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 13th December 1999 The Bristol Royal Infirmary Inquiry this week will hear evidence which covers concerns raised about paediatric cardiac surgery at the Bristol Royal Infirmary between 1984 and 1995 and any failure to take action promptly. Mr James Wisheart, retired Medical Director, United Bristol Healthcare NHS Trust, UBHT, will give evidence on Monday, Tuesday and Wednesday. Mr Wisheart began his evidence this morning by giving his opinion, at the time of his retirement, of his professional career by discussing his view of his own surgical competence. He focussed on the recording of his results in his Surgeon’s Log throughout his consultant career. He commented on results he performed to repair atrial ventricular septal defects in children and discussed his decision to cease performing operations in September 1994. He then told the Inquiry about the affect on audit following the publication of criticism of the Bristol paediatric cardiac service in the magazine, Private Eye. Mr Wisheart next explained his role in the presentation of the 1995 report reviewing paediatric cardiac surgery at the BRI prepared by Dr Stewart Hunter, consultant cardiologist and Prof Marc de Leval, consultant paediatric cardiac surgeon. He went on to describe a visit made to Bristol by medical officers from the Welsh Office in 1986. He commented on concerns raised by them and the response made by the Bristol paediatric clinicians to the Welsh Office and to BBC Wales. He then spoke about the reduction in the ages of babies undergoing complex surgery across the country in the late 1980s and 1990s and discussed the case mix of patients referred to Bristol. He concluded by discussing the meeting held to decide whether to proceed with the arterial switch operation in Bristol on Joshua Loveday in January 1995. Mr Wisheart’s evidence continues tomorrow.

FULL TRANSCRIPT

   1                Day 92, Monday, 13th December 1999
   2   (10.35 am)
   3   THE CHAIRMAN: Good morning, everyone. Good morning,
   4     Mr Langstaff.
   5   MR LANGSTAFF: Good morning, sir. Sir, today we have the
   6     return of Mr Wisheart.
   7   THE CHAIRMAN: Good morning, Mr Wisheart.
   8   MR WISHEART: Good morning, sir.
   9   MR LANGSTAFF: Mr Wisheart, could you stand, please, to take
  10     the oath?
  11          MR JAMES WISHEART (SWORN):
  12          Examined by MR LANGSTAFF:
  13   Q. Mr Wisheart, this is the second time you have been with
  14     us. You know our procedures by now. Let me just run
  15     through with you and identify the statements you have
  16     given from Issue B through to the end of Issue N.
  17        The statement on Issue B, which we have looked at
  18     already in evidence, begins, does it, at WIT 120/1. Can
  19     we have that on the screen? Does that go through to
  20     120/90 and your signature at the bottom?
  21   A. Yes, thank you.
  22   Q. On Issue C, WIT 120/283, and can we go through, please,
  23     to page 304: again, your signature.
  24        Issue D on referrals begins at 112 and goes
  25     through to 120: again, your signature?

   1   A. Thank you.
   2   Q. Issue E, pre-operative management, beginning at page 121
   3     and going through to page 152.
   4        Issue F, 153 to 177, management of surgery.
   5        Issue G, intraoperative care, 178 through to 224?
   6   A. Post-operative care, it is.
   7   Q. I am sorry and I am grateful. Issue H, the split site,
   8     page 91 to 111, and you make the point in bold, towards
   9     the bottom of that page, that all of the changes, that
  10     is the appointment of a dedicated paediatric cardiac
  11     surgeon, and the remedying of the split site were
  12     proposed and decided upon before the allegations in
  13     respect of paediatric cardiac surgery became public?
  14   A. Yes.
  15   Q. The point you would make is that this was the unit, if
  16     I use the vernacular, "sorting itself out", without
  17     there being the outside pressure upon it to do so?
  18   A. Yes. This was the unit making what it thought was best
  19     plans for the future, at that time, with the assistance
  20     of the Trust, of course, as a whole.
  21   Q. Issue I, the treatment of parents begins at page 225 and
  22     goes through to page 240.
  23        Issue J, postmortems and inquests, 241 to 254.
  24        We have a supplementary one-page statement on the
  25     retention of tissue at page 264.

   1        Issue K, training and retraining, 305 to 352, and
   2     in that statement, in particular, you deal with what is
   3     called the "learning curve" and I think you say that as
   4     you see it, some degree of learning curve, however best
   5     one tries, is inevitable.
   6   A. I said that, amongst other things, yes.
   7   Q. Issue L, dealing with informed consent, page 353 to 377.
   8        Issue M, 378 to 410.
   9        Issue N, dealing with concerns, 411 going through
  10     to 457.
  11        In addition, and I do not propose to take you
  12     through the list one by one because we will be here some
  13     time, you have commented on a number of other statements
  14     of those who have, both in writing and orally, submitted
  15     to the Inquiry, and I think there are still some which
  16     you intend to respond to in the near future?
  17   A. That is correct.
  18   Q. All those pages of evidence, which are in excess of
  19     500 pages, you would wish the Inquiry to take as your
  20     evidence to it, would you?
  21   A. Yes, I would, please.
  22   Q. And you will understand, having been here already, that
  23     the Panel have read every word that you have written and
  24     that the purpose of my questioning will be to select
  25     certain aspects of the matters to which you depose, and

   1     ask you further questions about it and around it.
   2   A. Thank you.
   3   Q. By way of introductory questions, let me ask you this:
   4     when you retired were you at that stage proud of your
   5     surgical skills?
   6   A. When I retired in 1998, I was, of course, very
   7     disappointed at the manner in which my professional
   8     career had finished. I felt that my surgical skills had
   9     achieved a great deal, but clearly, some aspects of
  10     those skills were then under criticism. So that is the
  11     position I was in. So certainly I think "proud" would
  12     not be the term I would use.
  13   Q. Some of your skills, you say, have been under
  14     criticism. That tells us little of your view of those
  15     skills at that time. What was it, your own personal
  16     view of your own personal performance as a surgeon?
  17   A. I think my own view was that I had done my best but on
  18     what appeared to be the figures and judgments at that
  19     time, there was at least a question mark at whether my
  20     skills had been what I would have hoped they would be.
  21     At that time I do not think there was an answer to all
  22     those questions, so I was in doubt and everybody was in
  23     doubt.
  24   Q. If I had asked you the same question in, let us suppose,
  25     1980, a few years after you first became a consultant,

   1     what do you think you would have said to me then?
   2   A. I would have felt that I was a competent surgeon who was
   3     carrying forward cardiac surgery in Bristol.
   4   Q. And if I had asked you the same question in 1990, what
   5     then?
   6   A. I think the answer would have been largely the same.
   7     I would of course have been conscious of changes,
   8     I would have been conscious of eager young men pursuing
   9     me and so forth and so on, but I think I would have
  10     still felt I was offering a competent service and the
  11     questions that arose later had not significantly arisen
  12     at that time.
  13   Q. The second question by way of introduction, and I hope
  14     to draw the threads together in a moment: you have,
  15     throughout this Inquiry, shown a considerable interest
  16     in what one might describe as the "figures", if one
  17     calls them statistics that may dignify them, but the
  18     figures.
  19   A. Yes.
  20   Q. That is a comment from me. Is it one that you would
  21     accept?
  22   A. I would.
  23   Q. Have you always had an interest in "the figures"
  24     relating to the surgical work?
  25   A. Yes, I have.

   1   Q. You kept your log almost from the beginning if not from
   2     the beginning of your work as a consultant, did you not?
   3   A. From the beginning, and all the way through.
   4   Q. And you personally made returns to the Cardiac Surgical
   5     Register, or ensured that those returns were accurate?
   6   A. I made them to the best of my ability from 1977 through
   7     to 1992, and then I handed that over to Mr Dhasmana.
   8   Q. On one occasion that we have heard some evidence about,
   9     in January 1994, when there was a meeting in level 7 of
  10     the cardiologists, cardiac surgeons, the anaesthetists
  11     and others, for the presentation of results when
  12     Mr Dhasmana was not himself there, you were able,
  13     I think, to give the meeting the results of cardiac
  14     surgery, if I say "from the top of your head", I do not
  15     mean to say they were invented, because you had
  16     memorised them, or you knew them?
  17   A. I must say, I do not think it was quite as great a feat
  18     as one or two have suggested because in preparation for
  19     that meeting, Mr Dhasmana and I had worked together in
  20     the preparation of the figures. You will remember that
  21     he was the one who was going to make the presentation,
  22     so he was the one who had concentrated, so to speak, but
  23     we had worked together and that is why I was familiar
  24     with the figures, and able to make whatever presentation
  25     I was able to make on that occasion.

   1   Q. So would it be fair to say that you tended to carry
   2     a number of the figures in your head?
   3   A. Yes, it would be fair to say that -- not all of them.
   4   Q. In March 1997, there was a report, was there, into the
   5     performance of the surgeons within the unit in respect
   6     of adult cardiac surgery?
   7   A. Yes, there was.
   8   Q. May we have a look on the screen at UBHT 53/59? The
   9     assessors, if we scroll down, Professor Treasure and
  10     Professor Taylor, assisted by Professor Black.
  11        Can we go to page 66? The second bullet point as
  12     they found it:
  13        "The performance of one consultant surgeon
  14     (identifiable only by the code 1231) appeared to be
  15     significantly poorer than the other UBHT consultant
  16     cardiac surgeons."
  17        Can we go down to the bottom of the page? The
  18     second bullet point from the bottom tends to repeat the
  19     same point, but it notes that there is more complete
  20     data and more detailed analyses that have been performed
  21     in order to establish that.
  22        The purpose of this question is not to embarrass
  23     you but to lay the groundwork for what will follow in
  24     respect of paediatric cardiac surgery. Was that surgeon
  25     you?

   1   A. That was me, yes.
   2   Q. Can we go to page 71? The second recommendation:
   3        " ... in absolute terms, the assessors consider
   4     that [the] operative mortality figures are too high.
   5     The data indicate a particular problem in the area of
   6     coronary surgery."
   7        You accepted their recommendation?
   8   A. I accepted their recommendation.
   9   Q. The adult surgical report had, had it, approached the
  10     analysis of one surgeon in respect of another by looking
  11     at risk stratification?
  12   A. To an extent.
  13   Q. So the results which it purported to show were results
  14     which, as far as possible, gave a level playing-field
  15     for comparison.
  16   A. Yes, they did that, in a number of -- well, they did
  17     it -- in the actual report they used what one might call
  18     a conventional method of risk stratification and they
  19     used it to a limited degree.
  20   Q. When did you, if you did, first realise that your
  21     personal performance by this period of time, despite
  22     attempting to do your best, was not in line with the
  23     other adult surgical performances of your colleagues?
  24   A. In the preceding November, when the provisional results
  25     that you referred to a moment ago were drawn to our

   1     attention, and that is when I stopped operating.
   2   Q. But before then, despite your interest in and to an
   3     extent the retention of some of the figures relating to
   4     cardiac surgery, you had had no idea?
   5   A. I was surprised, that is correct, but it is not only
   6     because of my own personal views. The period we are
   7     referring to here is 1997 and over a period of
   8     approximately two and a half years, just a little less
   9     than that, questions had been asked, that is, prior to
  10     Professors Treasure, Taylor and Black holding their
  11     investigation.
  12        At each point when those questions were asked, the
  13     figures of all the surgeons and my figures were examined
  14     by a whole range of different people who I can tell you
  15     about if you wish to know, but the point I wish to make
  16     is that it was not only my own assessment of the figures
  17     that had given me a measure of confidence up until that
  18     time; it was the advice that I had received from leading
  19     people, both inside and outside the specialty, both
  20     inside and outside the hospital, so the figures had been
  21     shared, as we knew them, fully and openly, and the
  22     judgment of those to whom I had looked for advice during
  23     that two and a half year period was entirely
  24     supportive. So that is why I was surprised, not just my
  25     own judgment.

   1   Q. Do you, in retrospect, regret not knowing earlier of the
   2     apparent disparity between yourself and your colleagues?
   3   A. Very much so. That is why I sought the advice of
   4     a range of people other than myself and outside the
   5     immediate group of cardiac surgeons in Bristol, because
   6     I would have wished to have known. If that were the
   7     case, then I would have wished to have known as early as
   8     possible.
   9   Q. Because if you had had an indication of this earlier,
  10     as I suspect any responsible surgeon would have done,
  11     you would have stopped operating then, rather than
  12     later?
  13   A. I believe I would, and when it was first drawn to my
  14     attention, that is the decision that I made.
  15   Q. May we have a look at WIT 87/25? This is a transcript
  16     from a handwritten note of Professor Farndon's in
  17     relation to a meeting which you and he had together on
  18     17th November 1994.
  19        Can we look at the first full paragraph:
  20        "In fact subject to acceptability of performance
  21     figures first broached by James. Degrees of uncertainty
  22     on part of JW [obviously you, James Wisheart] re who is
  23     ?stirring?/examining/questioning figures of performance.
  24        "I think it is you being reported as being aware
  25     that Steve Bolsin questions paediatric cardiac surgical

   1     performance. But who questions the adults? I say SB
   2     [Steve Bolsin] did not question the adults."
   3        He reports that three people identified, "Sheila
   4     Willatts, Chris Monk and Professor Prys Roberts speak to
   5     me about the situation", and "adult performance figures
   6     are questioned by Gianni."
   7        Again, concentrating for a moment on the adults,
   8     your response was:
   9         "The figures for the adults have been examined,
  10     especially in detail in 1992 and 1993. If stratified as
  11     for risk category, little difference between
  12     consultants... Some have not wanted analysis according
  13     to risk strategy ..."
  14   A. Yes.
  15   Q. So that was as you saw it at the time.
  16   A. That is how I saw it at the time, yes.
  17   Q. Implicit in that question is an acceptance by you, of
  18     course, that this was actually said at the meeting, and
  19     it is Professor Farndon's notes, so feel free to
  20     disagree, if you do.
  21   A. I would have to say that I do not have a precise
  22     personal recollection, but if Professor Farndon has
  23     written it, I would be very inclined to accept it.
  24     There may be some nuances that I would wish to discuss
  25     in this note, if they arise, but basically, I would

   1     agree with his note. I would accept his note.
   2   Q. At the bottom of the screen, now the second bottom
   3     paragraph:
   4        "JW says that adverse results must in part be due
   5     to (1) weighted patient population re adverse factors,
   6     and (2) natural history of AO and valves is that they
   7     will, by now, be ready for revisional surgery - query
   8     difficult results."
   9        So you were, according to the note, explaining the
  10     apparent poor results, or adverse results, by two
  11     reasons: one was what one might call the case mix and
  12     the other was, I think, the fact that the surgery was
  13     the second time round, a revision.
  14        Have I got it right?
  15   A. Essentially, I think that is right. There is case mix
  16     and a variety of factors contributing to risk
  17     stratification.
  18   Q. So in November 1994, there is a conversation between
  19     yourself and the Professor of Surgery at which it is
  20     recognised that the results may be adverse. Your
  21     response at the time is, "Well, if you look at the case
  22     mix and the fact that these are second time round
  23     operations, in fact the results are entirely
  24     acceptable".
  25        Again, I am paraphrasing, but is it a reasonable

   1     paraphrase?
   2   A. Yes, that is the view that I took at that time.
   3   Q. Your view, contrary to what was subsequently to emerge
   4     from the study performed by Professor Treasure and
   5     others, was that the case mix, as between yourself and
   6     fellow consultants, made the difference?
   7   A. Yes.
   8   Q. Can I turn from adult surgery to paediatric surgery?
   9     One of the matters I want to explore with you is whether
  10     there is a parallel in your approach.
  11        First of all, a general question: did you, as
  12     a surgeon, always try to do your best surgically for
  13     your patient?
  14   A. I believe I did.
  15   Q. Do you believe that you put considerable effort in terms
  16     of time, interest and dedication into that task?
  17   A. Yes, I did.
  18   Q. Is it the fact that until the report by Messrs Hunter
  19     and de Leval in respect of paediatric surgery, you had
  20     not thought to question whether your personal results as
  21     a paediatric cardiac surgeon, despite doing and trying
  22     your best, were not perhaps good enough?
  23   A. I am sorry, the question is -- I apologise.
  24   Q. Did you ever think, before 1995, putting it slightly
  25     differently, that your personal results in paediatric

   1     cardiac surgery, or part of it, may not have been good
   2     enough, despite trying your best?
   3   A. I am not sure what you mean exactly by "good enough",
   4     but I questioned my results repeatedly throughout the
   5     period under review and before that, myself and with my
   6     colleagues.
   7   Q. You gave up operating, did you, on the arterial switch?
   8   A. Yes, 1988 or 1989, yes.
   9   Q. You had performed four operations, had you, and
  10     participated in a fifth?
  11   A. Yes.
  12   Q. And participation was operating with Mr Dhasmana?
  13   A. Correct.
  14   Q. Why did you personally give up operating on the arterial
  15     switch series?
  16   A. There are two reasons. The first is that it is
  17     a technically complex operation; and the second one was
  18     that before we started, I think I had imagined there
  19     were going to be quite a number, but once we started, it
  20     became clear that the numbers of these operations were
  21     going to be quite limited and therefore the conclusion
  22     I came to was that in view of the complexity of the
  23     operation, it would be appropriate for that work to be
  24     concentrated in the hands of one surgeon rather than
  25     diluted into the hands of two. It seemed appropriate

   1     that the younger surgeon would be the one to carry that
   2     forward.
   3   Q. Why was age a factor?
   4   A. I think that paediatric cardiac surgery has been and
   5     still is a rapidly changing and developing specialty, in
   6     which the younger men are constantly carrying it
   7     forward, if I may put it that way, and clearly the
   8     younger man is -- that is his role. That is what you
   9     are looking for him to do. That is what you expect of
  10     him.
  11   Q. The corollary might be thought to be that the older,
  12     more experienced surgeon may be too old. Is that what
  13     you are saying?
  14   A. I think the corollary is turning a little bit on its
  15     head what I said. I think that it is a fact, and it has
  16     been observed and many people have referred to it in
  17     a variety of ways, like it being a "young man's game".
  18     The question is, is the old man too old? I did not
  19     think that was the issue, but I felt that it was right
  20     that it should be concentrated in one surgeon's hands,
  21     and given the choice, it seemed right that it should be
  22     in Mr Dhasmana's hands. That is a positive decision.
  23   Q. You both operated on the AVSD series?
  24   A. Yes.
  25   Q. Did you give up?

