Jane 1995? 3 A. I do not recall speaking to him at all, certainly not on 4 this subject, until 11th January. 5 Q. Back to the letter. He says: 6 "I appreciate your frankness and concern about 7 some of our paediatric cardiac surgery work. I have to 8 admit that indeed there have been audits carried out" 9 I notice that is in the plural, "which have shown 10 a greater mortality than perhaps could be expected in 11 a particular surgical procedure", which is in the 12 singular. 13 "This has been a matter of concern for us all and 14 we have tried very hard in the last few months to 15 implement changes aimed at improving our results." 16 How did you read this in terms of accepting or 17 rejecting the audit which you understood had been handed 18 to you in the brown envelope? 19 A. The very strong impression given by that second 20 paragraph is that he and his colleagues have examined 21 the audits, have recognised there is a problem with them 22 and that they are now taking steps to resolve the 23 problem, whatever the nature of the problem was. So the 24 clear indication from that first paragraph is that in 25 fact, even before I wrote, the implication is that this 0066 1 is a matter months, they would already have been 2 wrestling with the problem, that they were already 3 taking the appropriate action and that they had now 4 agreed how to resolve the problem. 5 Q. Did it cross your mind that the initial conversation had 6 been, as you described to Professor Angelini, about more 7 than one audit, revealing problems in more than one 8 procedure, whereas here you have more than one audit, 9 each revealing, or both revealing -- it is not clear 10 which -- problems in a particular surgical procedure? 11 Did you ever think about the wording? 12 A. I do not think I went to that degree of analysis. What 13 he said was that there had been audits carried out, so 14 that suggested they had repeated, it was not just one 15 Bolsin audit but several audits and that they had 16 identified as a result of the audits at least one 17 problem. In other words, they had taken definitive 18 action to confirm whether or not there was any basis in 19 the allegations. They had determined there was some 20 basis and they were now taking action to resolve it. 21 Generally in the sort of work I do, that second 22 paragraph would be extremely reassuring. 23 Q. He goes on to say what is being done about it and he 24 talks about the need to find someone familiar with the 25 surgical procedure "for which our results have been 0067 1 least satisfactory". He goes on in the last paragraph 2 to talk about the move from the Bristol Royal Infirmary 3 to the Royal Hospital for Sick Children. In the middle 4 of that paragraph: 5 "The appointment of a full-time paediatric surgeon 6 and the move will greatly strengthen our unit and 7 address the shortcomings pointed out in your letter." 8 You had not, I think, said anything about 9 shortcomings, apart from there were concerns about the 10 mortality rates? 11 A. Yes. 12 Q. But you understood him to be talking about the same 13 thing, did you? 14 A. I understood that they were taking the appropriate 15 action to correct those unsatisfactory rates and 16 clearly, one of the questions in anything that is 17 unsatisfactory is the organisation arrangements. Unless 18 you put the appropriate team in place with the 19 appropriate facilities, it is difficult to get results, 20 so it seemed to me the action they were taking was to 21 address both the facilities for managing children, the 22 paediatric cardiac surgery patients, and also to engage 23 appropriate staff with the appropriate experience. 24 Q. The very last sentence on that page, Professor Angelini 25 making it clear he was not in authority to do anything 0068 1 himself about it, but really confirming your view that 2 he had influence rather than authority. 3 A. The decision to move the unit he says "is not in my 4 hands". I am not sure I would have expected it to be in 5 the hands of a Professor of Surgery. 6 Q. If we go overleaf, the second last sentence: 7 "I will keep you informed all the way along." 8 You respond to that on 30th August -- we have had 9 your letter to him of 21st July, his response 19th 10 August, your response 30th August, which we get at 11 UBHT 61/275. 12 A. I am sorry, could I make one other comment about that 13 letter? The copies at the bottom, because it is not 14 only reassurance, the substance of the letter is not 15 only reassuring. The fact he has copied that letter to 16 me also to Professor Vann Jones, who I assume is the 17 head of cardiology, I do not know because I did not know 18 anything about him at the time, and also to the Chief 19 Executive of the Trust, suggests to me that the Trust, 20 and all required persons to take appropriate management 21 action to resolve the problem, are all included. 22 So if one was ever asking for reassurance that by 23 now the Trust had grasped the nettle, there was adequate 24 in this letter. 25 Q. UBHT 61/275. You respond. The last paragraph: do 0069 1 I read that as a sign-off? You have done your job? 2 A. Exactly. 3 Q. When, in relation to the letter of 19th August, or this 4 letter, do you think you may have heard from Professor 5 Angelini on the telephone? 6 A. He rang me, I think probably just before 30th August, 7 around then, to let me know that they had managed to 8 interest Ash Pawade, who again was not a name at that 9 stage known to me, but he was clearly very enthusiastic 10 that if they could attract Ash Pawade to the unit, then 11 it would be an extremely good thing. 12 So there was certainly a short conversation about 13 the forthcoming appointment but I do not remember any 14 other substantive conversations around that time. The 15 only one I recall is his -- it may be too strong, but 16 certainly his enthusiasm for at least one of the names 17 on the short-list. 18 Q. So Professor Angelini is filling you in on details here? 19 A. Yes. 20 Q. Talking to you by telephone. You say there were 21 a number of phone calls which you find difficult to 22 place. Did he make more than one phone call? Was this 23 the only one? 24 A. The only one I can recall around this time was the one 25 where he told me they were hoping to get Ash Pawade. 0070 1 I cannot recall any others. 2 Q. Did he tell you when Ash Pawade was going to start? 3 A. No. 4 Q. When did you think he might, from general experience? 5 A. General experience is two to three months. 6 Q. So having been told that around the beginning of 7 September, you expected him to take up his office 8 probably December/January? 9 A. 1st January would probably be the most likely date. 10 Q. Having signed off on your letter of 30th August, did you 11 hear again that year, as you recall it, from Professor 12 Angelini by telephone? 13 A. I do not recall, certainly not on this matter. I cannot 14 absolutely exclude a phone call on other research 15 interests that he had, but I do not recall any reference 16 to this matter in a telephone call at all during the 17 remainder of that year. 18 Q. What Professor Angelini has told us -- it is Day 61/173, 19 beginning at line 1 -- is that he has suggested to us 20 that he and you had several telephone conversations all 21 the time and those intensified towards January when 22 there was the last switch operation planned. 23 I will come to that in a moment or two. Is he 24 right or is he wrong about saying that he and you had 25 several telephone conversations all the time and were 0071 1 "in quite regular contact", was another phrase he used? 2 A. I do not recall. 3 Q. Do you think you probably would recall if it had 4 happened? 5 A. In relation to this issue, yes. Possibly in relation to 6 cardiac research and other projects that he was 7 interested in -- I mean, I have had over the years 8 a number of conversations with Professor Angelini, in 9 particular about cardiac surgery. I do not actually, 10 I have to say, recall that autumn having any further 11 conversations with Professor Angelini specifically on 12 this matter, or anything else, but I could not rule them 13 out. 14 Q. So you could not rule out a conversation on anything 15 else, but you are how certain that you did not speak to 16 him about this matter? 17 A. And I certainly did not speak to him frequently. If 18 I spoke to him at all, it was one phone call. 19 Q. So you may have spoken to him more than just the once 20 around 30th August, but not otherwise? 21 A. That is right. 22 Q. That is the best of your recollection; how certain are 23 you about that? 24 A. Reasonably certain. 25 Q. Can we move on to DOH 1/14? It is a letter of 0072 1 12th September 1994, from Dr Roylance to you. Was this 2 the first you had heard from Dr Roylance? 3 A. Yes. 4 Q. No phone call? 5 A. No phone call. Unsolicited letter. 6 Q. He begins by reciting the fact that you picked up from 7 the end of the previous letter, that he had seen that 8 letter, and by "the correspondence", that would refer to 9 the other letters you had written? 10 A. I am sorry, it needs to ... 11 Q. I am sorry, can we scroll down, please. (Screen 12 scrolled) 13 A. Yes, I mean, my assumption is, if he says "the 14 correspondence" he has seen my letters. 15 Q. And there was not a lot of it? 16 A. Only two. 17 Q. "I felt I should write to confirm the Trust Board's 18 awareness of this problem, for which reason we are 19 seeking to appoint another full-time consultant 20 paediatric cardiac surgeon ..." 21 He says the Appointments Committee is due to meet 22 on 20th September. 23 "The decision has already been taken by the Trust 24 Board ..." 25 Ash Pawade's name at this stage could only have 0073 1 been one of the candidates? 2 A. Correct. 3 Q. So do you think, on reflection, that the conversation 4 that you remember having with Professor Angelini, 5 identifying Ash Pawade by name, must have taken place 6 after 20th September? 7 A. No, the short-listing takes place weeks before an 8 Appointments Committee is made. The short-listing is 9 normally a minimum two weeks before, and often many 10 weeks before that. So the fact that Ash Pawade was one 11 of the candidates and was on the short-list would have 12 been known to Professor Angelini during August/early 13 September, before this letter was written. It could 14 have been known to him well before this letter was 15 written -- only that he was on the short-list, though. 16 Q. We see how Dr Roylance finishes the letter: 17 "I will continue to monitor the situation". I see 18 he has promised to keep you informed. 19 A. But that letter is crucial. The first sentence of the 20 second paragraph is vital. He is telling me that the 21 Trust Board, that is the non-executive directors, the 22 directors, the Chairman, are aware of the problem: that 23 the Trust itself is fully informed. Nobody, the 24 Secretary of State could not have asked for better and 25 clearer reassurance from the Chief Executive that the 0074 1 Trust had analysed, understood the problem, taken 2 effective management action and set in train all the 3 changes needed to resolve it. 4 So this unsolicited letter came to me as probably 5 the strongest reassurance I could have received at that 6 time that the Trust were now taking appropriate action. 7 Q. And the "appropriate action", it would appear from the 8 second last paragraph, is to resolve "the situation for 9 the future." 10 To what did you understand the somewhat Delphic 11 words, "the situation", to refer? 12 A. You can read a lot in-between the lines. What I read 13 in-between the lines was that they recognised that their 14 outcomes were poor; that they were putting somebody in 15 who would in future perform the procedures, the 16 implication being until they were in place they would 17 not undertake any risky procedures, and they would 18 undertake the management organisation problem. It is on 19 the basis of common knowledge: one recognises that split 20 site working is always difficult in any acute specialty, 21 so concentrating all the work in one centre clearly has 22 an advantage. 23 So it seemed to me they were addressing both the 24 performance question and the facilities question and 25 taking effective and fairly speedy action. 0075 1 Q. Where do I get from the second paragraph the statement 2 explicitly that no further paediatric cardiac operations 3 were going to be performed until the appointment of 4 another full-time consultant, paediatric cardiac 5 surgeon? 6 A. You do not. 7 Q. Where do I get it implicitly? 8 A. I get it implicitly that you would not be going out to 9 appoint another cardiac surgeon to do the work if you 10 had not recognised that work was being done 11 inadequately. If you have identified a problem like 12 that, you do not, in normal circumstances, in my 13 experience, compound the problem by continuing to 14 produce poor results. The implication of that to me, 15 and that is my interpretation of it, is that you would 16 not -- I was given a clear understanding in the phone 17 conversation with Professor Angelini, that they would 18 avoid the procedure at least, if not procedures, that 19 were in question until Ash Pawade was in post. 20 Q. Let me unpick that as best I can. The words used in 21 this letter, "another full-time paediatric cardiac 22 surgeon", would suggest there are one or two or three or 23 four full-time consultant paediatric cardiac surgeons 24 already in post? 25 A. Yes. 0076 1 Q. Plainly it is the concept that another full-time 2 paediatric cardiac surgeon is needed. That is necessary 3 from an understanding of the paragraph, is it not? 4 A. Do not forget, this paragraph follows the letter from 5 Professor Angelini to say that they were appointing 6 somebody with experience of the area of cardiac surgery 7 with which they had a problem. The implication from his 8 letter was that they had audited it and there were only 9 problems with one procedure, or possibly certain 10 procedures. So here you were appointing, according to 11 Professor Angelini, a consultant paediatric cardiac 12 surgeon specifically to address the weakness in their 13 programme. 14 This is confirmed, albeit not as explicitly in 15 this letter, that they have recognised the problem, 16 which I assumed was the same problem as Professor 17 Angelini was addressing, because that is the natural 18 assumption and that he is just confirming that the step 19 required to resolve that problem is to appoint 20 a full-time paediatric cardiac surgeon. 21 The strong implication of that to me, from my 22 experience of medical practice, is that in that area in 23 which they were weak, they would not risk doing further 24 cases until they got a person with the appropriate 25 experience and training in place to undertake the 0077 1 procedures. 2 Q. It is equally consistent, is it not, to read it as 3 saying, "We have had to rely upon part-time consultant 4 paediatric cardiac surgeons. That is why we need 5 a full-timer to do the work"? If it read in that way, 6 there would be nothing necessarily implied in the 7 paragraph to suggest that the existing cardiac surgeons 8 should not go on doing what they were doing, is there? 9 A. It may be open to that interpretation by some people, 10 but taken -- 11 Q. But that was not the interpretation you had? 12 A. Taken in the context of following the more specific 13 points, this is a summary, a brief summary, of the 14 points made in Professor Angelini's letter. The 15 implication that I took from it was quite clear. 16 Clearly, that is my interpretation. Others may 17 have interpreted it differently, but it is certainly 18 consistent. What he has written to me here is entirely 19 consistent with what I had already learned from 20 Professor Angelini. 21 Q. You say, in relation to this point, if we just go to 22 UBHT 61/282 -- it is a later letter that you were to 23 write to Dr Roylance. 24 "From information received, including your letter 25 of 12th September [the one we have been looking at] 0078 1 I had understood that steps had been taken to rectify 2 the problem by the appointment of a new paediatric 3 cardiac surgeon and the transfer of the service to the 4 Children's Hospital. I had assumed, mistakenly, it 5 would appear, that (at least high risk) neonatal and 6 infant surgery would have ceased pending the arrival of 7 the new consultant and the transfer." 8 You appear to be accepting in retrospect that your 9 assumption was mistaken? 10 A. He told me in retrospect, later, that my assumption was 11 mistaken, yes. 12 Q. And you accepted it? 13 A. Well, my assumption was that in writing the letter, that 14 is what he was agreeing to. That clearly he claimed not 15 to have agreed to that, and therefore I could only 16 conclude that my assumption drawn from his and Professor 17 Angelini's letter and the conversation was not the same 18 as his understanding. 19 Q. You have described your understanding as to what was 20 impliedly going to stop, a few moments ago, as being at 21 least the particular procedure they had most problems 22 with, and here it is the least high risk neonatal and 23 infant surgery. 24 A. I was still not aware of the outcome of the audit or 25 what procedures. All I knew was that they were ones 0079 1 that carried by their nature a high risk. So in 2 a sense, because I do not know the specifics, I am 3 keeping to a fairly broad definition. In other words, 4 those procedures which by definition you have a problem 5 with, I would not have expected you to do. 6 Q. The assumption you made, going back to the letter of 7 DOH 1/14, it is equally capable, the second paragraph, 8 of being read, is it not, as saying, "We in the Trust 9 are going to take care over procedures that we operate", 10 rather than "We are not going to do any"? 11 A. Others may interpret it in any way they wish. 12 I interpreted it as I have explained. 13 Q. I am not going to take you back for the moment to the 14 later letter of 25th January which you wrote to 15 Dr Roylance, but you say in that that from information 16 received, including your letter of 12th September, 17 "I had understood that steps had been taken to rectify 18 the problem." 19 What was the other information you received? 20 A. The letters from Professor Angelini and the phone call 21 and the fact that he had written subsequently to tell me 22 that Ash Pawade had actually been appointed, not to tell 23 me anything about his work. 24 This letter, signed by the Chief Executive of the 25 Trust, should be all the assurance anybody in the 0080 1 Department of Health needs to say that effective Trust 2 management action has now been taken, the problem has 3 been addressed, the solution is in hand. 4 Once I got this letter, it appeared to me that at 5 last, if that was the case, if there had been any delay, 6 the issue had been tackled, the problem was now in the 7 process of resolution in the same way that other Trusts 8 that I was aware of had been managing and resolving 9 similar problems. 10 Q. What, if anything, did Professor Angelini say to you to 11 give you any idea that there was going to be no further 12 high risk surgery, or no further surgery in a particular 13 area, or whatever it might be? 14 A. Again, at this stage, it is difficult to recall exactly 15 word for word what was said in the conversation. He was 16 clearly excited that Ash Pawade was arriving. He 17 implied that, until he arrived -- I cannot remember the 18 exact words -- they would not be doing any more 19 difficult procedures. 20 Q. Implied? 21 A. Implied. I cannot remember his words, whether he said 22 to me exactly, "We will not do anything until he 23 arrives", or whether he said -- I cannot remember. 24 I cannot remember his words exactly, but I came away 25 from that, Roylance's letter, what was left in my mind 0081 1 left me with the clear impression they were not going to 2 undertake any high risk cardiac surgery until the 3 changes they had proposed had been put in place. 4 Again in my experience, I would not have expected 5 a unit -- I mean, the purpose of audit is to identify 6 the problem, to find out how to overcome that problem. 7 You do not perpetuate the problem in normal practice 8 until you have put in place the changes necessary to 9 overcome the problem I have identified. That is just 10 good practice. 11 Q. Professor Angelini has told us he did not think that he 12 did say to you that there would be no further surgery in 13 any particular field. 14 From what you say, thinking about it to the best 15 of your recollection, you cannot deny his view on that. 16 The highest you put it is that that is the implication 17 you took from what he said? 18 A. Exactly. 