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Inquiry procedures

For a summary of the Inquiry Procedure please go to the opening statement of the Chairman at the Preliminary Hearing

• Clinical Case Note Review Exercise
  Formal Written Comments and Applications for Second Review

• THE CONCLUSION OF PHASE ONE ORAL EVIDENCE

• THE INQUIRY’S APPROACH TO THE ASSESSMENT OF THE ADEQUACY OF PAEDIATRIC CARDIAC SURGICAL SERVICES
  • Press Release
  • Complete Document

• PRELIMINARY OVERVIEW OF EXISTING DATA SOURCES RELEVENT TO THE INQUIRY’S REMIT
  • Summary
  • Complete Document

• PROCEDURE TO BE FOLLOWED IN MAKING AN APPLICATION FOR CROSS EXAMINATION

• USE OF INQUIRY'S EXPERT GROUP

• THE INQUIRY’S APPROACH TO MAKING USE OF RELEVANT DATA SOURCES

• FORMAL WRITTEN COMMENT  PROTOCOL

• CLARIFICATION OF RE-EXAMINATION OF WITNESSES

• PROCEDURES FOR ASSESSMENT OF COSTS OF PARTICIPANTS AT PUBLIC EXPENSE

• Inquiry procedure on the disclosure of potential criticism

Bristol Royal Infirmary Inquiry
Clinical Case Note Review Exercise
Formal Written Comments and Applications for Second Review

Purpose

This note sets out the Inquiry’s process for dealing with formal written comments on clinical case note review (CCNR) forms and applications for Second Review.

Background

The procedure for the CCNR exercise was outlined in "The Inquiry’s approach to the Assessment of Adequacy of Paediatric Cardiac Services."

The exercise was a review of the case notes, as was emphasised by the Chairman on the 9th December (transcript day 91, page 126-129 – copies attached), and was not an attempt to determine personal negligence, or otherwise, in the management of the particular case itself.

This procedure document explained that the purpose of the CCNR exercise was to provide the Panel with a qualitative perspective on the overall pattern of care, and to highlight areas where services were adequate or less than adequate, according to the clinical notes; the exercise was not designed to reach specific conclusions about individual cases.

Any individual, however, with an interest in a particular case was able to make a formal written comment on a review group’s conclusions and, further if they disagreed with the review findings on a particular case, submit a reasoned explanation as to why the case should be reviewed again. The Panel would then consider the matter.

Formal Written Comments on Clinical Case Note Review Forms

Formal written comments on CCNR forms will be treated in the following way:

• they will, as with all formal written comments, constitute evidence
• the Panel will consider all formal written comments (as evidence)
• the authors of the final CCNR have the task of reporting on that which the clinical notes themselves appear to show. Accordingly, save in the case of an ambiguity in the notes themselves which is addressed by any comment, they will not have regard to the content of the formal written comments. Where those comments seek to provide an explanation or gloss which goes beyond the notes, this will be a matter for the Panel to consider as part of the evidence, and will not affect the conclusions of the authors of the CCNR report, who have the responsibility of summarising what the notes show.

Second Review Process

The Panel has made it clear that when second reviews take place they will be carried out in the same way as the first review. That is to say, the Expert Review Teams will only consider the clinical case notes. Specifically, they will not have sight of, nor be asked to take into account, any formal written comments or the reasons surrounding the request for a second review.

Where possible the experts invited to sit on Second Review panels will be those who previously participated in the review exercise but not in respect of the case in question. The expert group, as in the first review, will have access to the clinical case notes and to other investigations that are available: angiograms, echocardiograms, X-Rays, ITU and Perfusion Charts.

The report of a Second Review will be circulated for comment.

Publication

Only those CCNR Report Forms where the Inquiry has full consent will be published, along with formal written comments on those reports.

January 2000

THE CONCLUSION OF PHASE ONE ORAL EVIDENCE

The purpose of this note is to outline the processes and deadlines by which the final oral evidence and presentations in Phase One will be taken by the Inquiry.