   1   A. Doing AVSDs?
   2   Q. Yes.
   3   A. Complete AVSD?
   4   Q. Yes.
   5   A. In the latter part of 1994 I did.
   6   Q. When precisely?
   7   A. I can tell you when I did the last operation, or I can
   8     tell you when I made the decision not to do any more.
   9   Q. It is the decision.
  10   A. The decision? That would have been at the end of
  11     September or early October of that year.
  12   Q. Why?
  13   A. The reason is that over the previous five years I had
  14     operated on a number of children with complete AVSD.
  15     The results in numerical terms were disappointing.
  16     I believed that there were factors of reasons relating
  17     to this which, unless you wish me to, I will not talk
  18     about now. But I had that information and I believed it
  19     to be true and proper information. However, the weight
  20     upon me of these deaths and the anxiety and emotional
  21     investment, if you like, or drain associated with it,
  22     weighed very heavily, and although I still did feel that
  23     these additional considerations made at least a very
  24     major contribution as a cause of death in these
  25     children, I still felt that the weight of this was very

   1     heavy upon me.
   2        On some date in the middle of that month --
   3     a rather important event had taken place, namely, that
   4     Mr Pawade was appointed and at that point we expected
   5     him to take up his duties quite early in 1995 -- I said
   6     to myself, "Really, I should not, there is no need for
   7     me to do any more of these. Mr Dhasmana can cope with
   8     whatever needs to be done in the next few months and
   9     when Mr Pawade comes, I will be withdrawing from
  10     paediatric cardiac surgery". Therefore, I made that
  11     decision at that time.
  12   Q. So was it the emotional load, trying to do your best as
  13     a surgeon for children suffering with that condition,
  14     but seeing that your best was not in those cases always
  15     good enough, that made you give up?
  16   A. Essentially, that is correct. I mean, obviously there
  17     was a question in my mind as to whether these reasons
  18     that I have referred to, which contributed as causes of
  19     death, to a major extent, was my judgment about that
  20     correct? Looking back at that now, the one thing that
  21     I can clearly say that I regret is that earlier that
  22     year I did not sit down with my colleagues and draw
  23     their attention to this issue and seek their advice as
  24     to whether my views and opinions on the matter were
  25     appropriate or not, and to see what their advice was.

   1   Q. You refer to that at WIT 120/298. It is the top of the
   2     page where you discuss it.
   3        "It was, therefore, relatively late in the series
   4     of 15 patients when the full weight of these
   5     disappointing results came clearly into focus. At that
   6     stage I did know the results of the work I was doing.
   7     I also knew in retrospect that there was a very
   8     unusually high proportion of additional risk factors in
   9     my series of patients and I was reassured by that."
  10        Do we then perhaps see, in that sentence, the
  11     explanation you had been giving yourself?
  12   A. Yes.
  13   Q. Knowing the figures as you did, because you had the
  14     particular interest in figures that you had, you looked
  15     for an explanation as to why it was that in your hands
  16     the results were not as good as you might have hoped?
  17   A. If any child died in anybody's hands, in the team, we
  18     always looked to try to find a reason. That was part of
  19     our regular activities. I mean, we always questioned
  20     any death.
  21   Q. Tell me if this is right or wrong, but it must be very
  22     rare that there is not some reason, however inevitable
  23     the reason may make the death?
  24   A. I think it is not rare. I think it is not always
  25     possible to identify the cause, the reason, the factor

   1     that really made the difference in a particular case.
   2     Sometimes you can and sometimes you cannot.
   3   Q. If you look down at the part we have on the page,
   4     without needing to move it on the screen, the final
   5     patient in the series that you operated on had
   6     additional factors that, in your view, made the child
   7     inoperable, and yet you stopped after that?
   8   A. Yes.
   9   Q. If the child was truly inoperable, then no surgeon,
  10     however skilled, could have saved the child's life.
  11     That must follow.
  12   A. Yes.
  13   Q. Was there, then, at the back of your mind, coming to the
  14     conclusion that you did after that to cease such
  15     operations, a lingering suspicion that perhaps the child
  16     was not as inoperable as logic told you the child was?
  17   A. No. There was no lingering suspicion of any sort about
  18     that patient. I do not need to go into details, but
  19     that patient had two very major factors, one of which
  20     was a major factor and one of which on its own would
  21     have made it inoperable and the two together meant that
  22     that child was, as I say, effectively inoperable. But
  23     I must hasten to point out that we did not have that
  24     information before the operation, otherwise I would
  25     never have embarked upon it. I accept the paradox you

   1     are pointing out, but I think it just underlines the
   2     fact -- I mean, it is in a sense nearly irrational, but
   3     the weight of these results weighs on one and it did not
   4     seem necessary for me to embark on that particular
   5     operation again, whatever the reasons were.
   6   Q. Can we look at 120/410? With regard you say to the
   7     series of complete VSDs in the 1990s, "there had been
   8     audit activities and in particular the details of each
   9     patient who died were reviewed by the team at clinical
  10     pathological conferences. It would have been prudent
  11     and sensible, however, had the series as a whole also
  12     been reviewed by the time, so they could have reached
  13     a view on what steps, if any, should have been taken."
  14        So you are saying there very much what you said
  15     a moment or two ago in evidence, that your regret,
  16     I think you put it as, is that you did not say to your
  17     colleagues, "Let us have a look at these operations",
  18     and not one by one but as a series.
  19        The point is, is it, that as a series you may
  20     realise a pattern which is not apparent if you look at
  21     the individual case on a one by one basis?
  22   A. Yes. That is right, and so -- well, whatever number of
  23     patients it would have been at that point, 12 or 13 or
  24     whatever, those patients could have been looked at as
  25     a group, mine alone, not Mr Dhasmana's. They might have

   1     been compared with Mr Dhasmana's, but, yes, to
   2     concentrate on that.
   3        The real issue is that I think what I am saying
   4     here is that in fact I relied upon my own judgment and
   5     I can give an account of my own judgment if that is
   6     needed, but given the figures in retrospect, it would
   7     have been right and proper for me to seek the advice of
   8     my colleagues so I was not relying entirely on my own
   9     judgment, because each one of us, in making a judgment
  10     in a situation like this, might be influenced by factors
  11     or considerations that another person who is not so
  12     involved might not be.
  13        So that is why I think it would have been the
  14     right thing for me to do.
  15   Q. If you, as someone involved, look at a case or series of
  16     cases on a one by one basis, there may seem to be, in
  17     each case where there is a sad and tragic outcome,
  18     a reason, a particular reason, why that was
  19     a particularly difficult operation or the diagnosis that
  20     you had had, as in the last of the cases, was one which
  21     you had not fully appreciated until the child was on the
  22     operating table, and so on, particular factors in
  23     particular cases that make them particularly difficult.
  24        But if you look at it as a series, of course, you
  25     cannot take the personal explanations quite so easily,

   1     can you, because you have to look at it as a comparative
   2     series where the numbers will tend to iron out the
   3     differences?
   4   A. I am not quite sure, again, of the question,
   5     I apologise, but, yes, one would expect that, in a group
   6     of patients, factors of this sort would, as you say, be
   7     ironed out across the group, and one always expects that
   8     in any group of patients there will be a number of
   9     patients who have some extra features.
  10        What is extraordinary about this group is the
  11     concentration of extra features and these are extra
  12     features that are objective; they are not a matter of my
  13     opinion. Indeed, often the features were not even
  14     identified by me, so these are objective features. I am
  15     not trying to say that across my work as a whole there
  16     was any special systematic difficulty. All I am saying
  17     is that it is a matter of objective fact that these
  18     additional features were present in this particular
  19     group of patients to quite an extraordinary degree, and
  20     all the various experts who have commented on this group
  21     of patients from whatever standpoint or point of view,
  22     none have disputed these facts.
  23   Q. Can we look at page 74 of your statement? Can we scroll
  24     down? This is dealing with the raising of concerns.
  25     You set out here, the third paragraph down on the page,

   1     I think, the theoretical approach that should be taken:
   2        "Assuming that the concern had been raised clearly
   3     and without ambiguity, the response must be in
   4     principle, and would have been in practice, both open
   5     and clear. This is so regardless of how or through whom
   6     the concern has been raised ..."
   7        If we go overleaf:
   8        "Security Action:
   9        "Taking seriously a concern", that is the next
  10     step; you say every concern must be taken seriously, if
  11     you take it seriously there must be action. "In the
  12     first instance that action will be an investigation of
  13     the allegation, either internal or external, and what
  14     further action, if any, would flow from that
  15     investigation will depend on its findings."
  16        Can we go back to page 74? In principle, it does
  17     not matter who raises the concern. It may well be, may
  18     it, the surgeon himself who raises a concern about his
  19     or her own work?
  20   A. Absolutely.
  21   Q. If so, that would require the sort of internal or
  22     external investigation and the possibility of action to
  23     which you referred.
  24   A. Yes.
  25   Q. You are saying to us, are you, that thinking back on it,

   1     it is a matter of regret that you did not raise your own
   2     concerns about your own series of AVSDs at a time when
   3     others might then say, "Well, do these need to be taken
   4     seriously, shall we have an internal or external
   5     investigation, and see where it leads?"
   6   A. Or whatever, yes.
   7   Q. Because if it had done, then do you think that possibly
   8     you might have stopped operating on the AVSDs earlier
   9     than you did?
  10   A. It is possible, but I mean, I cannot predict what the
  11     view of the team or any other people would have been.
  12     I did not know. The issues were real issues and the
  13     answer to it was not clear. My ability to do the
  14     operation as a surgical manoeuvre had been shown earlier
  15     in the series, and in the later part of the series where
  16     these disappointing results were concentrated, the
  17     actual surgical technique and the actual operation
  18     itself did not appear to be the issue.
  19        So these are real issues and I cannot predict
  20     conclusion the committee or group reviewing it would
  21     have come to.
  22   Q. You regret as well, in your statements, not having
  23     pursued Dr Bolsin in early 1994, when you appreciated
  24     that he was said to have concerns but had not discovered
  25     what those concerns were.

   1   A. Well, I had discovered that he was expressing the
   2     viewpoint. I am not sure if you are using the word
   3     "concern" in the manner defined by this Inquiry. If
   4     you are, then I did not know that. I knew that he was
   5     expressing criticisms to other people, for a variety of
   6     reasons, and I did ask him to tell me what those
   7     concerns were in April 1994.
   8   Q. But you say in your statement -- I assume it is right --
   9     that you regretted not pursuing him?
  10   A. After that.
  11   Q. And you give us the reason why you did not?
  12   A. Yes. I allowed myself to be deflected.
  13   Q. Can I just analyse with you what would perhaps or
  14     probably have happened had you pursued those issues with
  15     him? Assuming that Dr Bolsin had shared with you his
  16     criticisms, shown you the data which he had collected,
  17     you might, in early 1994, have been in possession of
  18     figures relating to three operations, VSD, tetralogy of
  19     Fallot and the AVSD series, and you might also have
  20     known of his concerns in relation to the arterial
  21     switch.
  22   A. His audit in early 1994 I do not think contained any
  23     data on the arterial switch. I think that came later.
  24   Q. That is why I said "concerns" as to the arterial
  25     switch.

   1   A. Okay, I am sorry.
   2   Q. The response to those would, do you expect, have been
   3     something of the internal or external inquiry to which
   4     you refer in the passages from your statement that
   5     I have just shown?
   6   A. Yes, I believe it would. I think that if he had shared
   7     his information or his viewpoints with us openly, then
   8     I would have, we would have, responded in the way I did
   9     in January 1995, when Professor Angelini came to me. We
  10     would have been able to sit down with his information,
  11     with his viewpoints, we would have been able to examine
  12     it and see how much we agreed with, what we did not
  13     agree with, and on what was agreed, if there were areas
  14     where improvement was needed, then we would have had to
  15     address it. If there were areas where there were bigger
  16     issues and questions as to whether a procedure should
  17     continue, then we would have certainly had to address
  18     that. I am in no doubt we would have done that.
  19   Q. And because one of the operations was the AVSD, it would
  20     almost certainly have provided a review, albeit in 1994,
  21     of the AVSD series which might have persuaded you, had
  22     it taken place then, to cease operating earlier than you
  23     did?
  24   A. That is a possibility.
  25   Q. It is very difficult for the hypothetical question: is

   1     it more than a possibility? Do you think it is
   2     a probability, from what you now know?
   3   A. I do not think I can say it is a probability. I think
   4     I have to stick with the "possibility", but the answer
   5     is, I do not know. The answer is, I do not know.
   6   Q. You describe what one should in principle do in respect
   7     of concerns. Can we look at the Private Eye for 1992?
   8     SLD 2/3, first. The passage in the bottom left column:
   9        "Recently the unit failed to provide a paediatric
  10     cardiac surgery nurse for post-operative care because it
  11     was assumed that the baby would not survive the
  12     operation, although Liverpool surgeons had successfully
  13     operated on 160 babies with Fallot's tetralogy. The
  14     Bristol mortality rate is between 20 and 30 per cent."
  15        It is talking about what it called the "perilous"
  16     state of the paediatric cardiac surgical unit.
  17        Can I go forward to SLD 2/5? Again, the bottom
  18     left:
  19        "In America the mortality rate for arterial switch
  20     is now 0 per cent, nearer to home in Birmingham, 3 per
  21     cent. In Bristol, despite the fact the operation has
  22     been performed since 1988, it is 30 per cent. Sadly,
  23     consultant cardiologists continue to refer patients to
  24     their surgeons to support the local unit. As a recently
  25     retired and very eminent cardiac surgeon in Southampton

   1     says, 'Everyone knows about Bristol'."
   2        These were concerns, were they not, even within
   3     the definition used by the Inquiry, expressed through
   4     the media in a satirical magazine.
   5        The response from the unit, you tell us, was to
   6     put a block upon the holding of audit meetings in the
   7     way in which they have been held previously. Why was
   8     that the response rather than the open examination, the
   9     internal or external review, that you mentioned at pages
  10     74 and 75 of your statement?
  11   A. First of all, I will answer the question, why was that
  12     the response?
  13   Q. Why was that the response?
  14   A. I do not agree it was the response. It was one
  15     consequence, what you describe, but there were other
  16     responses, in relation to the first article that you
  17     have shown, not the one that is on the screen at the
  18     moment, which was about Fallot's tetralogy --
  19   Q. Let us go back to SLD 2/3.
  20   A. -- a number of things happened. I discussed it with
  21     Dr Roylance. I got out the figures for the last number
  22     of years for Fallot's tetralogy, and we reviewed those,
  23     and saw they were significantly different from the
  24     figures reported in Private Eye.
  25        We also received an enquiry from the Department of

   1     Health that I think you know about and we shared with
   2     them -- we shared with them information which, prior to
   3     that, I had shown to a particular parent, and that
   4     information included our overall results, the results of
   5     Fallot's tetralogy, and as it happened, the results of
   6     the particular operation for which those parents and
   7     their child, the operation for which that child was
   8     waiting. So I think it is not correct to say that the
   9     response of the unit was simply to be inhibited about
  10     some of its audit activities. It is true that some of
  11     them were inhibited and that is, I would point out, the
  12     response to the second of the two excerpts you showed us
  13     specifically, and the reason for that is that the
  14     information provided in that second article somewhat
  15     distortedly was reported in Private Eye.
  16   Q. The letter that you mention, writing back to the
  17     Department of Health because of a parent's concerns,
  18     having read the Private Eye article, we can pick up at
  19      JDW 3/157.
  20        If we go down to the bottom of the page, you say
  21     that each item raised in Private Eye on 8th May was
  22     fully discussed. In particular, "The results of
  23     paediatric cardiac surgery in Bristol for children in
  24     general in the late 1980s, the Fallot's tetralogy in
  25     particular was discussed in detail ... able to inform

   1     the parents of the outcomes in Bristol in relation to
   2     the outcomes in the United Kingdom as a whole."
   3        The second paragraph on the next page:
   4        "Copies of the figures which we put before the
   5     [parents] are enclosed for your interest. From them you
   6     will see that our overall results are extremely close to
   7     the UK results. That our results for Fallot's ...
   8     appear to be less good ... chiefly because of an excess
   9     number of deaths occurring in the treatment of this
  10     condition in 1990. There are other conditions in which
  11     our results are better than those for the country as
  12     a whole."
  13        We will come back to the use of the words
  14     "extremely close" to the UK results. Do you, however,
  15     let me ask you at this stage, think that was an accurate
  16     way for Dr Roylance, in a letter which as we understand
  17     it you had dictated for him, or given him the
  18     information for, do you think that is an accurate way of
  19     putting the relationship between the Bristol results and
  20     the UK results?
  21   A. I did think so, otherwise I would not have said it. If
  22     I might just add, I mean, we did not just offer those
  23     words, we actually offered the figures with the UK
  24     figures, which I had forgotten about, so the reader is
  25     in fact able to judge for themselves.

   1   Q. And the explanation so far as Fallot's is concerned is
   2     because there has been, if I can describe it as a "blip"
   3     I do not mean to be offensive particularly to any of the
   4     children treated, but there is an explanation given
   5     which is consistent with the overall performance in
   6     Fallot's tetralogy being as good as the national
   7     average, even although the statistical results and
   8     figures would appear to suggest the opposite?
   9   A. In 1990 and in 1991, our results with Fallot's tetralogy
  10     were disappointing. It so happens that whatever figures
  11     reached Private Eye happened -- I mean, it is no more
  12     than that -- they happened to focus on that particular
  13     time. What that audit did not take account of was what
  14     had happened in the preceding years, and indeed, nor did
  15     that person take account of what happened in the
  16     succeeding years either, as they passed, but to simply
  17     state that what happened in 1990 was representative of
  18     our work in Fallot's tetralogy was not, on its own,
  19     correct.
  20   Q. So what you are addressing here was the allegation in
  21     respect of 1990 alone, and saying you have to put that
  22     into context?
  23   A. Yes.
  24   Q. And although that is disappointing, if one takes an
  25     overall picture, it is rather different. Is that the

   1     point you are making?
   2   A. Yes. I do not remember at the moment the figures,
   3     although I have them here, the figures for 1990, but
   4     I absolutely acknowledge and it was a source of serious
   5     discussion amongst us that that happened, but it was not
   6     representative of a longer period.
   7   Q. I am going to come back to the way in which the unit
   8     dealt with figures and outcomes, and will explore with
   9     you the suggestion that adverse or unhappy results may
  10     tend to be explained by a mixture of reasons, case mix,
  11     whatever, rather than being treated as the basis for
  12     a detailed and thorough investigation. That is going to
  13     be a suggestion which I shall come back to and on which
  14     I would welcome your response. It is not a case,
  15     I hasten to add, it is telling you what the proposition
  16     is so that it may be denied, agreed with, or whatever.
  17     I must make it plain that I put it to test the evidence
  18     and not because there is any form of conclusion by us or
  19     by the Panel or by the Inquiry.
  20        I tell you that so you can see the purpose of some
  21     of the questions I shall be asking and the light in
  22     which I hope you will feel able to answer the specific
  23     points that I put.
  24        Let me first, and the last matter that I want to
  25     deal with before the break, can we look at UBHT 52/266?