19 Q. Indeed, I suppose it might be said that he, Professor 20 Angelini, could only reflect the decisions of others 21 because you knew that he was the Professor, but you knew 22 that the Chief Executive and the Trust obviously had the 23 control over whether operations were or were not done? 24 A. In the final analysis, clearly. It was a matter for the 25 Trust. I mean, this letter from Dr Roylance implies 0082 1 very strongly -- it does not imply, it states 2 explicitly, that the Trust Board, the whole Trust Board, 3 is aware of the problem and has taken steps to resolve 4 it. 5 As far as I am concerned, that is as much 6 reassurance as anybody can expect. 7 Q. We go on to DOH 1/7. It is 20th September, so having 8 had the letter that you got from Dr Roylance on 9 12th September, we now have this letter, 10 20th September. It is the date of the interviews, as 11 we have been told. You write to Dr Roylance: 12 "Thank you for your letter .... Pleased to hear 13 that ... a change in service had been planned. Under 14 the circumstances, I think it best to leave the Trust to 15 effect the proposed changes as quickly as possible." 16 What you are saying here is, "I have done my bit, 17 you just go ahead and do what you are doing"? 18 A. Exactly. 19 Q. So you were giving your blessing to the proposals to 20 address the problem that had been identified to you. 21 Even though you had not fully explored the problem 22 yourself, you regarded these changes as appropriate 23 action from the appropriate people? 24 A. No. That is not what this says. 25 Q. I am asking about what was in your mind. 0083 1 A. What this says is, the Trust has taken action. I have 2 been reassured that the Trust has taken action. That is 3 the Trust's responsibility. They now seem to be taking 4 on their responsibilities. It is not appropriate for me 5 to do anything further. 6 I am not saying that what they actually took was 7 the right action or not. I had no way, I had no details 8 of the problem. I had had a reassurance from the Trust 9 itself that they were aware of the problem, they 10 understood it and they had taken action. In other 11 words, at this stage, effective management action on the 12 part of the Trust had been taken to resolve the issue, 13 which, to my knowledge at that stage, was still an 14 interprofessional dispute. The interprofessional 15 dispute had been confirmed by Professor Angelini that 16 there was a problem with the service. Steps had been 17 taken to address it. 18 Do not forget, I have asked repeatedly in my 19 letters to be given future audit results, which is again 20 overstepping the mark, as I have no right to monitor the 21 outcome of Trusts, but in order to provide a final level 22 of reassurance, I sought an assurance that future audit 23 results would show their results were as good as 24 anywhere else in the country. So there is even 25 a fallback position that I had really no right to 0084 1 demand, to say that "I expect in due course to be 2 reassured that the action you have taken has resolved 3 the problem and that the audit results are now 4 acceptable". 5 Q. On 22nd September, if we see a letter at UBHT 61/280, 6 this is a report to you of the appointment of Ash 7 Pawade. 8 A. That is correct. 9 Q. You respond to that, UBHT 61/281, 3rd October. 10 " ... I trust the service will now fulfil its 11 potential." 12 Did you, at that stage, think you had done your 13 job? 14 A. I did. 15 Q. Did you hear any more about problems at Bristol before 16 January 1995? 17 A. As usual in my job, I heard a bit of gossip here and 18 there at meetings I attended about the problems there 19 had been in Bristol. In other words, I heard a lot of 20 gossip about what had happened in the past, but nothing 21 to suggest that what they were now doing was not going 22 through smoothly and working. 23 Q. When was the next occasion that you heard anything which 24 caused you to take any particular action? 25 A. On 11th January when I was phoned first. I cannot 0085 1 remember which order it was, but both Dr Bolsin and 2 Professor Angelini, I think it was Bolsin first and 3 Angelini second, advising me that they felt that the 4 paediatric cardiac surgeons were about to perform 5 another high risk operation. And that Ash Pawade was 6 not in post. I further ascertained it was not an urgent 7 procedure. 8 Q. Whichever of them phoned you, I want to deal with the 9 two conversations you had. Did Dr Bolsin phone you, or 10 did you phone him? 11 A. As far as I recall, he phoned me. 12 Q. There is a suggestion that he was paged by you on 13 11th January. Could that be right? 14 A. It is certainly possible if Professor Angelini rang me 15 first. 16 Q. That might have happened? 17 A. That might have happened. 18 Q. What do you recollect Professor Angelini as having said 19 to you? 20 A. I recollect the substance of both phone calls as being 21 similar and that is that they were proposing an 22 operation an 18 month old boy, a risky, difficult 23 operation that they did not think, given their previous 24 track record, was a risk worth taking. 25 Q. Did they say who was proposing this? 0086 1 A. I do not recall they named a specific surgeon at that 2 stage. I certainly do not recall it. No. 3 Q. So what did you do? 4 A. What was immediately clear to me was that the 5 interprofessional dispute had reawakened. Here again 6 were Professor Angelini and Dr Bolsin at least concerned 7 that the Trust -- they were concerned, so the 8 interprofessional concerns that I thought had been 9 sorted were now clearly being raised again and that far 10 from -- well, it may have disappeared for a while, but 11 the interprofessional dispute was rearing its head 12 again. 13 Q. Did you give either Professor Angelini or Dr Bolsin any 14 advice as to what they should do? 15 A. Again, I cannot recall exactly the substance of the 16 conversation. I have a feeling I said they had to take 17 it to the Trust management, but that I would also -- 18 I undertook to ring Dr Roylance to alert him to the fact 19 that I was aware that concerns were being raised once 20 again. 21 Q. That you were aware, or so that he might become aware? 22 A. To ensure that he was aware that this interprofessional 23 dispute had broken out again. Because I had no way of 24 knowing at that stage whether he knew anything about the 25 problem, as he had written to me in the past, as he was 0087 1 a doctor, then as I said previously in my statement, 2 I do ring people in authority and Roylance was clearly 3 the authority in this case, to make them aware of 4 potentially serious situations that are arising. 5 So I had no hesitation in this case in ringing 6 Dr Roylance as the Chief Executive of the Trust saying 7 "Do you know that a potentially serious situation has 8 arisen in your Trust?" 9 Q. What do you recall Dr Roylance saying to you? 10 A. He informed me that, as we spoke -- because I had only 11 managed to get hold of him in the early evening -- 12 during the course of our conversation, a case conference 13 had already been arranged to discuss the question and 14 that he would abide by -- again, I cannot remember 15 exactly the phrase he used, whether he would abide by 16 the outcome of that case conference. 17 Again, that did not seem an unreasonable action 18 for a Chief Executive to take at that stage, to call in 19 all the relevant clinicians to sit down and examine the 20 problem and determine what was the most appropriate 21 course of action. That is a good way of resolving 22 a dispute that has arisen. 23 Q. So he may well have said to you he would abide by the 24 outcome of the medical conference that was taking place 25 and from your perspective, that was an entirely 0088 1 reasonable thing for him to do? 2 A. Yes. 3 Q. What else was said? 4 A. I suggested to him that if, as I had been informed, the 5 procedure was non-urgent, he always had the opportunity 6 to get an outside second opinion or something, if there 7 was a problem. So again the same resort you have, if 8 you have a difficult clinical issue if the worst comes 9 to the worst, you can resort to an outside second 10 opinion. In the case of a child, if you have 11 a difficult surgical problem, some surgeons will, in any 12 case, seek a second opinion from a colleague. So it was 13 a perfectly reasonable course to adopt. 14 I also suggested that because clearly the, in 15 inverted commas "row" had broken out again, if anything 16 went wrong, then the outcome could be serious because 17 this was clearly -- I did not explain, in my mind at 18 that time, this would represent a breakdown of Trust 19 management: that the apparent resolution of the 20 interprofessional dispute had only been apparent. 21 Q. Let me just explore that. What you are saying is that 22 it was entirely appropriate, as you saw it, for 23 Dr Roylance to await the decision of the clinical 24 conference that was taking place, and abide by the 25 outcome of that, whatever it was. Why should it be 0089 1 a breakdown of Trust management if the child died, but 2 not a breakdown of Trust management if the child 3 survived? 4 A. I did not say that -- it was a failure of Trust 5 management if they did not come to a conclusion as 6 a result of that case conference that satisfied the 7 senior clinical staff, who were clearly concerned. 8 In other words, if the outcome of his management 9 of this difficult situation did not resolve the concerns 10 of the various parties, then that was a failure of Trust 11 management. 12 So to some extent, even had the child survived but 13 certain members of the clinical staff were still 14 concerned that this was injudicious and it raised the 15 previous concerns yet again, that still would have been 16 a failure of Trust management in my view. 17 Q. So what impression do you think that you left 18 Dr Roylance with as a result of your phone call? 19 A. I hoped I had alerted him to the seriousness of the 20 situation, and that this was a difficult question that 21 needed very careful handling. 22 Q. Neither of those matters with which you say you probably 23 left Dr Roylance, suggest that he should take any 24 particular action? 25 A. I offered him alternatives. 0090 1 Q. Which were what? 2 A. That he might wish to abide by the findings of the case 3 conference, but if in doubt, because the case was not 4 urgent, get a second opinion. 5 Q. So if not in doubt, if satisfied that he could rely upon 6 the case conference, it was appropriate -- 7 A. It is not my job -- 8 Q. The advice you were giving him was that it was all right 9 for him to go ahead? 10 A. If the case conference resolved the differences of view 11 between the clinicians. If it did not resolve that 12 difference in view, then he was embarking on an 13 extremely high risk course, because whatever the outcome 14 of the surgery, he had reawakened the interprofessional 15 dispute. 16 Q. Is that not something of a cleft stick for him, because 17 suppose that there are, let us say for the sake of 18 a purely hypothetical example, 10 people at the case 19 conference, two are firmly of the view that the 20 operation should not go ahead and 8 are firmly of the 21 view that it should. 22 Suppose that is the hypothesis. 23 If the operation does go ahead, then inevitably 24 two are disappointed, because their views have not been 25 taken. If the decision by the Chief Executive is that 0091 1 the operation should not go ahead, is not the corollary 2 that 8 people are disappointed in their view that the 3 operation should go ahead and that that view has been in 4 effect trampled on by the Chief Executive? 5 A. Yes. 6 Q. So in that situation, is there actually any right 7 decision that the Chief Executive can take? 8 A. Yes. 9 Q. Which is what? 10 A. What is in the best interests of the patient. 11 Q. Is there, given that a case conference is, on this 12 hypothetical example by 10 people, two of whom who think 13 it is in the best interests of the patient not to 14 operate and 8, on the hypothetical example, who say it 15 is in the best interests to operate: there is no, or is 16 there, any objective way of resolving whether it is or 17 is not in the best interests of the child to operate? 18 A. If there is a question mark over the management of 19 a child, or any patient, then the thing that is in the 20 best interests of the patient, unless it is a dire 21 emergency, is to get another second opinion. 22 Knowing that there had been clearly questions over 23 the performance of complex operations, yes, anybody is 24 in a cleft stick, it may be a judgment of Solomon, you 25 may have to live with the consequences but you are 0092 1 appointed as the Chief Executive. And there is a Chief 2 Executive who is a doctor. Whatever his experience as 3 a doctor, he must have made difficult clinical judgments 4 in the past himself. 5 I suggested to him a perfectly normal acceptable 6 course of action. If there remained some discussion 7 after the case conference about the management of that 8 child, the safe thing is to get an independent second 9 opinion. 10 Q. So you were taking the view that objectively speaking, 11 there was risk, avoidable risk, potentially to the 12 child, even if the majority view at the case conference 13 was whether the best interests of the child would be 14 served by continuing the surgery the next day? 15 A. I had no idea, I had no information in the case 16 conference who was involved. What I advised him was 17 that if the case conference did not resolve the problem, 18 he should seek outside advice. It is a normal prudent 19 course. 20 Q. Again, a purely hypothetical example: suppose there had 21 been a case conference of 30 clinicians, one of whom 22 said "Do not operate" and 29 of whom had said "Yes, let 23 us go ahead". Would the advice still hold good? 24 A. It may. Who are those clinicians? What is their 25 expertise? What is their track record? If you have in 0093 1 a room the acknowledged national if not international 2 experts giving an opinion, you cannot get a better 3 opinion for that person. If you have not got the 4 acknowledged best expertise available, then in the 5 interests of that patient you should go and get it. 6 Q. So you speak to Dr Roylance. You give him that advice. 7 You say that you would have regarded it as a failure of 8 management if, as it turned out, there had been 9 a possibility of resolving the conflict in the case 10 conference and the operation had gone ahead with tragic 11 results? 12 A. That is not exactly what I said. 13 Q. I am sorry. If management was not at the case 14 conference, if it was just clinicians, why would it be 15 a failure of management if they did not agree? 16 A. Failure of management is to resolve the differences, the 17 interprofessional differences that had clearly arisen, 18 again arising from this case. Failure of management is 19 to not resolve those differences and seek a course of 20 action which is acceptable, defendable. 21 Q. The view you have been expressing obviously depends upon 22 there being a disagreement at the conference? 23 A. True. 24 Q. If there was no disagreement, obviously there is not the 25 problem you have identified? 0094 1 A. Assuming that the conference represents the right 2 authorities. You could have a case conference of 3 theatre porters who would not necessarily come to the 4 right -- your case conference has to be properly 5 constituted. 6 Q. What then happens? You have spoken to Dr Roylance on 7 11th January. You heard, on 12th or 13th January, that 8 there had been a tragedy? 9 A. Yes. 10 Q. Who told you? 11 A. Again, it is difficult to recall at this stage, but it 12 was either Professor Angelini or Steve Bolsin, or 13 possibly both. But I certainly had a flurry of phone 14 calls on or around the -- I think it was the second day 15 after the procedure. And clearly, that was evidence 16 that the situation had gone from bad to worse. 17 Q. Let me take you back for one moment. There is one 18 matter I should have covered and I have not. You say 19 that in the conversation you had on 11th January, 20 Dr Bolsin, you think, had told you that the case was not 21 an emergency? 22 A. Yes. 23 Q. Did anyone else tell you that? 24 A. I think I asked -- as far as I recall, I asked both 25 Professor Angelini and Steve Bolsin if it was an 0095 1 emergency. When I spoke to Dr Roylance, I again said, 2 or words to this effect: "I understand this is not an 3 emergency procedure", which he confirmed. 4 Q. You say that with a little bit of hesitation. How 5 certain are you that Dr Roylance expressed the view to 6 you that it was not an emergency? 7 A. I cannot be certain whether he did. I certainly pointed 8 out to him that there was time, because it was not an 9 emergency, to take effective action and he did not 10 disagree. 11 Q. You said I think at the GMC that it was difficult to 12 recall exactly what was said to each of the people you 13 spoke to by phone. That is so, is it? 14 A. That is correct. 15 Q. So I press you just a little on this, in case it should 16 be a matter of importance: how certain are you first of 17 all that you mentioned that it was not an emergency, 18 putting the point to Dr Roylance? Secondly, if you did, 19 how certain are you that you got a response 20 acknowledging that that was the case? 21 A. I am certain that I put the point to Dr Roylance because 22 of the advice I offered. I said there was time to get 23 a second outside independent opinion. There would not 24 have been time to do any of that -- had it been a life 25 or death operation, because the child was dying, that is 0096 1 totally different. I would only have gone ahead with 2 the course of action that I did if it was clear in my 3 own mind that there was at the very least several days 4 available to discuss and determine the most appropriate 5 management of the child. 6 Q. Back to the next day or the day after. When was it? 7 Was it the 12th or the 13th, do you think, that you 8 heard? 9 A. I cannot answer that, but as far as I recall, it was the 10 13th. I think it was two days after the -- 11 Q. So the operation would have been a Thursday? 12 A. The operation was on the 12th. 13 Q. The Thursday? 14 A. I must have heard on the Friday, which would have been 15 the 13th. 16 Q. Did you speak to anyone else that day about this? 17 A. I cannot honestly recall whether I spoke that day. 18 I think it was the following Monday -- the 16th, was it, 19 that I wrote alerting a large number of colleagues in 20 the Department. 21 Q. You wrote on the 16th, yes. Did Mr Wisheart contact you 22 at all? 23 A. He contacted me I believe on the morning of the 24 operation, to explain the outcome of the case 25 conference. I again reiterated my concerns. On the 0097 1 13th I spoke to Dr Roylance and I may have spoken to 2 Dr Wisheart, and I made it clear to Dr Roylance in that 3 conversation that I would be alerting my colleagues in 4 the Department to the situation. 5 MR LANGSTAFF: Now I am going to pick up on what happened 6 thereafter, after a break, sir. Would now be an 7 appropriate time for an adjournment for lunch? 8 THE CHAIRMAN: Yes. Shall we say 40 minutes, then? That 9 means 20 past 1. 10 (12.40 pm) 11 (Adjourned until 1.20 pm) 12 (1.25 pm) 13 THE CHAIRMAN: Dr Doyle, forgive me, I have kept us 14 waiting. I apologise to everyone, but there were 15 a number of things I had to do elsewhere. Sometimes it 16 happens. Forgive me. 17 MR LANGSTAFF: Dr Doyle, just before we leave your phone 18 call to Dr Roylance finally on the night before the 19 surgery, you say that you are confident you said to him 20 words to the effect that it was not an emergency, it was 21 a case that might wait. 22 He would presumably be in the position of not 23 himself knowing the full clinical details until after 24 the clinical conference? 25 A. I am sorry, but I am not in any position to determine 0098 1 what clinical details Dr Roylance was or was not in 2 possession of. I would have thought it was a matter of 3 a moment to ascertain whether the child was an emergency 4 case or not. 5 Q. It might have been known that the case was elective, but 6 it might not have been possible to say any more than 7 that. 8 Let me go on to your conversation with Mr Wisheart 9 on the morning of the surgery. He phoned you? 10 A. As I recall, yes, he did, yes. 11 Q. And had you spoken to Mr Wisheart before? 12 A. Certainly not on this subject. No, as far as I can 13 recall, I had never spoken to Mr Wisheart before. 14 Q. Did you know who he was and what role he played in 15 respect of this incident? 16 A. I knew by then that he was a paediatric cardiac surgeon, 17 or at least, a cardiac surgeon, and I think I was also 18 aware at that stage that he was Medical Director. 19 Q. Did you know that it was not him who was to perform the 20 operation? 21 A. I have no idea who was to perform the operation. 22 Q. The day after the operation, Friday, the 13th, did you 23 speak again to Mr Wisheart? 24 A. Certainly either the Friday or the following Monday. 25 I spoke to him soon after, and Dr Roylance. 0099 1 Q. Do you recall when it was that you spoke to 2 Dr Roylance? 