1. Phase One hearings will conclude on Thursday 16th December.
2. Thereafter, and in accordance with the Chairman’s Opening Statement, those witnesses who choose to do so, by themselves or through their legal representatives, may make a short final presentation in writing or, at the discretion of the Chairman, orally.
3. Any witness who has given oral evidence to the Inquiry in Phase One may put in a short final presentation. These presentations must be received by Friday 21st January 2000.
4. Any witness who submits such a presentation and who wishes, additionally, to make an oral presentation to the Inquiry should inform the Solicitor to the Inquiry in writing at the time of submitting the written presentation.
5. Such requests will be put before the Chairman for consideration. Those from whom the Chairman considers it would assist the Inquiry to hear orally will be informed by Friday 28th January and invited to make their oral presentation on 9th or 10th February.
6. The Inquiry Panel will reconvene in Bristol for the final oral presentations of Phase One on 9th and 10th February 2000.
7. All written presentations, whether or not oral presentation has been invited, will be made public prior to 9th February.
8. The length of the oral presentations will be time limited by the Chairman.

Inquiry Solicitors

12.10.99

 PRELIMINARY CRITICAL OVERVIEW OF EXISTING DATA SOURCES RELEVENT TO THE INQUIRY’S REMIT

Summary

The following consultation paper provides an overview of the strengths, weaknesses and limitations of the key existing data sources which the Inquiry considers to be relevant to paediatric cardiac surgery at Bristol. Guided by the advice of experts, the Inquiry is conducting a major review which includes the commissioning of analysis and research, contacting those responsible for relevant data systems and taking written statements.

The extensive work of the Inquiry’s analysis team has, to date, highlighted six existing data sources which are of major relevance at this stage relevant to the Inquiry’s terms of reference. Two of these, Hospital Episode Statistics and the UK Cardiac Surgical Register, should enable comparisons to be made between Bristol and other centres. Two new databases have been created by the Inquiry using existing material from Clinical Records and from Surgeons’ Logs. The six key data sources are:

Hospital Episode Statistics (HES) – this system collected information about activity in all NHS hospitals in England (a similar system existed in Wales). Including over 50 million data records collected over a 5-year period between 1991 and 1995. This is largely an administrative system, and the Inquiry is examining retrospectively what it can reveal about relative performance on paediatric cardiac surgery at different hospitals.

UK Cardiac Surgical Register – established in 1977 by the UK Society of Cardiothoracic Surgeons to provide information on the volume, type and distribution of cardiac surgery, including paediatric cardiac surgery, undertaken in the UK in order to aid future service planning and clinical audit. Today, it is primarily used to track the development of the specialty, to identify trends and track and benchmark mortality for different procedures.

South West Congenital Heart Register – a computer register providing a summary of essential information about patients kept by the consultant cardiologists at the BRI throughout the period of the Inquiry.

United Bristol Healthcare NHS Trust Patient Administration System (PAS) – used to track hospital activity. It is an administrative system containing demographic and clinically coded information about the vast majority of patients who received treatment at the United Bristol Healthcare NHS Trust (UBHT including Bristol Royal Infirmary and Bristol Children’s Hospital) since 1988.

Clinical Records – a selection of information about over 1800 children treated at UBHT, collected from GPs, surgeons, anaesthetists, nurses and pathologists including: name, date of birth, gender, hospital record numbers, diagnoses, operative procedures and outcomes with dates and surgeon’s names. This information has been collated into a new database.

Surgeons’ Logs – the Inquiry has created a database from notes made in the surgeons’ logs of Mr James Wisheart and Mr Janardan Dhasmana. The information was recorded in the logs for reference purposes, for personal audit of operations undertaken and for reporting and research purposes.

The Inquiry is aware of nearly twenty additional data sources which may be potentially relevant to its remit, but its priority now is to take forward analysis of the six data sources outlined above.