   1        This is part of a report produced by Messrs Hunter
   2     and de Leval in 1995, following the operation on Joshua
   3     Loveday. It was, I think, commissioned by Dr Roylance
   4     and yourself?
   5   A. By the Trust. Dr Roylance.
   6   Q. If we scroll down, please, and look at the last three
   7     paragraphs, consultant 1 has a mortality of 0 per cent
   8     for ventricular septal defects, 13.5 per cent for
   9     tetralogy of Fallot, 87 per cent for AV canals.
  10     Consultant 2 has a mortality of 0 per cent for
  11     ventricular septal defects, 0 per cent for tetralogy of
  12     Fallot and 8.6 per cent for AV canals.
  13        The last sentence of the page:
  14        "There is little doubt that consultant 2 would
  15     certainly compare very favourably with the best UK
  16     institutions. Consultant 1 would be amongst the high
  17     risk surgeons."
  18        Can we put that on a split screen with
  19     UBHT 61/384? There, if we look at the report as it
  20     finally was:
  21        "For the results of open-heart surgery from
  22     January 1992 to January 1995, we have extracted the
  23     results of tetralogy of Fallot, VSD and AV canal
  24     repaired by Mr Dhasmana, who currently does the majority
  25     of those operations, to compare them with the 1990/92

   1     results produced by Dr Bolsin. There was 0 per cent
   2     mortality for VSD, 0 per cent for tetralogy of Fallot
   3     and 8.6 per cent for AV canals.
   4        "The current results for individual units in the
   5     UK are not available to us. There is little doubt,
   6     however, that the above results compare very favourably
   7     with the best UK institutions."
   8        Can we just highlight that passage, or perhaps cut
   9     it out?
  10        In the original, on the right, became what we see
  11     in the final report on the left. Consultant number 1
  12     has been cut out of the picture in the drafting, has he
  13     not?
  14   A. In the second account, so it would appear.
  15   Q. Yes. Can we look at UBHT 52/269? If we scroll down,
  16     this was data which was produced and attached to,
  17     I think, the original report?
  18   A. Correct.
  19   Q. When the original report came in, is it the case that
  20     a decision was made that three persons would review the
  21     original report and make comments upon it?
  22   A. I now know that to be the case. I did not know that at
  23     the time.
  24   Q. Because you were one of the persons who was supposed to
  25     have the responsibility of looking at and commenting on

   1     the report. There is a memo to that effect.
   2   A. Prior to Dr Roylance going on holiday?
   3   Q. Yes.
   4   A. A few days after the report came in, Dr Roylance being
   5     on holiday, Mr McKinlay, who was the Chairman of the
   6     Trust, asked me not to have any further dealings with
   7     it, and, certainly until Dr Roylance returned, I did
   8     not. That is why I did not know that the three or four
   9     people, whom I now know, did in fact look at it and
  10     write a document, which of course I have since seen.
  11     But I did not know about that at the time.
  12   Q. Who was it, then, who responded to Messrs Hunter and
  13     de Leval and suggested that if they did that, the
  14     passages adverse to consultant number 1 should be cut
  15     out?
  16   A. I do not know that anybody ever made such a suggestion.
  17     What was drawn to the attention of Mr de Leval, after
  18     Dr Roylance returned from holiday, was that the report
  19     which had been written for him was going to be made
  20     public, and whatever changes were made were in essence
  21     the responsibility of Mr de Leval.
  22   Q. This is just for the sake of clarity; you may have
  23     answered it: did you have any input yourself in the
  24     changes that were made?
  25   A. Only in the sense that I believe that I was asked by

   1     Dr Roylance to convey what I have just said to
   2     Mr de Leval, and I believe I did so. But I may say that
   3     I have great difficulty recollecting this conversation.
   4     Do you wish me to tell you what I recollect?
   5   Q. Yes, please.
   6   A. You will recall -- why do I not try to do it
   7     chronologically, and put it in its context, if I may?
   8        You will recall that Mr McKinlay had, in a sense,
   9     put me on the touchline as far as this matter was
  10     concerned, which was entirely appropriate. The question
  11     of putting the report into the public arena surfaced
  12     immediately prior, I believe, to Dr Roylance's return.
  13     He determined, in his own mind, some way to deal with
  14     this. He asked me to inform Mr de Leval that the report
  15     would be put in the public arena, and I believe that
  16     I did so.
  17        I do not recollect the details. I am certain that
  18     I did not suggest to him what changes should be made;
  19     I am absolutely certain of that.
  20        I believe that, after an interval -- and I do not
  21     remember how long it would be but we could probably work
  22     it out if we tried to do so -- Mr de Leval had a further
  23     conversation with me in which I believe he informed me
  24     of the proposed changes that he was going to make. I do
  25     not believe that I made any particular comment on that,

   1     because I would have considered it quite inappropriate
   2     to do so. So that is my recollection.
   3        In addition to that, what I do remember is that
   4     Mr de Leval was extremely upset when he was informed
   5     that the report would be placed in the public arena,
   6     because he had not written it with that in mind.
   7   Q. Do you have any idea why the report should have been
   8     amended in the particular respect that I have just drawn
   9     attention to?
  10   A. I have no idea why it should have been done in that
  11     particular way.
  12   Q. As far as you personally were concerned, difficult
  13     though it may have been, you would have been prepared
  14     for those conclusions to go in the public document?
  15   A. If that was Mr de Leval's considered view and -- if that
  16     is his view, that would be what would have to go in the
  17     public document.
  18   Q. One of the conclusions one may perhaps reach is that
  19     there were others within the unit or the Trust who felt
  20     that you needed to be protected in a way which you
  21     yourself did not necessarily desire.
  22   A. I would have wanted Mr de Leval to say in the report
  23     whatever he thought was correct and appropriate, and
  24     whatever that was, then we would have had to deal with.
  25   MR LANGSTAFF: I have overstepped a little our usual hour

   1     and a quarter, so may we take a break?
   2   THE CHAIRMAN: Yes, thank you, Mr Langstaff. Until 12.10,
   3     then.
   4   (11.53 am)
   5               (A short break)
   6   (12.20 pm)
   7   MR LANGSTAFF: Mr Wisheart, there are some matters of detail
   8     that you want to put right, I think?
   9   A. Thank you very much. I think I may have misled you in
  10     an answer earlier on, and I would wish to correct that,
  11     please.
  12        I think the reference is WIT 120/336.
  13   Q. Let us have that on the screen.
  14   A. You put to me that I had said that the learning curve
  15     was inevitable and I agreed. But I immediately realised
  16     that in fact that was not correct because that is not
  17     what I had said in my statement and I apologise.
  18   Q. It was my paraphrasing of it and it was therefore my
  19     fault for putting to you my understanding of what may
  20     have been taken from your statement. Tell us what the
  21     case is.
  22   A. If we scroll to the bottom of this page, the
  23     question: "(A) Is it inevitable?" What I had actually
  24     said is "It is probably not inevitable, and in principle
  25     it is possible that a learning curve might not happen,

   1     but I believe that it will usually be present and
   2     measurable."
   3        Of course there are a lot of queries, questions
   4     that arise out of the word "measurable" because it
   5     depends on what you are looking at and observing as to
   6     whether you can see something that is actually changing
   7     with experience:
   8        "My own experience in cardiac surgery is that the
   9     learning curve is a real phenomenon."
  10        That is really what I wanted to say, thank you.
  11   Q. Before we pass from that, that I think is a consequence
  12     of my putting to you a question to which I had assumed
  13     the answer and thereby inviting you wrongly to agree
  14     with me and I am sorry.
  15   THE CHAIRMAN: More to the point as well, nothing is ever
  16     set in stone; you always have an opportunity to put
  17     something in if you feel you have not expressed yourself
  18     as you would have wished to have done so. That
  19     opportunity exists and should be taken advantage of by
  20     all. Eventually we will stop, but do not let us be
  21     nervous immediately that this is our last word.
  22   A. There is one actually one other sentence which is not
  23     a sentence at all and it may have left people
  24     wondering. It is at page 29 when I made an -- I spoke
  25     an incredibly long sentence, but the bit I am concerned

   1     with is at lines 20 to 22. It is in the transcript of
   2     what I said.
   3   Q. We cannot get the transcript back, I am afraid.
   4   A. It is quite simple. What I said was, the words I used
   5     were, what was in the second article in Private Eye
   6     "came from Private Eye". What I meant to say was that
   7     what was in the second article in Private Eye came from
   8     an audit meeting within the Trust and I cannot imagine
   9     why I said what is written down, but I apologise for
  10     that and I have nothing more at this stage.
  11   MR LANGSTAFF: I do not think that would have misled
  12     anyone. Thank you very much for pointing it out.
  13        Can I then begin this section by again asking you
  14     a general question? Do you accept the decision of the
  15     General Medical Council in your case?
  16   A. The answer is that had it been possible to appeal
  17     against that verdict I would have done so, but I was
  18     advised that in as much as the verdict --
  19   Q. You need not tell us what you were advised unless you
  20     wish to do so?
  21   A. Not in particular, but I was advised simply that an
  22     appeal would not have been successful and therefore
  23     I did not proceed with that.
  24   Q. Again it is not the purpose of these questions to
  25     embarrass you, but I will come back to what it is that

   1     you may think -- it may be implicit from what you tell
   2     us, was wrong or right in the conclusions that the GMC
   3     reached.
   4        But let me ask you a second introductory question
   5     to the matters I want to raise in this session. You
   6     told the General Medical Council that you had "wrestled
   7     in your mind", those are the words they use to describe
   8     your evidence, with the results that you were achieving
   9     in the complete AVSD series. Was that a true and fair
  10     reflection of what you were saying?
  11   A. Yes, I said that and it is another way of saying to you
  12     that I had been thinking about it myself, as I say in
  13     retrospect I would have wished I had taken other steps,
  14     but, yes.
  15   Q. You knew Mr Dhasmana did the same operation?
  16   A. Yes.
  17   Q. And that his results were, on paper, on the face of it
  18     better than yours?
  19   A. Yes, I knew that.
  20   Q. That the cardiologists on the whole were referring AVSD
  21     cases to him rather than to you?
  22   A. Yes.
  23   Q. And the explanation for your comparative success or lack
  24     of it relied heavily upon case mix?
  25   A. That would depend on what one means by the words either

   1     "case mix" or "risk stratification", yes.
   2   Q. You would point out I think in your defence that 3 of
   3     the 15 cases that you dealt with in the series in the
   4     1990s involved the left ventricular outflow tract
   5     obstruction and there was evidence before the General
   6     Medical Council that the accepted incidence of such
   7     a condition was about 2 per cent?
   8   A. That is what I understand to be the case.
   9   Q. So you had had the misfortune of having 10 times
  10     20 per cent, 3 out of 15 what one might have expected?
  11   A. Yes.
  12   Q. Therefore you point to there being justification for
  13     your approach saying "I had the more difficult cases as
  14     it happened to deal with"?
  15   A. As it happened, yes.
  16   Q. Can I with those few introductory questions go to
  17     UBHT 61/271? This is a letter from Dr Doyle to
  18     Professor Angelini. Can we scroll down? 21st July
  19     1994.
  20        "Dear Gianni, It was a great pleasure to meet you
  21     on Tuesday. From my point of view, the meeting was
  22     extremely helpful, I was very grateful ...
  23        "It is with some regret that I have to write to
  24     you on an entirely different matter. It has recently
  25     been brought to my attention that there are concerns

   1     about the mortality rates for paediatric, especially
   2     neonatal and infant, cardiac surgery performed at the
   3     BRI. I further understand that some sort of audit has
   4     been carried out which confirms a greater than expected
   5     mortality rate for certain procedures [in the plural].
   6        "As I am sure you will agree, this is a matter for
   7     very great concern. If the position proves to be as
   8     reported to me, the excess deaths are in themselves
   9     a tragedy. If the problem has been recognised and
  10     adequate remedial steps have not been taken it becomes
  11     an unacceptable tragedy..."
  12        This was a letter from Dr Doyle to
  13     Professor Angelini, is it a letter which you ever saw in
  14     1994?
  15   A. Not in 1994.
  16   Q. When did you first see it?
  17   A. When the GMC provided papers to me.
  18   Q. UBHT 61/273. This is Professor Angelini's reply to that
  19     letter to Dr Doyle. It is dated 19th August.
  20        "I appreciate your frankness and concern about
  21     some of our paediatric cardiac surgery work. I have to
  22     admit that indeed there have been audits carried out
  23     which have shown a greater mortality than perhaps could
  24     be expected in a particular surgical procedure" in the
  25     singular, although the letter from Dr Doyle had been in

   1     the plural.
   2        "This has been a matter of concern for us all and
   3     we have tried very hard in the last few months to
   4     implement changes aimed at improving our results ...."
   5        And it goes on to deal with the cardiac surgeon
   6     and the unification of children's cardiac surgery at the
   7     Children's Hospital.
   8        Can I ask you: did you see this letter at the
   9     time?
  10   A. I saw this letter early in September of that year.
  11   Q. Go back up to the top. That is how it comes to you, is
  12     it, that this is Dr Roylance writing to you saying, "Can
  13     I have your comments?" because what he told us was that
  14     when a particular matter arose in respect of paediatric
  15     cardiac surgery he would pass the letter over to you or
  16     ask you to draft a response to a letter which he had
  17     received. You did that and it went out in his name, was
  18     the general pattern that he told us?
  19   A. That happened from time to time. He often altered them.
  20   Q. We looked at a case where he had done just that.
  21   A. Yes.
  22   Q. We will come to that particular letter later. You
  23     replied to him at 276. 4th September:
  24        "This letter rightly emphasises that the problem
  25     is with one procedure only ..."

   1        What procedure did you think that was?
   2   A. I was referring to the neonatal switch operation.
   3   Q. "The rest of the work is entirely acceptable or
   4     better."
   5        How many weeks after this letter was it that you
   6     gave up operating the AVSD?
   7   A. Perhaps a month.
   8   Q. So this was written at a time towards the end of the
   9     period that you had been wrestling in your conscience
  10     with whether you should go on doing the AVSD or not; the
  11     answer must be "Yes" to that?
  12   A. Sorry, yes.
  13   Q. And at a time when you appreciated that your own results
  14     were poor. How many of the last 8 AVSDs that you had
  15     operated on at this stage had been unsuccessful?
  16   A. 7.
  17   Q. Why is it that you did not mention in that letter that
  18     there was a further problem with the AVSDs?
  19   A. I believe I should have done so. Shall I answer your
  20     question?
  21   Q. Please.
  22   A. I mean I have asked myself this question because what
  23     I have written here is not sufficient, I should have
  24     said more. I can think of two reasons why I did so.
  25     One is not very good and one may be marginally better.

   1     I think that I too readily accepted the fact that
   2     Professor Angelini's letter had referred to a particular
   3     operation and ran with that and I think I should not
   4     have done so, I should have resisted that.
   5        I think the other reason was, you said a moment
   6     ago about my wrestling with my conscience. I do not
   7     know that "conscience" is quite the right word. I was
   8     wrestling with what these figures meant. It was in fact
   9     still my view that the additional factors were the major
  10     contribution to the cause of death in those children and
  11     in a sense the final patient that we have already
  12     referred to who was inoperable or virtually inoperable,
  13     although the weight of the results led me to the
  14     decision to stop that particular patient did not weaken
  15     the proposition that the additional factors were the
  16     major contributor to death.
  17        I think that is the other thing that was in my
  18     mind. Having said that, let me say categorically that
  19     in line with what I said about seeking a team review,
  20     I should have shared this problem with Dr Roylance, at
  21     least shared what I was thinking about with him.
  22   Q. It follows from what you accept that this letter, the
  23     first point certainly is, it is frankly misleading, is
  24     it not?
  25   A. It depends on what view you take of the AVSDs, whether

   1     it is frankly misleading, but the fact that it was
   2     something I was thinking about is something that
   3     I should have shared with him.
   4   Q. If we look at point number 3: "It might be useful for
   5     you to write indicating the limited nature of the
   6     problem." It is the same point really, is it not?
   7   A. Yes.
   8   Q. It compounds the failure to address point number 1 in
   9     words which, on more mature reflection you would have
  10     used?
  11   A. Yes.
  12   Q. Can we put it that way?
  13   A. Yes, indeed.
  14   Q. The AVSDs had been recognised, had they not, for quite
  15     some time as a possible problem? Let me take you back
  16     to UBHT 61/127. 19th March 1990. Perhaps we ought to
  17     go back to 126 to show you the start of it. It is an
  18     audit meeting for open heart surgery in 1989. Looking
  19     at the results, and a particular series are looked at,
  20     VSD, Sennings and one thing which needs to be said, your
  21     Senning results, and they were your operation
  22     principally, were they not, were actually very good
  23     indeed?
  24   A. That is correct.
  25   Q. TAPVD. Then we go over AVSD, other operations and

   1     future direction. These operations were selected
   2     because they were the major complex operations, were
   3     they?
   4   A. I am sorry, could I ask you to let me see the beginning
   5     of it again, please?
   6   Q. Of course.
   7   A. Yes, this was an audit meeting considering all the open
   8     heart surgery undertaken in children under 1 year of
   9     age. So that is the context in which these subgroups,
  10     if you like, came up.
  11   Q. Do you want to go back to page 127?
  12   A. Yes, please.
  13   Q. The AVSD: "7 patients were operated on, 6 with complete
  14     detects, 1 with a partial defect. There were 4
  15     survivors and 3 deaths."
  16        In numerical terms not a happy percentage,
  17     I suspect, and we see, do we, the explanations given for
  18     the particular deaths, post-operative pulmonary vascular
  19     problems and one child with left ventricular hypoplasia
  20     where the AV valve was small.
  21        When it says 2 deaths and then 1, does that make
  22     up the 3 or is that the one there one of the two with
  23     post-operative pulmonary vascular problems; can you
  24     remember?
  25   A. It looks as if it is 2 plus 1 equals 3, yes.