3 A. No, I cannot recall exactly. But in that 4 conversation -- well, we will come to that. 5 Q. I think I may be able to help you on the date at which 6 you spoke to Dr Roylance. It is DOH 1/9: a memo by you 7 dated 16th January. Notice that date, please. The 8 second page of it. Page 10, at the bottom [DOH 1/10]: 9 "I have spoken to Dr Roylance (Trust CE) today who 10 assures me ..." 11 There is no reference to any earlier phone call 12 after the operation in the course of that memo. It is 13 a memo I am going to come back to, but does that help to 14 establish the date at which you first spoke to 15 Dr Roylance after the operation? 16 A. It is not necessarily the first time I spoke to 17 Dr Roylance. All it says is that "I have spoken to 18 Dr Roylance today". As I say, I cannot recall 19 exactly -- there was a whole flurry of phone calls. 20 I certainly spoke to several people on the Friday, and 21 it would not be unreasonable to give Dr Roylance the 22 weekend to consider exactly what he was going to do and 23 then speak to him again. But I cannot remember the full 24 sequence of phone calls at this stage. I certainly 25 spoke to him obviously on the Monday. Whether that was 0100 1 as well as, I do not know. 2 Q. What was the nature of the conversation that you had 3 with Dr Roylance? 4 A. To (a) explain to him that I had to alert colleagues in 5 the Department and that I felt in my view that an 6 external inquiry was now essential. The nature of that 7 external inquiry might cover both whether, in the 8 particular procedure that had taken place, there were 9 avoidable problems and certainly whether in the context 10 of the record of the Department, it was an acceptable 11 decision to have taken to have operated in the first 12 place. 13 Q. What was his reaction to your suggestion that there 14 should be an external enquiry? 15 A. He agreed to it. 16 Q. Straightaway? 17 A. He certainly questioned whether there was any way out of 18 it. I think he agreed to it reasonably quickly. 19 Q. So we may take it that the impression you were left with 20 was that he willingly agreed to such an inquiry taking 21 place? 22 A. The impression he was left with was that he had finally 23 agreed that an inquiry should take place. 24 Q. Which was it, willingly, or finally? 25 A. Had finally. 0101 1 Q. What therefore happened I think was that you, so far as 2 writing to Dr Roylance is concerned, wrote to him on 3 25th January, UBHT 61/282. You set out the history in 4 the first paragraph. The second paragraph, the 5 understanding which we have dealt with. The third 6 paragraph: 7 "As you know, I learned last week that far from 8 this being the case [that neonatal and infant surgery 9 would cease] it continued. We spoke on the evening of 10 11th January about the proposal to perform a switch... 11 I suggested that under the circumstances it might not be 12 advisable to proceed. The operation was performed the 13 following day and the child died." 14 If you, on the evening of 11th January, were 15 saying to him that it all depends on the outcome of the 16 clinical management conference as to whether it is or is 17 not -- 18 A. I am sorry, that is not what I said. 19 Q. I am sorry, I thought that you had left him with the 20 idea that there was a dispute, an interprofessional 21 dispute that needed to be resolved? 22 A. I had told him, made it quite clear to him, that the 23 interprofessional dispute had arisen and that it was the 24 responsibility of Trust management to sort it out. 25 I had given him possible options and pointed out that 0102 1 there was no need to do anything as an emergency. 2 He had to judge whether the case conference was 3 properly constituted and whether the outcome of that 4 case conference was acceptable and would resolve the 5 interprofessional dispute. Clearly it did not. 6 Q. You continue to write here about the need to have an 7 inquiry and in the last sentence you talk about the need 8 to inform colleagues, or the fact that you will inform 9 colleagues in the Department. 10 A. I am sorry, I haven't got it. 11 Q. It is 61/283. (Shown on screen) 12 This letter is written on 25th January. You had 13 had the conversations on the 16th or maybe earlier of 14 January. Is this a letter to, as it were, record your 15 position? 16 A. Well, it is to let him know what my summary of the 17 situation is, yes: to record my position, and in fact of 18 course, if one is going to be strictly accurate, I had 19 already informed colleagues, rather than that I would 20 have to inform colleagues. 21 Q. You have a response back on 26th January, UBHT 61/284. 22 It responds by addressing, it says, three matters which 23 are set out at (a), (b) and (c), as we can see. Then it 24 says this: 25 "The Trust has decided not to perform complex 0103 1 neonatal or infant open-heart surgery until there has 2 been resolution of the conflicting professional advice." 3 That, I think, was what you had been looking at, 4 if we go back to 61/282, the third paragraph where you 5 say: 6 "As you know, I learned last week that far from 7 this being the case, neonatal and infant cardiac surgery 8 has continued at the Bristol Royal Infirmary." 9 The case that was operated on on 12th January was 10 a case of an 18 month old child, was it not? 11 A. That is correct. 12 Q. Neither a neonate nor an infant? 13 A. Correct. 14 Q. So what had inspired the flurry of phone calls and the 15 exchange of letters was an operation on someone who is 16 outside the technical boundaries of what is a neonate 17 and what is an infant? 18 A. Correct. 19 Q. If we go back in that light to UBHT 61/284, the decision 20 not to perform complex neonatal or infant open-heart 21 surgery, as it happens, if it stopped there, would not 22 have prevented the possibility of another Joshua 23 Loveday? 24 A. Yes, but with great respect, these arguments about 25 definitions were not my concern. My concern was the 0104 1 interprofessional dispute, and whatever form of surgery 2 was a matter of concern to the clinicians involved, the 3 concern was, our job in the NHS is to make sure that 4 situations are managed properly by the appropriate 5 persons. This Trust in this instance was failing to 6 satisfy certain senior clinicians as to the way it was 7 managing the paediatric cardiac surgical service. It is 8 not my job to second-guess clinical judgment. 9 Yes, there were definitions subsequently, 10 clarification of exactly what for the purposes of 11 surgery could, should, take place. That was a matter 12 for the senior clinicians involved with true experience 13 of the subject, and as you will know, the President of 14 the British Cardiac Society who was himself a paediatric 15 surgeon later intervened to clarify and ensure it was an 16 appropriate thing. 17 My concern at this stage was to ensure that the 18 interprofessional dispute was resolved whatever the 19 basis for that dispute. 20 Q. You spoke to Dr Parker? 21 A. Subsequently, yes. 22 Q. UBHT 61/286, the bottom of the page, please. This is 23 your letter again, is it not? 24 A. That is correct. 25 Q. The last four lines: 0105 1 "It was also agreed that until the results of the 2 inquiry were available, the Trust would suspend all 3 complex paediatric open-heart surgery. This is 4 a slightly different definition from that contained in 5 our previous correspondence, but is, we agreed, the 6 right one under the circumstances." 7 The agreement is one between you, the Department 8 of Health, and the Trust, is it? 9 A. That is correct. 10 Q. So you, for the Department of Health, were in fact 11 agreeing upon a particular definition of surgery that 12 would not be done? 13 A. Correct. 14 Q. You have explained that you took advice on it, but -- 15 A. This is following expert advice. 16 Q. Following your talking to Dr Parker? 17 A. Indeed. 18 Q. Indeed, you set that out: 19 "... advice offered by the President of the 20 British Cardiac Society." 21 So definitions were actually a matter of some 22 importance, even though it might not have been your 23 primary concern? 24 A. The importance of the definition is relating to the 25 agreed management action that will be taken to resolve 0106 1 the management dispute -- to resolve the 2 interprofessional dispute. It is clearly appropriate if 3 you are setting out a management process, to resolve the 4 issue, to ensure that it tackles exactly the right 5 issues. 6 In order to ensure that the right issue is taken, 7 expert advice was used to arrive at a definition that 8 covered the risk appropriately. I was then satisfied 9 that the action being proposed by the Trust did cover 10 the grounds that were the basis of the interprofessional 11 dispute. 12 Q. Can I move on a little to UBHT 61/293, the meeting of 13 9th March 1995. This is the next document that we have 14 after the 3rd February letter which I have just shown 15 you. 16 What, in your recollection, took place in the 17 intervening month? 18 A. Clearly my minute was discussed by colleagues at various 19 levels in the department, those I circulated and those 20 I passed it on to and this in effect was after 21 consultation, with the decision that the situation was 22 sufficiently severe and sufficiently a matter of concern 23 and that the Department and the Regional Health 24 Authority, who were also informed in my minute, should 25 jointly go down and ensure that the Trust had put in 0107 1 place appropriate actions to manage the problem. 2 So this, in a sense, is the sort of formal 3 approach that might well result from the Department 4 having concerns about Trust performance and the way they 5 were managing an issue. 6 Q. What we do not see there is the Chief Executive of the 7 UBHT. Is that because he was about to retire? 8 A. If I recall, he was actually on holiday, in Australia, 9 I think. 10 Q. So his deputy comes? 11 A. So his deputy comes. 12 Q. The reason, please, for involving the Region was what? 13 A. The service had, by that stage, gone from -- as we said, 14 it was de-designated in 1994. It was now still, at this 15 stage, a Regional Health Authority responsibility. 16 Q. Can we scroll down, please? Paragraph 3: 17 "Mr McKinley said that the Trust was facing 18 a complex issue. He acknowledged that concern had been 19 expressed for some time about paediatric cardiac 20 services in the BRI. He believed the Trust had the 21 situation under control from the middle of 1994, but 22 following an unsuccessful switch ... earlier concerns 23 had resurfaced." 24 Does that represent your recollection of what 25 Mr McKinley said about concerns? 0108 1 A. That was a reasonable summary of my understanding of the 2 position at that time. 3 Q. You do not know whose minutes these are, do you? 4 A. I would suspect they were initially done probably by 5 Billy Flynn for the NHS Executive, and then would have 6 been agreed by those present. I note there are one or 7 two amendments on it, so I suspect this is actually 8 a draft rather than the final version. 9 Q. Paragraph 4: 10 "Dr Doyle explained that during a visit to UBHT in 11 July 1994, his advice had been sought on how to resolve 12 a long-standing problem over the interpretation of the 13 paediatric surgical audit results. He had advised that 14 the matter should be put to the Trust management again 15 and if necessary outside help should be sought." 16 That is a reference to your conversation with 17 Dr Bolsin? 18 A. And my advice to Professor Angelini. 19 Q. "He later discussed the proposed action with Professor 20 Angelini and Dr Roylance and understood an acceptable 21 agreement had been reached to the effect that, pending 22 the appointment of a new paediatric cardiac surgeon, 23 high risk procedures would not be undertaken at the 24 BRI." 25 You told us about that. It records there what had 0109 1 been said about the operation. It says: 2 "Following the operation, you had again been 3 contacted by a number of people, including some outside 4 the BRI." 5 Who were they? 6 A. I mean, that is a summary of what I said, but I had been 7 contacted by another senior paediatric cardiac surgeon 8 from another centre shortly after the unsuccessful 9 operation to say was I aware. So if you like, this is 10 a result of my networking, somebody else ringing me up 11 to alert me to the fact that there was a serious problem 12 in Bristol, a fact I already knew and resolved. 13 Q. Who was that? 14 A. That was Mr Brawn, from Birmingham. And shortly after 15 that, of course, Mr Parker was in touch with me. By the 16 time this meeting was held, I had had a number of 17 conversations -- 18 Q. So the "somebody" is Mr Brawn and Dr Parker? 19 A. Yes, essentially. 20 Q. Anyone else? 21 A. Not that I can recall specifically at this stage, no. 22 Q. Can we go overleaf, please, to page 294, down to 23 paragraph 7: 24 "Dr Doyle reminded those present that, from 25 correspondence he had seen, the difference of 0110 1 professional opinion had existed since at least 2 1990 ..." 3 What correspondence are you there referring to? 4 A. By this time, as I said earlier, the brown envelope had 5 been opened and put on the official file and that 6 contained two letters, one written by Dr Bolsin in 1990 7 and another I believe written in 1992, and I believe 8 both those letters are a matter of record. 9 Q. I am told by Mr Moore behind me that what is thought to 10 be those letters and the enclosure has been traced to 11 the Department of Health and he will make sure we have 12 copies together with a statement as to why it is thought 13 those are the documents. Would you be so kind as to 14 have a look at them and see whether they ring bells with 15 you, so you can confirm they are the documents? 16 A. I can confirm the two documents part of the GMC Inquiry 17 were the two letters. They are on record as part of the 18 GMC evidence as well, and I confirmed at that time they 19 were the two letters I had seen. 20 Q. Would you read through the rest of that paragraph and 21 tell me how accurate a reflection it is, you think, of 22 what you had to say to the meeting? (Pause) 23 A. The first half is clearly a summary of what I said, and 24 as far as I can see that agrees with what I said. 25 Clearly Dr Laszlo's comments, as far as I recall, that 0111 1 is what he said, but I am not responsible for what 2 Dr Laszlo said. 3 Q. It is simply the accuracy of the record I am asking you 4 about, because this particular minute has been queried 5 in other places. 6 Just to confirm again, I think you said your 7 minute, meaning the Department of Health's minute; 8 probably Billy Flynn? 9 A. The one that I sent to colleagues in the department on 10 16th January, yes. 11 Q. Forgive me, I have resolved the confusion that there was 12 on this side of the chamber. 13 Can we then come back to the two documents I have 14 not yet shown you, which you will be familiar with, 15 because they are your own personal minutes, first of all 16 of 16th January, the Monday following the Thursday of 17 the operation: DOH 1/9. 18 This is a memo to Dr Winyard and Dr Scally, 19 Dr Scally being from the South Western Region. 20 Dr Winyard being? 21 A. Deputy Chief Medical Officer and Medical Director of the 22 NHS Executive. 23 Q. And the copies are to others, amongst others what you 24 might describe as "in-house press people"? 25 A. No. Dr Harvey was personal Secretary of the CMO. 0112 1 Dr Bourdillon was the SMO and Dr Graham the PMO. 2 Ms Phillips was my administrative counterpart on the 3 section and Mr Waterhouse was her immediate superior, so 4 her equivalent to Dr Graham. 5 Q. I am grateful. The background that you set out: 6 "Earlier this year the Professor of Cardiac 7 Surgery, Professor Angelini, became very concerned about 8 the audit results for neonatal and infant cardiac 9 surgery produced by one of the anaesthetists, Steve 10 Bolsin. After a great deal of discussion in which 11 I became involved during a visit for other reasons, 12 Professor Angelini persuaded the trust to appoint a new 13 paediatric cardiac surgeon and transfer the service to 14 the Children's Hospital." 15 You do not, in that recitation of the background, 16 set out anything about the initiation for your concerns 17 being Steve Bolsin's talking to you in the taxi? 18 A. True. 19 Q. Why not? 20 A. Because it is a very brief summary. I suppose I was 21 trying to summarise the situation in the shortest 22 possible time, because the issue of concern was what had 23 happened in January. 24 Q. How do you know that Gianni Angelini "became very 25 concerned about the audit results"? 0113 1 A. Because when we had subsequently spoken and in the 2 exchange of correspondence, he had showed his concern. 3 Q. Forgive me: speaking I understand, but the 4 correspondence does not, does it, indicate that he, for 5 himself, was very concerned, rather than that he was 6 having to grapple with a problem which was recognised 7 within the Department? There is a difference, is there 8 not? 9 A. There is a difference in the sense that this is a very 10 brief summary which does not reflect perhaps as well as 11 one might wish, with hindsight, the exact process that 12 had taken place during the summer. 13 What it does interestingly reflect is that in our 14 discussions, phone calls and letter, again the 15 impression I had been given by Professor Angelini was 16 that he was actually far more influential than he might 17 subsequently claim to have been, and, yes, it is not -- 18 I mean, in three sentences, one cannot produce -- the 19 important thing is for my senior colleagues to 20 recognise, there has been a problem since the summer, 21 which appeared to have been resolved but clearly has 22 not. 23 Q. You say in the last sentence of that paragraph that it 24 was also agreed that no further neonatal and infant 25 cardiac surgery would be performed -- I have asked you 0114 1 about that -- but in brackets it says, "(see attached 2 correspondence)". 3 Is there any letter that we have not seen? 4 A. No, that refers to my exchange of letters with Professor 5 Angelini, the ones we have already covered, my letters 6 and his letters and Dr Roylance's letters. 7 Q. So in support, as it were, of your view that those 8 letters bore that implication properly, you were putting 9 them forward to your superior and to Dr Scally as 10 bearing that out? 11 A. Superiors. 12 Q. You describe the events of the Wednesday, and again, it 13 is a question of recollection, because recollection may 14 be of importance, but when I asked you about this in 15 evidence, you could not recall whether it was Dr Bolsin, 16 whether it was Professor Angelini, whether you might 17 have bleeped Dr Bolsin or not. 18 Here, five days away from the event, you recall it 19 as a contact by Dr Bolsin? 20 A. Indeed. 21 Q. So is that -- 22 A. That helps clarify my memory, yes. 23 Q. So is that more likely to be right? 24 A. I am sure that is right, yes. This is written at the 25 time of the event. 0115 1 Q. Your advice that you say you gave, again, not something 2 you recollect in quite those terms today when we have 3 been through it, looking at it in the light of memory -- 4 A. I am quite sure that I gave Dr Bolsin that advice, 5 because it accords with exactly the advice I had given 6 him earlier, and the advice I subsequently gave him. 7 Paragraph 4 here again is a useful summary and confirms 8 exactly what I said earlier: that I pointed out to 9 Dr Roylance the very serious difference of professional 10 view that had again developed. 11 Q. When I asked you about it before the lunch break, you 12 did not, I think -- the transcript will show whether 13 I am right or wrong on this -- mention transferring 14 a child as a possibility. You mentioned getting outside 15 advice, a second opinion, but not actually transferring 16 a child. 17 Do you think you mentioned that transferring the 18 child to another centre might have been appropriate, or 19 not? 20 A. Getting a second opinion is done one of two ways. 21 Normally with a child of this age, it means transferring 22 the child to another centre. Occasionally you might ask 23 a colleague to come and examine the child at the 24 hospital, particularly if it is difficult to transport 25 the child. But in normal medical parlance, getting 0116 1 a second opinion on a child like this would mean sending 2 the child with the parents to the other centre. 3 So transfer is implicit in getting a second 4 opinion, in most cases. 5 Q. So you may have said no more than, "get a second 6 opinion"; you may have meant, "transfer the child"? 7 A. Getting a second opinion would imply transferring the 8 child to another centre. It normally would. 9 Q. I am going to press you for an answer in case it be 10 important. Might you, do you think, have said no more 11 than "get a second opinion", meaning, as you say it, 12 that necessarily implied transferring the child? 