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Daily transcripts
Hearing summary
23rd June 1999
Today the Inquiry heard from Mr Stephen Boardman, former Director of
Corporate Development at UBHT. He discussed planning and his role and at what stage he
would become involved in the plans or proposals of directorates particularly in relation
to any plans there may have been to move Paediatric Cardiac surgery from the BRI to
Bristol Children’s Hospital. He also talked about the application for Trust status
and how plans for improved patient services would have been outlined in the application.
He then discussed the Trust’s strategy and commented on the importance of strategic
planning by both Trusts and Health Authorities. Mr Boardman commented on the management
style and profile of Dr Roylance and Mrs Maisey within the Trust. He also addressed the
issue of whistleblowing and how it would have been perceived by the Trust at that time.
The Inquiry also heard from Ms Mandie Lavin, Director of Professional Conduct at the
United Kingdom Central Council for Nursing, Midwifery and Health Visiting. She discussed
the obligation placed on those registered with the UKCC to report any matters of concern
to an appropriate person of authority and commented on the importance of the Director of
Nursing in this role. She then discussed the removal from and restoration to, the register
of practitioners and other disciplinary avenues open to the UKCC. Ms Lavin told the
Inquiry of the UKCC’s confirmation service by which it was possible to check the
registration status of practitioners.
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FULL TRANSCRIPT
1 Day 33, 23rd June 1999
2 (9.30 am)
3 THE CHAIRMAN: Good morning, everyone. Good morning,
4 Mr Langstaff.
5 MR LANGSTAFF: Good morning, sir. This morning we will
6 hear from Mr Boardman, and then from Ms Lavin. Before
7 I ask Mr Boardman to come to affirm, may I just say
8 something about nurses and their evidence, following on
9 from the very helpful evidence which we had yesterday
10 from Fiona Thomas and Sister Disley?
11 This is addressed really through you to the wider
12 public. Throughout the course of the Inquiry, we have
13 identified anyone who has any information which will
14 help us to understand the events which took place in
15 Bristol to come forward. In a week when we have already
16 heard from two nurses who work at the Bristol Royal
17 Infirmary, and when we will hear later today and
18 tomorrow from representatives of national nursing
19 organisations, we are making a specific appeal for
20 nursing staff to contact us.
21 In advertisements which have been published in
22 this week's editions of the Nursing Times and Nursing
23 Standards and in a news release to be released today the
24 Inquiry is inviting nursing staff who worked at the
25 Bristol Royal Infirmary during the 1980s and 1990s to
0001
1 give evidence to assist the Inquiry. We are interested
2 in the experiences of all nursing staff, but
3 particularly those whose work brought them into contact
4 with paediatrics, paediatric cardiology, cardiothoracic
5 surgery, intensive care and anaesthesia, not all five of
6 those, but any of those five.
7 Those who have information which they believe
8 might be of value to the Inquiry, please leave us to
9 judge whether it will be or not, can contact the Inquiry
10 staff in several ways. They may write to the Secretary
11 to the Inquiry, Miss Una O'Brien at this address,
12 2-10 Temple Way, Bristol BS2 0BY. They can contact the
13 Inquiry by E-mail, the E-mail address being
14 inquiry@doh.gov.uk; by telephoning, and it is a local
15 rate, I hasten to add, 0845 3000 613, or 0117 938 8700
16 during office hours, and our office hours are 8.30 until
17 6 pm. Or they may contact us via the Inquiry's web
18 site, www.bristol-inquiry.org.uk.
19 We are making this further invitation publicly
20 because we feel it is possible that there are people who
21 work in the NHS who want to get in touch with the
22 Inquiry but have not yet done so. We encourage them to
23 contact us in confidence. The Inquiry will be hearing
24 evidence in Bristol for the rest of the year and staff
25 may be contacted at any time by anyone who feels that he
0002
1 or she has anything to say or has information for the
2 Inquiry panel to consider, or for that matter,
3 information which he or she thinks may lead us in
4 further enquiries and may help us to uncover the
5 evidence of those who can assist further.
6 Sir, I am sure that you, on behalf of the Panel,
7 would wish to endorse those remarks and that plea?
8 THE CHAIRMAN: Yes, indeed, Mr Langstaff.
9 MR LANGSTAFF: That said, Mr Boardman, the start of your
10 evidence has been delayed a little. Would you now like
11 to come forward, please, to affirm?
12 MR STEPHEN BOARDMAN (AFFIRMED):
13 Examined by MR LANGSTAFF:
14 Q. Mr Boardman, your full name, please?
15 A. Stephen Gerard Boardman.
16 Q. You are by occupation a management consultant?
17 A. That is correct.
18 Q. You made a statement for the benefit of this Inquiry.
19 Can we please have it on our screens at WIT 79/1?
20 Is that the first page of your statement?
21 A. Yes, that is correct.
22 Q. If we go through to 79/17, that is your signature?
23 A. Correct.
24 Q. There are some amendments, which I shall take you
25 through with a little care, to the statement before you
0003
1 wish it to be accepted as your evidence to the Inquiry,
2 about which I will then ask you some questions.
3 Can we first of all have a look at paragraph 7,
4 which is on page 2? What you wanted to say in respect
5 of that, you have given a supplementary statement to the
6 Inquiry. Because it has not yet been scanned in through
7 our scanning, let me read out what you would wish to say
8 and invite your agreement to it, which I imagine you
9 will give me, because I have your signed statement to
10 that effect before me.
11 I think you want to say in respect of paragraph 7
12 that it is apparent from the documentation, including
13 correspondence between Mr Wisheart and yourself, that
14 you were involved in some of the general contract
15 negotiations regarding cardiac services; an involvement
16 which you had completely forgotten. You should
17 therefore add to your original statement the following
18 few sentences:
19 "As part of my general workload in supporting
20 contract negotiations with purchasers, I was involved in
21 some of the more detailed work regarding the early
22 cardiac contracts. However, I cannot recall much
23 specific information regarding these negotiations."
24 A. That is correct.
25 Q. If we turn to paragraph 23, page 7, the second sentence
0004
1 in the third line, where you say:
2 "In my opinion, 13 was too many and consequently
3 Dr Roylance did not appear to have proper control over
4 them."
5 What you wish to say is that having read the
6 comments which have been made by Dr Roylance and Hugh
7 Ross, you would now like to say that with hindsight you
8 realise that it would have been possible to structure
9 the organisation with a smaller number of clinical
10 directorates. You remain of the view that overall there
11 was no real overall corporate strategy or planning, and
12 in this sense, Dr Roylance did not appear to have
13 control over the clinical directorates?
14 A. That is correct.
15 Q. Then, if we go through to page 13, paragraph 46 -- let
16 us have that on the screen -- this is not, I think,
17 covered by your latest statement, it is simply a typo in
18 the second line. It reads:
19 "Dr Roylance was always honest and forthright in
20 describing to sort out the organisation he wanted."
21 What did you mean to say?
22 A. In describing the "sort of".
23 Q. Thank you. With those alterations and further
24 explanations, you want to adopt the statement as your
25 evidence to us?
0005
1 A. Yes, please.
2 Q. When he gave evidence, Mr Roylance expressed the view
3 that whatever you might be an expert in, you were not
4 and are not an expert in the management of a large
5 Trust?
6 A. In the sense that I have never managed an acute
7 hospital, that is correct.
8 Q. Do you consider that as a management consultant
9 presently, you have any expertise which enables you to
10 comment upon management structures and management style
11 of the UBHT during the time that you were an Associate
12 Executive Director of it?
13 A. In two respects: that since I left UBHT I gained a lot
14 of experience working with Trusts, first of all when
15 I worked for the outpost where we had responsibility for
16 all 49 Trusts in the South and West, and then
17 subsequently on a large number of projects with a large
18 number of Trusts and health authorities.
19 So I think in that sense I consider myself
20 competent to comment on some aspects of managing large
21 organisations.
22 To some extent my comments are based on
23 hindsight and experience since I left UBHT, and also it
24 is based on some of the things I felt while I was at
25 UBHT, because I think the comments were pertinent to any
0006
1 large organisation, not specific to a large hospital.
2 Q. I am going to ask you to do something you may find
3 awkward. You are naturally a very fast speaker. That
4 does not worry me and I am sure it does not worry the
5 Panel, but in order to make sure that what you say is
6 taken down by the stenographers, I am going to ask you
7 either to speak more slowly or if you would pause
8 between sentences. I hope you do not mind?
9 A. No, not at all.
10 Q. You say that, really, some of those views have been
11 reached in hindsight because it was only after you left
12 the UBHT that you had the experience which you rely upon
13 principally?
14 A. Yes.
15 Q. Before you joined the UBHT, you had had experience as
16 a development officer in I think Warrington?
17 A. Yes.
18 Q. Before you became manager of the district planning
19 department of Bristol & Weston Health Authority?
20 A. Yes.
21 Q. So far as those roles were concerned and your role as
22 a research officer prior to that, did those roles, do
23 you think, give you an expert perspective on structures
24 of management?
25 A. Not on structures -- I would not claim they gave me
0007
1 expert knowledge on structures of management. I was
2 recruited, I think, as an expert planner. I had worked
3 for Social Services partly as a research officer but
4 increasingly on planning projects. I had worked for
5 a major development corporation whose whole remit was
6 planning, and I was recruited by Dr Ian Baker to head
7 the Planning Department on the basis that I was
8 a competent planner who happened to understand a bit
9 about the Health Service because I had been involved in
10 some Health Service projects. So my expertise was in
11 planning.
12 Has that answered your question? I am not quite
13 sure.
14 Q. It has, yes. So what you tell us about your feelings at
15 the time were feelings based upon what particular
16 expertise -- was it expertise or was it simply your
17 personal reaction to the management structures and
18 styles that you found around yourself?
19 A. I suppose it was educated perception. I have got two
20 postgraduate qualifications, one in management and one
21 in finance which included a managerial element so I had
22 some formal training in management theory, so it was
23 that based on experience and my own personal experience
24 of managing departments, working for a development
25 corporation which was a very professional organisation,
0008
1 which had gone through a complex merger with another
2 organisation.
3 So it was based on those experiences and to that
4 limited extent on my educational training.
5 Q. Again, just exploring the relevance of your history to
6 the evidence which you have given us, you mention in
7 part of your statement that there was -- let us have
8 a look at it. It is page 13, the very top. It is the
9 first full sentence on the page: similarly, you do not
10 recall any adverse event reporting system to the Board.
11 Had you, in any previous job, had experience of
12 adverse event reporting systems?
13 A. Not that I remember whatsoever.
14 Q. So is that comment in fact merely responsive to the
15 questions which the Inquiry asked you, rather than
16 reflective of any particular view?
17 A. The former. It is a response to the question which was
18 put to me.
19 Q. Your principal responsibility when you worked for the
20 Trust -- changing tack now, I am going to ask you about
21 planning -- was planning, was it not?