   1   Q. It is not entirely clear from the text, you see.
   2   A. It is not entirely I agree.
   3   Q. It could be one of the two; it could be two plus one.
   4   A. I agree.
   5   Q. It may be it is unfair to ask you to think as it were on
   6     your feet. So if you have a further thought about that
   7     perhaps you would let us know in due course?
   8   A. I may or may not be able to help you, but I will
   9     certainly look and see.
  10   Q. If we move forward from here --
  11   A. I would like to point out, these of course were not all
  12     my patients.
  13   Q. No, these are the unit's patients. But the letter which
  14     you were responding to which began this train of
  15     questions, your handwritten letter to Dr Roylance about
  16     the problem operations, if I can call it that, was
  17     talking on behalf of the unit, it was not saying "This
  18     is my problem"?
  19   A. But the problem in 1994 was my problem, not the unit's
  20     problem.
  21   Q. It was also the unit's problem, was it not?
  22   A. In as much as I was part of the unit, but Mr Dhasmana's
  23     results, they themselves were perfectly acceptable in
  24     this area. In fact I only operated on one infant in
  25     1988 and 1989 with AVSD.

   1   Q. If we move forward to 61/146. We picked up 1990. This
   2     is now July 1991. The minutes you will recall are the
   3     minutes which may be disputed to an extent because they
   4     were penned by Dr Bolsin and he has told us there was
   5     some controversy about to whether he ought ever to
   6     minute again.
   7        He notes on the first page that the part of the
   8     function of the meeting was to review what he records as
   9     having been regarded as "difficult operations, e.g.
  10     Tetralogy of Fallot, AVSD, et cetera".
  11        Is it right that part of the function of that
  12     meeting in July 1991 was to review what were thought to
  13     be difficult operations such as AVSD?
  14   A. I am sure that is correct.
  15   Q. If we go on in that minute to page 150, AVSD:
  16        "Mr Wisheart said that, in view of the Melbourne,
  17     and recent Great Ormond Street experience, these
  18     patients should be operated on at a younger age. This
  19     proposal was accepted by the meeting. Mr Dhasmana
  20     reviewed cases ... but it was a difficult operation."
  21        If we scroll on down.
  22        So although no mortality figures are there looked
  23     at, the feeling at the meeting appears to be this is an
  24     operation which is difficult, it is not easy, and there
  25     is an appreciation of the need to try various changes in

   1     pre-operative, operative, post-operative management in
   2     order to see if the unit's results can improve. That is
   3     the flavour of it, have I got it right?
   4   A. That is correct, yes.
   5   Q. If we then go from there to 161. We have looked at
   6     1990, 1991 and now 1992. Can we look at 1992. This is
   7     where the meeting looked at paediatric cardiac surgical
   8     mortality for 1991 with comparison to previous years.
   9     Can we scroll down?
  10        There AVSD, the last three years mortality for
  11     infants, that is under 1s, I think, AVSD, 4 out of 20
  12     equals 20 per cent. That is said to be good results.
  13     Was it?
  14   A. The 20 per cent for infants with AVSD -- we are talking
  15     about 1991 -- would certainly be close to what was the
  16     figure in the UK register in the years 1990/1991. I do
  17     not remember exactly what it was.
  18   Q. Still I think --
  19   A. Marginally above, but close, but close.
  20   Q. So the unit as a whole has got closer to the UK figures
  21     but still above.
  22        Can I pick up in passing what is said to be there
  23     "Poor results in TAPVD". You appreciate that the
  24     document we looked at earlier in respect of TAPVD showed
  25     poor results in 1990?

   1   A. Yes.
   2   Q. Is it right at least at this stage that was a difficult
   3     problematic operation?
   4   A. Yes, we recognised that and we reviewed it in detail at
   5     a subsequent meeting. Could I just please go back?
   6   Q. Yes, please.
   7   A. You suggested the 20 per cent was less good than the
   8     figure in the UK register. I mean I would say to you
   9     that I think it would be very difficult to say it is
  10     different.
  11   Q. Different in what sense?
  12   A. In a statistically meaningful sense.
  13   Q. This is always one of the problems, is it not, in
  14     looking at numbers because if you do one operation of
  15     a difficult kind and the child survives, you have
  16     100 per cent success rate but you cannot say that the
  17     next such operation will be 100 per cent successful.
  18        Equally if the converse occurred you would have a
  19     100 per cent failure rate and you would not be able to
  20     say your next operation was certain to lead to mortality
  21     because it is a function of numbers, is it not, and you
  22     would not have statistical significance from either
  23     result, would you?
  24   A. No, but there are 20 operations here.
  25   Q. Within a range there is going to be no statistical

   1     difference?
   2   A. Yes.
   3   Q. What happens if year after year after year, taking the
   4     results of the unit overall, let us suppose, the Bristol
   5     figures although in any one individual year would be
   6     within the chances indicated by the national figures, if
   7     year after year after year as a point figure they are
   8     higher, what conclusion would one eventually draw?
   9   A. Well, the statistical methodology will allow you to
  10     explore that and as the numbers get bigger, the
  11     confidence limits will become narrower and therefore the
  12     possibility of showing a difference will increase so
  13     that the method will allow you to deal with that.
  14   Q. And it makes, does it, the layman's point: that although
  15     in one year because of small numbers, a difference let
  16     us suppose of 30 per cent mortality in Bristol compared
  17     to 20 per cent in the UK as a whole may be entirely due
  18     to chance and --
  19   A. Absolutely.
  20   Q. If it happens year after year after year, let us
  21     suppose?
  22   A. Yes.
  23   Q. Then as each year succeeds each other year, it is less
  24     and less likely to be a chance variation, there must be
  25     something institutional, systematic --

   1   A. That possibility certainly exists.
   2   Q. Anyway, focusing back on the AVSD, can we now have
   3     a look at WIT 115/26?
   4   THE CHAIRMAN: Mr Langstaff, just interrupting you for
   5     a moment, in your question to Mr Wisheart you say "as
   6     each year succeeds another year it is less and less
   7     likely to be chance variation, there must be something
   8     institutional". There may be, but at least an
   9     explanation is called for, that is about as far as we
  10     can go; is that not the case?
  11   MR LANGSTAFF: Yes, I am happy with that and the question
  12     was overstated.
  13        This is your document, your response to what
  14     Professor Vann Jones said. Can we go to page 27 at
  15     (b). You describe here Professor Dieppe coming to see
  16     you in November 1993. You were describing I think that
  17     he was bringing to you concerns that he had heard in
  18     a general, lay sense expressed by others?
  19   A. No, he was specifically reporting the conversation he
  20     had had with Dr Bolsin.
  21   Q. It may be the same thing. In any event he is reporting
  22     a conversation about paediatric cardiac surgery?
  23   A. Yes.
  24   Q. Your response was, as we see at (b), was it, to draw his
  25     attention to two operations, the neonatal switch and

   1     then your own series of AVSD?
   2   A. Yes, I first of all showed him tables with all the
   3     results and then I drew his attention to those two
   4     operations.
   5   Q. You chose those two operations; why?
   6   A. Because those were the two series, the figures for which
   7     if you like raised a question and if this was actually
   8     in November, and I think it is an estimate of the time,
   9     but assuming that is correct, then of course the
  10     neonatal switches had stopped just the previous month.
  11     So that was very much in the forefront of consciousness.
  12   Q. That is why I put this in November 1993 because we know
  13     they stopped in October.
  14   A. In October, yes, but -- I am just explaining why I drew
  15     his attention to neonatal switches. I mean, as I have
  16     said, it was at this stage (very broadly speaking) in my
  17     AVSD series that the fact that the numbers involved
  18     raised a question was coming more clearly into focus and
  19     so I shared that with him and I said to him obviously
  20     what I thought were the reasons for that, how I thought
  21     at that time, so I explained that to him.
  22   Q. If anyone had approached you, as Professor Dieppe did,
  23     at the end of 1993 and said "Do we have any problems in
  24     paediatric cardiac surgery?", you would have said "Yes,
  25     we have solved one because the neonatal arterial switch,

   1     we are no longer doing" and the second is "I have had an
   2     unfortunate run of cases in AVSD and I am worried about
   3     that, that may be a problem". That is the way you would
   4     have responded, is it?
   5   A. The figures raised the question, if you like an apparent
   6     problem and I am sure I would have indicated to him my
   7     understanding of that problem which would then have been
   8     up for him to either accept or question further.
   9   Q. Insofar as the AVSDs were concerned the problem got no
  10     easier or better during 1994, did it?
  11   A. That is correct. I operated on the fourteenth and
  12     fifteenth patients in the series.
  13   Q. Can we have a look at UBHT 54/4? Can we see what that
  14     is. That is your statement made long after the
  15     operation on Joshua Loveday on 3rd June 1996. You are
  16     making your statement in defence of your position in
  17     answering criticisms that had been made of you. Can we
  18     go to the bottom of page 5? You say that since you came
  19     to Bristol in 1975 your personal practice had been
  20     conspicuous and time and care was taken to explain to
  21     parents the nature of the problem, the proposed
  22     operative treatment, the potential risks benefits, the
  23     risk always expressed as a precise number. Can we go
  24     over the page?
  25        "For me the allegations specifically relate to the

   1     six AV septal defects operated in the years 1992 to
   2     1994. With the benefit of hindsight and the knowledge
   3     of outcome in this group, I am asked the question, did
   4     I inform the parents appropriately?" And you deal with
   5     the question of how on earth one assesses risks and you
   6     come, at the bottom of that paragraph to say:
   7        "Do I say the risk is 10 to 15 per cent because
   8     that is the overall result in our group? No, I said the
   9     risk was 20 to 25 per cent. I will gladly rebut
  10     allegations about consent in detail and in any forum."
  11        Let me understand the process of interpretation
  12     that goes on in your mind addressing the next operation
  13     in a series. You have told us you are conscious of your
  14     own figures. You are worried for a period of 1993
  15     undoubtedly, 1994 certainly in respect of AVSDs and you
  16     may have had concerns before. When you come to look at
  17     the risk for the next operation, how much do you take
  18     account of your own series and the success you have been
  19     achieving?
  20   A. I take account of my own series in as much as they
  21     relate to the patient who is now under consideration.
  22   Q. If one takes, let us suppose, the AVSD series as it was
  23     when Professor Dieppe came to speak to you, 13 of the
  24     15. Within that 15 there were quite a number variations
  25     on the theme of AVSD, were there?

   1   A. There were indeed.
   2   Q. But nonetheless all having the same common description
   3     applied to them?
   4   A. Yes, but that did not make them similar necessarily.
   5   Q. So when one comes to the fourteenth, you did not give
   6     the fourteenth a risk simply numerically derived from
   7     the experience of the previous 13?
   8   A. I would have regarded that as misleading.
   9   Q. To what extent did you make adjustments up or down in
  10     the percentage chances that you would quote to a parent
  11     in response to your perception of the condition of the
  12     particular child?
  13   A. The indication of the level of risk that I would give to
  14     parents about a particular child would be based on the
  15     information I had about that child and would be tailored
  16     for that individual child. So in this context if the
  17     child under consideration to the best of our knowledge
  18     had an AVSD with either nothing more or only something
  19     that would have changed things relatively marginally,
  20     then that would have been quite different from
  21     a situation where a child had an atrioventricular septal
  22     defect and let us say I knew that the child had left
  23     ventricular outflow tract obstruction or if I knew the
  24     child had severe but not inoperable pulmonary vascular
  25     disease. So you cannot just say AVSD, press a button

   1     and get a number. The individual child has his own
   2     characteristics or her own characteristics and one
   3     therefore does one's best to tailor what one says to
   4     those individual characteristics because I think it
   5     would clearly be inappropriate to ignore those
   6     differences that I have just indicated to you if you
   7     knew them.
   8        So when I looked back on my experience, I think
   9     you said at this point I have operated on 13 patients in
  10     this particular series from 1990, and that would be
  11     correct, so I can say to you that just 9 of those 13
  12     were free of a significant abnormality. Therefore if
  13     the child in front of me now appears to be free of any
  14     significant additional abnormality or risk factor, then
  15     the immediate relevance of the previous 13 patients has
  16     to be carefully considered, and it is not just a matter
  17     of transferring the number or whatever it may be from
  18     that experience to this child.
  19        I hope I have made myself clear because it is
  20     a terribly -- it is fundamentally important to me, this
  21     particular point.
  22   Q. You have. Let me try and get a perspective on it, again
  23     moving from the individual case where there are always
  24     going to be individual reasons and justifications for
  25     particular risk quotations. Let me ask you this: over

   1     the whole of the series of 15 cases, what was the
   2     highest risk of mortality that you ever quoted?
   3   A. I think 50 per cent and I think that is the notes in the
   4     earlier cases. But in order to quote the high risk you
   5     have to have the information about the child and so
   6     I would wish to point out that in most of these cases we
   7     did not have the information at the time. So looking
   8     back over the cases, I had the information, but for the
   9     child in front of me at that moment I did not have the
  10     information so I was acting on the best information that
  11     I had.
  12   Q. But in the knowledge that the information you had might
  13     be incomplete in the way that it had been incomplete in
  14     other cases?
  15   A. That is theoretically correct, but I mean I must, if
  16     I may, point out two things: that in this particular
  17     series of mine there was an extraordinary preponderance
  18     of these factors. Remember we are talking here of 2 or
  19     3 patients a year and there was no such systematic
  20     problem across the generality of my work, that is
  21     paediatric work, nor indeed was there such a systematic
  22     problem across AVSDs which were undertaken by
  23     Mr Dhasmana or myself. I mean it is just the way it
  24     happened.
  25        So you are absolutely right to say that in my

   1     series those additional problems were present and were
   2     recognised at a late or very late stage, but it is not
   3     true that it was in the generality of the work and
   4     therefore having had a series of unexpected findings,
   5     I mean actually your mind set was the opposite because
   6     you thought "I have had more than my share of unexpected
   7     findings and therefore it is less likely that in this
   8     very series the next patient or the next two patients
   9     are going to reveal the same thing"; that is actually
  10     very unlikely.
  11   Q. To anyone used, as I expect you are to scientific
  12     statistics, it is a bit like saying "because the coin
  13     has come down heads nine times in a row, the chances
  14     must be much greater of it coming down tails the next
  15     time you toss it", and of course they are not, are they?
  16   A. I take your point and I think you are correct to make
  17     it, but I would still point out that the chances of
  18     LVOTO are 1 in 50, not 1 in --
  19   Q. 5?
  20   A. -- 5, thank you. So it is still a low possibility. You
  21     are quite right to correct me, thank you, but it is
  22     still a low possibility and you do not expect it to keep
  23     coming up.
  24   Q. Can you help me with this, just two questions which
  25     I would like you to answer in respect of this series: if

   1     the highest risk you ever quoted was 50 per cent, what
   2     (if you had averaged out the risks that you had quoted
   3     across the series of 15) roughly do you think the figure
   4     would be?
   5   A. This question is the figure I quoted.
   6   Q. The figure you actually quoted?
   7   A. To the patient, yes. Well it ranged from -- the 50
   8     I remember was in a patient in whom we recognised an
   9     additional problem and it was also early in the series
  10     when my view of, if you like, the baseline risk was
  11     a little higher and you will be aware that my initial
  12     experience in this series was actually quite favourable
  13     and I probably lowered the risk marginally because of
  14     that, but only marginally.
  15        So I think the average, if you are asking me the
  16     average risk, it would probably have been around or just
  17     below 30 per cent, but that is an estimate.
  18   Q. It is an estimate which I am happy to work with, around
  19     or just below 30 per cent. If one looks at the results
  20     across the 15, what -- again you probably have the
  21     figure off pat -- is the percentage so far as the actual
  22     results are concerned?
  23   A. Just over 60.
  24   Q. As it happens you had over a series of 15 cases quoted
  25     half the risks -- looking forward to the operation --

   1     than the event showed to be, if I use the word
   2     justified, I mean it in this context: why do you think
   3     the results turned out to be twice as bad as you doing
   4     your best had anticipated?
   5   A. Because additional risk factors of one sort or another
   6     were present which had not been identified at the time
   7     I quoted the risk.
   8   Q. Is the problem the existence of the factor or the
   9     failure to identify the factor or both?
  10   A. In theory it has to be the failure to identify the
  11     factor, whether it was possible or not to identify the
  12     factor is another question. I mean the factor was
  13     present; it had not been identified; I did not know it
  14      -- in most cases, not in absolutely every case, but in
  15     most cases -- so that is where we were, that is the
  16     position.
  17   Q. One of the results of the analysis thus far of the cases
  18     in the Clinical Case Note Review for the Inquiry has
  19     suggested that much of the criticism or the
  20     inappropriate care may have taken place pre-operatively
  21     rather than during the course of the surgery itself.
  22     There have been told to us in summary a reflection of
  23     a failure to identify by the cardiologist, surgeon or
  24     both prior to operation the true nature of the anatomy
  25     so that the surgeon on the table is surprised by it.

   1     How far do you think that report to us is an accurate
   2     reflection of the problems that there were at least so
   3     far -- let us start where we are -- as you and your AVSD
   4     series are concerned?
   5   A. We are speaking now of complete or incomplete diagnosis
   6     as a question?
   7   Q. Yes.
   8   A. As far as my AVSD series was concerned, it was the major
   9     factor, it was very important. As far as -- well, you
  10     did not ask me that, but I was going to say as far as
  11     other areas of work is concerned, there was no such
  12     systematic happening, it was just the way it happened,
  13     it was not across the board. I mean occasionally
  14     elsewhere, but not, not like this.
  15   Q. Let me ask you a few more questions before we come to
  16     our lunch break. Can I ask you to look at UBHT 150/13?
  17     This is a letter from Professor Farndon to Dr Black. It
  18     is dated 24th July 1996. Page 14. In the second
  19     paragraph he is talking about the way in which the Trust
  20     and colleagues within the Trust -- this is four lines
  21     down -- have behaved at times towards you and
  22     Mr Dhasmana and describes that as "despicable",
  23      "prisoners in a dock or a soldier in a court martial do
  24     not stand alone and have no representation."
  25        He talks about providing moral support "will not

   1     and cannot be a party to accusations without fact", and
   2     then says this:
   3        "Mingled into that difficult area are the things
   4     that you comment upon, which are the structure of each
   5     person's makeup and personality. One example of which
   6     might be some inability of James to always see the
   7     problem being directed at him. Another example would be
   8     Janardan's reticence and totally implicit belief in the
   9     Trust and his colleagues without ... having been totally
  10     destroyed."
  11        The comment there is made from what in the course
  12     of this letter appears to be, if I can describe it as
  13     a friendly source; do you recognise that as in any way
  14     an accurate description of yourself or not?
  15   A. That is quite a difficult one. I think it is always
  16     easier for others to make this comment about one than
  17     for oneself. I would like to have thought that I was
  18     able to understand problems that were being put to me.
  19     I guess it is for others to judge whether I did or I did
  20     not, but I believe I was open to what other people were
  21     saying to me and I always regarded myself as a bit of an
  22     easy person to influence. In fact if somebody wanted to
  23     put a case to me, I found myself being sympathetic to
  24     what was being said. I find it difficult to comment on
  25     this.