13 A. Again, after five years, it is difficult to recall 14 exactly what I said. On the basis that I wrote this 15 within a very few days of the event, the fact that 16 I wrote what I did there might well -- well, almost 17 certainly means that in the course of the conversation, 18 which by the nature of our discussions had been 19 abbreviated, I would have elaborated on getting a second 20 opinion to the point of "if it is not urgent there is 21 plenty of time to transfer the patient to another 22 centre". 23 Q. You recall Dr Roylance, in this memo, saying he would be 24 guided by his Medical Director, James Wisheart, "and 25 also the senior cardiac surgeon! [exclamation mark]". 0117 1 A. Yes. Again, I wrote this slightly after the event. 2 Q. You were asked about this when you gave evidence before 3 the GMC, when it was suggested to you that, guided by 4 the results of the conclusion of the case management 5 conference -- and indeed, that was the way you described 6 it to us in your statement and the way you recalled it 7 today. Which is it? Is it the case that these words 8 were definitely said, or is it the case that something 9 to that effect was said and you were not concentrating 10 on the difference, if there was one, between this and 11 the case management conference, or you think your 12 evidence today is probably right, or what? 13 A. It is equally probable that both are right. You forget, 14 this was quite a long conversation and it is entirely 15 possible, as I say, trying to recall it at this time 16 that he said he would be guided by the case conference 17 and guided by his Medical Director in the course of that 18 conversation, because we repeated some of the points 19 several times. 20 The fact that I wrote this a day or two after -- 21 I mean, clearly the statement by Dr Roylance was that 22 the case conference was going on and that he would be 23 guided by the outcome. Whether the outcome was relayed 24 to him by James Wisheart as his Medical Director or not, 25 I do not know. As I say, I was not concerned at that 0118 1 stage specifically with the details. The point was that 2 he had to resolve the interprofessional dispute, which 3 he clearly did not do. 4 Writing this slightly in the heat of the moment, 5 a couple of days after a very tragic event when I felt 6 that we had to act quickly and to alert my colleagues 7 quickly to a difficult situation, it is entirely 8 probable that I started to put some, if you like what 9 had then become apparent undercurrents as to who was 10 responsible for managing various aspects of the Trust 11 business and that seemed to be becoming increasingly 12 anomalous into my minute, to forewarn them of some of 13 the potential complications that might arise when we 14 looked into this matter. 15 Q. Can we go overleaf, please, on this? You describe in 16 paragraph 5 the conversation you had with Mr Wisheart 17 the following morning. You have not told us, in your 18 recollection, anything of the content of the 19 conversation that you there, in paragraph 5, record. 20 Again, this memo, written on the 16th to alert 21 your seniors to the position, is nearer in time. Is it 22 accurate? 23 A. It is as accurate as I could make it at the time. As 24 I said earlier, I spoke to Mr Wisheart in the morning. 25 He told me his view. I reiterated my view and gave him 0119 1 very much the same advice as I had given Dr Roylance. 2 I would not be changing my advice. The advice is, the 3 first rule of surgery is: if in doubt, keep out. 4 Q. I am not going to trouble you with the rest of the memo, 5 but can I ask you this: this was the first time that you 6 had formally involved your seniors? 7 A. That is correct. 8 Q. Perhaps I should actually just take you back to 9 paragraph 9 of the memo, and just ask you about that. 10 Would you just read it through for a moment? (Pause). 11 The second last question which is raised there: 12 how can differences of professional opinion or 13 interpretations of audit data be resolved without 14 putting patients at risk? 15 "It would seem that we need a well recognised and 16 acceptable mechanism for getting independent advice on 17 such difficult questions." 18 Why is it that HC(90)9, which you thought earlier 19 on and had advised Dr Bolsin was the answer, why do you 20 think it was not? 21 A. This is slightly different ground, because the audit 22 circular went out, HC(91)2. We are asking in that, and 23 in this, the profession to self-regulate themselves and 24 we are asking the Trust management to give them the 25 tools to do the job. 0120 1 What was becoming clear was that the more you get 2 into audit of this sort and the more you start to do 3 a systematic analysis of your results, the more likely 4 some of these issues are going to be raised. 5 Clearly, what is not allowed for in this circular 6 specifically is any national means or any outside 7 independent benchmark, or any way in which, at that 8 stage, within the current mechanisms we had, we had not 9 yet defined an appropriate pathway where 10 a straightforward outcome of audit could be taken to 11 some higher independent mechanism to resolve the 12 dispute. In a sense, what I had identified, or seemed 13 to be coming out of this problem, was a gap in our 14 current guidance and procedures. Clearly HC(90)9 15 applied to the resolving of interprofessional disputes. 16 Clearly HC(91)2 ensured that audit systems were set up, 17 but HC(90)9 was not really intended to deal with getting 18 independent opinion on audit outcomes per se, only where 19 they led to severe questioning of performance or 20 dispute. 21 So in other words, we needed some professional 22 method of assessing these things that fell in that area. 23 Q. So were you talking then about the differences of 24 professional opinions or interpretations short of 25 professional dispute? 0121 1 A. Yes, where there were differences of opinion that needed 2 to be resolved at a much earlier stage in a sense, as 3 soon as any differences start to become apparent. 4 Because in certain circumstances it might not have been 5 necessarily a professional dispute arising, there was 6 just concern that a particular unit did not quite know 7 how to proceed in the light of the audit results they 8 found. 9 Q. Paragraph 8: you are recording what you said to James 10 Wisheart. 11 "As you were in possession of many of the facts, 12 you had to pass them on to your colleagues. We were 13 obliged to protect the position of the Secretary of 14 State." 15 What do you mean by that? 16 A. Exactly that. The Secretary of State, the NHS authority 17 was set up under the NHS. The Secretary of State had 18 overall responsibility for the management of those 19 Trusts. If there was a clear breakdown in Trust 20 management and the Trust was not fulfilling its 21 obligations as set out in the NHS Act, then at that 22 stage the Secretary of State might well become 23 responsible, if he failed to act. Clearly, by this 24 stage, the Department, in the name of the Secretary of 25 State, had a clear duty to act because it was apparent 0122 1 to all that they had failed in an aspect of their 2 management. 3 Q. So because the Trust has failed in its duty and job to 4 manage, as you saw it, the Secretary of State would have 5 to get involved? 6 A. Absolutely. At that stage. 7 Q. I was going to move on to the memo which we have 8 following this, on 24th January, DOH 1/15, paragraph 3: 9 "... still not clear whether there is a serious 10 problem with cardiac surgery, or whether this is 11 a serious breakdown in professional relationships ... 12 cause for grave concern that the Trust has not taken 13 action to resolve the problem; that children's lives 14 might have been put at risk and that rumour and innuendo 15 have been allowed to spread apparently unchecked." 16 There is a reflection of those words in what was 17 said on 26th January to you in Dr Roylance's letter, 18 UBHT 61/285. Just let us look at that for a moment. 19 It is the first sentence. (Pause). Having read that, 20 can we go back to DOH 1/15? Paragraph 3. What did you 21 mean by "rumour and innuendo"? 22 A. This is, as you will appreciate, several days later when 23 now being open to full discussion, all sorts of facts 24 not known to me at the time started becoming available. 25 The rumours that these problems had gone back. It was 0123 1 shortly after this that I became aware, I had never seen 2 them before, of the articles in Private Eye, for 3 instance. Also, this postdates my conversations with 4 Mr Parker, Bill Brawn and others. It was quite clear 5 from those conversations that a lot of other people, 6 apart from me, had known of the existence of problems in 7 that unit and that others were outside the Trust talking 8 about it. 9 Q. So you mean that when you spoke to Bill Brawn, he gave 10 you a reflection of either his view or those that had 11 been reflected to him of views saying, "Well, there has 12 been a problem there for a long time", or something 13 along those lines? 14 A. That is right: was I aware of the immediate problem and 15 that had been aware of problems for some time. 16 Q. What sort of matter was Dr Parker saying? 17 A. Again, he said that part of the reason for ringing me 18 was that he felt that the definition I had used, offered 19 to the Trust -- he had been contacted either by the 20 Trust or by Mr Wisheart, I do not know, but he rang me 21 to say he had seen it and his advice had been asked and 22 he thought the definition I had given was not the most 23 appropriate. We therefore discussed the most 24 appropriate definition and came to the agreement, but 25 again, in the course of that conversation he advanced 0124 1 the opinion, rather as others had already expressed, 2 that there was only a problem with certain procedures 3 and that they were recognised and they were going to be 4 dealt with. 5 So again, he gives the very strong impression that 6 whilst some parts of the service were fine, there was 7 a problem and it was there and known about. 8 Q. Did you form any view from what was said to you about 9 how long others in the profession had perceived that 10 there was some problem, albeit relying on rumour and 11 innuendo? 12 A. Not at that stage. I was still under the impression 13 that it was four or five years. 14 Q. The impression, four or five years, initially had been 15 given to you by Dr Bolsin? 16 A. That is correct. 17 Q. And because of the letter you had uncovered in the brown 18 envelope. Was there anything else that gave you the 19 idea of the four to five years? 20 A. No, only what, up to that stage, had been brought to my 21 attention from various sources. I was still under the 22 impression that the problem was only from the late 23 1980s/early 1990s onwards. 24 Q. Before I leave the whole question of what you were told, 25 what you knew, what you found out, can I ask you this: 0125 1 you said on a number of occasions how you received the 2 envelope and you did not open it. At the GMC you 3 said -- let me just find the precise page -- that you 4 had the letter. You opened it in the taxi, looked at 5 what was inside and put it away again. 6 Can you explain to me how that difference might 7 arise? I will get your exact words in a moment. I do 8 not know if you can help on that? Is it the case that 9 you may have opened the letter, looked inside and not 10 read it, but looked to see what was there? It is 11 WIT 337/24, to be fair to you, because I think you ought 12 to see this on the screen. 13 A. I cannot even remember at this stage whether the 14 envelope was actually sealed or not. 15 Q. Just pause for a moment. Can we scroll down, please? 16 You see the question on the screen: 17 "Question: The brown envelope which you described 18 being passed in the taxi contained information about 19 surgical procedures undertaken at Bristol Royal 20 Infirmary? 21 Answer: It did. 22 Question: Was the information that you were given 23 surgeon specific or was it just general information? 24 Answer: The answer is, I do not know because as 25 I made clear to Dr Bolsin at the time, I am not an 0126 1 expert statistician and was not expert in audit and 2 therefore I did not look at the data. I opened it in 3 order to see what was enclosed, put it back again and 4 I have never looked at the actual figures, tables and 5 data that was provided ..." 6 So your recollection at the GMC was that you had 7 opened the envelope which you told us on more than one 8 occasion remained entirely sealed? 9 A. As I have said, it is difficult to recall exactly what 10 happened five years ago. This statement I made a lot 11 nearer the events. I cannot recall. It may be that 12 this may be entirely correct, that I opened it -- in 13 fact, I have a feeling now I think about it, I cannot 14 remember exactly what happened but it was not actually 15 sealed, it was just a brown envelope with some papers 16 inside, so I glanced in the flap, put it away in my 17 briefcase. 18 Certainly, I did not do anything other than take 19 the merest glance at the thing and put it away in my 20 briefcase, and never looked at it again. 21 Q. The second question which arises from the same answer is 22 that you told us a moment or two ago that although the 23 envelope had remained sealed in your files, it was 24 opened once matters came on top in January 1995 and the 25 envelope was then opened, and when I asked you whether 0127 1 you would check to make sure that the letters were the 2 letters, you said those were the letters that went to 3 the GMC. 4 So you have in fact looked at the documents, even 5 though you may not have scrutinised them? 6 A. I certainly looked at the letters subsequently. I mean, 7 this clearly points out exactly what I have been 8 saying. My transcript confirms everything I have been 9 saying today. My concern was there was clearly an 10 interprofessional dispute -- 11 Q. I am focusing just on this. 12 A. Exactly how -- I have made the point. I cannot exactly 13 remember every single action my fingers made on that 14 day. The point at issue is that I took from him an 15 envelope which he told me contained facts and figures 16 and may or may not have glanced inside it at the time. 17 I put it in my briefcase, I went back to the department, 18 I put that envelope unscrutinised in any further way 19 whatsoever with the other papers from Bristol in the 20 folder in my private filing cabinet in the Department. 21 They remained there until after the events of the 16th, 22 when I produced all the correspondence in relation to 23 Bristol, including the brown envelope and those papers, 24 as I think my colleagues will confirm, were then made 25 part of the official record, and the official 0128 1 departmental file. 2 Q. Did you look at them then? 3 A. I read the letters subsequently, but I never looked 4 specifically at the figures, other than to say, there 5 are tables of figures and this is the audit data. 6 I would not dream of trying to analyse those. It is not 7 my area of expertise. 8 Q. Would it be more accurate then to say you never 9 scrutinised the actual figures, tables or data, or 10 examined the actual figures, tables and data? 11 A. I certainly never examined them. I only ascertained 12 that there were some papers in the brown envelope. 13 Q. Which were figures and tables and data? 14 A. That is what Dr Bolsin had told me. If I looked at them 15 at all, it was just to glance inside that there were 16 some papers. 17 Q. Two other matters only which I need to ask you about. 18 The attendance at the meeting on 9th March 1995. You 19 said service was not designated. It was now a Regional 20 Health Authority responsibility. Can you help why it 21 was a Regional Health Authority responsibility? 22 A. That is 1994. That was post 1991. 23 Q. We are 1995 now. 24 A. It was de-designated as from 1st April 1994. 25 Q. Yes. 0129 1 A. I honestly cannot remember who would then be 2 commissioning the service. I do not know, is the answer 3 to that. 4 Q. Can you help as to why there was no representative of 5 the purchaser, or purchasers, at the meeting? 6 A. Because this was a primary question of Trust management, 7 for which the responsibility lay jointly between the 8 Department and the Regional Health Authority. 9 Q. The last matters which I have to raise with you, 10 something completely different. It concerns evidence 11 that we had from Catherine Hawkins. She was telling us 12 that the Department of Health and Social Security 13 insisted that the Region increased the cases undertaken 14 in spite of the fact that they had raised concerns on 15 outcomes with them on a consistent basis. 16 Those are her words relating to, I think, a period 17 of time in the 1980s, in particular. 18 Are you in a position to assist at all with what 19 the DHSS did in respect of insisting or advising or 20 encouraging a greater number of cases to be undertaken 21 in paediatric cardiac surgery, or cardiac surgery, in 22 Bristol? 23 A. No, not at all. 24 Q. Again, she told us -- the reference for those who want 25 to have it is Day 46, page 85, line 1 -- that if the 0130 1 Medical Officer of the Department knew from the Royal 2 College that concerns had been expressed about a very 3 specific unit in the service, they would have expected 4 to have been informed, even if it was a supra-regional 5 service in children's cardiac surgery. 6 Obviously this was no longer when you were 7 involved a supra-regional service, but when you had 8 concerns which you took very seriously, so seriously as 9 to write to Professor Angelini and you were concerned 10 that Dr Roylance should know about it, which, because of 11 his response to you, you found out he did, did you think 12 that it was something that Region ought also to know of? 13 A. At the time that I was asked for advice and offered my 14 advice and a warning shot to Professor Angelini, 15 following my initial correspondence, my first reaction 16 to a problem put to me, I got back from first Professor 17 Angelini and then, entirely unsolicited, a letter from 18 Dr Roylance, assuring me not only that he was totally 19 aware of the problem, but that the Trust Board were 20 fully aware of the problem. It did not appear to me 21 then, at that time, having got those reassurances, that 22 I needed to inform anybody else. 23 Do not forget, this is a background where 24 I frequently give advice about problems, senior or 25 minor. If they are solved by the appropriate mechanisms 0131 1 and do not involve anybody else, what is the point? The 2 problem is to all intents and purposes solved. The 3 moment I became aware that the problem had not been 4 resolved and that it had recurred, I informed not only 5 senior officials within the Department but senior 6 officials as well, in fact, all those who needed to 7 know, immediately. 8 Q. Dr Doyle, I have asked you a lot of questions. There 9 may have been something which I have not asked you which 10 you would like to tell us about. This is now your 11 chance to do so, or your chance to amplify or clarify 12 anything where you think your answers may have been less 13 than clear. 14 A. I apologise to the Inquiry team particularly that fading 15 memory and so on has made one or two minor points of 16 exactly what I did, when, unclear. I hope in my 17 testimony I have been able to make it clear that I felt 18 that I had acted in broad terms exactly in the way 19 I felt was appropriate to resolve the problem and that 20 when it became apparent that the problem had not been 21 resolved, I then, if you like, invoked the full 22 machinery of the department to ensure that the necessary 23 action was taken. 24 MR LANGSTAFF: Thank you. There may be some questions from 25 the Panel. 0132 1 THE CHAIRMAN: Dr Doyle, Mrs Howard ... 2 Examined by THE PANEL: 3 MRS HOWARD: Just one question. If I can take you back to 4 your initial discussions of the situation prior to the 5 January operation, at any time did anyone, including 6 yourself, discuss whether the parents of this child were 7 aware of the professional dispute which you describe? 8 A. I did not discuss that with anybody. 9 MRS HOWARD: Thank you. 10 THE CHAIRMAN: Professor Jarman? 11 PROFESSOR JARMAN: Dr Doyle, if it is put to us that the 12 SRSAG should have been responsible for ensuring that 13 there was a system in place to monitor the quality of 14 care of the service at Bristol, and then examine the 15 results, what would you say to that? 16 A. I would argue that the system was in place; that this 17 was an evolving system. Without going into a great deal 18 of length, as I think others have testified and as 19 I tried to explain earlier this morning, we are talking 20 about an evolving situation of accountability, that 21 contracting was very rudimentary in the early 1990s, 22 audit was equally rudimentary in the early 1990s. 23 The initial contracts for the SRSAG required that 24 people took part in their local quality and audit 25 mechanisms and required some evidence that they were 0133 1 participating. That is the earliest contract. 