22 A. Correct.
23 Q. So far as planning was concerned, you have made the
24 point throughout your statement that there seemed to be
25 little in the way of planning for a move of paediatric
0009
1 cardiac surgery from the Royal Infirmary to the
2 Children's Hospital?
3 A. That is correct, yes.
4 Q. Let me take it in stages. If there had been a plan
5 to move paediatric cardiac surgery from the Infirmary to
6 the Children's Hospital, would you have known about it?
7 A. Yes. I am fairly sure I would.
8 Q. Why only "sure"?
9 A. This is hypothesis. If it had been a small move
10 involving not very much capital investment, not very
11 many people, it might have happened below my radar, as
12 it were, below my horizon, but given the scale of what
13 I recall, the scale of the service, I am sure I would
14 have known about it. I almost certainly would have been
15 involved in it.
16 Q. Again, I appreciate I am exploring things which we may
17 find out objective answers to but it is your perception
18 that I am interested in. What is your perception of the
19 scale of the paediatric cardiac surgery service?
20 A. I am partly basing this on memory and partly on what
21 I have read from evidence in the transcripts, so my
22 memory has been refreshed, but it was obviously a fairly
23 significant service, in terms of size of beds and budget
24 and members of staff employed. I could not give you
25 a hard answer. I could not say it was N beds and Y
0010
1 nurses.
2 Q. So if there had been such a plan, you would have known
3 about it?
4 A. Yes. Can I amplify that slightly, in the sense that
5 if there had been a formal plan in the sense of a costed
6 set of options, exploration of whereabouts in different
7 buildings it would have gone, yes, I would have known
8 about it.
9 Q. Can I, for the sake of picking up the history where you
10 begin it in your statement, trace through something of
11 the past history of the division of the site between the
12 Children's Hospital and the Royal Infirmary so far as
13 our documents help us.
14 Can we have a look, please, on the screen at
15 a document from 1982, which is HA(A) 38/48.
16 Here one picks up a reference to paediatric
17 cardiac catheterisation. Let me just identify the
18 document for you. It is a meeting of the district
19 planning support team for 10th December 1982, that is
20 the district planning support team for the
21 Bristol & Weston Health Authority?
22 A. Yes.
23 Q. We see the importance of a facility for
24 catheterisation at the Children's Hospital was stressed,
25 and we go on down through problems, duplication of
0011
1 facilities were noted; (ii) if the facility was at the
2 Royal Infirmary it involved unnecessary distress to
3 patients and tied up staff for a long period of time.
4 There is an issue of the provision of a facility at the
5 Children's Hospital and complications at (v). Then at
6 the bottom of that:
7 "The team discussed these problems and considered
8 that the provision of this facility at the Bristol Royal
9 Infirmary was the most viable option as part of the
10 longer term expansion of cardiac surgery."
11 So at that stage it certainly appears there was no
12 particular proposal to amalgamate or to bring cardiac
13 surgery to the Children's Hospital; it is rather the
14 reverse, is it not?
15 A. Apparently, yes.
16 Q. If we go through, the next reference is UBHT 295/278:
17 this comes from the third report of the Open Cardiac
18 Surgery Working Party for the South Western Regional
19 Health Authority 1984, so it is two years later. We can
20 see here the relationship between cardiology and cardiac
21 surgery is discussed. If we scroll down to 5.3, we can
22 see that it is noted that supra-regional status for
23 neonatal and infant cardiac surgery has just been
24 agreed.
25 If we go back to the very top of the screen, we
0012
1 can see:
2 "Therefore at the present time patients' lives
3 are frequently being put at risk by the need to transfer
4 very young children between [the two hospitals] every
5 time a catheter investigation is needed."
6 So there is a reference there to a downside of
7 the split site?
8 A. Yes.
9 Q. To what extent did you, when you were in post from 1987
10 on wards, first for the District and then for the Trust,
11 hear any comment of that sort of effect?
12 A. None that I remember. My personal agenda for planning
13 never picked this issue up at all.
14 Q. We can go forward in time to 156/236. It is a meeting
15 to discuss regional cardiac strategy on 29th July 1988,
16 so judging by the heading, this is planning, is it?
17 A. Not necessarily. I could speculate. There were,
18 I think, a series of Regional Health Authority policy
19 groups looking at different medical services. This
20 looks like this was one of those. It looks to me from
21 the names as though it is a medical group, a medical
22 advisory type group rather than a planning group as
23 I would know it, "planning" in the sense of developing
24 specific services or sites with responsibility for
25 budgets and the like. But you are asking me to
0013
1 speculate, really.
2 Q. Very well. I do not want to do that. Can we go
3 overleaf to 237? Item 9. We can see that the
4 suggestion is raised in paragraph 9 that the possibility
5 of doing open heart surgery at Bristol Children's
6 Hospital, it asks for it to be examined in order to
7 release facilities currently used at the BRI?
8 A. Yes.
9 Q. So the date at the bottom of the page, 9th August 1988.
10 Did that suggestion or examination ever filter through
11 to you?
12 A. Not that I remember at all. As I said, if you look at
13 the membership of that group, I am fairly sure that is
14 a medical advisory type meeting and that that would have
15 been, I think, a policy level strategy group. So I am
16 not sure -- it is interesting to look at the bottom
17 line, where it says that it was agreed that a regional
18 strategy for cardiac services be developed. What you
19 need to know is, where would that strategy report have
20 gone to and where would that have fitted into the
21 regional planning framework? I cannot answer that
22 question, I am afraid.
23 Q. Can we have a look at a document very shortly after
24 this, that being August --
25 THE CHAIRMAN: Perhaps the answer to Mr Boardman's
0014
1 question is in the last sentence on the screen?
2 MR LANGSTAFF: Yes. I am very grateful, sir. Can we
3 go to 163/3? This is a letter from Mr Dhasmana to
4 Dr Pitman, specialist in community medicine.
5 A. Yes.
6 Q. It deals with the same issue, cardiac services
7 strategy. It is responsive, I think, to the strategy
8 document which by now plainly has circulated. He makes
9 a few points in the second paragraph, and halfway
10 through:
11 "The only way we can do 850 to 900 operations
12 a year at the BRI would be by transferring the
13 children's services to the Children's Hospital."
14 He goes on to make the suggestion -- we have
15 already seen this document in the context of Mr Nix's
16 evidence -- the suggestion being that if the children
17 are moved to the Children's Hospital, there is more
18 space to have greater throughput of adult patients in
19 the Royal Infirmary.
20 A. Yes.
21 Q. Did that suggestion ever surface so far as you can
22 recall during the time that you were involved as an
23 Associate Director of the Trust?
24 A. It never surfaced to me in the sense that anyone ever
25 said to me, could I get my staff involved in looking at
0015
1 the detailed implications of the planning, so, no. I am
2 conscious that, as I allude to in my evidence, there are
3 a couple of references in a couple of the business plans
4 to moving services around, so it obviously filtered
5 through by 1990/91, in that sense, so in that sense,
6 I was aware of it because it had emerged by 1991/92, but
7 certainly not at this stage. It was never an active
8 plan that I ever actively worked on or considered.
9 Q. If we move from 1988 to the annual report of cardiac
10 surgery, which begins at UBHT 167/72:
11 "Annual report 1989".
12 At page 79 of it, the very last paragraph,
13 under the heading "Future", it talks about, having
14 talked about the directorate and so on:
15 "The cardiac surgical unit has recognised four
16 goals for the coming years: to undertake transplantation
17 surgery", that you did know about, did you not?
18 A. Yes.
19 Q. That was raised with you, was it?
20 A. The transplantation strategy, as I recall, there was an
21 invitation from the Department of Health for centres to
22 bid to become transplant centres. Bristol & Weston, or
23 UBHT, whichever one it would be -- Bristol & Weston
24 I think at the time, although I am not sure of the
25 timing -- made a submission. I was aware of it, and
0016
1 I recall commenting on it in its very final draft
2 version, but I did not work actively on it. So, yes,
3 I was aware of it but it was not a submission for which
4 I had responsibility.
5 Q. "To strengthen our academic work".
6 A. Yes.
7 Q. "Probably by the creation of a chair in cardiac
8 surgery".
9 A. Yes.
10 Q. "Thirdly, to achieve a further increase in our
11 facilities". Was that raised with you?
12 A. The way all of these would have been raised with me
13 would have been through the annual planning process. If
14 this is 1988, this is before --
15 Q. This is the report for 1989.
16 A. If this is 1989, this is before Trust status, so
17 therefore it would have been part of what was called the
18 "annual programme planning cycle". So what happened
19 was that I was responsible for the annual programme for
20 the whole organisation. The system was that we asked
21 every individual department to put forward their
22 proposals for the future. The logic is that the cardiac
23 unit would have put forward these four proposals, and
24 there would have been a filtering which said how viable,
25 how realistic are these proposals? This would have been
0017
1 done for every department; to what extent do these
2 proposals fit in with the budget that is available for
3 the forthcoming year and in particular, how do they
4 align with the way that the Regional Health Authority
5 was saying what the national priorities were and where
6 the money should be spent? The annual programme was
7 then meshed together with a thing called the "budget
8 book" which is what Graham Nix took particular
9 responsibility for.
10 It is very likely that these four proposals would
11 have come through in some form or other as part of the
12 planning submissions, but the deduction I can make is
13 that as they did not happen in reality, or certainly the
14 transplant surgery did not happen because it was
15 rejected, there were no specific plans during my time to
16 move the work to the Children's Hospital.
17 By deduction, what must have happened is that as
18 the annual programme was being synthesised and bids were
19 being considered and as a management team they were
20 saying "What can we actually finance? What can we
21 actually make happen?" this is one of the things that
22 would not have been included in the annual programme.
23 It has been taken forward for practical implementation
24 in the subsequent year.
25 Q. The three things you mention in what you have just
0018
1 said that would determine the future of any particular
2 proposal are first of all viability?
3 A. Yes.
4 Q. Secondly budget?
5 A. Yes.
6 Q. And thirdly the correspondence with national plans and
7 objectives?
8 A. Yes.
9 Q. So far as proposals such as these are concerned, they
10 would have to pass each of those three hurdles or tests
11 in order to feature ultimately in your overall business
12 plan for the future?
13 A. Yes. It was called an annual programme. Yes.
14 Q. Whether one calls it an annual programme or a business
15 plan is just a matter of nomenclature, is it?
16 A. For practical purposes.
17 Q. So in terms of the possibility, because the word
18 "possibly" is used, the objective is to strengthen the
19 paediatric work. That is the proposal. The possibility
20 is bringing it all to the Children's Hospital?
21 A. Yes.
22 Q. If that had passed the test of viability, budget and
23 correspondence with national objectives, then presumably
24 it would have featured, would it?
25 A. That is the logical deduction, yes.
0019
1 Q. Would it depend upon the degree to which consultants,
2 clinicians or others wanted to back the proposal?