   1   Q. I am not going to ask you more about that. We have been
   2     through the AVSD series, we have been through your
   3     calculation of risks, the risks as you express them to
   4     parents and as it turned out approximately double, if
   5     one takes a broad average, those that you were quoting.
   6     The problem being, in part or largely, that of
   7     undetected abnormalities, difficulties with the anatomy,
   8     coming to surgery, wrestling with it in your mind and
   9     you making the comment as I thought you might in
  10     response to what Professor Farndon had to say, but one
  11     of the features that the unit would seek to pride itself
  12     on was its openness and honesty in discussing problems;
  13     why is it that having recognised that the AVSD series
  14     was difficult for you personally, that the difficulties
  15     may not be with yourself but might be with others in
  16     failing to give you the right information as a surgeon,
  17     why was it that you did not use your influence in the
  18     unit and call for a general investigation, study,
  19     examination of the results and simply, unilaterally as
  20     it were, gave up?
  21   A. In answering your question: I first of all took the
  22     view, based on my own experience -- I am repeating
  23     myself and I apologise -- that across the board of the
  24     work, across the whole spectrum of the work there was
  25     not a major problem of incomplete diagnosis. This was

   1     something that occurred occasionally, but across the
   2     spectrum it was not a systematic, major problem.
   3        It so happened -- and that is life -- that in this
   4     particular series there was a concentration of such
   5     problems. Each individual problem had been, of course,
   6     drawn to the attention of whichever cardiologist at the
   7     time it came to light and we were discussing and
   8     reviewing that patient.
   9        So that the problems had been brought to their
  10     attention, people did know and I have every reason to
  11     believe that -- I do not mean this to sound patronising
  12     in any way -- the cardiologists were making their very
  13     best efforts to make and deliver as complete diagnosis
  14     as possible, I did not doubt that. So I did not do what
  15     you suggest, if I understand you correctly by suggesting
  16     a sort of wholesale inquiry --
  17   Q. I am not suggesting, I am asking why not?
  18   A. Sorry --
  19   Q. The suggestion may be implicit in the question, but the
  20     question is: why not?
  21   A. Those are the reasons: because the individual cases were
  22     drawn to their attention and I did not believe there was
  23     a systematic problem across the whole spectrum of the
  24     work, it just so happened there was a concentration here
  25     and that is what the facts appear to suggest.

   1   Q. One of the difficulties I suspect is, is it, that if one
   2     atomises a number of operations so that one focuses upon
   3     each individual operation as a separate problem, one
   4     never gets a perspective of the whole?
   5   A. I agree, you need to do it both ways and that is why
   6     I regret we did not do the second part of that.
   7   Q. I suppose the layman might describe it as not being able
   8     to see the wood for the trees?
   9   A. I think you have to do both.
  10   MR LANGSTAFF: I am going to turn to another matter which is
  11     along the same lines. It will take me probably quarter
  12     of an hour to deal with it. I am in your hands, sir, it
  13     is just after 1.15 and I think it is an appropriate
  14     moment for a lunch break.
  15   THE CHAIRMAN: We will take lunch until 2.00.
  16   (1.20 pm)
  17             (Adjourned until 2.00 pm)
  18   (2.00 pm)
  19   MR LANGSTAFF: Mr Wisheart, in 1986 the unit was visited,
  20     was it, by a group of clinicians and others from the
  21     Welsh Office?
  22   A. Yes. I recall it was.
  23   Q. Were you the paediatric cardiac surgeon who showed them
  24     around?
  25   A. With others.

   1   Q. Can we look, please, at Welsh Office 1/266? This is
   2     part of the report which Dr Jennifer Lloyd made to the
   3     Welsh Office as a result of the visit that she had had.
   4     She has described how she was taken around by Bristol
   5     staff, and then said this:
   6        "We did however raise the question of outcome with
   7     Bristol staff."
   8        Could I stop there? There had been expressions at
   9     about this time, had there not, in Wales, of some
  10     concern about the outcomes at Bristol?
  11   A. I think that came later. I may be wrong, but I think
  12     that came later.
  13   Q. Certainly the article or the BBC TV programme was later?
  14   A. I was not aware of anything prior to that.
  15   Q. Talking about the Bristol staff:
  16        "They put to us the accepted point that outcome is
  17     influenced greatly by case mix."
  18        Do you recollect this discussion?
  19   A. Not in detail. Well, I do not really recollect it at
  20     all, to be honest.
  21   Q. What appears to come from the document is that the
  22     results, one might suppose from reading through the
  23     paragraph, were presented to the Welsh Office staff,
  24     frankly, as not being of the best, but the explanation
  25     it would appear was given that outcome, that is, not of

   1     the best, is influenced greatly by case mix; that is,
   2     "We have more difficult cases and therefore this
   3     explains the results".
   4        That is what one might take, I think, from the
   5     paragraph. By all means, read it through to yourself
   6     and tell me if you think that is a fair reading of what
   7     one may take from those words?
   8   A. I think one could read the second sentence, "They put to
   9     us the accepted point ..." as a stand-alone principle
  10     statement. I do not think it necessarily has to relate
  11     to anything in particular. But as I say, I am not
  12     recalling this, please be quite clear, so I am just
  13     interpreting what I see before me. In its position
  14     prior to the description of the other accounts of
  15     outcomes, that, I think, is a possibility. So then, as
  16     I say, clearly we stated outcomes for a range of
  17     procedures and made some comments about them and there
  18     we are.
  19   Q. It is not actually clear whether you gave figures or
  20     whether you gave a verbal explanation of that which the
  21     figures showed. Perhaps it does not matter.
  22   A. I accept it is not clear from this, but it would
  23     normally be my style to provide figures rather than just
  24     make assertions.
  25   Q. So if one were, then, to have a look at the figures that

   1     there might have been for 1986, if we go to UBHT 55/8,
   2     the best I can do from the documents we have, 1984 to
   3     1986, the Bristol figures, the UK 1984 comparison:
   4        "Open-heart surgery over 1 year, 7.9 compared to
   5     the UK 6.9. Under 1 year 26.5 compared to the UK 21.8".
   6        Not there broken down by individual operations but
   7     a summary total, which would suggest that Bristol is
   8     lagging behind, but not far, the rest of the UK, on the
   9     right figures, would it not?
  10   A. Not necessarily.
  11   Q. 7.9 is not as good as 6.9, on the face of it?
  12   A. Because I do not think there is any difference, and
  13     I mean, what has been put together here is a wide range
  14     of patients and operations. So what is the true meaning
  15     of 7.9 and 6.9 is not revealed on this table, nor is the
  16     true meaning of 26.5 and 21.8.
  17   Q. If you are explaining figures such as those to the
  18     sceptic who says 26.5 may be a difference of 5
  19     percentage points, roughly, compared to 21.8, but that
  20     is a quarter as much again, a ratio of approximately
  21     4 to 5 between the two figures, how would you say,
  22     "Well, this is not actually necessarily different at
  23     all"?
  24   A. Because in saying what you have said, you are making the
  25     assumption that you are comparing like with like and so

   1     the question is, is that assumption valid or not? It
   2     may be or it may not be.
   3   Q. In order to compare like with like, you would have to
   4     know what?
   5   A. I think there are steps, if you like, but the least that
   6     you would need to know to proceed further, I mean, you
   7     could, if you like, approach this in a slightly
   8     different way of thinking. You could say to yourself,
   9     "This looks like a difference; is it or is it not?" So
  10     how would you find out?
  11        The first step in finding out would have to be
  12     what actual operations were carried out on the one hand
  13     in Bristol, 49 patients and on the other hand in the
  14     United Kingdom for 131 patients, because you know -- by
  15     which I mean one knows -- that within each of those
  16     groups there will be a mixture of high risk patients --
  17     I am speaking now relatively -- and low risk patients.
  18        So the important thing is: are those proportions
  19     similar or are they not?
  20   Q. Is that a description, in other words, of case mix?
  21   A. Yes.
  22   Q. So if one were to go back to Welsh Office 1/266, the
  23     sentence "They put to us the accepted point that outcome
  24     is influenced greatly by case mix", you are quite right,
  25     it could be an expression of philosophical principle

   1     standing on its own as it were, but in the context of
   2     a report such as this, reporting a visit coming as it
   3     does before a discussion about the results, the
   4     likelihood is that the author, who I say has not given
   5     evidence to us, it needs to be said, the likelihood is
   6     that the author has it in mind that this is in the
   7     relation of explaining the Bristol results.
   8        What you have just told me is that looking at the
   9     figures for 1984 to 1986, comparing them with the UK for
  10     1984, you would say that you have to compare like with
  11     like and the results may very well be a consequence of
  12     case mix.
  13   A. It could even be that the Bristol results were better
  14     than the UK. You cannot say from those figures.
  15   Q. The paragraph goes on " ... quite openly quoting
  16     outcomes for some of the commoner procedures they have
  17     to undertake. They see a gradual improvement in these
  18     as expertise grows and specialist equipment becomes
  19     available."
  20        The "gradual improvement... as expertise grows"
  21     looks as though it is an explanation for a degree of
  22     under-performance by Bristol relative to the rest of the
  23     UK. Is it, do you think?
  24   A. I think it could equally be a positive statement, that
  25     as experience, expertise in the volume of work

   1     undertaken grows, then it is likely that results will
   2     improve. I do not think it has to be seen as an
   3     explanation for something that may or may not be
   4     inadequate. I think everybody will agree --
   5   Q. "Inadequate" is not the word I actually used.
   6   A. I am sorry, it was a loose term.
   7   Q. Can we just examine that point in relation to DOH 4/28?
   8     Turn it sideways. At this stage, the end of 1986,
   9     a build-up in numbers of open-heart operations --
  10     I think you and I may have discussed this table before,
  11     but not very many open-heart operations under 1 year of
  12     age, on any showing.
  13   A. Correct.
  14   Q. And if one goes to the point that was being made about
  15     expertise increasing as results improving expertise
  16     increase, one might very well have a reflection of the
  17     idea that low numbers, which one hoped would increase,
  18     would lead to an improvement in results?
  19   A. One certainly could.
  20   Q. And it would have been appreciated, I expect, that in
  21     terms of throughput of cases in this age group, most
  22     other centres in the United Kingdom would be doing
  23     a larger number.
  24   A. I think that may be so and there certainly were centres
  25     doing a larger number. Most of the tables from the DOH

   1     show that we were smallest, but they also show that
   2     there were a group of centres doing a relatively small
   3     number. I think the historic setting of what we were
   4     talking about is very important, because surgery in the
   5     under 1s was something that had been at a very low level
   6     through the 1970s and was beginning to grow, so, okay,
   7     some folks were a year or two ahead of other folks, and
   8     quite a number of folks were not doing very much, and in
   9     the early to mid-1980s, we were in that latter group,
  10     and hoping to develop the work as others were doing.
  11   Q. Indeed, and as others had done, because I suspect if you
  12     had in mind the larger unit where there may have been
  13     a throughput of 50 or 60 cases per year instead of the
  14     4, 11, 14, 24 that we have seen for the years 1983 to
  15     1986, it must follow that if increased experience
  16     improves results, you would expect the larger units
  17     actually to have better results.
  18   A. Yes. I mean, I do not disagree with that thesis in
  19     principle, but in fact everybody was on the move. You
  20     suggested that the larger units had done something.
  21     They were moving. They were just at a further point
  22     along the road. But everybody was changing. If you
  23     look at the register over the years, you will see the
  24     very dramatic evidence for that in the total numbers of
  25     open operations in the under 1 age group. Everybody was

   1     moving at this stage.
   2   Q. I think the point I was simply making or asking you to
   3     comment on was whether it is not the case that if
   4     everyone was on the move, it is a necessary consequence
   5     of an acceptance of the principle that experience of
   6     a greater number of operations leads to better results,
   7     that they would get to the good result position quicker
   8     because they would have a greater throughput and more
   9     experience.
  10   A. Possibly, but then clearly those who are not as far
  11     along the road as they are at that particular point
  12     aspire to get up level with them, so these are not fixed
  13     positions. It is not a fixed situation at all; it is
  14     a situation in which everything is changing and people
  15     are changing their techniques and practice, and those
  16     who are behind are seeking to achieve the standards of
  17     those who are presently in front of them, but to achieve
  18     those standards. That, I think, was everyone's goal at
  19     that time.
  20   Q. Can I go back in the light of that discussion to
  21     WO 1/266? I appreciate you have no specific memory of
  22     the conversation. What I am trying to do is to
  23     understand the ideas, the arguments, the thoughts, at
  24     the time.
  25        "For most of the more commonly occurring

   1     conditions, their figures compare well with other
   2     centres. They acknowledge, however, that surgeons in
   3     different centres develop special expertise in rarer
   4     conditions and that outcomes may therefore vary greatly
   5     for these between centres."
   6        Is this a way of saying, "Well, for those
   7     conditions which we do a number of and therefore have
   8     developed an expertise in, our results are quite
   9     reasonable; that for the rarer conditions, they are not
  10     so good simply by virtue of the fact that these are
  11     rarer conditions and we have not yet built up the
  12     necessary expertise, even though we hope to do so"?
  13   A. Yes, it could mean that. I do not entirely recognise
  14     myself in this sentence here, if I may say so, but it
  15     could mean that which you suggest. Of course, that is
  16     a correct reflection of the position we were at. There
  17     were some operations with which we had a limited
  18     experience at that time.
  19   Q. Did it follow that at this stage, the end of 1986, if
  20     anyone had asked you outright at the time, "Are Bristol
  21     good at [a rare complex operation]?", the answer would
  22     be "Well, we are learning, we are getting there, but we
  23     are not actually as good as some places who have more
  24     experience of this condition than we do"?
  25   A. I cannot think of a for instance, but I think it would

   1     have varied from operation to operation.
   2   Q. So true of some but not others?
   3   A. Yes.
   4   Q. The throughput that there was in Bristol remained
   5     relatively low, did it, even though in absolute numbers
   6     it increased, as we saw at DOH 4/28, up to 40 by the
   7     early 1990s?
   8   A. Yes. It increased up to 50 by 1993/94.
   9   Q. That is as high as it ever got, I think?
  10   A. That is correct. You are now referring simply to the
  11     work on the under 1s?
  12   Q. Yes.
  13   A. That was relatively low, yes.
  14   Q. Part of the reason for the increase in the under 1s was
  15     a general desire to do work at an earlier age?
  16   A. Yes. It was not an arbitrary desire; it was a wish to
  17     do so because it was thought to be in the patient's
  18     interest.
  19   Q. But a consequence of that general desire in the
  20     patient's interest?
  21   A. Yes.
  22   Q. And no doubt also in the development of surgical
  23     techniques and improvements in equipment that enabled it
  24     to be done?
  25   A. Yes. The two go hand in hand, because you can only

   1     advise it when you can do it and do it, as I say, in the
   2     patient's interest.
   3   Q. So far as case mix is concerned, we were told in almost
   4     the first question and answer that he gave by Dr Joffe
   5     that the case mix, as he saw it at Bristol, was, he
   6     thought, no different from that anywhere else in the UK,
   7     in general terms, with the exception of Down's syndrome,
   8     which I will want to deal with separately in a moment.
   9     Is that a proposition that you accept or reject?
  10   A. I do not entirely agree with it. I would be happy to
  11     offer you the evidence, although it does not come
  12     chronologically until a year after this.
  13   Q. Tell me.
  14   A. It would be helpful if I could refer to a document.
  15   Q. Yes, please.
  16   A. I might need a prompt from somebody as to what its
  17     number is. I think it is UBHT 167/32.
  18   Q. Let us try that. You are right.
  19   A. Shall I take you through it? I think the introduction,
  20     if I may, is that if one is doing a relatively small
  21     proportion of operations in the first year of life, as
  22     we were at this time, I mean, not only number-wise but
  23     percentage-wise -- I am now talking about
  24     a hypothesis -- then it seemed likely that there would
  25     be a preponderance of emergency and unavoidable cases

   1     whereas the ones that were elective and probably had
   2     lower risks were ones we were not doing and if that was
   3     so, that might bear on the overall results.
   4        With that in mind, I took all the Bristol figures
   5     for the four years 1984 to 1987 and I took the UK
   6     figures that were most recently available to me and
   7     rather than just take all the under 1s in each group and
   8     compare the overall numbers -- which were approximately
   9     the 21 and 27, I think, for this whole period, I think
  10     if we scroll down we would see that, actually, just
  11     a little bit. So 21.4 for the UK and 27 for Bristol.
  12     So I actually took the categories of operation that were
  13     carried out in Bristol --
  14   Q. Could I just ask you to stop there to ask you two
  15     questions? First, when did you do this?
  16   A. In 1988, I believe.
  17   Q. And the second question: did you carry out this
  18     examination in response to a concern that the Bristol
  19     figures might be so regularly higher than the United
  20     Kingdom figures that they needed some investigation
  21     because some explanation was called for?
  22   A. I am not conscious of that. I mean, my recollection is
  23     that I did it out of my own curiosity.
  24   Q. To find an explanation for what? What made you curious?
  25   A. One always looks at numbers and wonders why they are the

   1     way they are. I have explained to you that there was
   2     a proposition that was generally held amongst us but
   3     which had not been explored, so I thought it would be
   4     interesting to explore it.
   5   Q. So you were exploring a reason which others, and
   6     yourself, had suggested?
   7   A. Yes.
   8   Q. I am sorry, I stopped you --
   9   A. It is more a commentary on the work than an explanation
  10     for a perceived problem, I think.
  11   Q. I was curious to know why it was thought that the
  12     commentary was one which it was sensible to undertake.
  13   A. It is part and parcel of trying to understand why people
  14     have died. You have to look into it. You cannot just
  15     stop at the numbers, you have to ask why. There are all
  16     sorts of whys that need to be investigated, and this is
  17     one of them.
  18        So I took the categories of operation that we
  19     actually did in Bristol and for each of those, I took
  20     the reported mortality in the UK. So if we take the
  21     first one, we had operated on 7 patients with aortic
  22     stenosis. The mortality in the UK was 23.3 and so
  23     I said to myself that if the mortality in Bristol with
  24     7 cases had been 23.3, then 1.63 deaths would have
  25     occurred. You will forgive the decimal point, but it is

   1     the only way you can do it.
   2   Q. You are dealing with the concept and not the actual
   3     people?
   4   A. Yes.
   5   Q. Can I ask you one question about that? Did you have the
   6     number of cases for the United Kingdom when you started
   7     this comparison?
   8   A. Yes, I would have had.
   9   Q. Were you comparing the position as it would have been in
  10     Bristol as against the whole of the UK including
  11     Bristol?
  12   A. Yes.
  13   Q. Or the whole -- I was going to say, not the whole of the
  14     UK excluding Bristol?
  15   A. No, I did not subtract the Bristol numbers; I just took
  16     the whole numbers as they were.
  17   Q. It may not make a very great deal of difference to the
  18     figures, but you would have to subtract the Bristol
  19     figures from the UK figures to get a comparison of
  20     Bristol against the others, would you not?
  21   A. I do understand that, yes. Yes.
  22   Q. I am sorry, again, I stopped you.
  23   A. If we go down to ventricular septal defects, where there
  24     were 15, then the UK mortality is 12.4 and if that
  25     mortality were applied to Bristol patients, we would get

   1     1.86 deaths, and so forth.
   2        To cut through to the bottom line, if one adds the
   3     calculated or expected deaths in Bristol based on a UK
   4     mortality, the total is 19.24. The actual number of
   5     deaths that occurred in those patients in Bristol was
   6     20. So while this is simple, perhaps even naive
   7     statistics, it is very simple, nevertheless, this did
   8     seem to indicate to me that case for case, the overall
   9     results, therefore, were very similar.
  10   Q. How does one allow for the miscellaneous category, what
  11     it may contain?
  12   A. They contain -- I think there is an asterisk there.
  13   Q. Can we scroll down and see what the asterisk relates to?
  14   A. No, that does not help us. I think to be honest,
  15     I would need notice of that. I cannot remember exactly
  16     what I did. I may have taken the categories from the
  17     register which related to the operations in our
  18     miscellaneous experience, or I may have taken everything
  19     else and I cannot answer that question at this minute,
  20     I am sorry.
  21   Q. The overall conclusion then that you drew from this was
  22     that the difference in overall figures in Bristol
  23     compared to the UK was because Bristol was doing
  24     a higher number within the period 1984 to 1987 of those
  25     cases which carried the greater risk of mortality.