2 It became, as I said in my testimony -- in the 3 first year or two it was simply that they were asked to 4 provide evidence that they were participating in all the 5 other issues, the mechanisms like HC(91)2 that were part 6 of the normal NHS proceedings guidance, and these 7 services were not exempt from any of those requirements 8 to comply with quality initiatives by their host 9 purchasers, et cetera, fire regulations and everything 10 including the audit requirement. 11 As I said in my testimony, by the time I came to 12 the post, which was some two or three years into the 13 contracting process and the development of the quality 14 initiatives, it became clear that for these highly 15 specialised services, the sort of ordinary local audit 16 mechanisms were not going to be totally apparent. 17 So all the way along, the SRSAG has increasingly, 18 since its inception, gradually racked up the requirement 19 of the services to comply with all the agreed 20 mechanisms. The SRSAG, if it has been notified of 21 a problem at any stage -- because it is an Advisory 22 Group, it does not have, apart from a very small 23 Secretariat of three people, the resources of a normal 24 Health Authority. It has therefore reverted always, and 25 still does, to seeking guidance on any problem that 0134 1 arises in respect of a designated service from the 2 appropriate professional organisation, and as 3 I understand it -- I was not there at the time but it 4 sought advice about this service formally from the 5 College in 1988, and again in 1992, which is entirely 6 consistent with its proceedings. 7 Once I got into post and we became interested in 8 audit we started to set up a number of inter-unit audits 9 where it was clear that local audit mechanisms could not 10 cope with highly specialised data. That process is 11 still developing and evolving as we speak today. In 12 fact the last meeting of NSCAG was concerned with how it 13 meshed in its clinical governance role with that of the 14 local Trust and the local Medical Director, because 15 clearly there is some joint coming together and they 16 have to agree the clinical governance mechanism 17 appropriate to supra-regional services. 18 So my experience of SRSAG and subsequently NSCAG 19 is that there has been a clear but gradually evolving 20 structure for increasing accountability, and that in the 21 early 1990s it was very rudimentary. 22 Q. When you were questioned (it is on page 11 today) about 23 the system for monitoring the quality of outcome, in 24 reply as to responsibility, you said, "I think initially 25 it was the responsibility of the clinicians". You have 0135 1 just said how difficult it was to get audit data and you 2 said yourself that it is very difficult to interpret the 3 statistics; in fact, you yourself would not be able to 4 do so. I do not think average cardiac surgeons are 5 known particularly for their ability to interpret 6 statistical data. 7 Was it, in your view, possible for a clinician at 8 that time to check the quality of care, the outcomes, 9 the death rates? 10 A. It was not easy, but some certainly were doing it. That 11 same year, Marc de Leval produced a seminal paper 12 adapting new techniques to audit methodology to overcome 13 just some of those problems. 14 Q. I mean an average cardiac surgeon? 15 A. But it is a small society, it has the longest record of 16 audit of any because of its surgical register. It has 17 been more than concerned than any other profession to 18 audit its outcomes. The anaesthetists had already set 19 up ACTA. There was a huge amount of work done, 20 Parsonnet scores, risk stratification scores had been 21 developed in the 1980s. There were probably more audit 22 tools available to the average cardiac surgeon, adult 23 cardiac surgeons specifically, less so for the 24 paediatric cardiac surgeon because the definitions are 25 more complex and the numbers are smaller. 0136 1 So I would agree it is difficult and it was not 2 easy for anybody to set up a really good quality valid 3 audit in those cases. 4 However, many people were attempting to audit 5 results and when you attempt audit results and a problem 6 arises, I think as a clinician you have a duty to 7 investigate that to the best of your ability, and just 8 as we take research evidence, if the best of your 9 ability is simply to get together those experienced 10 individuals to come to a consensus, then that is what 11 you do. 12 If you can analyse the statistics competently to 13 give a valid result which shows confidence intervals, 14 then you have a higher level of proof and certainty. 15 Clearly if you can replicate those results consistently 16 on some sort of national audit which is properly 17 risk-stratified, then you have a higher order still of 18 certainty about the outcomes. 19 Q. On page 15 of today's evidence you said that the 20 detailed quality appraisal of any unit was a matter 21 of -- whenever concerns were raised, the College was 22 asked, and still is asked, to look into it. I think you 23 are right, that even with the right people, a first 24 class service and clinical governance, nice and cheap, 25 the College still will be asked to look into it. But do 0137 1 you see the College as being responsible on a day-to-day 2 basis when looking at the quality, or only when concerns 3 are raised? 4 A. I am not saying it works as it should in practice. The 5 clear implication of the guidance is that clinicians 6 should be auditing their own performance and that when 7 problems arise, either through a local or a national 8 audit system, they have to call on the necessary outside 9 expertise to resolve the problem. 10 In our case, the SRSAG might ask the College to go 11 directly, or might tell the Trust, "We think you have 12 a problem there, could you please get the College to 13 come and, visit and advise" and we did that only early 14 this year. 15 Q. Just a final small point. There was a question -- this 16 is actually earlier, on page 13 of today's hearing. You 17 were asked: 18 "So far as quality of outcome, who would have the 19 responsibility there?" and you replied, "I have no 20 idea". I think possibly you were referring to the 21 "hotel" service, rather than quality of outcome? 22 A. I am sorry, but I would not -- there is no way I would 23 discuss the quality criteria for hotels. 24 Q. You were actually asked so far as quality of outcome? 25 A. I would expect every business to have put in place 0138 1 a quality control mechanism, just as we have tried to do 2 for the NHS, and that would identify who was 3 responsible. 4 PROFESSOR JARMAN: Thank you. 5 THE CHAIRMAN: I rather think it was a misunderstanding of 6 the question. The question Mr Langstaff put, as 7 I understand it, was to separate what he called "hotel" 8 services, perhaps laundry, food, porterage, as against 9 outcome, meaning the delivery of treatment. I rather 10 thought you took the analogy literally, rather than as 11 an analogy. Am I correct? 12 A. I apologise, I did! 13 Q. No apology. It is just that Professor Jarman and I were 14 anxious to clear up. On its face, your response as 15 regards who was responsible for outcomes "I have no 16 idea" might seem a little stark. I think Professor 17 Jarman was exploring that with you. All you were doing, 18 as I take it, was absolving yourself from knowledge of 19 how hotels are run. I am grateful. Mr Pirani? 20 MR PIRANI: No, thank you sir. 21 THE CHAIRMAN: I have no questions. That exhausted the 22 Panel's questions. Dr Doyle, we are very grateful to 23 you. You have spent a lot of time and we have explored 24 very important and difficult matters, and we are very 25 grateful to you for your assistance. 0139 1 Mr Langstaff may have reminded you, but in the 2 absence of that, in case he has not, I say if there are 3 other matters you want to bring to our attention, having 4 gone away and reflected and read the transcript or 5 whatever, then we will of course be more than happy to 6 receive then. We would be anxious to receive them. But 7 for today, may I thank you very much for coming and 8 spending time with us. 9 MR LANGSTAFF: Thank you Dr Doyle. Sir, may we now perhaps 10 have a 10 minute break before Dr Ashwell? 11 THE CHAIRMAN: Shall we say 10 minutes? We will reconvene 12 at 10 to 3. 13 (2.40 pm) 14 (A short break) 15 (2.55 pm) 16 THE CHAIRMAN: Mr Maclean, good afternoon. 17 MR MACLEAN: Sir, the next witness this afternoon is Dr Jane 18 Ashwell. Perhaps Dr Ashwell could come and take the 19 witness chair, please. Dr Ashwell, I understand you are 20 going to affirm. Could you please stand and do so? 21 DR JANE ASHWELL (AFFIRMED): 22 Examined by MR MACLEAN: 23 Q. You are Dr Jane Ashwell and you are currently a Senior 24 Medical Officer for the National Assembly for Wales? 25 A. I am. 0140 1 Q. Could I ask you to have a look at the screen in front of 2 you at WIT 338/1, please? Is that the first page of 3 a formal written statement that you have made to this 4 Inquiry? 5 A. Yes, it is. 6 Q. If you go to page 5, that is your signature, is it? 7 A. Yes, it is. 8 Q. That is the last page of the statement that you made to 9 the Inquiry? 10 A. It is. 11 Q. Have you read that statement through recently? 12 A. I read it last night. 13 Q. Are you content that that statement should stand as part 14 of your evidence to the Inquiry? 15 A. I am. 16 Q. I think you also made a statement, did you not, to the 17 General Medical Council in the context of its inquiry 18 into Dr Roylance, Mr Wisheart and Mr Dhasmana? 19 A. Yes. 20 Q. But you were not in fact called to give evidence before 21 the GMC? 22 A. That is correct. 23 Q. Can we have GMC 14/25? That, I think, is the first 24 page of your statement to the GMC? 25 A. Yes, it is. 0141 1 Q. I understand that the circumstances in which you wrote 2 that statement were a little different than the 3 circumstances in which you wrote your statement to the 4 Inquiry. 5 A. In that the purposes are somewhat different. 6 Q. Can you explain to me what the circumstances were and 7 what materials you had to rely on in writing your 8 statement to the GMC? 9 A. I had access to -- no, I did not have access to some of 10 the documents I have since seen, and I am afraid my 11 memory was not as good as I would have liked. So that 12 is one difference. 13 Also, for this Inquiry I was provided with a list 14 of questions which I was asked to address, and my 15 statement that I provided to you is based on the 16 framework of that questionnaire. 17 Q. Are you satisfied that the statement you have made to 18 the Inquiry was one that you made having had the 19 advantage of seeing what you considered to be all the 20 relevant documentation? 21 A. I believe so, yes. 22 Q. You are an anaesthetist by background; is that right? 23 A. Yes. 24 Q. And you practised, I think, for a period at consultant 25 level? 0142 1 A. I did. 2 Q. Where did you do that? 3 A. In Middlesborough. 4 Q. How long were you in practice as a consultant? 5 A. I was appointed in about March 1984, and I resigned in 6 the early summer of 1987, to go back into full-time 7 education. 8 Q. Which was where? 9 A. Cambridge. 10 Q. You stayed there, did you, until you went to work for 11 the Department of Health? 12 A. I stayed in education there for two years, yes, and 13 towards the end of the summer of 1989, I applied for 14 a casual job in the Department of Health, which I got, 15 and towards the end of the year of the casual 16 employment, I sat a Civil Service board and was taken on 17 as a substantive SMO. 18 Q. Can you tell me when you first had responsibility in any 19 shape or form, or professional interest in, cardiac 20 services? 21 A. When I transferred from my first post in the Department 22 of Health, which would have been in approximately 23 October 1991, to a division called HPS working for 24 Norman Halliday. 25 Q. If we go to GMC 14/26, which is the second page of your 0143 1 statement to the GMC, the first new paragraph on that 2 page, you say: 3 "I worked from October 1991 until March 1995 in 4 the health care division within the policy division of 5 the DOH. The Department of Health was broadly separated 6 during that time into Management Executive and Policy." 7 Is that right? 8 A. Yes. 9 Q. You mention Dr Halliday. I was going to ask you to whom 10 did you report from 1991 onwards, in the Department? 11 A. Dr Halliday was my grade 3, but in the division I moved 12 to, there was also a grade 4 position, and I believe 13 that was occupied by Robert Hangartner, and I think, 14 I believe, that I reported through Robert to Norman 15 Halliday. 16 Q. The new grade was what, at this time? 17 A. Grade 5. 18 Q. We know that one of Dr Halliday's responsibilities was 19 as Medical Secretary of the Supra Regional Services 20 Advisory Group. When you started work in this division 21 of the Department, in October 1991, neonatal and infant 22 cardiac surgery was still designated a supra-regional 23 service. That is right, is it not? 24 A. As far as I know, yes. 25 Q. You knew that at the time? 0144 1 A. Yes, I was aware of it. 2 Q. What involvement did you have in the Supra Regional 3 Services Advisory Group? 4 A. None. 5 Q. So if we look at the same paragraph on this page, you 6 say you provided policy advice in a variety of medical 7 specialties, all surgical specialties save for two which 8 you identify, anaesthetics and other areas such as 9 medical audit and clinicians in management? 10 A. Yes. That is slightly incorrect, if I could just point 11 it out, in that my distribution of business included 12 cardiac specialties, so it included cardiology as well 13 as cardiac surgery and it was the only medical specialty 14 I covered, but it excluded everything within the 15 supra-regional services part of work. 16 Q. So you had responsibility within the Policy Division in 17 the Department for cardiology and cardiac surgery? 18 A. Yes. 19 Q. But you did not directly work for or with the Supra 20 Regional Services Advisory Group? 21 A. Not at all. 22 Q. So just help me with what exactly your responsibilities 23 were in terms of cardiac services within the 24 Department? What was your role? 25 A. It is called "policy development", really, in relation 0145 1 to the specialties involved. The actual work would 2 involve a great deal of networking with individual 3 clinicians, trying to keep up to date with what the 4 developments in the specialty might be, and particularly 5 any issues that would have any bearing on development of 6 government policy. 7 Q. Can you give me an example of that? 8 A. I would be taking advice from people in the field on, 9 say, developments to do with, for example, angioplasty. 10 There were various new techniques coming on stream. 11 I would be attending clinical meetings and academic 12 meetings of the Colleges and learned societies. I would 13 be liaising usually with academics in the field, but 14 also with NHS practising clinicians to get advice and 15 take guidance on what the appropriate literature would 16 say about the likelihood of particular techniques being 17 useful to the NHS. 18 Q. So you would know the leading players in the field in 19 cardiology and cardiac surgery? 20 A. I was in the process of trying to improve my networks in 21 that area, certainly, as I would in all the other 22 specialties I was involved in. It is quite a large 23 area. 24 Q. So people like, for example in 1992 when you had this 25 responsibility, Sir Terence English, who is the 0146 1 President of the Royal College of Surgeons --? 2 A. Yes, I certainly knew Terence. 3 Q. -- and the cardiac surgeon to boot, would be the sort of 4 person you would be anxious to have close liaison with? 5 A. I knew him well and we sat on various committees 6 together, and I would from time to time consult him, 7 although at this precise moment I cannot give you an 8 example. 9 Q. To what extent did you become familiar with whom the 10 main players in cardiac services were in Bristol? 11 A. Not at all. 12 Q. Why not? 13 A. I imagine purely a matter of time and opportunity. 14 I attended the academic meetings of the British Society 15 of Cardiothoracic Surgery, I believe annually, and at 16 those meetings, I did my best to meet and be available 17 for people to talk to about any aspects of 18 cardiothoracic surgery that they wished to and 19 fortuitously, I never met any of the surgeons from 20 Bristol. I can tell you other units where I had met all 21 the surgeons and had indeed visited them. 22 Q. What about the cardiologists? 23 A. No, I did not know the cardiologists. 24 Q. Your responsibilities would embrace, presumably, adult 25 and paediatric cardiac services? 0147 1 A. Yes. I think that is true. 2 Q. So you would be familiar with recent developments in 3 paediatric cardiac surgery, the development of new 4 procedures and so on? 5 A. I would not be familiar with the technicalities of 6 procedures. My area of work would be much more to do 7 with what procedures might be available or coming into 8 common usage, but not details of technicalities at all. 9 Q. I am not suggesting you knew how to do the operations, 10 but you would have known, for example, that a procedure 11 known as the Sennings procedure had been supplanted by 12 the arterial switch procedure, for example? 13 A. I would have been aware of the switch procedure, 14 certainly. 15 Q. So you knew that was an important new development 16 roughly at the beginning of the 1990s in paediatric 17 cardiac surgery in the UK? 18 A. I certainly do. It was in use, yes. 19 Q. In order to keep abreast of these various 20 responsibilities, I think this is something that 21 Dr Doyle mentioned earlier. He said that he would try 22 to keep up with the literature, the journals and so on, 23 and presumably you would do likewise? 24 A. I think, to be explanatory, it is reasonable to say that 25 I would try to keep up, but it was with a variety of 0148 1 specialties. To put it in context, the cardiothoracic 2 and cardiological part of my work would amount to about 3 5 per cent of my time. So the answer is, yes, but in 4 a very limited way. 5 Q. When did you cease to have any responsibility for 6 cardiac services? 7 A. When Peter Doyle returned to the Department from his 8 secondment, which was in April 1994. 9 Q. And you did not finally leave the Department of Health 10 until 1995? 11 A. Yes, about a year later. 12 Q. So there was a period of overlap between yourself and 13 Dr Doyle? 14 A. Yes, in the same division. 15 Q. Were you in physical proximity to one another, in terms 16 of working in the same building? 17 A. We were at opposite ends of the same corridor. 18 Q. So you were close colleagues throughout that period? 19 A. We were both SMOs in the same division, working to the 20 same hierarchy. 21 Q. So members, if you like, of the same team? 22 A. The same division. 23 Q. So you would discuss matters across each other's desks, 24 would you? 25 A. There would be the opportunity. We certainly would not 0149 1 discuss every matter, not as a matter of course. 2 Q. The first thing you deal with in your statement is the 3 question of audit, and then you go on to deal with our 4 Issue N. I do not want to dwell long on audit, but can 5 I ask you to have a look, please, at page 3 of your 6 statement, WIT 338/3? 7 Under the heading "Issue M10" in the middle of the 8 page, you say: 9 "I think the way the word audit is being used in 10 Issue M is actually rather different from the Audit 11 [with a capital A] I am talking about and which the DH 12 was introducing in the early 1990s. There were no 13 systems - it was new and developing. Much of the 14 research information on which to base audit was not 15 available and much of my work was aimed at helping 16 doctors to establish research such that robust 17 guidelines could be produced to do audit against. You 18 can't look at practice unless you establish a standard 19 to compare it with." 20 So you were interested in establishing the 21 benchmark, if you like? 22 A. Yes. 23 Q. Then you say this: 24 "Audit was not a means of measuring outcomes ..." 25 Just pausing there, what did you consider the 0150 1 purpose of audit was? 2 A. I do not think I mean there that it never would be 3 a means of comparing outcomes, but at the stage of audit 4 development we were in, we were very much into process 5 audit. 6 Q. What does that mean? 7 A. It meant that you were trying to establish through 8 research, and then the production of guidelines, what 9 the appropriate methods of treatment might be. 10 The research evidence might not be clear. There 11 might be clinical choices to be made but we were at 12 least trying to find adequate research that would 13 indicate the right course of action and because audit 14 was in general, as I say, in its early stages, we were 15 trying to get people within local Trusts and more 16 nationally to compare what they actually did with what 17 the research said they should do. 18 Q. That is what you say in the second part of the 19 sentence. 