8 July 99

PROCEDURE TO BE FOLLOWED IN MAKING AN APPLICATION FOR CROSS EXAMINATION

1. The Inquiry has indicated that participants in the Inquiry have the right to apply to cross examine a witness who gives oral evidence.
2. This note provides a procedure which will normally be followed when such applications are made.
3. Applications should be made through legal representatives where the participant making the application is legally represented.
4. The Inquiry will expect such applications to be made orally, after the witness has been examined by Counsel to the Inquiry and after any questions have been put by the Panel and, where appropriate, by the witness’s representative in re-examination.
5. The person making the application (hereafter "the Applicant") will first indicate to Counsel to the Inquiry that they wish to apply for permission from the Panel to cross examine the witness.
6. Counsel to the Inquiry will, after the witness has given evidence as set out in paragraph 4 above, indicate to the Panel that an application for permission to cross examine is to be made.
7. The Panel will ask the witness whether he or she wishes to be present while the application is made. If the witness expresses a desire to be present, the Panel will ask the Applicant whether there is any objection to this course. If not, the application will proceed (see below). If there is such an objection, Inquiry will expect to accede to the witness’s wish, unless the Applicant demonstrates exceptional reasons which justify the exclusion of the witness (subject to paragraph 8 below).
8. The witness’s legal representatives will, in any event, have the right to be present during the making of the application, as will the witness, notwithstanding paragraph 7 above, if he or she is not legally represented.
9. The Applicant should succinctly and clearly:
1. explain in outline the areas of evidence which the Applicant desires to explore in cross examination;
2. say why it would be helpful to the Inquiry for this to be done orally;
3. why it might potentially be unfair to the Applicant to leave evidence unchallenged
4. explain whether or not the Applicant has previously indicated to Counsel to the Inquiry that the Applicant would like questions to be put pertaining to those areas;
5. explain why, if the answer to (d) is no, that should have been the case;
6. explain why, if the answer to (d) is yes, the Applicant considers that the areas of evidence have not adequately been explored by Counsel to the Inquiry and or the Panel in their questioning of the witness.
10. After the application has been made, the witness’s representative or, where he or she has no representative, the witness him or herself will have the right to reply to the application. The reply should be made orally as soon as practicable after the application has been made.
11. Once the witness or the witness’s representative, as the case may be, has replied to the application or indicates that no reply is desired, Counsel to the Inquiry will be asked to address the Panel in respect of the application. Counsel to the Inquiry will be expected to be brief.
12. The Applicant will be given the final right of reply, addressing only those points made pursuant to paragraphs 10 and or 11 above rather than rehearsing the original application. The Panel will normally withdraw from the Hearing Chamber to consider its decision as to whether or not to grant permission to cross examine.
13. The Panel will have regard to the requirements of fairness, to whether there is a need to resolve otherwise intractable disputes of fact to assist the Panel in fulfilling its terms of reference, and to all the circumstances of each application including those matters set out in paragraph 9 above.
14. Whenever practicable, the Panel’s decision will be given orally after a short adjournment. Where fuller deliberation is required, the Inquiry may adjourn overnight or may, exceptionally, proceed with the next witness pending consideration of the application for permission to cross examine.
15. When permission is given, and where the timetable allows, cross examination will proceed as soon as permission has been given.
16. In any case where permission has been given, questioning in cross examination will be confined to those areas outlined in paragraph 9(a) above. The duration of the questioning may be limited by the Panel, depending on the circumstances. The witness’s own representative will have an opportunity to re-examine in relation to matters raised in cross examination. The Panel may ask questions of the witness at any time.

17 5 99

USE OF INQUIRY'S EXPERT GROUP

Introduction

The BRI Inquiry Panel, as was announced by the Chairman, Professor Ian Kennedy, at the Inquiry’s Preliminary Hearing in October 1998, is setting up a single Expert Group to inform and support the Inquiry. Individuals who are members of the Expert Group will be the Inquiry’s experts rather than experts for any individual or organisation which has an interest in the Inquiry’s work.

Only Counsel to the Inquiry will be able to call experts to give evidence to the Inquiry.

A single Expert Group

The aim of this approach to the use of expert evidence in a public inquiry is to move away from the model used in trials, where expert evidence is presented in an adversarial setting. As experts to the Inquiry, those invited will be asked to give their opinion in the wider public interest, (indeed it will be published), rather than in support of the case of one side or another. As Professor Kennedy has made clear, there are no sides; there is no case. The Inquiry is there to inquire. The Chairman is also mindful of the relative scarcity of expertise in a number of areas of interest to the Inquiry. Thus, he wishes to gain the greatest benefit for the Inquiry by harnessing that expertise within one Expert Group.