3 A. Only in a limited sense, because no matter how actively
4 and vociferously any group of consultants articulate
5 a proposal, if the money did not exist to make it happen
6 then it would have been very difficult to do it. So to
7 put this in a planning context, as I recall, the major
8 issues that the Regional Health Authority were pushing
9 towards the Health Authority at the time were around
10 what were called "priority services", which were mental
11 health, mental handicap, things like that, and that the
12 major push was at that time trying to resolve the future
13 of inpatient psychiatry, which was then at Barrow
14 Hospital, and whether or not we could move that.
15 So you are asking me a question about the degree
16 of medical impetus behind something, in this instance
17 cardiac surgery, when the push from the Regional Health
18 Authority was largely to do other things.
19 I think I have alluded to it again in my evidence,
20 that there was a big shift of resources within the
21 Health Authority from acute services to priority
22 services, and again, that reflected the push of the
23 Regional Health Authority. So it would have been very
24 difficult for the management team to say -- no matter
25 how well the clinicians argued their case, it would have
0020
1 been very difficult to find the money to make this sort
2 of move.
3 Q. Again, just to clarify, we have so far discussed the
4 viability and budget as though they were two separate
5 criteria. Were they, or were they linked?
6 A. The viability, you could take in this instance a look at
7 the nature of the Children's Hospital, which is
8 a Victorian building, very constrained; it could have
9 been very difficult to move services around. It is
10 difficult for me to answer because it is a long time ago
11 and I cannot recall the details of the building or
12 the --
13 Q. The question is really one in principle rather than in
14 specifics: is viability actually a separate
15 consideration from budget, or is it really a different
16 aspect of exactly the same criteria?
17 A. No, it would be a different aspect, because even if
18 you had all the money in the world, there might be
19 circumstances where you could not do it. So, for
20 instance, it might be that the budget was fine but
21 something was not viable because you could not recruit
22 the appropriate staff, there were not the right type of
23 specialist nurses or the right type of clinicians. So
24 viability goes beyond just budget.
25 Q. In terms of a proposal such as this, suppose that it
0021
1 were to be seriously considered, viability then would
2 have to be measured and assessed by someone?
3 A. Yes.
4 Q. That would be a process, would it?
5 A. Yes.
6 Q. And would the process inevitably give rise to
7 documentation?
8 A. Yes. I am trying to recall exactly how these sorts of
9 planning processes worked in 1988, but it is likely that
10 there would have been some sort of option appraisal that
11 looked at, you know, if we want to do something, in this
12 instance move paediatric work, what are the options of
13 doing it and what are the costs of those options?
14 There ought to be some documentation on this.
15 Q. If we go forward a little from September 1988 to
16 27th January 1989, this is 146/57. The foot of the
17 page, please. It deals with the Confidential Enquiry
18 into Peri-operative Deaths. Under the heading of
19 "Operating Facilities and Practices" there is
20 a discussion by the group which had met at the request
21 of the Chairman of the Hospital Medical Committee to
22 advise the Chairman and through him the District on the
23 District's response to CEPOD.
24 If we look in the middle of the first paragraph,
25 about six lines down:
0022
1 "The group agreed that operating facilities for
2 the District in Bristol should be concentrated in
3 a single location as is recommended in CEPOD".
4 It sets out the disadvantages of the split site.
5 The second paragraph:
6 "Any such change would also have beneficial
7 effects for nursing staff", so having looked at the
8 disadvantages of the present system, it looks at the
9 advantages of another system: "Centralisation, the group
10 agreed, should ultimately include a move of all Bristol
11 operating facilities of the district on to the BRI
12 site."
13 So in so far as that was talking about any
14 paediatric surgery, it would have been envisaging
15 a centralisation rather than a move from the BRI of
16 paediatric surgery to the Children's Hospital.
17 A. Well, you could imply that, but without seeing the rest
18 of the documents, I am not sure I could absolutely
19 confirm or deny it. I am not quite sure what you are
20 asking me.
21 Q. I am showing you the document; the question that follows
22 is: did you, as part of your duties for the district,
23 have any involvement in recommendations or the
24 implementation of recommendations which came out of the
25 Confidential Enquiry into Peri-operative Deaths?
0023
1 A. What I know did happen, and a link could be made but
2 I do not recall it, is that subsequently there was
3 a Working Party to reorganise the theatres in the BRI.
4 I chaired that Working Party. It resulted in the
5 reorganisation and reconstruction of a set of theatres
6 which I think are called the "Hey Groves" theatres, but
7 my memory is a bit vague on that, I am afraid. I do not
8 recall that that Working Party was a direct consequence
9 of CEPOD, but the time sequence is consistent with it.
10 I do not recall, when I was asked to set it up, that
11 anyone said to me, "Steve, this is the result of the
12 CEPOD report. We need to sort out the theatres". It is
13 possible that they did, but the timing is consistent
14 with that sequence of events.
15 Q. You have looked through the application for Trust
16 status, and you tell us in your evidence, at WIT 79/5,
17 how you formulated your first business plan -- I take it
18 the 1991/94 was the first business plan, was it?
19 A. It must have been , yes.
20 Q. You say that was based on the application for trust
21 status by UBHT?
22 A. Yes.
23 Q. That application was July 1990.
24 A. Yes.
25 Q. If, in July 1990 when that application was made for
0024
1 Trust status, there had been a proposal to develop
2 paediatric cardiac surgery on the Children's Hospital
3 site, would one have seen that in the application for
4 Trust status?
5 A. It might have depended on how big a capital investment
6 was required. I think the application for Trust
7 status -- Mr Nix would be better equipped to answer
8 this. I think the application may have had to state the
9 size of any significant capital investments that were
10 likely because the putative Trust would have had to
11 profile its capital expenditure. So if it were a big
12 move that was going to involve a fairly significant lump
13 of money, then possibly it would have had to have been
14 detailed in the application.
15 If that were not the case, then the next reason
16 for putting it in the application for Trust status would
17 have been to say, "This is one of the benefits for
18 patients which we, as a applicant Trust, see emerging
19 from our Trust status" and the benefits for patients
20 were one of the criteria which the Department of Health
21 used to assess units seeking Trust status, so even if it
22 was not a large sum of money, if it was seen as
23 a significant benefit it might have been listed in the
24 documentation.
25 Q. You make reference in the paragraph to the references
0025
1 you have identified from the application, and let us
2 just have a look at them so that others can see. The
3 first page you make reference to, page 52, we find at
4 UBHT 60/158.
5 If we scroll down, please, to the bottom:
6 "Proposed changes and developments."
7 The point is simple: there is nothing there about
8 any proposal to move any paediatric cardiac surgery.
9 This is all about adults, is it not?
10 A. I could not comment, I am afraid. You mean is the
11 table all about adults?
12 Q. No, the reference, "proposed changes and developments"?
13 A. I could not comment whether it is just about adults or
14 about both.
15 Q. The next reference you give us is to page 221 of the
16 same document. It is the second paragraph under
17 "proposed changes and developments" there. This is
18 plans for the Children's Hospital this time, rather than
19 the plans of the cardiac surgical directorate.
20 "Discussion is taking place regarding the
21 preparation of a study to bring closed and open cardiac
22 surgical procedures on to one site."
23 That is the Trust application. So far as you
24 were concerned, in the business plan -- can we look at
25 79/149, please? Can we please move overleaf, and
0026
1 again? I think we will have to go over to the next
2 page -- I am sorry, the reference, I am afraid, is not
3 the reference that I had in mind. It is my fault
4 entirely. It is one of these odd occasions when there
5 has been a glitch. Let us put that on one side for
6 a moment.
7 Can we go back, please, to your statement at
8 WIT 79/5? We go to WIT 79/149. This is from the first
9 development plan. This is the 10 year development plan
10 which you were setting out, so this was looking 10 years
11 ahead from 1991, was it?
12 A. Yes.
13 Q. If there had been a definite proposal to move the
14 paediatric cardiac surgery from the Royal Infirmary to
15 the Children's Hospital, would it feature on this plan
16 or not? Do you want to scroll down and have a look at
17 the whole plan?
18 A. Yes. I think there was a phrase there you scrolled
19 past which said --
20 Q. Let us go down to the bottom of the page.
21 A. "Proposal from the directorate ... to be considered by
22 the Trust."
23 The implication from that is that it is not
24 approved by the Trust. This was their vision of where
25 they thought that their part of the organisation was
0027
1 going at that time. Can you just refresh my memory?
2 This is ...
3 Q. This is from the business plan 1991/94, so it is your
4 authorship?
5 A. Yes, and can you go to the top, please? It is an
6 appendix, presumably?
7 Q. Yes, it is Appendix 6, you can see in the right-hand
8 box?
9 A. What the business plan did was, it set out in very
10 concrete terms the specific proposals for the next
11 financial year for each directorate, and for the
12 corporate functions of the organisation, such as
13 manpower. What it also did was, it took a longer term
14 view of where the organisation thought it was going in
15 subsequent years. I think this is the Children's
16 Hospital's proposal about where they think they are
17 going. I think you probably need to look back to see
18 how Appendix 6 is referred to in the main text to see
19 the context within which Appendix 6 should be
20 considered, because I am not sure whether it says in the
21 main text, Appendix 6, "This is the authorised and
22 approved plan, definitively approved for the Children's
23 Hospital", or "This is the decision we have received and
24 we will be considering it".
25 Q. We have looked through the whole of the plans to see if
0028
1 there was any reference we could detect to the
2 development or moving of the Infirmary to the Children's
3 Hospital. We cannot find one. We do find one in the
4 1992 business plan. Can we go to that, please,
5 WIT 79/152, page 161. Can we go through, please, to
6 UBHT 19/91? Can we move down, please. We will have to
7 again scrub that reference. I am not doing very well in
8 my references today, am I?
9 Can we go back, please, to your statement? You
10 say, in paragraph 16, that the summary for the Associate
11 Directorate of Cardiac Surgery in the second of the two
12 plans says, regarding paediatric cardiac surgery, "There
13 are no specific plans at present. However it remains
14 the long-term aim that paediatric open heart surgery
15 should transfer to the Children's Hospital. This will
16 depend on progress with other developments there."
17 A. Yes.
18 Q. So it is expressed as an aim rather than a long-term
19 plan?
20 A. Yes.
21 Q. From your perspective, could you please now take
22 a look at JDW 7/20, at the top? This is a statement
23 from Mr Wisheart.
24 On this page he says -- it is not a core document:
25 "During 1989 to 1990, two goals were pursued
0029
1 enthusiastically. One was to establish a chair of
2 cardiac surgery and appoint a paediatric surgeon to that
3 post, at which point I would withdraw from paediatric
4 surgery ... Secondly, we wished to move the open heart
5 paediatric surgery to the Children's Hospital. When the
6 plans to do this were advanced, they were overtaken by
7 new proposals to reprovide the entire Children's
8 Hospital. Open heart paediatric cardiac surgery
9 remained in the BRI."