20 A. That is what I mean by "process". 21 Q. If there is some mechanism -- 22 A. I am sorry, might I add something? It is not that we 23 thought we would never be able to audit outcomes, it is 24 just that we were not at that stage yet. 25 Q. Can I just clarify something, Dr Ashwell, it is not your 0151 1 fault, I am sure. In your answer there you said the 2 research evidence might not be clear, there might be 3 choices to be made; is that right? 4 A. If the research does not clearly say one drug rather 5 than another, there are choices. 6 Q. When you say audit was a way of comparing what doctors 7 did, as against what the research evidence indicated 8 they should do -- 9 A. That is fairly simplistic, of course. 10 Q. If I was a doctor and I am saying "There is research 11 evidence indicating what I should be doing and I have 12 evidence of what I am doing", am I not measuring my 13 quality of my work against what I should be doing, 14 according to the research? 15 A. Yes. 16 Q. So is there not a false antithesis in that sentence: 17 audit was not a means of measuring outcomes but a way of 18 comparing what doctors did as against what the research 19 evidence indicated they should do? 20 A. Forgive me, I do not think there is, because I think 21 what doctors would be comparing was their choices of 22 a particular treatment or drug against established 23 guidelines based on research of what the best treatment 24 was, if that was possible. That does not necessarily 25 deal with outcomes at all. 0152 1 Q. So the focus as you saw it was on choosing between 2 treatment A and treatment B, not on, having chosen 3 treatment A whether treatment A was up to scratch or 4 not? 5 A. Whether treatment A was up to scratch or not in the 6 general sense was a subject for research. Whether 7 treatment A in this person's hands with this patient is 8 effective, could be dealt with through audit. I think 9 I am trying to say that at this stage of the development 10 of audit, we had not really encompassed that. We 11 recognised it was something that needed to be done, but 12 we were not -- I am trying to explain in the context of 13 the question that seemed to be asked in issue M, that 14 actually we did have not the robustness -- I am sorry, 15 the audit methodology to answer the sorts of questions 16 that the Inquiry might be asking. 17 Q. So the difficulty with taking audit to that stage, at 18 that stage, was a technical one? 19 A. Yes. 20 Q. Was there any other barrier to taking audit on? 21 A. There were to a degree professional barriers and people 22 would make their own judgments about that. Many senior 23 and very competent clinicians were concerned about the 24 quality of the data and the uses to which any audit data 25 might be put. 0153 1 Q. They were fearful that it would be put as they saw it to 2 unjustified uses? 3 A. Yes. 4 Q. And unjustified conclusions would be drawn from it? 5 A. Particularly if they felt the data was not sufficiently 6 robust. 7 Q. In the context of paediatric cardiac surgery, or cardiac 8 services more widely, to the extent that you had audit 9 as one of your responsibilities, as you have said in 10 your GMC statement -- 11 A. I am sorry, may I explain that? I did not have 12 responsibility for the implementation of audit. That 13 lay within the Management Executive. 14 Q. So what was your responsibility? 15 A. It was actually listed as policy on audit and in fact my 16 predecessor had had nothing to do with it, I later found 17 out, but because I saw that in my job description, 18 I started to attend the steering group meetings that 19 were headed up by the division in the Management 20 Executive that was implementing audit. 21 So policy had at that point been worked out in 22 general terms, and the Management Executive was 23 implementing it. I attended those meetings, really just 24 to be aware of what was going on within the Department. 25 Q. In the context of being aware of what was going on in 0154 1 the Department, did you become aware of the decision to 2 de-designate neonatal and infant cardiac surgery? 3 A. I do not know that I was ever informed directly, but 4 I think I would have heard it probably in divisional 5 meetings. I was certainly aware that there was talk 6 about it. 7 Q. Would you receive the minutes of the Supra Regional 8 Services Advisory Group meetings? 9 A. No. 10 Q. Would you receive copies of any papers from some of the 11 leading lights in the field that you had known yourself, 12 for example, Sir Terence English, the working parties of 13 the Royal Colleges, dealing with the designation of 14 neonatal and infant cardiac surgery? 15 A. No, not at all. 16 Q. Dr Halliday was your boss, and this was one of his 17 responsibilities? 18 A. Yes. 19 Q. But it was not something he would have discussed with 20 you, because it was not one of yours? 21 A. He did not discuss it with me. 22 Q. You would or would not have expected him to? 23 A. Not at all. 24 Q. Because it was not one of your responsibilities? 25 A. Yes. 0155 1 Q. We heard from Dr Doyle this morning that the 2 secretariat, if you like, the number of people 3 physically in the department who were able to deal, 4 operate, the Supra Regional Services Advisory Group, was 5 small. Can you help us with the size of the secretariat 6 for that organisation? 7 A. I am not sure. I mean, it really was outside my 8 knowledge. I did not attend the meetings. I think when 9 I was there, that Alan Angilley was the grade 7, but 10 I do not know who else would have been involved. 11 Q. I think it was a Mr Owen who replaced Mr Angilley? 12 A. You would normally expect a grade 7 to have a number of 13 people working to him or her, and within his section, 14 I imagine he had other duties too. They would have been 15 split up between those duties, so not the whole of the 16 section would have been dealing with it, but I cannot 17 give you numbers. 18 Q. You met Dr Bolsin, did you not, in October 1992, in 19 connection with an audit project being run by the United 20 Kingdom Association of Cardiothoracic Anaesthetists? 21 A. I am not absolutely sure when I met Dr Bolsin, but 22 I knew him by then. 23 Q. If we have a look, please, at WIT 65/1398, if we go to 24 page 1400, this is a letter I think you have seen 25 recently? 0156 1 A. Yes, I have. 2 Q. It is a letter to you from Dr Bolsin. The first 3 paragraph: 4 "Thank you very much indeed for attending the 5 audit meeting. 6 On page 1400 is Dr Bolsin's signature. If we go 7 back to 1398, the first paragraph: 8 "Thank you very much indeed for attending the 9 audit meeting at the Sir Humphrey Davy Department of 10 Anaesthesia meeting in Bristol last month. We were all 11 very pleased that you could attend ..." 12 So it would appear you attended a meeting in 1992 13 attended by Dr Bolsin? 14 A. Dr Bolsin invited me. I had heard him present some of 15 his data at a meeting, and I do not know where that was, 16 but I think it was in London. He was presenting some of 17 his interim findings about the audit that this letter 18 refers to. 19 Q. This letter is essentially seeking finance for 20 a national audit programme being undertaken by the 21 United Kingdom Association for Cardiothoracic 22 Anaesthetists? 23 A. Yes. 24 Q. If we look at WIT 65/1402, the essence of it is that the 25 pitch for finance Dr Bolsin had made was successful, was 0157 1 it not? 2 A. Shall I explain the process briefly? 3 Q. Yes. 4 A. Dr Bolsin was already being funded through the Royal 5 College of Anaesthetists Audit Committee, which I think 6 is called the Quality in Practice Committee, to 7 undertake a project in Bristol, which involved trying to 8 improve means of assessing risk of surgery for adults, 9 coronary artery bypass graft patients. 10 That audit was set up before I took up my post. 11 I think it was Robert Hangartner and my predecessor who 12 dealt with it. So I was aware of it through the Quality 13 of Practice Committee of the Royal College, which I sat 14 on as an observer for the Department of Health. 15 I thought it was an excellent project. I then, 16 attending a meeting on audit -- and I think as I say, it 17 was in London, I believe it was at the RCP but I am not 18 sure -- heard Steve Bolsin present the interim findings 19 of the project we were already funding. 20 I spoke to him afterwards to say how very 21 interesting I thought the work was and what potential it 22 might have for more general audit. He then said he 23 would be talking about it in more detail at an audit 24 meeting within his department at Bristol; would I like 25 to come down and meet his collaborators, including the 0158 1 statisticians in Bristol University who were helping him 2 with the work. 3 Q. That included Dr Black? 4 A. That included Dr Black, whom I think was the senior 5 lecturer. That is why I attended the meeting. Steve 6 invited me to it, and I thought this was a useful means 7 of improving my acquaintance with anaesthetic colleagues 8 in Bristol, because that was also one of my subjects, 9 and hearing a bit more detail about what Steve Bolsin 10 was doing. Which, as I say, we were already funding and 11 thought was an excellent piece of work. 12 Q. So you were impressed by this work? 13 A. Yes. 14 Q. And you were anxious to encourage him? 15 A. I wanted to promote it being taken up by more centres 16 and that is the thrust of Steve's letter. Because first 17 I thought that we would strengthen the statistical work, 18 the more numbers of patients we had in the data 19 collection. I mean, it would give it more power. 20 Q. This is December 1992, this letter? 21 A. Yes. 22 Q. At that stage, had you had any discussions with anyone 23 about the quality of paediatric cardiac services in 24 Bristol? 25 A. No. 0159 1 Q. Dr Bolsin had never mentioned it to you? 2 A. Never. 3 Q. What was the first occasion on which somebody did 4 mention that subject to you? 5 A. Dr Bolsin approached me on a late afternoon in late 6 1993, as we were both leaving the Royal College of 7 Anaesthetists, and said could he have a word with me. 8 Q. What were you both doing at the Royal College of 9 Anaesthetists that day? 10 A. I am afraid I do not have my work diaries for the time 11 so I cannot be absolutely certain. It is possible, 12 although I am not sure, that we were both attending the 13 Quality of Practice meeting. It is possible, because he 14 did not normally attend it but I did. I am not sure. 15 We may have just been fortuitously both present in the 16 College. 17 Q. He approached you outside of the building? 18 A. We left the lobby together. 19 Q. And he said and did what, precisely? 20 A. This is to the best of my recollection: he said 21 something to the effect of, could he have a private word 22 with me about something he was worried about. I said 23 yes. 24 Q. What was the importance of his suggesting that he wanted 25 a private word with you? There was no one else present 0160 1 at this point, was there? 2 A. I think he probably meant he just wanted it to be the 3 two of us having a private conversation. He certainly 4 did not want to have it in the presence of other people, 5 because it was about very sensitive issues. 6 Q. You heard Dr Doyle's evidence today, that he explained 7 that it was his practice when people suggested they 8 wanted a confidential word with him, to put a "health 9 warning" out front, if you like, and say "Because of my 10 position, it may be that confidential matters cannot be 11 kept confidential"? 12 A. Yes. 13 Q. Was there any discussion of that nature with Dr Bolsin 14 and yourself in December 1993? 15 A. Not at the beginning of the conversation, I am sure of 16 that. But I am not sure -- well, I mean I think we 17 probably discussed the degree of confidentiality. 18 Q. Why did you think he was having this discussion with 19 you? 20 A. I surmised that he thought that with my anaesthetic 21 experience, I would have some understanding of his 22 position and he specifically asked me that he wanted 23 advice from me as a Departmental official because I had 24 the experience of being a Departmental official, as to 25 how he could handle a problem that he had. 0161 1 Q. Do you remember whether he said that he had raised the 2 same matter he raised with you previously with others? 3 A. Yes, he said he had. 4 Q. With whom had he raised it? 5 A. He said he had raised it with senior members of his own 6 department in the Trust and he said that he had raised 7 it -- I am not sure if it was him directly or others -- 8 with at least one of the Medical Royal Colleges. I have 9 the impression, although I can say no more than that, 10 that it was the Colleges of Anaesthetists and Surgeons. 11 As I say, that is my recollection. 12 Q. So your recollection is that there were three separate 13 groups or areas that he raised the matter with? 14 A. Yes. 15 Q. His own department, that would be the Department of 16 Anaesthesia? 17 A. Yes. I do assume he had raised it very much with the 18 surgeons but I am not sure exactly what he said about 19 that. 20 Q. Let us take it slowly. Who did he expressly say to you 21 he had raised the matter with? 22 A. He did not mention names. 23 Q. Did he mention any areas of the Trust, of the Royal 24 Colleges or the University, or any other organisation, 25 that he had raised the matter with? Did he say "I have 0162 1 been to X department or Y department", without naming 2 names? 3 A. No. What I remember is what I have told you: that he 4 raised it with the anaesthetic department in Bristol and 5 I think he said the Colleges of Anaesthetists and 6 Surgeons, but I am not absolutely sure. But he 7 mentioned no individuals' names. 8 Q. Can we look at GMC 14/28? This is your statement to the 9 GMC. Just before we go to this paragraph, you said 10 a moment ago that Dr Bolsin said he wanted to have 11 a private word with you? 12 A. Yes. 13 Q. You did in fact have a discussion when no-one else was 14 present? 15 A. Yes. 16 Q. Is there a distinction between having a private word 17 with you and discussing a confidential matter with you? 18 A. Yes. 19 Q. What is the difference? 20 A. I took "private" to mean it was not the sort of subject 21 he would wish bandied about. 22 Q. What is "confidential"? 23 A. "Confidential" means you do not tell anyone. 24 Q. Did he suggest he wanted a private word about something 25 confidential? 0163 1 A. No, I do not believe he said it was confidential. And 2 I did not treat it in that sense. I believe I said that 3 in my original GMC statement, but it was a misuse of the 4 word. 5 Q. I fear you did. If we look at the paragraph beginning: 6 "I should make it clear ..." 7 A. It was loose drafting, I do apologise. 8 Q. So long as we clear it up now, there is no problem. 9 Four lines down: 10 "In this case, I understood Dr Bolsin's enquiry to 11 be confidential to me, and I would not normally have 12 divulged what he said to others without his explicit 13 agreement." 14 A. Yes. 15 Q. If that is loosely drafted, would you like now to try 16 and redraft it? 17 A. I think I would probably put a comma after "agreement" 18 and say "but that I would reserve the right to judge on 19 the seriousness of the case whether I should take it 20 further and if I judge that necessary, I would not 21 require his consent". 22 Q. Did Dr Bolsin give you the impression that he was 23 anxious that you should not disseminate what he was 24 saying to anyone else? 25 A. No, it was the impression I had that he wanted to have 0164 1 a private word. He did not want to talk in front of 2 other people. That was all. 3 Q. Might it not be that he was coming to an official of the 4 Department of Health precisely so that his concerns 5 could be aired within the Department or taken to 6 a higher level than he himself had managed to achieve by 7 discussing the matter with the anaesthetic department or 8 the Royal College? 9 A. What he actually said to me, what I recollect him saying 10 to me, is that he was asking me to advise him on how he 11 could handle it. He at no time asked me to do anything 12 about it. 13 Q. Did you consider whether there were things that you 14 might, nonetheless, do about it? 15 A. I did. 16 Q. Did he show you any pieces of paper? 17 A. None. 18 Q. So what was the burden of his story to you? 19 A. He alleged that he had data that showed that there was 20 an excess mortality in paediatric cardiac surgery in 21 Bristol. 22 Q. Did he go any further, with any other details? 23 A. No. I mean, he did not say in which cases. He 24 specifically did not mention any particular surgeon. 25 I had a vague impression this situation had pertained 0165 1 for some time, but that would be understandable because 2 the number of paediatric cases in a year would not be 3 enormous, so to have a feel for any sort of data you 4 would have to have data going back a while. But that is 5 all he said. 6 Q. Did he specifically say that his concern was about poor 7 surgery, or simply about poor outcomes of patients who 8 had had surgery? 9 A. I really could not be sure. 10 Q. Because it would not necessarily follow, would it? 11 A. No, it would not necessarily follow. 12 Q. If we have a look at WIT 338/5, this is your statement 13 to the Inquiry. You are talking about there, you say, 14 the top of the page, you made a judgment. We will come 15 to what judgment you made in a minute: 16 "I took specific account of ... (iv) the data he 17 referred to was unlikely to be sufficient to 18 substantiate claims of poor surgery." 19 A. Yes. 20 Q. So it would seem from that that you did have the notion 21 that his complaint was about poor surgery as opposed to 22 poor outcomes of patients who had had surgery? 23 A. It is difficult to be sure because in fact I have only 24 written this statement in the last week or so, and 25 therefore it is coloured by everything that has happened 0166 1 since the conversation and now. So I am not sure that 2 that word necessarily indicates what you suggest. But 3 it is possible. 4 Q. So this might not be a factor you took specific account 5 of in reaching the judgment in acting as you did in 6 1993? 7 A. I certainly considered what the data he referred to -- 8 what the strength of it might be. 9 Q. But you had not seen the data? 10 A. I had not seen it, no. 11 Q. You did not ask him for it? 12 A. No. 13 Q. He did not offer it to you? 14 A. No. I mean, the basis of my concern about the data was 15 that because of the nature of the surgery, it was likely 16 to be very small numbers on rather rare conditions, and 17 conditions that tend to vary in their detail. 18 Therefore, it is extremely difficult to establish 19 reasonable comparisons and that, therefore, data that 20 showed differing outcomes between units might not, in 21 itself, be particularly robust. Therefore, if he was 22 basing an allegation merely on data, the strength of his 23 case did not seem to me to be very strong. 24 Q. You say he did not mention the names of any individuals 25 to you, did he? 0167 1 A. No. 2 Q. He did not mention Mr Dhasmana or Mr Wisheart, for 3 example? 4 A. No, no names at all. 5 Q. How worried were you by the information that Dr Bolsin 6 gave to you, about what he told you in December 1993? 7 A. I thought it was a very serious allegation and there was 8 a case to answer. 9 Q. If it was true, what he was saying, it would be a matter 10 of some concern, would it? 11 A. It was a matter of concern that the allegation was made, 12 I think. It meant that steps needed to be taken to find 13 out if an appropriate assessment were being made as to 14 whether the allegation were true or not. 15 Q. So the very fact that the allegation was made was 16 a concern? 17 A. Yes. 18 Q. If the allegations were on analysis to turn out to be 19 true, well-founded, that would be a matter of even 20 greater concern? 21 A. Yes. 22 Q. I think you will have seen this morning a letter that 23 Dr Doyle wrote some months later to Professor Angelini 24 in July 1994, he having had a discussion with Dr Bolsin 25 in a taxi on the way to the station? 0168 1 A. Yes. 2 Q. I am sure you will agree, Dr Doyle said to Professor 3 Angelini, "This is a matter for very great concern. If 4 the position proves to be as reported to me the excess 5 deaths are in themselves a tragedy. If the problem has 6 been recognised and adequate remedial steps have not 7 been taken, it becomes an unacceptable tragedy." 8 That is what Dr Doyle wrote to Professor Angelini? 9 A. Yes. 10 Q. Does that paragraph, written a couple of days after 11 Dr Doyle had learned of Dr Bolsin's concerns, reflect 12 your state of mind on hearing Dr Bolsin's concerns some 13 months earlier? 14 A. I certainly thought as an allegation it needed to be 15 looked into. 16 Q. It was a matter of very great concern? 17 A. I was concerned. 