How experts will assist the Inquiry

Experts may be asked to assist the Inquiry in up to three ways, but involvement will be at the expert’s convenience and depend on availability by providing (i) written opinions which will be the norm; (ii) by attending oral hearings to give evidence in person, and/or to be in attendance when another witness is appearing; (iii) by providing information and background to Counsel and Solicitor to the Inquiry. The extent to which any one expert actually assists in all three ways will depend on the area of expertise, the role that area of expertise may play in the Inquiry, and an individual’s availability.

Although experts’ principle obligation will be to serve the Inquiry direct, we should be grateful if experts could make themselves available, at their convenience, to give occasional seminars to the two groups whose costs are being met at public expense. Other organisations with a direct interest in the Inquiry may also seek advice from individuals on the Expert Group. All such requests for access to the Expert Group will need to be made through the Inquiry Secretariat.

The Inquiry recognises that membership of the Expert Group may involve a considerable commitment; to lighten the load on any one individual, a number of experts will be invited to serve in each area of expertise.

The following notes explain in more detail what is entailed by involvement in the Expert Group.

WRITTEN OPINION

1. Expert witnesses will be asked, in response to invitations from the Inquiry, to provide written opinions as follows:

1. one, or possibly, a number of statements covering those aspects of the Inquiry on which he /she is qualified to comment;
2. comments upon the formal written statements and/or oral evidence of other witnesses.

2. Where an expert comments in a way which the Inquiry considers critical in a relevant respect upon the formal written statement or oral evidence of a witness, those comments will be sent to that witness, and also to those other participants who, in the Inquiry’s view, have a particular interest in that witness’s evidence.
3. Experts appointed to the Expert Group should understand that opinions given under (a) and (b) above will be part of the Inquiry material. They will be made public by the Inquiry, and published on the Inquiry’s website, at a convenient date and time.
4. Where appropriate, the membership of the Expert Group will take account of schools of thought or differences in opinion within any particular area of expertise. Although the Inquiry will not necessarily hear orally from each expert where views differ, it will seek, in taking advice and evidence, to reflect fairly any divergence of opinion and, where it is important, to explore it.

ATTENDANCE AT ORAL HEARINGS

5. Experts will not normally be called to give oral evidence at the public hearings. They may be called, however, when there is some dispute as to the facts to which their expert opinion relates. In this case, the expert will be called as soon as possible after the witness, to whose evidence his/her expert opinion relates, has been heard.
6. Further, if Counsel to the Inquiry or the Inquiry Panel considers it would be helpful to the Inquiry to have an expert in attendance at the time that a witness gives oral evidence, the expert will be invited to:
1. attend;
2. raise, by way of comment (during the course of the evidence) any matter which is within his/her expertise and which he/she feels would be useful for the Inquiry to consider.
3. respond to specific requests made to him or her by Counsel or the Inquiry Panel during the course of the witness’s evidence, with a view to enabling an informed consideration or discussion of the evidence being proffered by that witness.
7. Further, an expert may be asked to give evidence at a time which is convenient both to him/ her and to the Inquiry either:
1. to interpret evidence, or
2. where the substance of what the expert has to say may be controversial.

This may be either as a sole witness or as part of a discussion to which two or three experts who apparently hold differing views will be invited to contribute. In the latter case, each will give evidence at the same time moderated, as it were, by Counsel, thus permitting an open, panel-type discussion amongst the relevant experts, focused and facilitated by Counsel.

8. It follows that an expert, accepting an invitation to belong to the Expert Group, must agree, if necessary, to give evidence not only as a single witness, but also, if appropriate, as one of a small number of experts giving evidence at the same time.

BACKGROUND INFORMATION TO COUNSEL AND SOLICITOR TO THE INQUIRY

9. The purpose of providing such information to Counsel and Solicitor to the Inquiry is to help the Inquiry’s Legal team to understand and appreciate technical issues and detail of experts’ reports with a view to their serving the Inquiry more effectively.
10. Any such briefing is likely to be sought on an ad hoc basis, and will respect the convenience of the expert, both in terms of the matter of such briefing (eg telephone conversation, video link, actual meeting etc), and its timing. Every effort will be made to arrange any meeting at a place and at a time convenient to the expert.