   1   A. Yes.
   2   Q. And if one allowed for that in the way that you have
   3     done here, the results were so close as to be almost
   4     indistinguishable?
   5   A. Yes. I am not sure that "allow" is the right word
   6     because it suggests a concession, and I do not think it
   7     is a concession; I think it is a statement of reality,
   8     if I may.
   9   Q. If you take the interpretation of the figures in the
  10     light of that information, may be a better way of
  11     putting it, perhaps, but that is the point you are
  12     making?
  13   A. Yes, in a simple amateur way.
  14   Q. So having done that exercise for the years 1984 to 1987,
  15     where there is a relatively small number of cases, did
  16     you replicate it for later years?
  17   A. I do not believe I did at the time.
  18   Q. If we come back to the question which sparked your
  19     showing us the document, it was whether you accepted or
  20     rejected that which Dr Joffe told us.
  21   A. That is right.
  22   Q. And your indication was, I think, that you accepted it
  23     to an extent, but not entirely, or you differed from it
  24     a bit. How would you put it?
  25   A. That is correct, I differ from him to a degree, and

   1     I think at that time -- I cannot remember the figures,
   2     although there is a table somewhere with them on it, but
   3     the percentage of work we did in the first year of life
   4     at this time was smaller than the rest of the UK. By
   5     1990 and later, the percentages were much closer
   6     together. I think it is sufficient to say that,
   7     I think, to make a point, and therefore I would not have
   8     expected these sort of differences to be a major factor
   9     necessarily through the 1990s.
  10        I think at this stage they were, and it was simply
  11     a reflection of fact that we did a smaller proportion of
  12     work in the first year of life.
  13   Q. So at what stage, again, roughly -- you do have the
  14     table set out in your statement, I think, of the
  15     proportion of operations?
  16   A. Somewhere. I think it is in documents I disclosed to
  17     the Inquiry. I am not sure if it is in a statement, but
  18     I have disclosed it somewhere.
  19   Q. At what stage, roughly, do you think it was that Bristol
  20     began to do pretty much the same proportion of work?
  21   A. I am approximating, please, but I would have thought we
  22     would have been getting close in the early 1990s and by
  23     1993/94 they would have been extremely close. In fact
  24     I think in 1993 we might have been a point above the UK
  25     and in 1994 a point or two below.

   1   Q. So far as Down's syndrome children were concerned, what
   2     was the policy in Bristol?
   3   A. It was to treat each Down's syndrome child on its
   4     merits, on the pros and cons that related to that child,
   5     as we would with any other child, bearing all the
   6     factors in mind that related to his welfare.
   7   Q. As a surgeon, do you find the conditions which Down's
   8     children suffer from within the operative categories to
   9     be easier to operate on, or more difficult, or by and
  10     large the same, taken across the board, as non-Down's
  11     syndrome children?
  12   A. I think I would be unable to discriminate between them.
  13     I mean, others have expressed views on either side of
  14     that, and I do not think I would be able to state that
  15     I felt there was a difference. I mean, in purely
  16     technical looking-after terms, you know, they have an
  17     operation to close the VSD, then I cannot say that the
  18     Down's syndrome child is materially different from
  19     a non-Down's syndrome child.
  20   Q. Either way?
  21   A. Either way.
  22   Q. So the effect that that would have on Bristol throughput
  23     is simply to increase the numbers if Bristol were
  24     operating on Down's syndrome children but if other
  25     centres were not.

   1        What was your perception of the way in which other
   2     centres in the 1980s and the 1990s -- you may wish to
   3     tell us about both if there is a difference --
   4     approached operating on Down's syndrome children?
   5   A. My knowledge, I have to say first of all, has
   6     limitations. I have knowledge which I regard as firm
   7     knowledge of what people have written in the medical
   8     literature, and I would regard that as reliable. And
   9     I have other knowledge which is more hearsay knowledge,
  10     but my knowledge of what people had written in the
  11     mid-1980s was that there was a viewpoint held by some
  12     whom I respected that, let us take AVSD as an example,
  13     that in complete AVSD, the risks, the potential risks
  14     and benefits involved did not justify advising a Down's
  15     syndrome child to have total correction of AVSD, and
  16     I regarded that as an ethically responsible and closely
  17     thought out and argued point of view. I did not agree
  18     with it, but that is beside the point.
  19        I also was aware, much more by hearsay, that there
  20     were certain centres in the country who would not, for
  21     whatever reason, operate to correct complete AVSD in
  22     Down's syndrome.
  23   Q. You appreciate that the statistical work that has been
  24     done thus far by the Inquiry suggests to us that Bristol
  25     did a statistically significant greater number of Down's

   1     children cases throughout the period we are interested
   2     in than did the average of the rest of the UK.
   3   A. Yes. I am aware of that.
   4   Q. And the reason is the policy that you have just
   5     described?
   6   A. Yes.
   7   Q. Can we have a look at UBHT 194/22? This was a response
   8     by yourself and others -- yours, I think, is the first
   9     signature -- to a BBC Wales TV programme. We have had
  10     some evidence of this, as you know. In the second
  11     paragraph you say:
  12        "The outcome for operations in children performed
  13     in this unit during the period 1984 to 1986 is
  14     equivalent to the UK national results for 1984 (latest
  15     available data), and better for certain conditions."
  16        By using the words "is equivalent to the UK
  17     national results", you are describing, are you, the
  18     results of the analysis that you have just told us of,
  19     or a similar process of ratiocination?
  20   A. I think in 1986 I had not done that exercise, so we were
  21     still in the -- I did not have that information in
  22     1986. At least, not that I am aware of or have any
  23     record of.
  24   Q. So if you had not done it in 1986, given that the actual
  25     figures -- let us look at UBHT 55/100 -- that is too

   1     long a period. Can we try HA(A) 119/44? We can see
   2     there the percentages which have become familiar in the
   3     course of our recent discussion. Those were the
   4     percentages that you knew of when you wrote the letter
   5     back to the editor in respect of the TV programme. Can
   6     we go back to the words you used, UBHT 194/22? The "is
   7     equivalent to the UK national results", not being the
   8     product of an analysis you had then done, was something
   9     of a leap of faith, was it?
  10   A. I do not believe, as I said a moment ago, that there is
  11     a difference between the 21 and the 25, or whatever the
  12     number was.
  13   Q. 26.
  14   A. 26. So the word "equivalent", if I wrote it, and
  15     I agree I am the first signatory, I do not know whether
  16     I wrote it or not, but I would regard the word
  17     "equivalent" as a carefully used alternative to "equal"
  18     and to indicate that they are similar, and I think that
  19     even in 1986, prior to that exercise, that is all you
  20     could have said.
  21   Q. The layman asking you a question at the time might have
  22     said, "Well, how is it that 26, 27, is the same as 21?"
  23   A. Then I would have tried to explain to him.
  24   Q. You would have given the explanation you have --
  25   A. Yes, the point is, with all respect to the layman, that

   1     why expect a layman to be able to place an accurate
   2     interpretation on these figures, with respect? As in
   3     any other area of expertise, one would expect an
   4     explanation to come and the simple interpretation, that
   5     there is a difference between whatever those two numbers
   6     were, is not necessarily correct.
   7        I would add, if I may, furthermore, that --
   8     I mean, and this applied to an earlier document that we
   9     discussed -- there is not just this document; there is
  10     also the actual table. Whoever is the reader is able to
  11     see the figures for themselves and if they are not happy
  12     about that, they can form their own view.
  13        So this is not a stand-alone text. The table is
  14     with it. I think that is terrifically important. So
  15     nothing was being hidden; it was being put on the
  16     table.
  17   Q. Can we go from this, in 1987, to the table that I was
  18     about to take you to at UBHT 55/100. If we look at the
  19     top, this is open-heart surgery under 1 year, and it
  20     takes the series on from 1984 to 1987 on to 1984 to
  21     1990, so we are looking at a seven year period, because
  22     we include both 1984 and 1990.
  23        Can we scroll down? That is the breakdown. Can
  24     we go on to page 102? That is it for over 1 year of
  25     age. So in the period 1985 to 1989, for the over 1s,

   1     9.3 per cent for Bristol, 16.8 as it happened in 1990.
   2     In the UK 1988 average, 6.9. One is tempted to say the
   3     over 1s across the period, on the face of it, and
   4     accepting these are simply point figures, getting on for
   5     one and a half times the UK figure.
   6        Can we go back to 100 for the under 1s? The
   7     28 per cent 1984 to 1990, compared to UK 1988 mortality,
   8     18.8 per cent. Again, one might be tempted to say it is
   9     one and a half times the UK figure.
  10        Leaving aside the fact that 1990 was obviously
  11     a very successful year if one looked at it in isolation,
  12     when these figures were done -- did you do these
  13     figures, these tables?
  14   A. I did.
  15   Q. What message did you take from them?
  16   A. The message -- I mean, you have skipped a few years
  17     through to 1990.
  18   Q. I am summarising it by using these tables.
  19   A. Indeed. The message I took from this was that in the
  20     period 1984 to 1990, inclusive, the years 1984 to 1987
  21     and 1990 were probably broadly similar to the UK
  22     average, but we skipped over the two years 1988 and
  23     1989.
  24   Q. In each of those years one had open-heart mortality
  25     under 1 very close to 40 per cent.

   1   A. Which was higher than --
   2   Q. Twice as high as the UK.
   3   A. I do not know whether I knew then, I think I may have
   4     done, but the answer to that, so to speak, did not lie
   5     in case mix, so wherever it lay, it lay somewhere else.
   6     So those results, case for case, or category for
   7     category -- I do not know about risk stratification, but
   8     category for category, they were not as good as the UK
   9     average in those two years.
  10        So you have a seven year span in which all the
  11     operations carried out in the under 1s had less good
  12     results, apparently, than the UK in two years, and
  13     similar results in five of those years.
  14        That is how I understood that at that time.
  15   Q. With the exception of 1990, if one looked at any one
  16     year, one would see that the Bristol results were
  17     higher, as a matter of what I call the "point figure",
  18     than the UK comparative mortality for a year or two
  19     earlier?
  20   A. For everything put together in the under 1s, whatever
  21     that may mean, the figure was higher.
  22   Q. And higher by a degree that would, over the period, be
  23     about one and a half times in Bristol the UK figure.
  24     The only exception to the pattern was 1990, when Bristol
  25     was a lower point figure than the UK.

   1   A. But I would point out to you that in 1990 we actually
   2     operated on very few high risk patients. I make no
   3     claims for 1990. The figure looked good, but when you
   4     considered the cases operated, it was what one would
   5     have expected.
   6   Q. So tell me about 1988 and 1989, and what was, if there
   7     was, a problem in 1988 and 1989?
   8   A. All I would be able to say to you -- I would need to
   9     consult my own records here, because I do not carry it
  10     in my head. All I would be able to say to you is in
  11     what areas the disappointing results lay.
  12   Q. If you wanted to have a look at the individual years, we
  13     will do so. Perhaps it would help if you set the
  14     general scene by telling us in what areas you saw the
  15     disappointing results as lying?
  16   A. May I look here for just one moment? (Referring to
  17     documents)
  18   Q. Yes, certainly. While you are looking perhaps we could
  19     have a look at 1988, which is UBHT 55/36, operations
  20     broken down by diagnosis.
  21   A. That is the table I am looking at. If one looks at
  22     1988, that is to say, the column under "'88", one can
  23     see quite quickly in what categories children died.
  24     Some of those categories were intrinsically very high
  25     risk categories, such as truncus arteriosus. Others

   1     were intrinsically less high risk categories like
   2     ventricular septal defect and AVSD, for example, and so
   3     in those two categories, the results appear to be
   4     disappointing.
   5        Similarly, in transposition and VSD, quite a high
   6     risk group, and small numbers, just two, but
   7     nevertheless, two patients died out of two, so I have no
   8     information to carry a discussion beyond that. In other
   9     words, I do not know whether, in these categories, there
  10     were any specific reasons contributing to death in any
  11     of these children. It is an exercise which could be
  12     undertaken, but I do not have that knowledge just now.
  13        As it stands, therefore, there were a number of
  14     deaths, more than we would have expected in that year,
  15     mainly in the categories of VSD, AVSD and transposition
  16     with VSD.
  17        So that would be my commentary on that table.
  18   Q. And perhaps the problems with truncus arteriosus which
  19     might be expected because it is a difficult operation?
  20   A. Well, the mortality quoted there for the UK for 1987 is
  21     46 per cent, and again, I do not remember the
  22     mortalities each year, but a couple of years earlier
  23     that had been closer to 80 per cent, and I think it
  24     fluctuated a bit. I think 46 per cent was the bottom of
  25     a fluctuation. So, yes, that is a high risk operation.

   1   Q. And TAPVD?
   2   A. In that particular year there were two deaths out of
   3     five patients, and it says that the UK mortality for
   4     1987 was 32, so given that there were five patients,
   5     there is probably not a lot of difference in that. So
   6     I would not have picked that one out. I think the other
   7     three categories are the more important ones.
   8   Q. So far as 1989 is concerned, it is JDW 3/79. One looks
   9     at the 1989 column again, does one, to see how that year
  10     has been. Can we perhaps highlight that column? What
  11     would you pick out as the difficult problematic
  12     operations from that?
  13   A. Well, I think there are some similar remarks to make and
  14     there is one significantly different one to make, but
  15     first of all, may I say that the "2.9" against VSDs
  16     should be two deaths out of nine. There should be
  17     a stroke instead of a dot, I apologise. So again in the
  18     VSDs with 2 deaths out of 9, this time you might well
  19     say that with total anomalous venous drainage having 3
  20     deaths out of 5, that is a little more than one might
  21     have expected. So, on the other hand, AVSDs, 2 deaths
  22     out of 6 is somewhat above the national average, but
  23     given the small numbers, probably not enormously
  24     significant.
  25        The category I would point to is the miscellaneous

   1     one, where there were 4 deaths out of 4. I think the
   2     real crunch would depend on what exactly those deaths
   3     were: were they terrifically sick emergency small
   4     babies, or were they children who might well have been
   5     expected to do well but do not occur often and therefore
   6     were in a miscellaneous category?
   7        Again, I expect I could find that out, but I do
   8     not have the information at the moment. Clearly, that
   9     could have a big influence on how one understands that
  10     year's results.
  11   Q. So putting these two years together, obviously some
  12     reflection begins to emerge, does it, in the 1984 to
  13     1989 global figures that we see in the third column
  14     along. Because there, if one looks at the AVSDs, for
  15     instance, the mortality from 1984 to 1989 is 61.5 per
  16     cent compared to a UK mortality of just under 20 per
  17     cent.
  18   A. In 1988.
  19   Q. In 1988. And the comparison for TGA and VSD, again,
  20     indicates something of a difference. Truncus arteriosus
  21     bears out the point you were making a moment ago about
  22     the UK average fluctuating?
  23   A. Yes, because that is the year after the 46 per cent,
  24     yes, but again in each of those examples you have given
  25     the numbers are very small, so the percentage figures --

   1     you know, some people say you should not use
   2     a percentage figure if the numbers are very small. That
   3     is because they can be misleading: 2 out of 2 is 100 per
   4     cent, but does it really mean that? However, those are
   5     areas, I agree, where more thought was needed.
   6   Q. So given that more thought was needed, what was the
   7     response of the unit?
   8   A. The response of the unit was that in the meetings which
   9     were current at that time, that is to say, in 1989
  10     leading into 1990, because not all of this data would
  11     have been available until 1990, when the year was
  12     complete, I can clearly recall a number of these issues
  13     being discussed. I think in fact they are recorded in
  14     some documents, but certainly, for example, ventricular
  15     septal defect, you will recall that in both 1988 and
  16     1989 we noted rather more deaths than would have been
  17     expected. The whole issue of ventricular septal
  18     defects, when we operated on them and the related
  19     problem of pulmonary hypertension, which may have a big
  20     influence in the post-operative period, even if it is
  21     wholly reversible as a structural thing, received a lot
  22     of thought and attention within the group, leading to
  23     some proposals which were implemented to good effect to
  24     really prevent, in the first instance, these so-called
  25     pulmonary hypertensive crises occurring, and if they did

   1     occur, then their management.
   2        So proposals to prevent and treat that were
   3     developed. We felt that we should continue to seek to
   4     do VSDs earlier rather than later compared to our past
   5     practice, because, of course, pulmonary vascular
   6     problems become greater as the child becomes older.
   7     That was the subject of serious discussion and
   8     proposals, and the consequences of that, I think, were
   9     very effective because if you look at the results of
  10     VSDs through the 1990s, you will find that they were
  11     very good and unequivocally compared favourably with the
  12     rest of the United Kingdom.
  13   Q. In fact, you go on, I think, in a slightly different
  14     context, to make the point that although the VSD series
  15     was one which was picked out by Dr Bolsin as one of the
  16     three operations upon which he concentrated in his
  17     initial survey of the data, and although it was
  18     presented in February 1995 as indicating that the
  19     mortality rate was unusually and unreasonably high in
  20     that series, in fact there was an arithmetical error
  21     which was subsequently acknowledged in that series which
  22     showed that, instead of there being the number of deaths
  23     claimed, that had been overstated by something like
  24     500 per cent?
  25   A. 500 per cent, that is correct.