10 That is what Mr Wisheart has to say. How does
11 that correspond with your recollection, perhaps prompted
12 by the documents you have both seen today and have
13 reflected upon in drawing up your statement?
14 A. Can I give you the context of my answer? When I was
15 drafting my statement, I did not recall the transfer of
16 the split site as being a major issue at all. It is
17 a long time ago now and I have long since left the
18 Trust, so it is not my everyday working environment.
19 When I was drafting my statement, it did not register
20 with me as having been a major issue. I then reviewed
21 the documents I still had available at home and I was
22 surprised to find that there were references in them --
23 these were documents for which I was responsible and
24 these particular documents I have mentioned, the
25 application for Trust status and the like, and I flicked
0030
1 through the documents, found these references, thought
2 "That is interesting". I had forgotten that that was
3 going on at the time.
4 So that is the context to me giving the answer to
5 this.
6 James' statement that he pursued it, or two goals
7 were pursued enthusiastically, I am sure -- it is very
8 likely true that the surgeons were enthusiastic to make
9 this move, but it never became a proposal that was
10 actively got to the Board at a level where the Board or
11 the predecessor of the Board, the management team, were
12 saying, "Yes, this is a proposal which we need to devote
13 time and effort into making it happen" with -- you know,
14 looking at the details of how we were making it happen.
15 It never got advanced to being a major project for me to
16 take up.
17 Does that answer your question? I am not sure ...
18 Q. I think it does, yes. I will ask you a little more
19 about it: did you see Mr Wisheart regularly?
20 A. At the end of my time with UBHT I saw him regularly
21 because he was attending Board meetings, so I would have
22 seen him once a month for the end of my period there.
23 Prior to that, I would only have seen him there had been
24 a specific problem, if we had been attending some common
25 committee meetings. Not that I recall. I knew him; he
0031
1 was a senior gentleman.
2 Q. You saw him reasonably regularly?
3 A. At the end of my period, which is 1992.
4 Q. To what extent do you recall him ever raising any
5 question of the move from one site to the other?
6 A. He may have done, but this --
7 Q. Do you recollect it?
8 A. No, but I cannot deny that he did not. What I was going
9 to say was that the environment which we met in was the
10 Board meeting, which would have discussed all the issues
11 on the Board agenda that day, rather than a meeting to
12 discuss the future of cardiac surgery, or cardiac
13 services. It does not register with me as being
14 something James regularly discussed with me at all.
15 Q. Can I turn from the question of the split site and the
16 planning there may have been around that, to what you
17 say about the structure of the operation in which you
18 came to work.
19 Can we go to your statement, please, WIT 79//7,
20 the bottom of the page, please?
21 You make the point there that you thought there
22 were too many directorates?
23 A. Yes.
24 Q. You have taken that sentence out and replaced it with
25 a sentence which I think conveys perhaps very much the
0032
1 same information.
2 What did you intend to convey originally by
3 suggesting that Dr Roylance did not appear to have
4 proper control over the directorates?
5 A. In the sense that I do not think Dr Roylance wanted to
6 have control -- the sentence as I have amended it
7 reflects better what I was trying to say, the sentence
8 as it now reads, because there was no great overall
9 strategy or co-ordination, in that sense Dr Roylance did
10 not appear to have control over the Clinical Directors.
11 I do not think Dr Roylance wanted to have in that sense
12 control over the Clinical Directors. I think
13 Dr Roylance's strategy was to maximise freedom for the
14 clinicians and therefore he would have wanted to allow
15 them to pursue the clinical direction that they felt
16 best.
17 Q. So you see this as a consequence of Dr Roylance's
18 views as to clinicians having power to determine what
19 they would do in terms of the service?
20 A. That is what I was trying to convey, yes.
21 Q. You use the expression here, halfway down the
22 paragraph "no real overall corporate strategy."
23 A. Yes.
24 Q. A moment ago in your evidence you said "no great overall
25 corporate strategy"?
0033
1 A. Yes.
2 Q. What would you have regarded as "real" or "great"
3 overall corporate strategy that was not there?
4 A. I think that there was no clear articulated direction of
5 where the Trust was going, other than John's description
6 of it, which I think was our strategy, the strategy was
7 to meet the purchaser's strategy, so I think the way
8 John articulated it was to say, "We will do what the
9 purchasers want". There was no well-articulated
10 description of where the Trust was going, and, you know,
11 in the same sense that I think Mr Ross in his evidence
12 said that when he came in, he felt something similar:
13 that he needed to have a better sense of strategic
14 planning for the organisation.
15 Q. Where could the Trust go? In a sense it is a health
16 care organisation, a public sector organisation and not
17 a business as such. Does that not make a difference?
18 A. No, I think that Trusts, health care organisations,
19 should not be run as businesses but they have to be run
20 in a business-like manner. It is not sufficient just to
21 say "We will respond to the purchasers", because at the
22 very minimum you need to be anticipating what the
23 purchasers are likely to be demanding of you. You need
24 to be anticipating the likely changes that are going to
25 happen in the future, whether in medical technology or
0034
1 epidemiology or whatever.
2 Q. What would you say to the view that the best indicator
3 of tomorrow's demand is today's demand, particularly if
4 it happens to be in health care and management of
5 disease?
6 A. The straightforward extrapolation -- I am not an
7 epidemiologist, but straightforward extrapolations, if
8 you extrapolate the past to the future, those sort of
9 analyses usually prove to be wrong. A good example
10 would be if you look at the number of beds in acute
11 services, nationwide. If you looked at the number now
12 and compared it with the numbers in the past, you would
13 never by projecting the figures from the 1970s and 1980s
14 have got to the figure we achieve now, because the
15 changes in length of stay means that the number of
16 patients being treated has increased vastly, whereas the
17 number of beds available has reduced significantly.
18 If you take a simple extrapolation based on what
19 was happening in 1975 or 1985, the number today based on
20 those figures would be hugely different. So it is not
21 sufficient to say, "We will just project forward that
22 which has happened in the past".
23 Q. The essence of health care, surgical health care,
24 hospital health care, is responding to demand, is it
25 not?
0035
1 A. Yes.
2 Q. So essentially the service delivered has necessarily to
3 be responsive to that which is required?
4 A. Yes.
5 Q. That which is required under the purchaser/provider
6 split is a matter for the purchaser rather than the
7 provider, is it not?
8 A. Yes.
9 Q. So why would it be wrong or insufficient to say "We, for
10 our part as providers, should depend upon what they, as
11 purchasers, identify as their needs, to which we have to
12 respond"?
13 A. Partly you are dependent on the purchasers identified,
14 and -- this is no reflection on Avon Health Authority --
15 the capacity of purchasers nationwide and their
16 strategic planning purposes have been rudimentary in the
17 past, so lots of Trusts elsewhere -- I say this from
18 experience -- have felt it necessary, because of the
19 absence of particularly well-documented strategies on
20 the part of their purchasers, to say "We will look at
21 what the strategy for health care is going to be because
22 we cannot allow it to happen in a vacuum, because we are
23 not getting the direction we need from our purchasers".
24 That is the first point.
25 The second point is that the purchasers may not
0036
1 always be aware of the sort of changes in service
2 delivery that are coming on stream from clinicians, so
3 you would want to be able to offer new or different
4 services to your purchasers, or new ways of doing the
5 same thing cheaper and more efficiently, more
6 effectively, and you could look at, for instance, the
7 introduction of minimally invasive surgery in the late
8 1980s. That was before the purchaser/provider split,
9 but the people who knew about that were the clinicians
10 who were doing it. So, you know, if you extrapolate
11 that position to today, there could be a new technology
12 emerging that providers are aware of because they are
13 keyed into the clinicians, because that is their working
14 environment, and they would want to say to the
15 purchasers, "This is a new way of doing things, we want
16 to do it as part of our strategic planning process, we
17 want to have in place in a year's time, a new way of
18 delivering this service using new techniques, new
19 procedures", or whatever.
20 Q. There are two parts to that answer. One is the need for
21 a business plan as you see it to make up for the
22 deficiencies in the purchaser identifying what the real
23 needs are going to be, so it is filling the gap?
24 A. Yes.
25 Q. The second is because the purchaser may not be aware of
0037
1 new developments and new procedures?
2 A. Correct.
3 Q. That is the second element. Looking at the first of
4 those, so far as Bristol was concerned, 85 per cent of
5 the work, if I can call it that, came, did it, from the
6 Bristol district?
7 A. I have not got those figures; I would have to take your
8 word for it. It sounds right but I do not have the
9 figures.
10 Q. So Avon, as it became, Bristol & Weston District, were
11 the major purchasers, were they?
12 A. Certainly, yes.
13 Q. Do you criticise them for failing to have a proper
14 perception of the demand in their area?
15 A. No.
16 Q. So whatever the position may have been in other Trusts
17 elsewhere in the country, how far is it right to say
18 that the first of the reasons you give for the provider
19 needing to have a proactive role in planning, how far is
20 it true to say that that reason holds good for Bristol?
21 A. I think it still holds good because -- I am not
22 criticising Avon whatsoever. I do not think Avon would
23 claim to have total or infallible knowledge about how
24 they want to pursue their plans. The time I am talking
25 about was a transitional stage when the Health Authority
0038
1 was going from being one of three constituent health
2 authorities. It was in the middle of vast
3 organisational change as well. So it is not a criticism
4 of Avon to say it was still legitimate for the Trust to
5 plan for how it was going to respond to both the sort of
6 espoused needs of the purchaser and possibly the needs
7 they had not espoused because of the state of flux they
8 were in. I still think it is a valid comment.
9 Q. When the purchaser/provider split was set up, certainly
10 in Bristol and no doubt elsewhere, people who had been
11 on the provider side, because the purchaser/provider
12 were effectively one, became the purchasers, so that
13 people knew each other; they had been colleagues, the
14 individuals?
15 A. Yes.
16 Q. Presumably, they were able to talk to each other?
17 A. Yes.
18 Q. Did they?
19 A. I am sure they did, yes.
20 Q. So if they talked to each other, they would be aware of
21 new developments as and when they came through,
22 presumably?
23 A. That is a very limited means of communication, because,
24 yes, they did talk to each other and yes, they would
25 have made known in discussion what they were aware of,
0039
1 but you have to remember the public health department at
2 the Health Authority, which would have been part of the
3 organisation that would have picked up on clinical
4 developments, was a handful of doctors with some Senior
5 Registrars, whereas the UBHT would have been an
6 organisation with upwards of 200 consultants. So the
7 aggregate knowledge of 200 consultants and what was
8 going on in their specialisms would, by definition, be
9 greater than the knowledge that was able to filter
10 through to a handful of public health consultants.
11 So whilst there would have been a dialogue, just
12 the nature of the information assimilation is far
13 greater with 200 people than half a dozen.