BACKGROUND SEMINARS TO GROUPS RECEIVING PUBLIC FUNDING TO ENABLE PARTICIPATION IN THE INQUIRY

11. The Secretary of State, in agreeing funding for the Bristol Heart Children Action Group (BHCAG) and the Surgeons’ Support Group, granted each group a small sum to help meet the costs of seminars from experts. The aim is to ensure that members of these Groups are better able to follow and comment on the Inquiry’s proceedings. The protocol for such seminars will emphasise:
1. the purpose of any seminar is intended to be informative rather than partisan;
2. the timing of the seminar, if requested, will be such as to suit the convenience of both those requesting the seminar and the expert concerned;
3. arrangements for the seminar are to be made through the Inquiry Secretariat, and not directly between members of the funded group and the relevant expert;
4. the expert will be expected not to, (and must not) comment upon his or her view of any individual who may be asked to give evidence to the Inquiry.

BACKGROUND ADVICE TO OTHER ORGANISATIONS

Experts may also be asked occasionally, via the Inquiry Secretariat, to provide advice or explanations to other organisations with a direct interest in the Inquiry. A protocol will also be established for these contacts.

APPOINTMENT OF EXPERTS

Appointment of experts to the Expert Group will be by invitation only. The Inquiry has sought (and will continue to seek) advice from experts as to those others whose expertise is well recognised, with a view to ensuring that the Expert Group:

1. as sufficient numerical strength to ensure that the demands outlined above may be met with minimum inconvenience to any one individual;
2. covers any principal differences of view or of emphasis within any given specialty;
3. is broadly based (both geographically and otherwise).

The Chairman will always be happy to listen to any suggestions for additions to the Group where it is considered that this will strengthen the ability of the Expert Group to be of assistance to the Inquiry, and similarly to any offers of assistance from any individual who has expertise to offer.

It is not a disqualification for any given individual to be, or to have been, involved in litigation concerning any child treated at the Bristol hospitals between 1984 and 1995, nor for that individual to have been involved in the hearings conducted by the General Medical Council (GMC) which related to the care at Bristol of patients suffering from congenital heart problems, but any expert so involved will be expected to disclose his or her involvement. No expert will be asked to volunteer any confidential information which s/he may have obtained in acting in litigation or in relation to the GMC hearing.

Similarly, any expert who shares membership of any club or society to which (so far as s/he knows), a witness or potential witness belongs, will be expected to disclose that fact.

The Expert Group will include experts in the following areas of expertise:

Paediatric Cardiology
Paediatric Cardiac Surgery
Paediatric Cardiac Anaesthesia and Intensive Care
Paediatric Pathology
General Paediatrics
Nursing: General Paediatrics
Nursing: Paediatric Intensive Care
Medical education and training
Medical and clinical audit
Regulation of the medical profession
NHS Finance in the 1980s and 1990s
NHS Management in the 1980s and 1990s
- including the impact of the NHS reforms
Human Factors and Risk Management
Statistics and Epidemiology

BRI INQUIRY SECRETARIAT

March 1999

THE INQUIRY'S APPROACH TO MAKING USE OF RELEVANT DATA SOURCES

1. Introduction

The Bristol Royal Infirmary Inquiry intends to make full and effective use of available sources of evidence to inform its task. This includes making best use of available sources of data on children’s heart surgery in Bristol and elsewhere, drawing on specialist statistical and scientific expertise as required.

2. Relevant sources of data which may form the basis of statistical analysis

A range of sources of data on children’s heart surgery exists, at both national and local level.

2.1 At national level, there are two main sources of data . They are as follows:

(i) Hospital Episode Statistics, known as "HES"

This dataset aims to measure all hospital in-patient activity in England. Returns from hospitals across the country have been collected by the Department of Health since 1988. For some of the earlier years, we may be able to call on the precursor to HES, the Hospital In-Patient Enquiry, known as ‘HIPE’.

(ii) The UK Cardio-Thoracic Register data

These data have been collected since 1977 and include information supplied voluntarily about cardiac surgery from each of the hospitals undertaking such work. They are collected and analysed by the Society of Cardio-Thoracic Surgeons.

2.2 At local level, the sources of information which could inform statistical analysis include:

(i) The clinical records

These were compiled by UBHT clinicians on each child who received heart surgery. The Inquiry has access to all relevant clinical records.