   1   Q. Far from being a miserable failure, the VSD series would
   2     be, would you say, one of the success stories of the
   3     unit in the 1990s?
   4   A. I believe it was, yes.
   5   Q. The changes that were made: you say in your last long
   6     answer to me, "we... [continued] to move towards
   7     operating earlier".
   8   A. Yes.
   9   Q. Those are not your exact words, you have the word
  10     "continue", so you were indicating that you had, prior
  11     to 1990, been seeking to operate on those children
  12     suffering from VSDs at an earlier stage in their life?
  13   A. That is correct.
  14   Q. It follows that if you had been, in this period 1988/89,
  15     able to operate earlier, you would have done so if you
  16     could.
  17   A. Probably. I mean, I saw the change as a progression, so
  18     it is slightly difficult for me to answer your question
  19     absolutely positively, but that is probably correct.
  20     I think if the patients, for example, had been referred
  21     to us, then we would have sought to operate on them
  22     earlier. So in that sense, it would definitely be
  23     correct, but of course, the age at which one can operate
  24     is the result of many people's actions, not just the
  25     surgeons.

   1   Q. I was going to ask about that. It would be the result
   2     of the date of referral, number 1; the date of the
   3     cardiologist's investigation and the availability of
   4     space in the operating list. Was 1988/89 a time when
   5     there were particular pressures on the operating list
   6     generally?
   7   A. I would say that the pressures were greater in 1986 and
   8     1987, and there was a substantial increase in the size
   9     and capacity of our facility in 1987/88. For a brief
  10     period, a very brief period, with that increased
  11     facility, the pressures eased, but we seemed to suck in
  12     more referrals as soon as that became widely known, so
  13     the pressure returned fairly swiftly.
  14   Q. Part of the problem was, was it, that both children and
  15     adults were being operated on in the same operating
  16     theatre?
  17   A. That was a problem for everybody, yes. I mean, there
  18     was one theatre and one Intensive Care Unit which had to
  19     accommodate all the patients.
  20   Q. If there were an urgent adult patient that would
  21     obviously be an operation that needed to be done, that
  22     might be done, might it, at the expense of an elective
  23     paediatric patient?
  24   A. It would be a possibility; it would not be necessarily
  25     so. In general, one would have sought to avoid that,

   1     but it was a possibility.
   2   Q. If one goes, for instance, to 1987, UBHT 92/6, it is
   3     from you to Dr Jordan, March 1987:
   4        "Your paediatric waiting list stands at
   5     74 patients. This represents a good year's work. Of
   6     course many patients will not have their operation for
   7     more than a year in view of the urgent cases who will
   8     inevitably present during that period."
   9        That, as you pointed out, was 1987. Are you
  10     saying that the waiting list position did not
  11     necessarily ease significantly despite the improvement
  12     in facilities at the end of 1987?
  13   A. It did ease. It definitely improved. That was probably
  14     our worst ever position, but it did not disappear.
  15     I think it would be fair to say that the urgent cases
  16     referred to in that letter are not the adults that you
  17     asked about a moment ago; those would be urgent
  18     children.
  19   Q. But the same effect?
  20   A. Absolutely.
  21   MR LANGSTAFF: Sir, I look at the time. There will be one
  22     break this afternoon, and I am aiming, Mr Wisheart, to
  23     finish this afternoon some time around about a quarter
  24     past to half-past four. I wonder if this might be an
  25     appropriate moment for the afternoon break?

   1   THE CHAIRMAN: Yes, thank you. Shall we say 15 minutes,
   2     then? That will be just after half past 3.
   3   (3.16 pm)
   4               (A short break)
   5   (3.35 pm)
   6   MR LANGSTAFF: Apart from the digression into waiting lists,
   7     Mr Wisheart, we have been looking at the way in which
   8     any apparent difference on the figures for results at
   9     Bristol compared to those for the United Kingdom was
  10     understood within the unit. I have asked you a number
  11     of questions ranging from 1986, the visit of the Welsh
  12     Officers, through to 1996/1997 and your response to the
  13     adult figures.
  14        Can I, following the same line of inquiry, take
  15     you to WIT 10/29? Although this is WIT 10, this is
  16     actually your comments on the witness statement of
  17     Mr Parsons who gave evidence to us, Mick Parsons who
  18     told us about the death of his daughter Mia.
  19   THE CHAIRMAN: We have permission to put that on the screen,
  20     do we, Mr Langstaff?
  21   MR LANGSTAFF: Yes, we do.
  22   THE CHAIRMAN: Forgive me, Mr Wisheart, but we are
  23     anxious always to check before revealing anything.
  24   MR LANGSTAFF: You may remember, Chairman, that
  25     Mr Parsons is one of the first parents who gave evidence

   1     before us.
   2   A. There are some other names on this document that are
   3     presently on the screen.
   4   MR LANGSTAFF: Yes, they are all people who have given
   5     evidence to us.
   6   A. I beg your pardon.
   7   Q. Thank you very much for pointing it out. Under
   8     "Comment" you say this:
   9        "Since 1990, the mortality in my hands for C-AVSD
  10     for 11 patients of all ages was 45 per cent versus
  11     13 per cent in the surgical register and for 7 patients
  12     under 1 year of age was 29 per cent versus 16 per cent
  13     in the surgical register ..."
  14        You say this: "One cannot be precise or
  15     quantitative about the extent to which risk is increased
  16     in patients with these additional abnormalities as there
  17     is no scientific basis for doing so." This is something
  18     you and I discussed earlier today.
  19        You point out in the third paragraph under the
  20     heading of "Consent":
  21        "Nor does one know the frequency with which AVSDs
  22     are associated with additional abnormalities or risk
  23     factors in the UK CSR. It is very unlikely to be as
  24     high as 4 out of 7, much less 8 out of 11." You add "It
  25     is not certain that all centres include patients with

   1     significant additional abnormalities in the category of
   2     AVSD" and you criticise the UK CSR in terms which have
   3     become familiar territory to us.
   4        This is the paragraph I want to focus on:
   5        "Simply looking at the figures suggests that my
   6     mortality of 29 per cent was nearly double the
   7     16 per cent reported in the UK CSR. However, if the
   8     higher risk, which is appropriate on account of the
   9     additional abnormalities, is assigned to my patients,
  10     then the actual expected mortality in this small group
  11     must be much greater than 16 per cent. Thus, if there
  12     is a discrepancy between my observed 29 per cent and the
  13     actual expected mortalities, it is much smaller than the
  14     raw figures of 29 and 16 per cent would suggest."
  15        What you are doing in these paragraphs is this, is
  16     it: taking the raw figures, as you call them, for your
  17     series and for the UK CSR and seeking an explanation as
  18     to why, despite the appearance of the raw figures, your
  19     figures are in truth little different from those which
  20     the surgical register reflects; is that the process?
  21   A. I am not sure whether or not I got to the point of
  22     "little different", but I think the process was that
  23     I had information in front of me about my patients which
  24     I sought to use in relation to the UK CSR. I mean I was
  25     not seeking to achieve an end, which is I think what

   1     your remarks suggested, I was seeking to understand the
   2     facts that were available to me and that understanding
   3     could have been one thing or it could have been
   4     another. So I was seeking to understand those facts,
   5     all of those facts.
   6   Q. Having looked at that, may we have a look at UBHT 20/15:
   7     "Cardiac Surgery". It is a report from the Medical
   8     Director to the Trust, 8th April 1994. You were the
   9     Medical Director making this report?
  10   A. I was, yes.
  11   Q. You report in cardiac surgery from obviously a position
  12     of significant knowledge. You say in the last sentence
  13     of the first part of the second paragraph:
  14        "The work of the department has been of a high
  15     standard and includes a larger proportion of high risk
  16     cases than in some other centres."
  17        I thought you had indicated to us earlier on this
  18     afternoon that although in the 1980s, 1987 for instance,
  19     when you analysed the statistics case mix may have been
  20     a difference between Bristol and the rest of the United
  21     Kingdom. By the mid to late 1990s, the period we are
  22     looking at, it was not?
  23   A. What I am talking about here is cardiac surgery as
  24     a whole and this particular remark concerns adult
  25     cardiac surgery where there was a precise mechanism of

   1     risk stratification available. So this remark is based
   2     on our own actual observations of the degree of risk
   3     present in our patients compared to a limited number of
   4     similar published information from other centres in this
   5     country and it is an observation based on that
   6     comparison.
   7   Q. If we go down, this is where we find something which is
   8     definitely relating to children:
   9        "In recent years the results of the work with
  10     children have been excellent, and in infants similar to
  11     that reported elsewhere."
  12        There is a distinction between "children" and
  13     "infants" in that sentence. The distinction is
  14     intentional, is it?
  15   A. Yes.
  16   Q. So children, that is non-infants, those over the age
  17     of 1?
  18   A. Yes.
  19   Q. They are excellent. Infants, similar to that reported
  20     elsewhere?
  21   A. On reading the final phrase I found myself quite
  22     embarrassed and I feel that that was a poorly phrased
  23     and an inaccurate statement because it fails to take
  24     account of the neonatal switches which had stopped some
  25     months -- six or so months previously -- and the less

   1     clear-cut position, but this is April 1994, that there
   2     was a question mark about my AVSDs, I still thought and
   3     believed the explanations we have discussed. But
   4     nevertheless in making this statement I should have
   5     acknowledged those two series of patients as I did to
   6     other people at other times and I am unclear why I did
   7     not on this occasion.
   8   Q. You might have added the non-neonatal switches, might
   9     you not?
  10   A. No, I do not think I would have because in April 1994
  11     the results of those were quite acceptable.
  12   Q. Similar to those --
  13   A. 1 death in 13.
  14   Q. Similar to those reported elsewhere?
  15   A. Better, in April 1994. In the 1990s, five-year period,
  16     13 non-neonatal switches with 1 death, that is very
  17     good.
  18   Q. May I ask, having looked at both what you said in
  19     response to Mr Parsons and what you say here; did you
  20     actually have in looking at the infant results for the
  21     paediatric results any idea from any objective source of
  22     the case mix elsewhere?
  23   A. With regard to AVSDs, do you mean?
  24   Q. With regard to any operation.
  25   A. If by "case mix" we mean the diagnostic categories such

   1     as ventricular septal defect, total anomalous pulmonary
   2     venous drainage then the information which we had as the
   3     information on the register, not information from other
   4     individual centres.
   5   Q. If one focuses upon the AVSD, you had no means of
   6     knowing, did you, what the particular difficulties, the
   7     anomalies were which might have been discovered on the
   8     operating table in Leeds or in Great Ormond Street?
   9   A. We had this knowledge: that there is extensive material
  10     in the literature, both in published papers and in
  11     textbooks about the frequency of such additional
  12     abnormalities and of course we had our own experience
  13     where, as a unit the frequency of those abnormalities
  14     was not so out of kilter, it just so happened that they
  15     were concentrated in my small group. So the information
  16     we had then is from the literature and that is about all
  17     and it indicates broadly that in 20 per cent, perhaps
  18     25 per cent there will be an abnormality of significance
  19     in the sense that it would add to the risk of the
  20     operation. There are other abnormalities that may be
  21     present that do not add to the risk of the operation.
  22   Q. Apart from the literature -- which I suppose would be,
  23     would it, a little out of date inevitably because of
  24     publication, time for reading and so on?
  25   A. "Out of date" applies to some things but with regard to

   1     this descriptive phenomenon, if you like, namely
   2     describing how frequently additional abnormalities are
   3     present in this condition, AVSD, I do not think that is
   4     likely to change significantly with time.
   5   Q. Because it is congenital abnormality and therefore one
   6     has as it were an incidence which is irrespective of
   7     developments in surgery and so on?
   8   A. Yes, exactly. Exactly. It may be that the ability of
   9     people to cope with additional abnormalities may change,
  10     but that is a different topic.
  11   Q. In comparing, as you describe in respect of Mr Parsons
  12     the work done by your unit and your hands, you were
  13     having to make assumptions about the case mix elsewhere;
  14     am I right?
  15   A. In essence that is correct, yes.
  16   Q. It must follow that any explanation of results in AVSD
  17     or for that matter in any other series which relies upon
  18     case mix as a reason for an apparent difference in
  19     figures is to an extent speculative?
  20   A. The answer to your question is "Yes", but might
  21     I distinguish between case mix and risk stratification
  22     because we do know about case mix because it is clearly
  23     set out in the register, that is the diagnostic
  24     categories. But risk stratification are the factors
  25     that may exist within each of those categories altering

   1     the risk above or below the figure given and that is the
   2     core of the problem in all of this issue.
   3        Because I can describe the presence of the
   4     abnormalities, I can give a qualitative indication of
   5     their severity but I cannot put a figure on it and
   6     therefore I cannot do a calculation and say "In this
   7     group of patients the risk is half normal, double
   8     normal, treble normal", I cannot do that. All I can say
   9     is that the effect of all of these observed additional
  10     factors put together seems to be important and may
  11     double or whatever the risk. But there is no basis for
  12     being precise about it. That really is the central
  13     difficulty. Otherwise I think one would be able to
  14     communicate it much more clearly.
  15   Q. Because there was no risk stratification scheme
  16     available for paediatric cardiac surgery in the way
  17     there was for the adult --
  18   A. Yes there was, and there still is not.
  19   Q. Inevitably that makes comparisons, except on the most
  20     broad and general basis, very difficult?
  21   A. That is correct.
  22   Q. If you are as a surgeon trying your best, working all
  23     hours for the benefit of your patients, is there perhaps
  24     do you think a temptation to see any difference in
  25     figures that may be suggested by a broad range of

   1     statistics as being most likely explained by particular
   2     factors in particular cases rather than by any failure
   3     on your part or failure otherwise on behalf of the unit?
   4   A. I think the temptation is there and I think that it is
   5     up to one to be aware of that and to seek to be
   6     objective and of course again that is why I say that
   7     I wish I had sought the advice of my colleagues who,
   8     because of their slightly greater distance from the
   9     issue, might have brought a judgment that would have
  10     been helpful. I mean, inescapably I am very close to
  11     the issue.
  12        So I think it is a temptation that is there and
  13     I hope one resists it and I hope one states clearly what
  14     is fact and acknowledges clearly where the difficulty
  15     is, it is the one you have identified just now, that one
  16     cannot quantitate this.
  17   Q. At some stage a review of paediatric cardiac surgery
  18     generally was decided upon by the Chief Executive,
  19     Dr Roylance; having spoken about the issue with you?
  20   A. That is correct.
  21   Q. Do you remember when that was?
  22   A. My recollection is that we had discussed the proposition
  23     prior to the operation on Joshua Loveday because during
  24     that week the Trust if you like was in possession of
  25     conflicting advice as to how to proceed in paediatric

   1     cardiac surgery. That was the first time that had ever
   2     happened, it was different from the past and the
   3     response to that was that we would need advice from
   4     outside in order to resolve that difference.
   5   Q. You recollect that it was on 6th January 1995 that you
   6     decided there should be a meeting to discuss the
   7     operation on Joshua Loveday?
   8   A. Yes, I do very clearly.
   9   Q. The date you tell us of the 11th was chosen, not because
  10     it was the evening before the operation but because it
  11     was the first available date when as many of those who
  12     were involved could get together?
  13   A. Yes, I think there were two reasons. That was probably
  14     the most important one, but there was also the
  15     consideration that work had to be done by a number of
  16     folk in relation to the figures in order to prepare for
  17     that meeting, but that would still have left us a choice
  18     of a number of days. It was purely circumstantial.
  19   Q. During the period from the 6th to the 11th, your best
  20     recollection is that you spoke to Dr Roylance?
  21   A. Yes.
  22   Q. And told him of the forthcoming meeting because, one
  23     suspects, amongst other things, because of the unusual
  24     nature of it?
  25   A. Absolutely, it was most important that he should know

   1     because Professor Angelini had come to speak to me on
   2     the Friday morning and had challenged, if you like, the
   3     scheduling of this operation and so my response to that
   4     you have already indicated, namely, that the paediatric
   5     practitioners should gather to review their decision in
   6     the light of that challenge and to reconsider the matter
   7     and it was most important that Dr Roylance should know
   8     about that.
   9   Q. Your best recollection is that given the conflicting
  10     advice that there was, Dr Roylance indicated to you he
  11     was minded to have an investigation -- presumably from
  12     someone outside?
  13   A. From someone outside, yes.
  14   Q. And did so to you between the days from the 6th to the
  15     11th?
  16   A. That is my best recollection. I know his recollection
  17     is different, but --
  18   Q. His recollection is varied on this, as you may know.
  19     What he told the GMC when first asked about it is that
  20     he and you decided prior to the operation on
  21     Joshua Loveday that there would be an independent
  22     review. During the course of the examination I think in
  23     the GMC he was uncertain about that and he has told us
  24     that he is unsure whether it was before or after. His
  25     better view is that it was after rather than before, but