14 Q. It might be suggested, to be basically simplistic about
15 it, that where you have a purchaser and a provider, it
16 is hardly for the provider to say to the purchaser:
17 "This is what you must buy" but for the purchaser to
18 say to the provider, "This is what I want to buy, can
19 you sell me it?"
20 A. That is simplistic, yes.
21 Q. Why should not that simplistic analogy hold good for
22 the Health Service?
23 A. Because as a provider you want to be able to say,
24 "This is what we could offer you; this is where we also
25 think the nature of health care is going; these are all
0040
1 the ways of treating the diseases". So it is more of
2 a dialogue and it is helping the purchaser in this
3 instance to understand the range of services that could
4 be bought.
5 Q. Finally in the particular area, thus far you and I have
6 been discussing this on the assumption that the question
7 of policy, being proactive and so on, is a matter for
8 the Trust as a whole, rather than for the individual
9 directorate. The directorates created in Bristol were
10 large.
11 A. Correct.
12 Q. Some, we have been told, the size of Trusts elsewhere?
13 A. That is a fact. I can confirm that.
14 Q. To what extent would you perhaps have thought it
15 appropriate for the proactive planning element to be
16 dealt with at directorate level rather than at Trust
17 level?
18 A. I think it was. I think a large degree of the planning
19 went on at directorate level. I was leaving as the sort
20 of negotiation process was really taking off, but
21 certainly Dr Roylance's intention was that the
22 individual directorates had to be clearly keyed into the
23 contract negotiations with the main purchasers, so that
24 the plans of the directorate in terms of the services
25 they were going to provide were consistent with what the
0041
1 purchasers were going to buy, and it was certainly
2 Dr Roylance's intention that there should be
3 "ownership", in inverted commas, of the contracts which
4 were being signed with purchasers for the delivery of
5 specific numbers of cases or treatments.
6 Q. So what, as you see it, were the necessary advantages of
7 dealing with these matters on a Trust-wide basis, which
8 is what paragraph 23 is directed to, rather than leaving
9 it as a matter for the individual directorates?
10 A. I suppose the simple way is that you needed to be sure
11 that the directions that people were going in were
12 mutually consistent and that individually, the
13 individual bits could have been -- and were generally --
14 coherent, but they could actually have been going off in
15 different directions. They could have been mutually
16 exclusive, or there could have been mutual conflict
17 between them. So you have 13 directorates and they need
18 to be going in the same direction. By allowing them too
19 much freedom, their individual plans make sense but they
20 may actually be conflicting with each other.
21 Q. During the time you were involved with planning, did
22 they in fact conflict with each other?
23 A. They were not allowed to conflict with each other by the
24 end, because there had to be a reconciliation, certainly
25 in budget terms, but my sense was that the strategy
0042
1 within which they were operating was fairly --
2 ill-defined is the wrong word. The strategy was fairly
3 limited. The strategy was around staying within budget
4 and allowing clinical freedom, but it was not much more
5 than that, so there was no sense to me that this is the
6 direction the Trust is going in and that then the 13
7 directorates went in the same direction.
8 Q. When you say, at the bottom of paragraph 23 -- this is
9 the last area I want to explore with you before we have
10 a short break -- that "although UBHT always delivered
11 financially, Dr Roylance was known to run a tight ship
12 and thus UBHT appeared to be very well managed, in other
13 aspects the plan was not coherent."
14 What was incoherent?
15 A. I think it was the last issue I was talking about: where
16 is it going? Where does it fit --
17 Q. Co-ordination?
18 A. Where does it fit within the strategy. Can I amplify
19 this slightly? By this time I had moved to the NHS
20 Management Executive. We were responsible for looking
21 at all the plans for all the Trusts in the South West
22 region; that was my specific responsibility. Because
23 I had been a senior member of staff at UBHT, I declared
24 as it were, a conflict of interest and I did not take
25 personal responsibility for reviewing or commenting on
0043
1 the UBHT plan, but obviously I talked with my
2 colleagues, who actually did that work. What I am
3 reflecting back here is the feedback I got from them,
4 which was that, "Yes, the individual bits are fine, but
5 where is the strategy within which these component parts
6 are being put together?"
7 MR LANGSTAFF: Thank you, Mr Boardman. May we take a break
8 now for 15 minutes, sir?
9 THE CHAIRMAN: Yes, shall we say 15 minutes? That means at
10 5 past 11 we will reconvene, thank you.
11 (10.50 am)
12 (A short break)
13 (11.05 am)
14 MR LANGSTAFF: Mr Boardman, given the difficulties you
15 described just before the break, of having a coherent
16 overall plan, how was it that you, for your part, were
17 able to write and produce a business plan for the Trust
18 as a whole, covering the next four or five years?
19 A. What it was, I think if you look at the documents you
20 will see it was a statement which said "This is where we
21 think the three or four central functions are going,
22 this is our basic strategy for manpower, or basic
23 strategy for estates", followed by very detailed
24 descriptions of the individual plans for the individual
25 directorates, the 13 directorates. In reality, the
0044
1 front part of the document which said "This is our sort
2 of corporate strategy" fulfilled the requirements of the
3 NHS Management Executive in the sense that the document
4 was tied together and fulfilled their requirements for
5 submission, but I think the substance of it was a bit
6 thin. The substance of the overarching strategy within
7 which the directorates are operating, the substance of
8 the overarching thing was thin, but nonetheless as
9 a document it fulfilled the requirements of the NHS
10 Management Executive.
11 Q. You were particularly concerned with planning. That was
12 your job; that was your post?
13 A. Yes.
14 Q. Did you regard planning as important?
15 A. Yes.
16 Q. How did you react to the fact that the Director of
17 Personnel rather than the Director of Planning became
18 the Executive Director rather than the Associate
19 Director?
20 A. I was not surprised. I was disappointed but I was not
21 surprised, because from the early discussions about the
22 structure of the Board, once it was clear that the
23 number of places on the Board was limited, then
24 Dr Roylance always made it clear that he regarded the
25 personnel function as more important than the planning
0045
1 function and therefore that Ian Stone would be the
2 Executive Director.
3 The two supplementary pieces of information
4 I would add to that are that there was no personal
5 animosity at all. Ian Stone and I are actually quite
6 good friends, we socialise to this day. Secondly, in
7 the formative stages when the legislation was still
8 being considered, Dr Roylance made tentative enquiries
9 with the Department of Health to see if the legislation
10 could be varied in some way to allow a larger number of
11 executive directors for larger Trusts, and the message
12 that came back was no, we cannot.
13 I was disappointed but I was certainly not
14 surprised: it was a fact of life.
15 Q. You moved from your post in 1992 to the NHS Management
16 Executive?
17 A. Correct.
18 Q. How long before that had you accepted the appointment to
19 the NHS management executive?
20 A. Do you mean giving notice?
21 Q. When was it that you were first of all recruited or
22 applied for the post to which you moved?
23 A. I am sorry, that is what I meant, yes. It would have
24 been April 1992.
25 Q. So that would mean you had just been in post for a year?
0046
1 A. Correct.
2 Q. Had you been actively looking during that year to move?
3 A. Yes, I certainly was interviewed for one other job.
4 Q. So since your appointment and, excuse me for putting it
5 this way, your failure to become an Executive Director
6 of the Trust, you had been looking to move?
7 A. That is correct, but that is not necessarily cause and
8 effect.
9 Q. That was the next question.
10 A. It was not cause and effect. I had been with Bristol
11 & Weston and then the UBHT for by then five years. My
12 experience in the NHS was limited to Bristol and
13 I thought I needed some wider experience, and I had
14 certainly applied for at least one other job prior to
15 1991, probably 1989 or 1990.
16 Q. To what extent did you move because you felt that
17 planning was undervalued?
18 A. Not really at that time; it was more because I wanted
19 career advancement.
20 Q. Can I turn away from planning as a whole to the
21 management style and the structures and terms of
22 directorates? How many directorates do you think there
23 should have been?
24 A. I do not think I am equipped to say how many there
25 should have been. I certainly was not equipped to say
0047
1 how many there should have been in 1991 when we were
2 forming the Trust. I did not have the experience then
3 to say.
4 What I discovered when I left the Trust and
5 started dealing with a vast number of other Trusts was
6 that there were other ways of organising clinical
7 directorates, and I realised that other Trusts had far
8 fewer clinical directorates, so that is the substance of
9 the message I was trying to get across in my statement.
10 Q. Were those Trusts which had fewer directorates of
11 comparable size to Bristol?
12 A. By definition, none of them would have been identically
13 comparable to Bristol, because Bristol was the largest
14 in the South West and one of the top five at the time in
15 the country, but certainly I think some of the biggest,
16 notwithstanding they would have been as big in terms of
17 turnover or staff, they still would have been big
18 Trusts, and some of the large district general
19 hospitals, which would not have been teaching hospitals
20 because there was only Southampton, nevertheless, they
21 still, quite a few of them had fewer directorates.
22 I would be cautious about this, but I think for instance
23 Portsmouth, which is a large district general hospital,
24 at the time I think it was the largest non-teaching
25 hospital in the country, certainly one of the largest
0048
1 non-teaching hospitals, I think it had about six
2 directorates. I was surprised, I suppose, to realise --
3 I was relatively naive, I suppose, to discover that
4 there were different ways of organising the number of
5 directorates.
6 Q. Why do you think that a smaller number would be better?
7 A. That is a value judgment. I am not saying it would be
8 better. I am saying there were other ways of doing it,
9 and there are benefits but also non-financial costs to
10 doing it with a smaller number. I think with a smaller
11 number, some of the co-ordination would have been
12 easier. You are dealing with a smaller number of senior
13 individuals, but on the other hand, you are introducing
14 another layer or two layers of management, and the
15 managerial fashion -- managerial fashions come and go --
16 was in de-layering, to take out layers of management.
17 So I recognised that to introduce a smaller number
18 of directorates and therefore have an intermediate tier
19 would not actually have been de-layering but to be
20 putting a layer in. So I recognised that there were
21 managerial pressures in the wider environment which
22 said, "Do not introduce extra tiers". So it is not for
23 me to say which is better or worse, but rather that
24 there are other ways of organising and you have to weigh
25 up the costs and benefits of that way of organising.
0049
1 Q. I think what you are saying is that it was a matter of
2 choice for an individual board or organisation as to
3 whether there should be 12 or 13 directorates, or 6?
4 A. Correct.
5 Q. So far as you were concerned looking at the 13 that
6 there were in Bristol, which ones, if any, would you,
7 for your part, have regarded as odd bed-fellows in the
8 sense that they should not perhaps have been
9 directorates on their own?
10 A. I think, again, you are asking me to make a value
11 judgment.
12 Q. I am.
13 A. I would rather not do that. I would rather say if
14 you look at how other big Trusts organise themselves,
15 they have put together what they call "clinical support
16 directorates" so that things like anaesthetics,
17 pathology, radiology, are all in one directorate.