18 Q. At this time in December 1993, when you had the 19 discussion outside the Royal College of Anaesthetists, 20 neonatal and infant cardiac surgery was still, just 21 about, a designated service of the Supra Regional 22 Services Advisory Group; is that right? I think 23 de-designation took effect from April 1994. 24 A. Yes. I have heard details of dates today, although 25 I was not aware of it then, in detail. 0169 1 Q. But you told us earlier, I think, that you did become 2 aware that neonatal and infant cardiac surgery was to be 3 de-designated? 4 A. Yes, I had heard discussion of it, I was not party to 5 the papers so I was not absolutely clear as to the dates 6 and so on. 7 Q. In December 1993, had you been asked or asked yourself, 8 "Is neonatal and infant cardiac surgery still 9 a supra-regional service?" would you have been able to 10 answer the question? 11 A. I am not absolutely sure. 12 Q. Dr Halliday would have been able to answer the question? 13 A. Indeed he would. 14 Q. He was by then your boss? 15 A. I think by then he might have retired. I am not 16 absolutely sure. 17 Q. At all events, the Medical Secretary of the Supra 18 Regional Services Advisory Group would be able to tell 19 you? 20 A. Yes. 21 Q. And you would have known who that person was? 22 A. Yes. 23 Q. So you could have, if you had decided to, checked with 24 the Medical Secretary of the Supra Regional Services 25 Advisory Group as to whether or not neonatal and infant 0170 1 cardiac surgery was still a designated service? 2 A. I could have asked, yes. 3 Q. Did you in fact discuss Dr Bolsin's concerns with you 4 with anyone else in the Department? 5 A. Not at that stage, no. 6 Q. Why not, if it was a matter of very great concern? 7 A. The judgment I made, having heard Steve, was that it was 8 actually a local matter for the Trust. I was not as 9 well informed as Dr Doyle obviously was about the 10 procedures, but my definite belief was that the 11 responsibility for what Steve was talking about lay 12 primarily with the clinicians concerned, but in 13 management terms with the Trust. I therefore suggested 14 to Steve that I would speak to -- actually 15 a professional member of the Trust, but someone who also 16 had a management position, who I was actually about to 17 meet, and Steve was content with that, although I have 18 to say that had he not been, I would still have done it. 19 Q. Who was that? 20 A. That was Professor Farndon. 21 Q. What did you understand his role to be? 22 A. I understood that he was the Clinical Director of 23 Surgery, as well as holding an academic appointment in 24 the University, and an NHS honorary appointment. 25 Q. In the discussion that you had had with Dr Bolsin at the 0171 1 Royal College of Anaesthetists, did either of you 2 mention the Supra Regional Services Advisory Group at 3 all? 4 A. I do not recollect it but it is possible. 5 Q. When he gave evidence at the GMC, Dr Bolsin, on 6 23rd October 1997, had said this -- perhaps I will read 7 this paragraph: 8 "We [you and he] talked about all sorts of 9 things. We talked about the reports from supra-regional 10 paediatric cardiac surgery units. She [you] said 'Is 11 this not coming out in the report from the 12 supra-regional paediatric cardiac surgical units?', 13 because they had to produce annual reports." 14 Do you remember saying to Dr Bolsin, "Has this not 15 come out in the supra-regional annual reports?" 16 A. No, I do not remember saying it, but if he said I said 17 it, I am quite happy to agree I probably did. 18 Q. If you had said that, that would have been an indication 19 that the -- perhaps not the responsibility, at least the 20 opportunity for spotting any problems that might exist 21 would lie not simply locally but also with the 22 Department of Health through the Supra Regional Services 23 Advisory Group? 24 A. I wondered if that was the case. I did not know what 25 the nature of the reports was, that the Supra Regional 0172 1 Services Advisory Group did, because I never saw them. 2 You are telling me I put the question. I am agreeing 3 with you, that would be a reasonable question. 4 Q. I am telling you that Dr Bolsin told the GMC that you 5 told him. 6 A. Then let us assume I said it. I think it would be 7 a reasonable question, but I did not know, because as 8 I say, I was not party to the paperwork of that group. 9 Q. This concern of Dr Bolsin was essentially sprung on you 10 outside the Royal College of Anaesthetists? 11 A. Yes. 12 Q. You had no reason to expect him to tell you this? 13 A. None at all. 14 Q. So if it is right that during this conversation -- which 15 lasted how long? 16 A. 20 minutes, something like that. 17 Q. If it is right that during that conversation one of your 18 first thoughts was, "Has this not come out in the 19 reports to the Supra Regional Services Advisory Group?" 20 would you not have gone back to the Department of Health 21 and yourself dug out those reports to the Supra Regional 22 Services Advisory Group? 23 A. I see the thrust of your question, but in fact I did 24 not. 25 Q. Why not? 0173 1 A. I do not know. I cannot tell you that now. 2 Q. That would have been a reasonably simple thing for you 3 to have done? 4 A. It is possible, but I did not. 5 Q. Do you remember what Dr Bolsin said when you, if you 6 did, raised the question of the supra-regional services 7 annual report? Did he say "They are no use because they 8 only deal with the numbers of operations"? 9 A. No, I do not remember, because I do not remember the 10 exchange. 11 Q. Have you, since then, and before now, become familiar 12 with what was actually the substance of those annual 13 reports to the Supra Regional Services Advisory Group? 14 A. No, I never had anything to do with the group. 15 Q. Did it cross your mind that in December 1993, the 16 Department of Health was effectively -- was in fact -- 17 the purchaser of cardiac surgery services for people of 18 under 1 year of age through the Supra Regional Services 19 Advisory Group? 20 A. I was not clear, as I think we have just discussed, as 21 to what the position was at that time. 22 Q. Did you have an opportunity to form any impression of 23 Dr Bolsin's motives or intentions in raising this matter 24 with you? 25 A. He seemed to me to be personally involved and very 0174 1 deeply distressed, because I believe he was 2 anaesthetising babies and small children, and therefore 3 the patients he was talking about, some of them were 4 patients he had become closely involved with. He 5 certainly gave me the impression that he was affected 6 himself. 7 Q. In your GMC statement, GMC 14/20, I do not think we need 8 to go to it, you say you felt his intentions were 9 genuine? 10 A. Yes. 11 Q. What do you mean by that? 12 A. They were actuated by care for the patients. 13 Q. As opposed to what? 14 A. As opposed to some inter-departmental row. I mean, 15 I had worked in a couple of cardiothoracic units and 16 they can be places where very strong characters can have 17 disagreements and power struggles. 18 Q. More than other units? 19 A. On the surgical side, I would say that may well be so, 20 in the days I was practising. It may be quite different 21 now. 22 Q. If we have a look at your statement to the Inquiry at 23 WIT 338/4. We have already had a look, you will 24 remember a moment ago, at that passage in your GMC 25 statement where you referred to Dr Bolsin's enquiry 0175 1 being confidential, as you understood it. You remember 2 the passage you said was loosely drafted, or words to 3 that effect? 4 A. Yes. 5 Q. If we have a look at this page, if we scan down 6 a little, please, to the paragraph beginning "such 7 approaches ...", just below the middle of the screen, 8 there is a sentence there, the third sentence in that 9 paragraph which is very similar to the sentence we 10 looked at in the GMC statement. 11 A. Yes. 12 Q. Is that one also perhaps in need of some correction? 13 A. I think it is more what I feel is accurate in that 14 I would not normally divulge something -- if 15 a professional colleague approached me and said they 16 wanted to discuss a private matter, I would not normally 17 divulge that, unless there was, you know, some higher 18 constraint on me. But I take your point. They are very 19 similar. 20 Q. The word "normally": when would you depart from the 21 normal? 22 A. One would have to make a judgment in the individual 23 case. I do not think there are criteria you can apply 24 in general, perhaps. 25 Q. Let us unpick that a little. The normal position would 0176 1 be that if somebody had imparted information to you on 2 a confidential basis, it would not go any further? 3 A. Normally. It would depend what the other constraints 4 were. 5 Q. There would be some cases where you would take it 6 further notwithstanding that the person imparting the 7 information to you had said "This is confidential"? 8 A. Yes. I think probably the better option is to do what 9 Peter Doyle suggested earlier, to say to people very 10 clearly -- and that is more my practice now, I have to 11 say -- at the start of any such conversation, that "You 12 must bear in mind that I am actually a civil servant and 13 not a professional colleague". 14 Q. I understand that, but even if that "health warning" as 15 Dr Doyle put it had been given, "There may be 16 circumstances in which I have to take this further" what 17 I am trying to explore is what those circumstances would 18 be in which you would take the matter further, 19 notwithstanding that the information had been given on 20 a confidential basis? 21 A. I think it is easier to comment in the specific case, 22 because I find it difficult to make a general rule. 23 Q. Would it be a function of how serious the matter was? 24 A. I do not think it would. 25 THE CHAIRMAN: You say you would respond to the particular 0177 1 case and there are no criteria, but if there were no 2 criteria, you could readily toss a coin to decide. So 3 there must be criteria, and I think Mr Maclean is 4 seeking to explore what they are, that is all. 5 A. If I may refer to this specific case, it would be, 6 having taken the action I thought reasonable, if I had 7 had an indication that that had not succeeded. The 8 process I went through was the one I thought proper, 9 which was to consult Professor Farndon. If I had had an 10 indication that no action had been taken as a result of 11 that discussion, at that point I would have taken it 12 further. 13 MR MACLEAN: Let us look at your statement at WIT 338/5. 14 We have looked at this already in the context of 15 sub-paragraph 4, the one about poor surgery. If we look 16 just below that, you say: 17 "Having considered these events very carefully, it 18 is my belief that I would act in the same way under the 19 same circumstances. 20 "If Dr Bolsin had indicated that he had continuing 21 concerns, then I believe I would have taken the matter 22 further. In fact, he indicated the opposite." 23 Before we look at that in any more detail, we 24 should look, perhaps, at what you did, the 25 correspondence that you had with Dr Bolsin. Can we look 0178 1 at UBHT 61/265? This is a letter that you wrote to 2 Dr Bolsin on 13th December, shortly after Dr Bolsin had 3 spoken to you. 4 "You spoke to me in confidence last Thursday. By 5 complete coincidence, John Farndon spoke of the same 6 matter to me on Friday. I did not mention you." 7 You say "complete coincidence". Did it not strike 8 you as a rather remarkable coincidence that two people 9 from the same department should raise the same concern 10 on successive days? 11 A. Yes. That was a terminological inexactitude, I think. 12 I had spoken to John Farndon. He had not raised it with 13 me, I raised it with him specifically. 14 Q. You did not mention Dr Bolsin's name to Professor 15 Farndon? 16 A. I did not. 17 Q. Did Professor Farndon not say, "I know all about this 18 because Steve has shown me his data already"? 19 A. I do not recall that Professor Farndon made any response 20 at all to what I said. 21 Q. You say: 22 "This letter includes what I expect you would 23 receive were you to write to the Chief Medical Officer." 24 A. Yes. 25 Q. So is that an indication that the matters that Dr Bolsin 0179 1 had raised with you might be the sort of matters that 2 would be fit to be raised with the Chief Medical 3 Officer? 4 A. Certainly the Chief Medical Officer might receive 5 letters about such matters. 6 Q. But it would not be the sort of matter that the 7 departments lower down, below the Chief Medical Officer, 8 would seek to filter up to him? 9 A. It would be a matter of judgment on the individual case. 10 Q. Then you say: 11 "I enclose a copy of the Department of Health 12 extant guidance which may apply." 13 Pausing there, do you remember what guidance you 14 sent? 15 A. I think what I sent actually was guidance on the "three 16 wise men" procedure, but -- 17 Q. Do you remember the title of that guidance? 18 A. It is listed. It is HC(82)13, I think. 19 Q. If we look at HA(A) 164/426: this is the guidance which 20 is headed, if we look at the top, HC(82)13. You see 21 that in the top right-hand corner? 22 A. Yes. 23 Q. Is this, so far as you recollect, the guidance you would 24 have sent to Dr Bolsin? 25 A. That is the number I have put in the letter, so I assume 0180 1 it is, although I did not remember doing it. 2 Q. By the time of your letter, December 1993, there was 3 other guidance extant, was there not: for example, 4 HC(90)9? 5 A. Yes, I believe that is so now. My knowledge of it was 6 much more limited than Peter Doyle's and I did not send 7 him the complete guidance because I was not aware of it. 8 Q. Dr Doyle's evidence as I understood it was that 9 initially he considered that the appropriate approach 10 for Dr Bolsin would be to utilise the HC(90)9 procedure 11 and in particular, the intermediate procedure introduced 12 by Annex E of that guidance? 13 A. Dr Doyle was more expert than I. 14 Q. Do you have a view now as to whether or not the more 15 appropriate to have sent Dr Bolsin was HC(82)13 or 16 HC(90)9? 17 A. I have not read the guidance recently, but I assume that 18 is probably so, that it would have been the appropriate 19 guidance. 20 Q. HC(90)9? 21 A. Yes. 22 Q. You say in your letter, if we can go back to 23 UBHT 261/265, the second paragraph, the second line: 24 "I can, of course, make no judgment. I merely 25 wonder if this is a useful mechanism to help an 0181 1 individual come to terms with a problem." 2 So the purpose of the guidance you had sent was, 3 if you like, to deal with cases where, as HC(82)13 4 says: 5 "Prevention of harm to patients resulting from 6 physical or mental disability of hospital or community 7 medical or dental staff." 8 So that guidance deals with the position where 9 there is an individual who has some physical or mental 10 disability which is leading to harm to patients? 11 A. Yes. 12 Q. It is not the kind of guidance that is appropriate for 13 dealing with systemic failures within an organisation? 14 A. Yes. I cannot tell you why I thought that now. All 15 I can say is that I think I must have sent it in 16 response to something in the conversation with 17 Dr Bolsin, but I cannot recollect what that might have 18 been. But I clearly did it in response to something. 19 I really cannot tell you why I thought that at the time. 20 Q. You must have thought, must you not, that the problem 21 was with one or more individuals who could be dealt with 22 under HC(82)13? 23 A. Who might be, I think, rather than who could be. 24 Q. Who might be if Dr Bolsin's concerns were genuine? 25 A. As I say, it relates to a conversation and I do not 0182 1 remember the full substance of that conversation and why 2 I was stimulated to send that particular guidance. 3 Q. You make a reference in the last paragraph of the letter 4 to the CMO's committee which was going to address, as 5 you put it, "these sorts of issues". 6 A. Yes. 7 Q. What committee was that? Do you remember? 8 A. I have had to think quite hard about this. I do not 9 know for certain but I think it was probably something 10 to do with the Clinical Outcomes Group. That is the 11 only thing I have actually managed to work out and that 12 was a committee I was not on but I knew a little of, to 13 do with looking at the development of medical audit, the 14 sorts of issues I am referring to are dealing with 15 outcome, audits and outcome, I think. 16 I am not absolutely sure of that. Having seen 17 this letter in the last week or so, that is all I can 18 work out that it might have been. 19 Q. Was there, in December 1993, in the Department, 20 something called the Performance Management Directorate? 21 A. Yes, in the Executive. 22 Q. You will have seen from Professor Angelini the letter 23 from Dr Doyle to Professor Angelini we looked at 24 earlier, if I can look at it again. It is 25 UBHT 52/287, the last paragraph on that page: 0183 1 "If there is a problem and for any reason you are 2 not able to reassure me that it has been resolved, the 3 circumstances are such that I would be obliged to seek 4 the help of colleagues in the Performance Management 5 Directorate, who would doubtless raise the matter 6 formally with the Trust. It is highly likely that some 7 sort of formal inquiry would follow." 8 You heard Dr Doyle explain what that directorate 9 was and why it might have been an appropriate body to 10 intervene. 11 Do you agree with the evidence he gave about that? 12 A. I do not think it was my opinion at the time that the 13 Performance Management Directorate actually dealt with 14 clinical practice. It would be much more concerned with 15 financial management, corporate governance, those kinds 16 of issues. That was my opinion. 17 Q. Your idea was that the Supra Regional Services Advisory 18 Group might be a more obvious organisation to be 19 concerned, which is why you raised it with Dr Bolsin in 20 the conversation? 21 A. Making the assumption I did, I think that is more 22 logical. 23 Q. But Dr Bolsin's concerns which he raised with you -- you 24 remember I asked you about the word "normally" and when 25 you would depart from the norm and take the matter 0184 1 further. You said, and I paraphrase, tell me if I put 2 it unfairly, that if Dr Bolsin had not been satisfied 3 and had come back again with the same concerns, or 4 further concerns, then you would have taken it further. 5 Is that fair? 6 A. I think if he had come back to me either in writing or 7 verbally, and said that he was aware I had raised it 8 with Professor Farndon as a Clinical Director, and that 9 no management steps had been taken to address the issue, 10 then I would certainly have taken it further. 11 Q. Your letter at UBHT 61/265: what was in this letter to 12 reassure Dr Bolsin that you treated his concerns 13 seriously and had taken steps to either take action 14 yourself or make sure that others had taken action? 15 A. During our conversation at the College, I had told him 16 that although -- I mean, the sort of areas we discussed 17 about the guidance were never part of my work in the 18 Department of Health, so my knowledge of them was very 19 limited and I told him that during our conversation. 20 I told him that I thought that an issue of clinical 21 management or dealing with any indication of outcomes 22 that might reflect on clinical management, was in my 23 view a matter for the Trust to resolve. 24 I then told him that in order to further that, 25 I proposed to talk to Professor Farndon. I then 0185 1 confirmed to him that I had done so. I made the 2 assumption that he would then approach Professor Farndon 3 and action would be taken. 4 Q. In fact, Dr Bolsin had probably already spoken to 5 Professor Farndon? 6 A. I did not know that. He did not tell me -- when 7 I mentioned Professor Farndon to him, he did not say to 8 me at that point that he had already done so. 9 Q. You see, all this letter does is say, "I have spoken to 10 Professor Farndon. I enclose some guidance, and there 11 is a CMO's committee which will report some time, we do 12 not know when, and it is quite a protracted procedure." 13 A. Yes. I felt that giving him the information, I had done 14 what I would told him I would do, would enable him to 15 take it forward in the Trust, which is where I thought 16 the responsibility lay. 17 Q. It is a very different letter, this one, than the one 18 Dr Doyle wrote to Professor Angelini in July 1994 which 19 essentially said, "If you do not sort it out, the 20 Performance Management Directorate will sort it out"? 21 A. Yes. The letter is different because I was 22 communicating with Steve Bolsin. I spoke to Professor 23 Farndon. Again, to the best of one's recollection, I do 24 not have a transcript of what I said to him, but the 25 gist of it was that I had heard some allegations about 0186 1 outcomes in paediatric cardiac surgery in Bristol, that 2 this was a Trust matter and that I was speaking to him 3 because he was a senior figure in the Trust and the 4 Clinical Director, and that my view was that it was the 5 Trust's responsibility to sort it out. 6 Q. You did not think that the concerns that Dr Bolsin had 7 raised with you had anything to do with the Department 8 of Health, did you? 9 A. I did not feel they were immediately for us. I felt it 10 was a Trust matter. I wanted to be assured that the 11 Trust would act and that is why I spoke to Professor 12 Farndon. 