(ii) The UBHT’s Patient Administration System, known as "PAS".

This originated back to 1988 and, as well as being a system for tracking patients within the UBHT, it is the source of the UBHT’s returns for Hospital Episode Statistics, the national source mentioned earlier.

In addition the Inquiry intends o draw on information collected and collated by the UBHT clinicians themselves. These sources include:

(iii) The log-books of the Bristol cardiac surgeons

(iv) The information collected by Bristol cardiologists, including their South West Congenital Heart Register computer system.

(v) The Patient Analysis and Tracing System - a system used in the UBHT cardiac surgery department from 1992.

(vi) We shall also draw on relevant clinical audit information, on statistics and tables used by UBHT clinicians at the time.

We may also draw on any other of the hospital’s available clinical specialty systems and sources of information as necessary.

3. Issues of data quality

In seeking to make effective and appropriate use of statistical data sources, the Inquiry intends to take account of crucial issues such as coverage, quality, relevance, comparability, and interpretation. We also want to understand the strengths, weaknesses and limitations of each of these sources. To this end, and as a broad framework within which to work, the Inquiry intends to adopt as a phased approach to making best use of available data.

4. A phased approach to making use of available data sources

4.1 The first phase will be to commission a preliminary critical overview of the sources outlined above. The aim of this overview, which we intend to publish, is to address key questions about the coverage and quality of each source, how the data were collected and validated, and the potential comparability of data sources. This overview will provide a context for subsequent statistical analysis, and will help to ensure that any conclusions reached, if indeed they can be reached from the data, are sound and capable of standing up to scientific and public scrutiny.

4.2 The second phase will be an exploratory phase. Here we will look at what each data source – national and local - reveals about performance at Bristol. This will be a considerable undertaking, and will include:

• an exercise to look at every single child’s clinical record, to capture information about each child’s diagnosis, the surgical procedure performed, and the outcome. This exercise will allow the Inquiry to take a sample for more detailed study;
• independent assessment of the sources of national data to see what they can tell us about comparative performance as between Bristol and other centres performing paediatric cardiac surgery.

Where appropriate, we will cross-validate sources of data.

4.3 At the end of this phase, the Inquiry, with the assistance of expert advice, will be in a position to determine whether the evidence suggests that Bristol had consistently or sporadically divergent performance, and if so in which aspects of children’s heart surgery. We will then know which areas warrant further detailed study. But it must be emphasised that all that would be known at this stage is whether variations in performance existed. The data themselves would tell us nothing about what caused any variation.

4.4 The third phase will be a confirmatory phase. Here the main interest lies in establishing whether there are any inherent technical biases in the data, both with regard to Bristol and to other centres, concentrating on those areas which are shown in the exploratory phase to merit special attention, e.g. particularly strong or weak areas of practice where lessons may be learnt.

4.5 If any divergence in performance between Bristol and other centres were confirmed in Phase Three, a fourth explanatory phase will be taken forward. We will seek expert advice on possible explanations and will undertake further investigations, including, potentially, more detailed assessment of clinical notes. This may also involve the collection of new data.

5. Summary

The Inquiry is determined to make full and appropriate use of relevant sources of statistical data to inform its task, but this must be done with an awareness of the limitations on the quality of the available sources of data. We aim to make public during the course of the year, a critical review of the sources of data and, subsequently, both analyses of Bristol’s performance and expert opinion on what conclusions may reasonably be drawn from the data.

The Secretariat

Bristol Royal Infirmary Inquiry

March 1999

Statisti/strat

FORMAL WRITTEN COMMENT PROTOCOL

1. Each witness statement received will be scrutinised by one of the Legal Team to the Inquiry within a target time of two working days of receipt.
2. If that scrutiny reveals that the witness statement contains material (eg defamatory or scandalous matter) which cannot reasonably assist the Inquiry in its task, that material will be redacted prior to publication of the statement to any person outside the Inquiry Secretariat or Legal Team.
3. If the scrutiny reveals matters of fact or opinion which are critical of any other person or body in a regard which the scrutineer considers relates to the issues before the Inquiry and which the scrutineer considers to be of more than minimal importance then:

1. the witness statement will be sent for comment to the person or body criticised, providing that person or a duly authorised officer of the body (as the case may be) undertakes to keep confidential the text and substance of the statement at all times prior to its general publication by the Inquiry;
2. the person or body criticised will be invited to respond to the criticism(s) contained in the statement. This may be either by reference to one or more specific criticisms or, more generally, to the statement as a whole.