18 Simply, some of the specialist hospitals in UBHT which
19 were individual directorates would not have been
20 directorates in other Trusts, so things like the Eye
21 Hospital and the Dental Hospital, which I am fairly sure
22 were individual directorates, from memory, it would have
23 been very unusual for them to have been a stand-alone
24 directorate in other places.
25 Q. If we go to paragraph 39 of your statement, page 11,
0050
1 you dealt with the application for Trust status and the
2 uncertainty and so on that surrounded it, and you say
3 this, in paragraph 39:
4 "There was significant opposition amongst the
5 consultant body to Trust status. As a result, I believe
6 that some elements of the organisation structure were
7 created to appease key opinion-formers amongst the
8 consultants."
9 Does it follow from the last answers which you
10 have given me in relation to the structure of
11 directorates as a whole that you are not referring here
12 to the number and identity of the individual
13 directorates?
14 A. No. I am sorry, there is a double negative in there.
15 What I am trying to say is -- hopefully this answers
16 your question -- the unit becoming a Trust was going
17 through significant organisational change. Dr Roylance
18 had to win over the stakeholders in that organisation,
19 the key opinion-formers who were the clinicians, and
20 therefore he needed at the very least to keep important
21 opponents neutral. One way to do that is by making sure
22 that if an important opinion-former is in an important
23 department which looks like it is going to be swallowed
24 by a larger one, to ensure that did not happen and to
25 allow those opinion-forming departments to stay with
0051
1 some degree of autonomy as clinical directorates. That
2 is how I think Dr Roylance handled that significant
3 organisational change, but I cannot say --
4 Q. Just stopping you there, you appear to be saying in that
5 answer that the reason why, in your belief, there were
6 12 or 13 directorates here rather than 6 or 7, is to
7 enable key opinion-formers to have the status of being
8 the Clinical Director of those directorates?
9 A. No, I am not saying that, because that would imply that
10 Dr X in a particular department was placated by being
11 offered the post of Clinical Director in the new
12 directorate. I am not saying that, because the people
13 who became Clinical Directors were not necessarily the
14 people who were the key opinion-formers in swaying
15 opinion.
16 So there would have been some very highly
17 respected influential clinicians who did lobby very
18 articulately on behalf of their departments but did not
19 become directors and did not want to become directors,
20 but did want to see some degree of independence or
21 autonomy maintained for the department in which they
22 worked.
23 Q. So you are saying that in a sense this is political,
24 with a small "p"?
25 A. Yes.
0052
1 Q. That the result was not necessarily a bad thing: it was
2 a value judgment where one value may be very different
3 from another?
4 A. Yes.
5 Q. But the consequence of doing it was to develop a greater
6 cohesion and less dissension amongst the key
7 opinion-formers?
8 A. Yes.
9 Q. So from that point of view, one might describe it as
10 a good move?
11 A. In gaining the support or certainly the acquiescence of
12 the clinical body at the time we were moving to Trust
13 status, yes, it was successful.
14 Q. The next question: to what extent do you consider that
15 that process may have had any harmful effect, if at all,
16 on patient care?
17 A. I do not think I am equipped to answer that, really.
18 Q. Looking further at paragraph 39, you say that you do not
19 know whether what you have described was the case with
20 the structure for cardiac services. The split of
21 responsibilities, however, you say, "between cardiac
22 surgery, cardiology" and so on, and you might have added
23 I think there, paediatric cardiology being part of the
24 children's services --
25 A. Yes.
0053
1 Q. -- "may not have emerged without the pressures referred
2 to above".
3 "May not" is speculative?
4 A. Deliberately so, yes.
5 Q. So you cannot really say?
6 A. No, I am not trying to. What I am trying to do is to
7 paint a picture of the fairly complex organisational
8 change that was going on at the time. I think my answer
9 refers back to the question being put to me as part of
10 the Inquiry: how did these arrangements emerge? My
11 answer is that these arrangements may have emerged as
12 a result of that, but I am quite open in acknowledging
13 they may not. In so far as management is, if anything,
14 a social science not a physical science, I cannot prove
15 cause and effect, and I am not claiming to.
16 Q. Is your view based on anything more than mere
17 speculation?
18 A. No, it is based on my recollection of what was going on
19 at the time, i.e. very complex organisational change;
20 that there would have been discussions about the
21 composition and co-ordination of cardiology, cardiac
22 surgery, and that Dr Roylance would have taken into
23 account the pressures that were on him from different
24 individuals, the different important individuals, and
25 influential individuals, in the structure of the
0054
1 departments. But I cannot claim and do not claim that
2 there was any sort of deliberate decision to say,
3 "Right, we will have this specific arrangement between
4 cardiology and cardiac surgery and paediatrics in order
5 to placate individual X or individual Y". I am not
6 claiming that, and would not wish to.
7 Q. Having then, in those last two questions, asked you
8 about the structure as it was, may I now ask you about
9 the way it operated and what you have to say about that.
10 At paragraph 24 on page 8, you say that "the role
11 and relationship between the Clinical Directors and
12 General Managers ... was ambiguous"?
13 A. Yes.
14 Q. What do you mean by that?
15 A. I think it was ambiguous to me because when it was
16 described in the evidence, the previous testimony has
17 heard about it being described as the relationship being
18 in a "bubble". I found the description of the
19 relationship being in a bubble ambiguous. I do not
20 quite understand as an observer of this quite how this
21 relationship was meant to work.
22 So that is what I meant by "ambiguous". I think
23 that that ambiguity has emerged in other people's
24 testimony.
25 Q. The relationship has been described by others as the
0055
1 relationship between the Chairman and the Chief
2 Executive. Is that the way it appeared to you?
3 A. It would vary from individual directorate to individual
4 directorate and the relative strengths and weaknesses of
5 the different individuals. Looking back, it is seven
6 years almost to the month since I left, I would be hard
7 pressed to name many of the General Managers or many of
8 Clinical Directors who were in those bubbles at the
9 time. I think some people had good relationships,
10 others weaker. It is a long time ago now.
11 Q. Can we have a look at UBHT 23/79, to identify the
12 document? It is a report you did, I think, for the
13 Board. Can we go to page 81? This is "management and
14 organisation structure", a matter of three months after
15 the Trust comes into full operation. You are reporting
16 here, are you, on a debate which centred around the role
17 of Clinical Directors in the structure?
18 A. Yes.
19 Q. Why was it necessary to have the debate?
20 A. My recollection of this is that this was a session which
21 took place involving all the directors and the
22 non-executive directors. It was very early in the life
23 of the Trust; it was very early in the life of the
24 Clinical Directorate structure, which I think had only
25 come into place on 1st April, so it was very much in
0056
1 a bedding-down process, and I think the Board wanted to
2 think through how it was going to work in practice, now
3 that we had finally got status, and I think the
4 organisation was beginning to be a reality rather than
5 a proposal to the Department of Health.
6 Q. Can we scroll down a page to 3.3.2? We see there the
7 Management Board, the Chairmanship going now to the
8 Chief Executive. I think that was a change, at that
9 stage. 3.3.3:
10 "The main task of Clinical Directors to deliver
11 health care contracts within budget and to participate
12 in the negotiations for future contracts."
13 That is the note you have made of the discussion.
14 It describes that as the "main" task, so presumably
15 there were other tasks?
16 A. Presumably, yes.
17 Q. Do you recall what other tasks were discussed?
18 A. No.
19 Q. The focus one might think there is entirely financial?
20 A. I think the thrust behind the discussion would have been
21 around that in order for the Trust to meet its contracts
22 with purchasers, the people who actually deliver medical
23 care are the doctors and nurses, and that there was no
24 point in us, as managers, going off to Avon or to any
25 other Health Authority signing a contract agreement to
0057
1 deliver X, Y, Z procedures within any clinical
2 discipline, and then going back to the Clinical
3 Directors and saying, "Okay, guys, this is what we have
4 said you are going to do". In order for those contracts
5 to have any reality, the Clinical Directors had to be
6 involved in the contract process with the purchaser so
7 that what was being signed up to was something that they
8 felt was reasonable to deliver. That is the first
9 point.
10 I think the second thing was that the Trust needed
11 to maintain its healthy financial position. Again, the
12 only way to do that within the same process was for the
13 doctors to own the budget consequences of what they were
14 being asked to do. So that was what was being reflected
15 there.
16 Q. Is that a proper reflection of the way in which it then
17 worked or not?
18 A. I think it is the way in which it worked for the
19 subsequent year I was in the Trust, and based on the
20 evidence of the Trust's financial performance, you could
21 interpret it that that is the way it did work.
22 Q. You say in your statement, going back to page 8,
23 paragraph 24, that in theory the Clinical Director was
24 meant to provide "leadership" whilst the General Manager
25 managed.
0058
1 You describe in that paragraph a process by which
2 the General Manager had responsibility, in effect, for
3 financial expenditure?
4 A. Yes.
5 Q. And the Clinical Director for leadership, development of
6 services and so on. The role that you are describing in
7 paragraph 24 is therefore very different from the role
8 which you recorded and reported to the Board on for the
9 "away day", is it not?
10 A. Yes.
11 Q. You have just given me an answer a moment or two ago
12 that the way in which it in fact worked was that the
13 Clinical Director was responsible for finance during the
14 year that you remained as a director. How do you square
15 the two?
16 A. I am not saying they were responsible for the day-to-day
17 finance; they were not, as far as I recall; the General
18 Managers were responsible for the day-to-day finance.
19 But the directors had to be involved in the process
20 whereby they were agreeing that the contract for any
21 service was within a specific budget.
22 What I am trying to do here is recognise the
23 tension on any Clinical Director between trying to
24 provide a service within a budget, which is what their
25 role was -- okay, the day-to-day management of the
0059
1 budget was in the hands of the General Manager. The
2 tension between doing that and the very natural desire
3 of any clinician to provide more services to as wide
4 a range of people as possible in the best possible
5 circumstances. I think the nature of clinicians is to
6 want to do that, so there is a tension on them, between
7 reconciling the desire to constantly improve and enhance
8 clinical services on the one hand, and doing it within
9 a finite budget. That is the debate that has come to be
10 recognised at national level as "rationing". It is
11 a reflection of the tension within the bubble of that
12 rationing debate.
13 Q. Further down in paragraph 24, you state that General
14 Managers who argue the case for their Clinical Director
15 or service over-zealously were being described "going
16 native". Who gave that description to them?
17 A. I could not say. I think it was a phrase that had been
18 used at the management team meetings, which I think were
19 called GOE.
20 Q. The Group of Executives?
21 A. Yes. It would have been a phrase which said that "This
22 XYZ person is pressing hard for more money, they are
23 going native", but you could not ascribe that phrase to
24 being coined by an individual, or I could not.
