Home Page Search Final Report Interim Report Evidence - Transcripts - Witness Statements - Submissions - CCNR Report and associated documents - Statistical Reports and associated documents - Background Papers - Expert Papers Inquiry Seminars About the Inquiry Help		Daily transcripts Hearing summary 21st 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 Bolsin’s 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.

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?

   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,

   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?

   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.

   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

   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

   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

   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.

   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,

   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.

   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

   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

   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?

   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

   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

   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.

   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.

   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.

   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

   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.

   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.

   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?

   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

   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

   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

   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

   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,

   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

   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?

   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

   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.

   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

   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

   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

   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.

   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?

   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

   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?

   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

   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.

   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

   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

   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

   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)

   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.

   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

   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

   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."

   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?

   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,

   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

   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

   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

   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?

   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

   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?

   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.

   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

   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:

   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

   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

   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

   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?

   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.

   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.

   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

   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

   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

   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

   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.

   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

   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

   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

   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

   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.

   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.

   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

   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]

   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

   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

   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

   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

   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.

   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

   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

   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 r