1. Where the witness statement is that of a person whom the Inquiry has decided should give oral evidence, that fact will be indicated to the person criticised at the time the witness statement is sent to her or him.

The fact that no indication is given is, however, no guarantee that the author of the original formal written statement will not be called to give oral evidence.

2. Where a witness who has made a formal written statement is to be called to give oral evidence then:

1. any written comment which seeks to endorse, rebut or explain any criticism in, or to comment on, the statement must be received by the Inquiry at least 7 days prior to the start of that evidence if it is to be made public contemporaneously with the statement itself;
2. where time does not permit 7 clear days, then the person commenting may telephone, fax or e’mail the Solicitor to the Inquiry to give reasons why, notwithstanding the shortage of time, it is nonetheless important that contemporaneous publication should occur. Provided good reasons are given for it the Inquiry will then do what it reasonably can to ensure contemporaneous publication does take place.

1. Every comment received in writing will be published with specific reference to the formal written statement to which it relates (subject to redaction as in paragraph 2. above). Except where paragraph 5(a) applies, the timing of publication will be at the discretion of the Inquiry although it is normally to be expected that comments will be published contemporaneously with the document(s) to which they relate.
2. Irrespective of whether or not a statement has been submitted to them for comments, where a person or body regards any part of it as critical in the sense described in paragraph 3., they may send written comment to the Inquiry, and it will be published, unless the Legal Team consider it insufficiently relevant.
3. Any written comment must clearly indicate that it is intended as such if it is to be published and considered by the Inquiry Panel.
4. Oral comments made other than when giving evidence and comment not clearly identified as such will not be published and will not be considered by the Inquiry Panel.
5. Upon receipt of any written comment a member of the Legal Team will consider whether any further detail is required in relation to that comment, and may contact the commentator with a view to asking for her/him to provide it.

CLARIFICATION OF RE-EXAMINATION OF WITNESSES
Professor Ian Kennedy, Inquiry Chairman.

18th March 1999

On Wednesday 17th March 1999, Mr Lissack QC invited me to clarify what the Inquiry expected in terms of re-examination of witnesses. I am happy to provide, below, the clarification which Mr Lissack QC sought.

At the opening of the Inquiry last autumn I said that

"The witness will be questioned by Counsel to the Inquiry whose job, as I said, is to ensure all the evidence is before the Inquiry and all the facts are investigated thoroughly. This questioning will be supplemented by questions from me and from members of the Panel. At the end of this questioning, the witness’s legal representative will have an opportunity to put questions to the witness by way of re-examination. The purpose of this is to clarify any area which the legal representative feels may have been left unclear and to enable the legal representative to ensure that the witness has given a proper account of him or herself." (emphasis added)

I also emphasised that after a witness had given evidence, there would be an opportunity for a short submission to be made the following day on that witness’s behalf. I made plain that, save in exceptional circumstances, submissions will be expected to be committed to writing. That remains our expectation. All that I said at the opening of the Inquiry remains good.

I hope that, in the opening statement and since we started taking oral evidence this week, I have made clear the general position, namely that anything that reasonably can be expressed in the formal written statement, or, if that is not possible, can be channelled through Counsel to the Inquiry, should be. Therefore, where a matter has arisen since a witness statement was submitted which, had it arisen beforehand, the witness would have dealt with in that statement, then the Inquiry expects that a short supplemental statement, dealing only with the new point, will. be submitted as soon as possible. Where the witness is to be called to give oral evidence, the supplemental statement should, if at all possible, be submitted before the witness gives oral evidence. In the rare circumstances when this is genuinely not possible, the representatives of the witness should indicate to Counsel to the Inquiry that a fresh point has arisen, and invite Counsel to the Inquiry to lead the relevant evidence from the witness orally.