25 Q. Finally on paragraph 24, can we go split screen, please,
0060
1 with WIT 79/274? The foot of 274. We are looking here
2 at comments which Margaret Maisey has made on your
3 statement. She says that it was made clear by the Chief
4 Executive that the General Manager was accountable to
5 the Clinical Director.
6 Was that, in your view, clear?
7 A. I think the ambiguity to me was that the way that the
8 General Managers were actually managed on a practical
9 day-to-day basis was to Margaret, and that Margaret
10 acted as their manager for practical purposes. There
11 may well have been an organisation chart which showed
12 a line of accountability between the General Manager and
13 the Clinical Director, but for very practical purposes
14 part of the ambiguity was that Margaret acted as their
15 manager.
16 Q. Can I move on to the question of the management style
17 which you saw? You deal with this at page 13,
18 paragraph 45. You describe there the dominance of
19 Dr Roylance.
20 Can I invite you to look, please, at UBHT 98/293?
21 Can we scroll down, please? It is on self-governing
22 status. You see that paragraph? It is reporting what
23 Dr Roylance had to say. He was on record as having said
24 that local ballots would not influence him. "His own
25 feeling was that the recent ballot of consultant staff
0061
1 in Avon had answered an invalid question and he did not
2 believe that those who had voted had understood what the
3 situation of a directly managed unit would be, or indeed
4 the overall situation."
5 The views expressed there are an imperviousness to
6 the results of a plebiscite ballot, questionnaire,
7 however one puts it, and it may be thought to record
8 a view that if a ballot did result in a view opposite to
9 his own, that was because either the question was
10 invalid or those voting had not properly understood the
11 issues.
12 Is that a correct way to read comments such as
13 this so far as Dr Roylance was concerned?
14 A. You mean my comments?
15 Q. No --
16 A. Your interpretation. I think you could also interpret
17 it -- this comes back to my statement, that Dr Roylance
18 was a very strong leader. Dr Roylance, like many
19 leaders, said "This is where we are going, this is where
20 I am taking this organisation", and doing it on
21 a democratic or participative basis was not the way he
22 was going to run the organisation. In the managerial
23 textbooks, I think this sort of leader is described as
24 a "transformational" leader and they are not the sort
25 of people who are going to say "We are going to have
0062
1 a ballot of what you are all saying" and go off in
2 a different direction.
3 That is what I was trying to capture the flavour
4 of. In that sense, this minute here reflects the same
5 sort of characteristic: "this is where I am going in
6 this organisation".
7 Q. Because management by consensus can be weak, can it not?
8 A. Yes.
9 Q. So if I ask you the question this way: at the time of
10 the development of Trust status, was strong leadership,
11 in your view, necessary?
12 A. Yes.
13 Q. Did John Roylance provide strong leadership?
14 A. Yes.
15 Q. Was it effectively part and parcel of strong leadership
16 that the leader should have confidence that he knew what
17 was best for the organisation?
18 A. In the sense that you need a good degree of
19 self-confidence, yes.
20 Q. So why, then, do you describe it in paragraph 45 --
21 going back to that, please, page 13 -- as a weakness
22 that Dr Roylance "always knew best"?
23 A. Because on a day-to-day basis, there were occasions that
24 when you wanted to try and have a problem discussed and
25 address an issue, it was difficult at times to get
0063
1 Dr Roylance to engage in the debate in the same way that
2 you wanted to.
3 If I can give an example, I read the testimony of
4 Dr Roylance with yourself when you were asking him to --
5 I think it was to describe audit, and Dr Roylance's
6 response was to redefine the question. I think the
7 difficulty we found, or, I am sorry, I found, was that
8 when presenting Dr Roylance with an issue to discuss, he
9 could at times completely redefine the question. That
10 is what I found difficult.
11 The second part of my answer would be that even
12 on the technical issues which were not medical, and not
13 concerning me -- these were things which I observed --
14 colleagues would say to Dr Roylance, "This is the
15 issue. The options are A, B or C. I propose we do A, B
16 or C" or whatever, and Dr Roylance would argue
17 strenuously with them, even though the issue in hand was
18 not clinical and was of another technical profession.
19 My colleagues found that frustrating and I found it
20 frustrating.
21 Q. How do you say that this weakness, this characteristic
22 of his, actually affected patient care, if it did?
23 A. I could not comment on patient care, I am afraid.
24 Q. Why do you regard it as a weakness that he had a belief
25 in the primacy of the medical profession?
0064
1 A. The context of my answer is that the way I think
2 Dr Roylance always described it to me was that the
3 transaction which took place between a patient and the
4 health service was always that which was being
5 prescribed by a doctor, usually a consultant or a GP,
6 and that that went beyond the prescription of drugs or
7 surgery through to other interventions, such as
8 physiotherapy, occupational therapy, or whatever.
9 I think that model reflected a very medically orientated
10 model of how the Health Service worked.
11 I think the weakness was that that did not reflect
12 how other people thought health services could be
13 configured, and in particular, it did not reflect some
14 of the thinking that was going on at the time. So the
15 idea that you could have practice nurses or other
16 professions such as physiotherapy managing their own
17 workload without being part of a transaction between
18 a doctor and a patient was, I think, anathema to
19 John. So that is what I was saying was a weakness,
20 because it was not recognising that there were other
21 models for delivering health care.
22 Q. The third weakness you describe there, his belief that
23 the best interests of the Trust in the medical school
24 were coterminous?
25 A. Yes.
0065
1 Q. Why is that a weakness?
2 A. Because I think there is no doubt that having a medical
3 school alongside the hospital adds enormous strengths;
4 you attract the top people in your field, there is no
5 doubt about that. I think the weakness is that there
6 are times when the core business, the core function of
7 the hospital or the Health Service, has to be to deliver
8 services which meet the local needs of the local
9 population. But at times there is a tension whether the
10 requirements of the University may be to recruit
11 a specialist Professor in a particular field whose
12 discipline could be at the cutting edge of medicine,
13 which is not actually in an area where the local
14 purchasers particularly want or particularly need to buy
15 a particular service.
16 I think it was that tension that I am trying to
17 reflect here.
18 Q. Two points: are you saying any more than that there may
19 be a downside now and again to having a link with
20 a university, even although on the whole it is
21 beneficial?
22 A. You said two points?
23 Q. That is the first point.
24 A. I think it is slightly more than that. I think there
25 were also times when it was operationally a bit
0066
1 frustrating to deal with the University because they
2 were a major tenant of large parts of the property of
3 the UBHT, and whilst one might have wanted to move
4 them -- physically move bits of their building around,
5 the relationship with the University meant that you
6 could not have a landlord and tenant relationship with
7 them which said, "Actually we need to move you, this is
8 the nature of our lease", you know, "You are now
9 occupying the seventh floor, we want to move you to the
10 fourth floor, it is perfectly legitimate within the
11 terms of our agreement". Well, the agreements either
12 did not exist or were very woolly or were done on
13 a knock-for-knock basis, so it was very difficult at
14 times, at an operational level, to make those sorts of
15 moves.
16 I think what was in my mind was that the ethos
17 that John had was that "Our aims and objectives are
18 essentially the same as the medical school's, therefore
19 we should not alienate the medical school". On
20 a day-to-day basis that could become difficult.
21 Q. So your perspective on this was really an estates
22 planning perspective, the landlord and tenant, the
23 buildings?
24 A. Partly, but also the point I touched on, the wider needs
25 of the population.
0067
1 Q. The second point which I was going to come to: perhaps
2 implicit in your answer was the idea that the Trust was
3 paying for the appointment of somebody who had
4 a University role?
5 A. Not "paying for" in the sense of making monies
6 available, but "paying for" in the sense that there was
7 a opportunity cost: you might have a clinician who holds
8 a University appointment and therefore practises
9 medicine in the hospital, but that the medicine which
10 they wanted to practise was not necessarily consistent
11 with the services that the purchaser wanted to buy,
12 because of their special interest and their special
13 research interest.
14 Q. One can see that the University had an interest in the
15 appointments to University?
16 A. Yes.
17 Q. If the appointments were cost neutral to the Trust, then
18 the Trust could pick or choose the benefit that could
19 come from it, presumably?
20 A. Not necessarily, because you have to remember people
21 could exercise clinical freedom, so it might not have
22 been a financial cost but a cost in terms of the service
23 that was being delivered.
24 Q. You go on in your statement, at paragraph 48, to deal
25 with the question of the culture. You refer there to
0068
1 a model that you say Dr Roylance referred to, cited in
2 Charles Handy's book, "The Gods of Management"?
3 A. Correct.
4 Q. Do you think you have accurately recorded there what
5 Dr Roylance was saying "The Gods of Management"
6 suggested?
7 A. The Gods of Management textbook -- I looked it up last
8 night -- has a model based on what is classified as
9 a "Zeus" character, who has characteristics which are
10 around the club culture and are basically very
11 consistent with the points I put down here, not perhaps
12 with 4 but with the first 3.
13 Q. What about the fourth?
14 A. I am not sure, I think that does reflect the way UBHT
15 was. I am not sure whether you could pull that out of
16 Handy's textbook or not. It may be there.
17 Q. So the first three may be part of Handy's textbook, the
18 "Zeus" model, but not necessarily the fourth?
19 A. I went to the trouble last night of looking it up and
20 I can give you the page references which broadly reflect
21 those statements. I am happy to do that.
22 Q. I would be grateful if, after you have left the stand,
23 you do furnish us with those references. I think it
24 will be particularly useful for later questions which
25 may be addressed to other witnesses.
0069
1 So far as 48(iv) is concerned, whose expression
2 was "put back in their box"?
3 A. I think it was Mrs Maisey's.
4 Q. How often did you hear her use that expression?
5 A. Quite often.
6 Q. What sort of transgression was she referring to when
7 she described that someone needed to be "put back in
8 their box"?
9 A. I am sorry, but with the passage of time it is difficult
10 to think of specific examples: it would have been to do
11 with probably some sort of questioning of the way that
12 a department was being run. It is so long ago now,
13 I cannot cite a specific example, I am afraid.
14 Q. The expression "put back in their box" suggests some
15 sort of action to put someone back in their box. What
16 did it imply to you?
17 A. I suppose that they were taken to one side and told
18 that certain types of behaviour were expected of them,
19 you know, that in future they would behave in
20 such-and-such a way.
21 Q. Is it perhaps part of management's function to have
22 a word in the ear of someone who may appear not to be
23 pulling their weight in the organisation?
24 A. Yes, I am sure it was.
25 Q. What you described as "putting back in the box" might
0070
1 be no more than that?
2 A. It might be no more than that, but I suppose I was
3 trying to catch the -- it might have been done more
4 forcibly than that. I did not witness the transactions
5 between Mrs Maisey and an individual where they were
6 "put back in their box", so -- I cannot say that she
7 did it -- I cannot at firsthand comment on the way that
8 it was done.
9 Q. You have obviously derived an impression of this. So
10 far as you have an impression, is it your impression
11 that it goes beyond what you would ordinarily expect
12 management to do by way of bringing people into line or
13 nudging people into line?