13 Q. There is nothing in your letter to Dr Bolsin to suggest, 14 unlike Dr Doyle's letter, that if the Trust does not 15 sort its own house out, the Department would step in and 16 do something about it? 17 A. No, there is not. 18 Q. Can we look at your GMC statement, GMC 14/29? If we 19 scan down the page, the paragraph beginning "I do not 20 remember ...", you said, in the middle of the paragraph: 21 "I said to Dr Bolsin I would speak to Professor 22 Farndon after the meeting he and I were attending to say 23 that I was aware of some concerns and to suggest that it 24 was a matter that the Trust needed to sort out. 25 Dr Bolsin agreed I could do that. I spoke to Professor 0187 1 Farndon in private about a couple of weeks later ..." 2 Your letter suggests it was the following day, but 3 there was only one conversation with Professor Farndon, 4 was there? 5 A. Again, I do not have a record of when the particular 6 meeting was, although I have a recollection of the 7 meeting. But I know it was very shortly, because when 8 I spoke to Steve about it I said it was very useful that 9 this was about to happen. 10 Q. It does not matter when it was. There was only one 11 conversation with Professor Farndon? 12 A. Yes. 13 Q. "I spoke to Professor Farndon in private about a couple 14 of weeks later immediately after the Working Party. 15 I told him it was not a matter for the Department of 16 Health." 17 A. At that stage it was not, I felt. 18 Q. But where do we find any indication in your letter or 19 your conversation with Professor Farndon, or with 20 Dr Bolsin, that you thought it was ever a matter that 21 was going to be a matter for the Department of Health? 22 A. I agree, what you say. 23 Q. You did not suggest in the letter to Dr Bolsin that it 24 was a matter for the Department of Health. You sent him 25 some guidance dealing with the "three wise men" 0188 1 procedure. You did not mention it to Dr Halliday. You 2 did not look for the Supra Regional Services Advisory 3 Group annual returns. You did not think that it was 4 a matter for the Department of Health at all? 5 A. I did not think that an allegation that I was presented 6 with, when I had no other indications from other sources 7 of this matter, was something that needed to be taken 8 into the Department of Health and dealt with there when 9 the responsibility clearly lay with the Trust. I took 10 action to ensure that Trust management was aware of it 11 through a professional meeting that I knew was about to 12 happen. 13 Q. Why not contact the Chief Executive of the Trust, if it 14 is a matter for the Trust? Why not go to the top of the 15 management and write to Dr Roylance? 16 A. I think what I thought of at the time was that I was 17 about to meet someone who was directly concerned with 18 surgery in the Trust, who also had a management position 19 and that I could most helpfully put it to him and 20 discuss it with him. That is what I did. 21 Q. If a doctor raised a matter with you, a medical matter, 22 would your instinct be, if you were going to talk to 23 somebody else about it in the Trust, to talk to a member 24 of the medical staff as opposed to one of the management 25 per se? 0189 1 A. If I had not been going to meet someone in that 2 position, if one puts that to one side, my practice 3 would be probably to contact the Medical Director. 4 Q. When you spoke to Professor Farndon, did you say, "Are 5 you going to raise this with the Medical Director?" or 6 "I trust you will raise it with the Medical Director"? 7 A. No, I say to the best of my recollection, I said that it 8 was a matter for the Trust to resolve: that there was an 9 issue that somebody was -- I do not think I said 10 somebody was making allegations to me. 11 I think I said that I had heard that there were 12 concerns about the outcomes of paediatric cardiac 13 surgery, and it was for the Trust to resolve. I did not 14 name any names. 15 Q. Let us look at your statement again, WIT 338/5. You 16 said you made a judgment based on the information 17 presented to you by Dr Bolsin, and the context in which 18 it was presented. 19 The judgment you are referring to was the judgment 20 to write the letter of 13th December; is that right? 21 A. No, the judgment was to contact Professor Farndon. 22 Q. Yes, okay, which -- 23 A. That was the -- 24 Q. It records that you had spoken to Professor Farndon, 25 telling Dr Bolsin you had spoken to Professor Farndon? 0190 1 A. Yes, but the specific relevant action was to speak to 2 Professor Farndon. 3 Q. You say you took account of "(i) the fact that he 4 [Dr Bolsin] had previously flagged up his concerns with 5 his senior colleagues in the BRI and the Royal College." 6 A. Yes. 7 Q. Would not the fact that he had already flagged up his 8 concerns with his senior colleagues and the Royal 9 College tend to suggest that he could not see that he 10 was making any progress on those fronts? 11 A. What was in my mind, I think in saying that, was that he 12 had clearly been talking to a lot of senior professional 13 people with the data he was talking about having to me, 14 and it appeared that he had not convinced anyone. 15 I mean, he was saying to me, "I have told them all this 16 and they have done nothing", words to that effect and 17 I knew some of the people he was talking about and I had 18 worked with them -- 19 Q. Which people? 20 A. Well, people like Terence English, people like Cedric 21 Prys Roberts, the Professor in Bristol in Anaesthesia. 22 I knew some of them well. I knew some of them well 23 professionally. They were very senior and respected 24 members of my profession and he was telling them -- I do 25 not know if he told me he had shown them the data but he 0191 1 had flagged up his concerns with them and they had 2 decided not to take it further. 3 If you are trying at that point to make a judgment 4 about how serious a problem is and what you need to do 5 about it, the fact that people of repute have already 6 looked at it and have not made that judgment, must, 7 I think, weigh with one. It did with me. 8 Q. Would it not be equally possible to say if somebody 9 says "I have taken these concerns to my senior 10 colleagues where I work. I have taken them to the Royal 11 College. You are a Senior Medical Officer of the 12 Department of Health", would not one take that as being 13 a cry for help for the Department of Health to do 14 something about it, rather than to go back to the same 15 places where Dr Bolsin had been making no progress? 16 A. If it were a cry for help, he did not express it to me. 17 He asked me for advice. He did not say to me, "I have 18 gone to all these people and got nowhere and you are my 19 last hope to do something". That is absolutely not what 20 he said. He asked for my advice and I said to him, 21 "(a) I do not have a great deal of knowledge of the 22 areas you are talking about in terms of the government 23 guidance but I think it is a local matter and in any 24 event, I think it is worth me talking to Professor 25 Farndon because I am going to see him very shortly, and 0192 1 I will raise the issue with him and tell him that 2 I think it is for the Trust to manage it". 3 Q. Let us look at the second of these paragraphs. You had 4 not heard and knew nothing of this issue from any other 5 source. 6 To whom did you make any enquiries about whether 7 or not this matter was raised? 8 A. That was not a result of enquiry; that was the fact that 9 I had been two years in the current job and I had spent 10 a lot of time, within the limits of my time, obviously, 11 at cardiothoracic meetings. I had been to a lot of 12 meetings with individual officers of the Association of 13 Cardiothoracic Surgery and with the British Cardiac 14 Society, talking about development of audit; and I had 15 made a lot of effort to actually network with people in 16 order to enable this kind of communication. I mean, 17 I am not saying I go around trawling for problems, but 18 one does make the effort to network with professionals 19 and give them every opportunity to raise issues should 20 they so wish, and in all that time, I had not heard one 21 thing in relation to Bristol. 22 Q. Were you, like the then Chief Medical Officer for 23 England, a regular reader of Private Eye? 24 A. I have not read Private Eye since I was an 25 undergraduate, and I did not read it much then. I have 0193 1 seen the article this week for the first time. 2 Q. There was more than one? 3 A. Well, I have seen one article, then. 4 Q. I think the earliest one was 8th May 1992. 5 A. Yes. 6 Q. You say at (iii): 7 "I was not aware of any complaint from patients' 8 families or more widely in the public domain. 9 "(iv) the data he [Dr Bolsin] referred to was 10 unlikely to be sufficient to substantiate claims for 11 poor surgery." 12 You had not actually seen the data? 13 A. No, I made that assessment on what I said to you earlier 14 about the nature of the data, that by virtue of the 15 cases they were going to be very small numbers about the 16 sort of congenital conditions that -- they are not the 17 same as each other; they do vary from patient to 18 patient. The statistical power of such data in my view, 19 would not be sufficient to prove, for example, cause and 20 effect. 21 Q. That would apply, would it not, to any centre doing 22 congenital heart surgery? 23 A. Yes, it would. 24 Q. Because the numbers would be small anywhere? 25 A. Indeed. 0194 1 Q. If your point is a good one, it would follow that such 2 data for any centre would never be able on its own to 3 substantiate claims of poor surgery? 4 A. Indeed, I think that is correct. At the time we were 5 speaking, and it may be, I think Peter was referring to 6 developments in statistical practice in a paper 7 published by another cardiac surgeon more recently. It 8 may be that practice has moved on in that field. Nor am 9 I a medical statistician, so I have no expertise in the 10 details of this now, but in those days, I think that 11 would be absolutely true. I cannot comment on the 12 position now. 13 Q. Given those four matters that you took account of, why 14 should it be that if Dr Bolsin had indicated that he had 15 continuing concerns, then you would have taken the 16 matter further? 17 A. If he had indicated that the Trust had taken no action. 18 I think the point is that the responsibility for dealing 19 with the problems that Steve raised lay with the Trust. 20 If Steve had then written in reply to me and said that, 21 fine, I had spoken to Professor Farndon but there was no 22 detectable change in the Trust's attitude, that would 23 have been a trigger to take the matter further. Then it 24 would have been a matter for the Department of Health. 25 Q. So it would be a function of the number of times that 0195 1 Dr Bolsin raised the matter with you? That is what 2 would determine whether you would take the matter 3 further? 4 A. It would have been a function of his response to the 5 intervention I had made. 6 Q. You say in fact he indicated the opposite. I should 7 show you the letter, UBHT 61/270. This is a letter to 8 you from Dr Bolsin. Can we just have a look at the very 9 top, please? Can you help me with what "CRM for info" 10 means? 11 A. No. 12 Q. Can we look down at the letter, then, please? I am not 13 going to read it out, all of it. You see the second 14 paragraph: 15 "I am most grateful to you for your intervention 16 in this matter and I am convinced that you have 17 significantly helped with the resolution of what was an 18 unacceptable clinical practice." 19 This is February 1984. 20 "I look forward to your meeting next month and 21 I shall be contacting you before then to report our 22 progress in national audit." 23 So your reaction to this letter was what? 24 A. I felt it indicated that what I had said to Professor 25 Farndon had had an effect in the Trust dealing with the 0196 1 matter and that Steve felt that I had done sufficient. 2 Q. I do not know whether you have had the chance to see the 3 transcript of the evidence of Sir Alan Langlands earlier 4 this week? 5 A. Yes, you showed it to me. 6 Q. I did -- it was a long time ago: this morning! 7 Can we have WIT 335/39, please? Halfway down the 8 page, Sir Alan was asked: 9 "We have talked about the role of districts and 10 purchasers in supervising or attempting to begin the 11 scrutiny of quality. Why is it that whether one is 12 looking at the specifics of what happened here or the 13 more general guidance in paragraph 41, those purchasers 14 have no explicit place in the particular loop?" 15 Then he says the Inquiry will talk directly to you 16 and to Dr Doyle. Can I ask you just to read to the 17 bottom of that page again, please? And over the page 18 when you have finished. Go over to page 40. Can you 19 read down to "circumstances". 20 A. Yes. 21 Q. Then he says, if we go to the next answer on that page, 22 scrolling down a little: 23 "In the case of Dr Ashwell, we are back to this 24 point about before 1st April 1994, and after 1st April 25 1994. Dr Ashwell essentially was the purchaser." 0197 1 That is because, until 1st April 1994, neonatal 2 and infant cardiac services were the supra-regional 3 concerns. 4 "In other words, the purchasing role was 5 a national one. At the point of de-designation, you 6 have rightly argued that the purchasing responsibility 7 was delegated and therefore in theory at least Dr Doyle 8 did not have the same locus, i.e. he was not the 9 purchaser." 10 To what extent did you feel that you the 11 Department were the purchaser in 1993 and to what extent 12 did that influence what you did? 13 A. I do not think I did. 14 Q. If we go over the page again, please, Sir Alan says that 15 his assumption is that Dr Doyle behaved as if he was the 16 purchaser and -- 17 "... my proxy for the Regional Public Health 18 Director. I think in getting straight to the point of 19 a potential problem in these circumstances in real life, 20 notwithstanding the sort of niceties on lines of 21 accountability, he behaved quite properly." 22 Can I just ask you, in drawing some threads 23 together, when you say that the matter was one that you 24 thought should be dealt with locally was a matter for 25 the Trust, was there a role for a Health Authority, did 0198 1 you think, in dealing with Dr Bolsin's concerns and if 2 so, which? 3 A. What I felt at the time and what I said to Dr Bolsin was 4 that it was outside my area of knowledge. 5 Q. What would the role of the region be, for example? Do 6 you know? 7 A. At that time, as I say, I said to him I was not aware. 8 Obviously Alan Langlands has pointed out that the 9 Regional Director would have a role and I think it would 10 be laid down in HC(90)9. 11 Q. But that was not something that had come into your head? 12 A. Well, it was not an area of work that I had ever been in 13 within the Department of Health. I was not expert in 14 it. 15 Q. Can you help me with who in the Department of Health, 16 which part of the Department of Health, would have 17 received and considered regional clinical audit reviews? 18 A. It would have been the division in the Management 19 Executive that implemented medical audit and that was 20 called PHML at the time, I believe. 21 Q. Was that the body you mentioned earlier that you 22 attended some of the meetings at? 23 A. That was the division that had the steering group that 24 I did try to attend, yes. 25 Q. Do you remember who was the head of that department? 0199 1 A. At the time audit was set up, I think Graham Winyard was 2 the head, but by this time I think it was Deirdre 3 Cunningham. 4 Q. Finally, if we can to WIT 3385, your statement again, 5 please, the bottom of the page: 6 "If it had been appropriate to take the matter 7 further, there would have been several options open to 8 me, including ..." and we see three set out. 9 Who was the line manager you are referring to in 10 early 1994, let us say? 11 A. It is what I said earlier. I believe Norman had retired 12 by that point. My recollection is that there was an 13 acting head of the division at grade 4 level, and 14 I think it was Robert Hangartner. 15 Q. Can you help me with what the factors would have been 16 which would have determined your choice as to which of 17 those three options you would have opted for? 18 A. I think I would have discussed with my line manager the 19 appropriateness of taking it to the Chief Medical 20 Officer, and I would have discussed also with my line 21 manager whether we should at that point raise it again 22 with the Trust, or whether we should do both. So it is 23 actually not an either/or. 24 MR MACLEAN: Dr Ashwell, that is all I want to ask you. 25 Before the Panel ask you any questions they might have, 0200 1 is there anything unit to add to anything that you have 2 said already this afternoon? 3 DR ASHWELL: No, thank you. 4 MR MACLEAN: There may be some questions from the Panel. 5 THE CHAIRMAN: Dr Ashwell, Professor Jarman. 6 Examined by THE PANEL: 7 PROFESSOR JARMAN: Just one point of clarification. We 8 were told that Sir Alan Langlands saw the SRSAG as 9 effectively the purchaser up until April 1994. Did you 10 say that you did not agree with Sir Alan's point of 11 view, or you do agree? 12 A. I think I was reflecting the point that in his statement 13 he said "I was the purchaser". I did not recognise 14 that. I see the thrust of what he is saying, but in 15 fact as I had nothing to do with the Supra Regional 16 Services Advisory Group, I had not felt it in those 17 terms. 18 Q. So you are agreeing that the SRSAG was in effect until 19 April 1994 the purchaser? 20 A. Yes, I mean, given the dates, what I have been told. 21 Yes, it did act as the purchaser. 22 Q. And the purchaser would therefore have had certain 23 contractual arrangements with regard to quality of the 24 service, including mortality rates? 25 A. I do not know the details of how they contracted with 0201 1 the service. 2 PROFESSOR JARMAN: Thank you. 3 THE CHAIRMAN: Thank you, Dr Ashwell. Mr Maclean maybe did 4 not point out, but I will, that if there are any other 5 matters that you would wish to bring to our attention, 6 we would be very grateful to receive them, but for the 7 moment, thank you very much indeed for coming. 8 DR ASHWELL: Thank you. 9 THE CHAIRMAN: Mr Langstaff, forgive me for disturbing you! 10 MR LANGSTAFF: Not at all, sir. I shall not detain you or 11 others much longer. If I can simply remind those that 12 look at this Inquiry from a distance that we are not 13 sitting next week; it is a reading and preparatory week. 14 THE CHAIRMAN: I committed a discourtesy, I did not ask 15 Mr Pirani, I beg your pardon. 16 MR PIRANI: I have no questions, thank you. 17 THE CHAIRMAN: I thought a caught a glance and acted upon 18 it. I am pleased to see I acted correctly, thank you. 19 MR LANGSTAFF RE PROPOSED TIMETABLE 20 MR LANGSTAFF: Sir, we are not sitting next week, which is 21 a reading week and a week engaged on preparation for our 22 next hearing week, which begins on Monday November 1st 23 at 10.30. 24 During that week, amongst other things, we will 25 hear evidence on statistics and data sources, and the 0202 1 results of the Inquiry's clinical case note review. 2 We are still putting the finishing touches to the 3 witness programme, but I can tell you and the wider 4 audience that during the middle and end of November we 5 expect to hear from a number of clinicians from the 6 UBHT. 7 May I indicate again in general terms that the 8 plea which I made yesterday for witnesses to be more 9 forthcoming with their witness statements, so that all 10 who participate in the Inquiry may have the chance to 11 participate fully, properly and fairly, appears to have 12 fallen on receptive ears. 13 THE CHAIRMAN: We are delighted to hear that last remark, as 14 well as, of course, all the others, but thank you for 15 that. 16 We therefore adjourn now until a week on Monday 17 when we begin at the normal time of 10.30. 18 May I say good afternoon to everyone and thank, 19 through you, Mr Langstaff, those behind you who have 20 been particularly helpful, and thank you also. Good 21 afternoon. 22 (16.30 pm) 23 (Adjourned until Monday 1st November 1999 at 10.30 am) 24 25 0203 1 2 I N D E X 3 4 5 DR PETER DOYLE (affirmed) 6 Examined by MR LANGSTAFF ..................... 1 7 Examined by THE PANEL ........................ 133 8 9 DR JANE ASHWELL (affirmed) 10 Examined by MR MACLEAN ....................... 140 11 Examined by THE PANEL ........................ 201 12 13 MR LANGSTAFF RE PROPOSED TIMETABLE ................. 202 14 15 16 17 18 19 20 21 22 23 24 25 0204