   1     that is the flavour of it.
   2        If I have oversimplified it, I know I shall
   3     ultimately be corrected by those who represent
   4     Dr Roylance.
   5        If it is right that a decision had been made
   6     between you and Dr Roylance -- Dr Roylance had indicated
   7     his decision to you, whichever way it was, there should
   8     be an outside investigation into the paediatric cardiac
   9     surgical services, for what reason would that not have
  10     been mentioned to the meeting that met to discuss the
  11     operation on Joshua Loveday?
  12   A. I can only tell you what I personally thought and
  13     recollect from that time and my view was this: that
  14     Mr Dhasmana was involved with Dr Martin in giving advice
  15     about Joshua Loveday. That advice had been challenged
  16     and my view was that the resolution of that difference,
  17     for want of a better word, should be made on clinical
  18     grounds and purely in the interests of Joshua Loveday.
  19     And it did not seem to me -- this may be right, it may
  20     be a good judgment or not on my part, this is what
  21     I thought -- it did not seem to me that this
  22     consideration was directly relevant to the best
  23     interests of the patient and that it was in a sense an
  24     extraneous consideration and it was something that was
  25     to be picked up and dealt with after the decision about

   1     the best interests of Joshua Loveday had been made.
   2   Q. Your best recollection is that although the matter which
   3     inspired the decision of Dr Roylance to call for an
   4     outside investigation was the difference of opinion,
   5     professional opinion in relation to an operation of the
   6     type to be conducted on Joshua Loveday, you thought that
   7     (so far as Joshua Loveday was concerned) it was
   8     a clinical matter alone in respect of which the decision
   9     is that of Mr Dhasmana's and Dr Martin's?
  10   A. No, not quite that, no, that is not correct. You will
  11     remember that we had a meeting of nine people.
  12   Q. Yes.
  13   A. Who were able to represent all points of view because
  14     Dr Bolsin was there. So it was not just Dr Martin and
  15     Mr Dhasmana, it was the whole group of paediatric
  16     practitioners, or as many as could gather. It is the
  17     view of most who were present that everybody at that
  18     meeting agreed that -- on what I have called "clinical"
  19     grounds, that is to say having considered the results of
  20     the operation over whatever number of recent years,
  21     considering the needs of the patient, what is right for
  22     him and you know about the meeting and to sidetrack any
  23     slight discrepancies, there was an overwhelming view
  24     that it was right that Joshua Loveday should have the
  25     operation. So it was not just Dr Martin and

   1     Mr Dhasmana.
   2   Q. Were you the only person, do you think, at the meeting
   3     who had any inkling that Dr Roylance was minded to call
   4     for an independent --
   5   A. Yes, I think that is probably correct.
   6   Q. There was a side meeting, we have been told?
   7   A. Yes.
   8   Q. You in your evidence have dealt with this to an extent,
   9     between yourself, Mr Dhasmana, Dr Martin, in the course
  10     of which you raised the question, did you, as to whether
  11     the operation might not properly be postponed?
  12   A. I was coming from a slightly different angle, if I may
  13     say so.
  14   Q. Did you propose that the operation should be postponed
  15     or not?
  16   A. I asked that question.
  17   Q. Did you propose it?
  18   A. I do not think so. What I did, perhaps I should answer
  19     you by saying what I did say: I asked Mr Dhasmana
  20     specifically whether he felt that in light of the
  21     pressure created by this controversy, this meeting and
  22     so forth, he felt that he was still in a position to
  23     undertake the operation; that is what I said.
  24   Q. UBHT 54/7, your statement to the Clinical Directors of
  25     3rd June 1996. It is the second full paragraph after

   1     the first bullet point:
   2        "After the meeting was over I sat down with
   3     Mr Dhasmana and Dr Rob Martin ... I proposed that the
   4     operation should be postponed ..."
   5        Does that sentence accurately reflect what
   6     happened or not?
   7   A. I wrote this document much closer to the time than I am
   8     speaking to you now. My recollection today I must say
   9     is that I asked that question. Now whether I carried
  10     that question to the point of proposing that the
  11     operation should not be undertaken I do not honestly
  12     recall. It is possible that I did so and that may be
  13     the basis -- clearly I wrote this and I mean I wrote it
  14     deliberately. But what I remember today is that I put
  15     this proposition and perhaps I carried it through to
  16     this point.
  17   Q. The impression that may have been given by the evidence
  18     of Mr Dhasmana and Dr Martin may be thought to be along
  19     the lines that you were encouraging, possibly urging
  20     a postponement of the operation and consistent certainly
  21     with the description that you give in this document.
  22   A. I was certainly encouraging him to consider it, I do
  23     remember that. Whether the nuance carries me that
  24     little bit further, this would suggest it did.
  25   THE CHAIRMAN: I think the last sentence is perhaps helpful

   1     in that.
   2   MR LANGSTAFF: You sought a postponement.
   3   A. Maybe I need to explain a little bit more what the route
   4     of this conversation was? The meeting took place on
   5     a Wednesday, 11th January. Certainly on the Wednesday,
   6     possibly on the Tuesday I had two conversations. One
   7     was with Dr Willatts and one was with Dr Monk. What
   8     I remember of the two conversations, because they were
   9     both quite long and I may not remember everything, but
  10     what I do remember was what was similar in them both.
  11     What each of them represented to me was the point of
  12     view that this present difference of opinion created an
  13     additional pressure for the people who would be caring
  14     for Joshua Loveday.
  15        On the one hand I felt the point they were making
  16     to me was a relevant and important one. I did not, as
  17     has been suggested by some, feel that it constituted
  18     a veto to the operation, I felt it was an important
  19     consideration.
  20        On the other hand, as a surgeon I do know that
  21     surgeons frequently have to operate under pressure of
  22     a whole variety of types. So pressure is not unusual.
  23     However, in the light of the importance of the point
  24     they had made to me I felt it was very important that
  25     I should represent that point to Janardan, to

   1     Mr Dhasmana with Dr Martin. That is why we had the
   2     conversation. I know I made the point, and it is
   3     certainly possible that in making the point I suggested
   4     to them that the operation should be postponed,
   5     suggested how that might be done and so forth; that is
   6     certainly possible, in trying to put the point to them
   7     in a range of different ways so that I was satisfied it
   8     had been properly considered.
   9   Q. If you sought a postponement or proposed that the
  10     operation should be postponed in the wording that you
  11     used to the Clinical Directors, you were using as an
  12     argument matters which had no direct bearing on the
  13     clinical needs of the patient, were you?
  14   A. Well, they had a direct bearing on the clinical ability
  15     of the team to provide a service to the patient.
  16   Q. So you queried --
  17   A. At least they had a potential direct bearing, excuse me.
  18   Q. You queried the clinical ability of the team given the
  19     circumstances?
  20   A. I asked the question.
  21   Q. That is where we come back to the semantic difference
  22     possibly between asking the question and proposing
  23     postponement.
  24   A. I did not just want to ask a question, get an answer and
  25     go away. I was putting it quite seriously and expecting

   1     it to be seriously considered. I think it is clear,
   2     although the recollection has escaped me, that
   3     I probably put it in a variety of different ways and
   4     that this was perceived at any rate, certainly by them,
   5     possibly by me at the time, to be a proposal, an attempt
   6     to persuade them.
   7   Q. What did you want to achieve?
   8   A. I wanted to protect everybody involved from the
   9     possibility that an operation would have been carried
  10     out by somebody who was not truly fit on that day to do
  11     it.
  12   Q. So you wanted to achieve a postponement of the
  13     operation?
  14   A. No, I wanted to protect everybody concerned from the
  15     possibility that an operation would be carried out by
  16     somebody who was not fit to do it.
  17   Q. Is that not the same as saying that you wanted to avoid
  18     the risk?
  19   A. In the face of my questioning, and whatever way I tried
  20     to persuade them, if they were able to reassure me that
  21     they felt that my concern was unfounded, then that was
  22     an answer to my point.
  23   Q. Did you at the start of this conversation consider that
  24     there was a risk to the patient given the ability of the
  25     team under the pressure that they were to perform the

   1     operation?
   2   A. I considered there was the possibility.
   3   Q. Tell me, you go on in your description to the Clinical
   4     Directors to describe Dr Martin's advice. How do you
   5     now recollect Dr Martin's words?
   6   A. In the same way.
   7   Q. So you saw him as saying "This operation should not be
   8     postponed for longer than a week"?
   9   A. Yes.
  10   Q. And the natural consequence of that might be, might it,
  11     that the operation would have to be done this week,
  12     within 7 days, at this unit?
  13   A. I think it had a number of implications. First of all
  14     the meeting had taken the view overwhelmingly if not
  15     unanimously that it was appropriate for the operation to
  16     proceed in principle.
  17   Q. Can I take issue with you on that. Our descriptions of
  18     the meeting thus far I think have been that it took the
  19     view that it would not necessarily be inappropriate for
  20     it to proceed; there is a difference.
  21   A. Dr Bolsin was the only person who expressed the view
  22     that it should not proceed.
  23   Q. That was not quite the point that I was expressing to
  24     you, Mr Wisheart. Tell me if this is your recollection
  25     of the meeting or not: that the meeting began with an

   1     analysis of figures, asking, "Do these figures mean we
   2     should not do the operation?", and comes to the
   3     conclusion, "No, these figures do not mean we should not
   4     do the operation". That is not quite the same as saying
   5     "These figures mean we should."
   6   A. Figures cannot mean that you should; they cannot have
   7     that message. The position has to be, first of all,
   8     that there is a patient who needs an operation. Then
   9     the role of the figures is to say whether this
  10     particular team are indeed competent to undertake it.
  11     We believed that the figures showed that the team were
  12     competent to undertake it.
  13   Q. I took you out of your course. You were describing,
  14     I think, the picture that Dr Martin was painting and
  15     whether the picture that he painted necessarily meant
  16     that the operation would go ahead in this unit in
  17     a matter of days.
  18   A. Yes, I have lost the thread I am afraid. I think I was
  19     saying that the position was that the meeting had agreed
  20     that, in whatever terms we wish to put it, it was
  21     appropriate for the operation to proceed in principle.
  22     I was exploring with Mr Dhasmana and Dr Martin this
  23     issue about pressure. They were saying on the one hand
  24     -- and Dr Martin joined with me in putting the question
  25     to Mr Dhasmana once I had articulated it -- Mr Dhasmana

   1     was positive that the discussion was over, that was past
   2     and it would have no impact on his ability to undertake
   3     the operation.
   4        So the subsequent discussion was pushing him and
   5     exploring that, but he remained resolute. No, had
   6     Dr Martin said "This patient can wait for 3 months" --
   7     I mean I knew he would not say that because although
   8     I did not know the patient I knew enough about him to
   9     know that would not be appropriate, but had he said that
  10     then quite a number of options would have been open to
  11     us. But by saying that it has to be done in a week then
  12     the whole question of postponing it becomes an
  13     irrelevance because to postpone it for 3 days is not
  14     going to be of any assistance to anybody, you know, in
  15     terms of the issues we were discussing.
  16        So the importance of the remark that the operation
  17     should be carried out within a week to me was that the
  18     question of delaying it therefore was not really
  19     a practicable proposition in the care of this child.
  20   Q. What did that remark imply for referral?
  21   A. It did not really impact as an issue. Had the decision
  22     been that the team were not competent to undertake the
  23     operation, then whether the operation had been needed
  24     within 24 hours or a week or whatever, the patient could
  25     have been referred.

   1        The issue in my mind was never that the patient
   2     could not be referred physically, or because of his
   3     immediate clinical need; the issue primarily was, were
   4     the team competent to undertake the operation? Then the
   5     other considerations were secondary to that.
   6   Q. You knew Mr Dhasmana well?
   7   A. Yes.
   8   Q. He had been your Senior Registrar and he had worked with
   9     you for, by now, 10 years certainly?
  10   A. Nearly 20.
  11   Q. You knew as well what life was like as a surgeon and the
  12     effect of pressures upon you; do I take it that you
  13     operate better without external pressures than with
  14     them?
  15   A. It is hard to say.
  16   Q. What do you mean?
  17   A. It is so frequent that one is operating with pressure of
  18     one sort or another, not often like this, but one sort
  19     or another, of equal magnitude that I do not know.
  20     I think different people handle it differently. I think
  21     for most of us, for most people who are surgeons when
  22     they go into the operating theatre they are focused on
  23     what they are doing, whether the pressure is because it
  24     is your best friend or your colleague or they are
  25     terribly sick or whatever it is, you become focused on

   1     the task you have to do and all those things fall away
   2     and your consciousness is on the one thing.
   3   Q. I follow your thesis. Here you were, a surgeon asking
   4     the question and putting the proposition from your
   5     experience you thought it was a sensible suggestion to
   6     make, you may be so worried or whatever or under such
   7     pressure that you are affected in your conduct of the
   8     operation?
   9   A. If Mr Dhasmana had said to me "The anxiety of the last
  10     week, the conflict involved in this has undermined my
  11     confidence, has undermined my confidence in my
  12     colleagues or in the team and I really despair of how we
  13     can move forward from here", then that would have been
  14     one thing and that could have been an outcome of the
  15     pressure, but that was not his position and I believe
  16     I did know him well enough to be able to understand and
  17     assess his response to me.
  18   Q. You knew him well enough to ask the question that it
  19     might have disturbed him?
  20   A. Yes.
  21   Q. So you thought from your knowledge of him and your
  22     knowledge of surgery and your knowledge of pressure that
  23     it might have done so?
  24   A. Certainly.
  25   Q. Did you know at the time that had he known that there

   1     was to be a review in the paediatric cardiac surgery
   2     generally, he would have chosen not to operate?
   3   A. No, I did not know that.
   4   Q. That might suggest he was actually quite fragile in his
   5     confidence at the time?
   6   A. Yes, he has said that.
   7   Q. And he is a person, is he, who is perhaps more than most
   8     self-critical?
   9   A. He is self-critical, but not lacking in determination or
  10     concentration.
  11   Q. Is determination sufficient, do you think, to avert some
  12     of the potential effects of the stresses?
  13   A. I do not know whether it is sufficient, but it is
  14     certainly necessary. I am sure many things are
  15     necessary in order to cope with the stresses but I think
  16     determination and mental discipline is certainly one of
  17     them and I believe he showed that he had that, at least
  18     to the best of my ability to understand him, knowing
  19     him.
  20   Q. If Dr Martin had said "This is an urgent case in the
  21     sense that it needs to be done within weeks rather than
  22     months, three months is too long, but it does not have
  23     to be done this week", what would your response then
  24     have been?
  25   A. I am not sure how to answer that question.

   1   Q. As best you can, please.
   2   A. I think it might have led me to prolong the conversation
   3     a little bit but I think that the essential points had
   4     been covered in the larger meeting and -- I mean this
   5     was not a passing conversation, the one we are
   6     discussing, this was a 20 to 30 minute conversation. The
   7     points were seriously and repeatedly put and I did feel
   8     that I had received a serious answer and one that I was
   9     prepared to accept.
  10   Q. Why, in the course of the conversation where you thought
  11     in the interests of a patient, the points needed to be
  12     seriously and repeatedly put, did you not mention the
  13     further fact at your disposal, that there was to be
  14     a review?
  15   A. I can only answer that by repeating what I said to you
  16     before: in essence I felt that that would be to add
  17     further to the pressure on Mr Dhasmana. I do not know
  18     whether that was a right judgment or a wrong judgment,
  19     but that was my recollection of what I thought at the
  20     time.
  21   Q. We know from the note which Dr Martin made that he
  22     regarded it as inappropriate to refer Joshua Loveday
  23     elsewhere; was there any discussion about that that you
  24     recollect at one or other meeting?
  25   A. I do not recollect that there was a serious discussion

   1     of that.
   2   Q. A serious discussion?
   3   A. Sorry, I do not recollect that there was a discussion.
   4     My recollection may be right or wrong, but that is my
   5     recollection.
   6   Q. Can you think of a reason why you for your part did not
   7     suggest it; it would after all be a way of relieving any
   8     potential pressure however much, with the best will in
   9     the world, the surgeon intended to do the operation
  10     might deny that the pressure was on him?
  11   A. I think that the way I approached this problem was that
  12     if the larger meeting concluded that it was appropriate
  13     and that the team was competent to undertake this
  14     operation then once that point had been reached I did
  15     not see the issue of referral somewhere else as being
  16     relevant.
  17   Q. Was it your view of Mr Dhasmana that he was someone who
  18     tried to do his best for his patients?
  19   A. Undoubtedly.
  20   Q. In their best interests?
  21   A. Yes.
  22   Q. That if it was said to him by a referring clinician
  23     "This lad needs an operation and needs it very quickly"
  24     that he would do his best to assist?
  25   A. Yes.

   1   Q. In the interests of the child?
   2   A. Yes.
   3   Q. Might he, do you think, therefore not run the risk of
   4     being so keen to assist the child by performing the
   5     operation given the information from the cardiologist,
   6     that he would tend to say "It is all right, I will take
   7     the pressure, I do not mind the pressure, I focus on the
   8     operation in hand, I get on with it and once I am in the
   9     operating theatre, that is it"?
  10   A. I suppose it is because of that possibility that
  11     I pursued the matter from a number of different angles
  12     with him and extended the conversation to the length it
  13     was and so I thought I was exploring that with him.
  14   Q. Do you now have any regrets, looking back on the
  15     Joshua Loveday operation, that you did not stop the
  16     operation or cause the child to be transferred
  17     elsewhere?
  18   A. In the light of the outcome of the operation in relation
  19     to Joshua and in the light of all the other outcomes of
  20     the operation, it is impossible not to regret that
  21     decision.
  22        Looking back at the actual basis of the decision,
  23     I am conscious of this point that you raised about not
  24     telling Janardan of the decision to have the outside
  25     advice and of course that has been an issue elsewhere as

   1     well, but that apart, I feel that the discussion at the
   2     meeting -- first of all the decision to have the meeting
   3     and the discussion at the meeting and the subsequent
   4     discussion, all those steps I felt were open and were
   5     very clear-cut in their outcome.
   6   Q. You said "that apart", mentioning that the review had
   7     been agreed; if you were to include that would your
   8     answer be different?
   9   A. From what you tell me if that information had been made
  10     known then Mr Dhasmana -- says he would have decided not
  11     to do the operation. I can say no more.
  12   MR LANGSTAFF: Let me leave it there, and leave it there
  13     until 9.30 in the morning.
  14   A. Thank you.
  15   THE CHAIRMAN: Thank you, Mr Wisheart. Thank you,
  16     Mr Langstaff, reminding everyone that it is 9.30
  17     tomorrow morning.
  18   MR LANGSTAFF: 9.00 on Wednesday, 9.30 tomorrow.
  19   THE CHAIRMAN: Until 9.30 tomorrow, good afternoon
  20     everyone.
  21   (4.30 pm)
  22     (Adjourned until 9.30 on Tuesday, 14th December 1999)
  23
  24
  25

   1                I N D E X
   2
   3
   4     MR JAMES WISHEART (SWORN):
   5        Examined by MR LANGSTAFF........................ 1
   6
   7
   

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