What we do not expect is that a witness will be questioned by Counsel to the Inquiry and the Panel and only then be asked to deal, for the first time, with a fresh point not previously raised in the witness’s evidence. For one thing, no-one would have been in a position to consider whether the fresh point should be accepted or could be rebutted or commented upon. Those who have already commented on the witness statement are generally entitled to expect that they have seen the essentials of the intended evidence. The Inquiry recognises that there may be exceptional circumstances demanding a departure from the procedure I have set out. If such circumstances were to arise, the Panel will require to be persuaded that it would be helpful for the fresh point to be raised orally at that stage. In particular, the Inquiry will need to be persuaded that the point is not one that can be dealt with by a short written statement submitted on the following day, in accordance with the procedure I outlined at the opening of the Inquiry and to which I refer above.

It is important for the Inquiry to progress efficiently and effectively. There is a risk that it might not do so if re-examination is to be free-ranging. There is much to do. The Inquiry is determined to adopt fair but also expeditious procedures. I appreciate that the Inquiry’s procedures differ from those of the courtroom; but we are not a court.

I hope that that clarifies the situation.

Ian Kennedy

PROCEDURES FOR ASSESSMENT OF COSTS OF PARTICIPANTS AT PUBLIC EXPENSE

1. The Secretary of State accepted the recommendations of the Chairman that the reasonable and appropriate legal costs of the Bristol Heart Children Action Group and the Bristol Surgeons` Support Group be met from public funds on the terms as set out in letters dated 20 November 1998. The relevant statutory provisions with regard to these costs may be found in Section 84 (5) and (6) of the National Health Service Act 1977, as amended.
2. In the first instance costs will be assessed by the Costs Branch of Treasury Solicitor on the standard basis at an agreed hourly rate subject to a capping mechanism as to total hours worked. Where agreement can be reached those costs will be paid through the Treasury Solicitor. So far as the format of bills of costs is concerned these should be in the form of fully drawn bills along the lines of an inter partes bill of costs or as agreed with the Costs Branch. Counsels fees should be in the usual fee note form with clear indications of time spent. Counsel should be aware that they will be asked to provide details of the work undertaken and how it was generated. Bills should be presented on a monthly basis for consideration. All bills and fee notes will be subject to an audit procedure carried by the Costs Branch and/or the Internal Audit Service of the Treasury Solicitor’s Department. This may involve periodic visits to Solicitor’s offices.
3. General disbursements above £200.00 are liable to be disallowed unless they have received prior approval from the Solicitor to the Inquiry.
4. The Inquiry reserves the right to disallow any costs for good reason: examples of the circumstances in which costs may be disallowed are set out in Paragraph 61 of the Report of the Royal Commission on Tribunals of Inquiry (1966 Cmnd 3121).
   
5. In the event of a bill not being agreed, in full or in part, payment will be made on account of costs pending resolution at the end of the Inquiry, possibly by means of taxation.
   
6. All claims for costs should be sent to Mr D Houghton, Head of Costs, Treasury Solicitor’s Office at Queen Anne’s Chambers, 28 Broadway, London SW1H 9JS. Tel: 0171 210 3192. Fax: 0171 210 3141.

Inquiry procedure on the disclosure of potential criticism

 In his Opening Statement the Chairman announced that those who became the subject of potential criticism would be informed in writing and given 21 days to respond, subject to a prior undertaking as to confidentiality.

Consequently, the Inquiry is proceeding as follows:

• The Panel is currently considering those who may be subject to formal criticism on matters of material importance related to the subject matter of the Inquiry.
• The Solicitor to the Inquiry is contacting all legal representatives and relevant witnesses requesting an undertaking as to confidentiality, in the event that it is necessary.
• Subsequently in appropriate cases, on receipt of these undertakings, a letter will be sent briefly setting out the potential criticisms and identifying the evidence on which they are based.
• The Solicitor must receive any response at the Bristol Office (details below) within 21 days; only in exceptional circumstances will this time be extended.Any application for extension must be made in writing, with reasons, before the end of the original period.
• The Panel will consider the responses, taking them into account in the final formulation of the Report.

November 2000

Bristol Royal Infirmary Inquiry

2/10 Temple Way

Bristol BS2 OBY

Tel: 0117 938 8735

Fax: 0117 938 8790

E-mail pwhiteh@bri-inq.org.uk

PFO Whitehurst

Solicitor to the Inquiry

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