14 A. I think it was done forcibly, yes.
15 Q. What particularly, so far as you can recollect, gives
16 you that impression?
17 A. I think Mrs Maisey is a forceful character, and that --
18 I mean, Margaret and I worked on projects together but
19 not that often, but knowing how forcibly she could make
20 remarks to me, I imagine she was fairly forceful to her
21 colleagues.
22 Q. In the 1980s there was the expression "management's
23 right to manage".
24 A. Yes.
25 Q. Which might be taken to imply a certain approach
0071
1 towards those who are being managed?
2 A. Yes.
3 Q. Was the approach as you understood it within the bounds
4 of what one might cover with that sort of phrase?
5 A. I think it is within the bounds of that. It is probably
6 a reflection of the style within which it was done.
7 Q. You go on to describe, at the bottom of that page and
8 the top of the next -- let us go to page 15 -- how you
9 say "Mrs Maisey's style meant that General Managers who
10 crossed her or 'failed to deliver' were easily
11 identified."
12 A. Yes.
13 Q. How would they be easily identified?
14 A. I think this was best summed up in the evidence of
15 Rachel Ferris who was talking about the "grapevine" that
16 operated at the Management Development Group, where she
17 described General Managers talking to each other and
18 saying, "I got off today and somebody else is in the
19 firing line"; yes, somebody else is in the firing line,
20 and it was that type of discussion that somebody else
21 had been castigated for a failure to perform in
22 a particular way.
23 Q. At paragraph 55, the foot of the same page, you talk
24 about the "blame and shame" culture that you have
25 alluded to. This is what you have been describing in
0072
1 respect of the passages we have just looked at?
2 A. Yes.
3 Q. Here you say that the names of individual managers
4 who had been moved at short notice were used as a code
5 to describe what happened to others?
6 A. Yes.
7 Q. You are suggesting, I think here, that the "putting
8 back in the box" may consist of the movement of
9 a manager -- fitting in with your comments at
10 paragraph 51 -- from a position of relative size and
11 status to one of lesser size and status. Is that what
12 you are saying?
13 A. Not quite. I was not saying that people were moved to
14 lower status jobs as a reflection of being "put back in
15 their box". I would say that if you were moved at short
16 notice, that would be a manifestation at the extreme of
17 somebody being put back in their box.
18 Q. You are talking about General Managers here, are you, or
19 managers?
20 A. Yes.
21 Q. Part of the structure of the Trust was to have a number
22 of different directorates with managers in each?
23 A. Yes.
24 Q. It might benefit the individual manager, particularly
25 a young manager, if they had experience of more than one
0073
1 directorate, might it not?
2 A. Yes.
3 Q. So there could be a very good management reason for
4 moving a manager from one directorate to another?
5 A. There were, yes.
6 Q. It would be personal development.
7 A. Yes.
8 Q. Did that take place?
9 A. Yes.
10 Q. So might it be that you have taken the move for personal
11 development of certain managers as being a reflection of
12 the style to which you allude, which you identify here,
13 when in fact it was no more than a move for personal
14 development?
15 A. No. I think the two things are -- they are not mutually
16 exclusive. I think some managers were moved by choice
17 or whatever for personal development reasons. Others
18 were moved at short notice for reasons which were not to
19 do with personal development.
20 Q. If we can have a look, please, at 79/275, this is
21 Mrs Maisey's comments on your statement. Paragraph 6:
22 she denies that the relative power and status of
23 managers depended on the size of their budget, staff
24 et cetera.
25 The power and status of a manager would be within
0074
1 their directorate, would it not?
2 A. This was not a pejorative statement of mine. When
3 I made it was not meant as a pejorative statement, it
4 was a reflection of what went on in any organisation,
5 which is that the status which accrues to somebody is
6 invariably a reflection of the power that they have, the
7 budget they have, the number of staff they control and
8 those things are sort of self-fulfilling in a way. If
9 you were the Manager of surgical services in the BRI,
10 you had a large budget, you had a large number of staff
11 reporting to you. My contention is that that gave you
12 more status than somebody managing with notionally the
13 same title, managing a much smaller budget, a much
14 smaller part of the organisation.
15 You yourself commented on the fact that some of
16 the directorates were the size of Trusts, which is
17 absolutely true. My argument, my contention, is that if
18 you were the General Manager of a Clinical Directorate
19 the size of a Trust, you had by definition more power
20 and authority and in my eyes, and I think in other
21 people's eyes, you had more status than somebody
22 managing a much smaller part of the organisation. That
23 is not a pejorative comment on Mrs Maisey, that is
24 a fact of life.
25 Q. She deals in paragraph 7 with the management atmosphere
0075
1 which you describe.
2 A. Yes.
3 Q. She says that her responsibility to her staff --
4 I interpret the one as being her -- is "to give
5 leadership through example, guidance, and clear
6 direction with the setting of attainable objectives
7 within the overall objectives."
8 There is nothing contentious in that
9 description of leadership; or is there?
10 A. No.
11 Q. So part of leadership is not only support, but also
12 clear direction?
13 A. Yes.
14 Q. May it be that the forcefulness of direction may add
15 to its clarity?
16 A. Not necessarily. It could be forceful in the sense
17 that it is shouted, but it is not necessarily clearer.
18 Volume does not -- I am not talking about Mrs Maisey's
19 voice, but I am saying that volume does not necessarily
20 mean greater clarity.
21 Q. So there is no misunderstanding: did she, so far as you
22 know, shout at her managers -- I say "her" managers --
23 the managers?
24 A. I could not comment on that. No.
25 Q. She did not operate a league table, she says, of
0076
1 standing and was never aware that the General Managers
2 accountable to her had felt they were in competition
3 with each other.
4 Did you feel that they were in competition to
5 each other?
6 A. No, I did not intend to impute that in my evidence.
7 I did not say she operated a league table. What I felt
8 was that within the group of peers, the General
9 Managers' own status amongst themselves would have
10 been partly determined by the standing they had in the
11 eyes of Mrs Maisey or Dr Roylance. I think that is true
12 of any organisation. If you are held in high esteem by
13 the Chief Executive or one of the senior directors of an
14 organisation, then your standing amongst your peers is
15 that much greater. But I certainly did not wish to
16 impute that Margaret operated a league table.
17 Q. Can I go back to your statement at page 15. In
18 paragraphs 52 and 53 you talk about what one might
19 describe perhaps as an informal natural league table of
20 hierarchy with doctors at the top, anaesthetists
21 a little bit below, nurses and professions allied to
22 medicine below that. That is the pecking order you have
23 identified?
24 A. I do not think that is a surprise to anyone.
25 Q. So far as the General Managers were concerned in the
0077
1 directorates, of the 13 directorates, were five of those
2 directorates managed by people who were or had been
3 nurses?
4 A. I could not comment. I know that several General
5 Managers had been nurses. Whether it is five or six,
6 I could not tell you.
7 Q. Something of that order?
8 A. Without looking at the names --
9 Q. And another four from professions allied to medicine?
10 A. Again, that is a plausible figure, but without looking
11 at the qualifications of the individuals ...
12 Q. So if a nurse or physiotherapist or someone in one of
13 those particular occupations were to look at the people
14 who made the General Manager status, they might see one
15 of their profession in that post?
16 A. Yes.
17 Q. Would that perhaps give confidence to them that they
18 were not undervalued?
19 A. I think that would give them confidence that if they
20 wished to pursue a managerial career, then the
21 opportunities were open to them, but I think that is
22 different from being valued as a practitioner nurse. So
23 it is indicating a clear-cut -- opportunities for
24 a career path, but a managerial career path rather than
25 a nursing career path.
0078
1 Q. So what you are talking about in your statement is the
2 professional career path, professional status, is it,
3 rather than managerial status?
4 A. In which particular ...
5 Q. Paragraphs 52 and 53.
6 A. Yes.
7 Q. When you come to deal with the question of self-image
8 and morale, can we go across to page 16? Paragraph 57.
9 Why are you saying you are confident that morale in the
10 nursing and professions allied to medicine was low?
11 A. I think this reflects a couple of things. One was, as
12 I did, if you walked around the building and talked to
13 people there was an expression of, you know, that people
14 were not particularly happy. That is the first point.
15 I think the second point is that this is
16 a period -- I am referring to a period very soon after
17 the massive nurse regrading exercise that had taken
18 place, and I think this was a national exercise, not
19 just locally. That resulted in I think a lot of
20 demoralisation of the nursing profession. I think one
21 of Dr Roylance's comments at the time was "Only the
22 Government could award a 25 per cent pay rise to the
23 nurses and still demoralise them". It was a phrase to
24 that effect. That was part of the context of my answer.
25 I think the other things that need to be said are
0079
1 that "morale" is a very woolly concept. How do you
2 define it? There are ways of measuring proxies for
3 morale: sickness rates, absenteeism, which are taken to
4 be a proxy measure. I do not have access to those
5 figures; other people may have. What I am reflecting
6 here is not an absolute measure of a proxy, but rather
7 the feelings, the vibes that I picked up from talking to
8 people.
9 Q. Clinical grading, as I understand it, in the Bristol
10 Trust may not have been finally resolved until 1994,
11 when the last fields may have been dealt with, but that
12 is, as you say, a national problem?
13 A. Yes.
14 Q. What you say in paragraph 57 is that there is
15 a perception amongst the nurses and professions allied
16 to medicine that they were undervalued by the top UBHT
17 management.
18 That is describing a local problem rather than
19 a national one, is it not?
20 A. Yes.
21 Q. So in so far as you had grading in mind, this
22 paragraph may give the wrong impression?
23 A. No, I am sorry, I was trying to set the scene by saying
24 in the context of the grading exercise, the second set
25 of statements are also true. I feel that the pressures
0080
1 on Margaret's time as Director of Operations meant that
2 there was a perception that the role of Chief Nurse
3 Adviser was subordinate to her role as Director of
4 Operations, and therefore there was little in the way of
5 professional leadership in nursing in the organisation.
6 I think that perception of mine is reflected in
7 the subsequent decisions to change the role and
8 subsequently, when Margaret retired, the appointment of
9 a new Director of Nursing.
10 So I think it is consistent with what happened
11 subsequently.
12 Q. You use the word "resentment" which is a strong word.
13 A. Yes.
14 Q. It is an expression of strong emotion?
15 A. Yes.
16 Q. For this you are relying on your memory of what people
17 said to you at the time?
18 A. Yes.
19 Q. Where you worked, was that in an office?
20 A. Yes.
21 Q. Where was the office?
22 A. Manulife House -- I am sorry, the old Trust
23 headquarters.
24 Q. So you were at headquarters?
25 A. Yes.
0081
1 Q. How often did you walk the wards?
2 A. I seldom walked the wards, but I spent a lot of time
3 working on different project teams, working groups with
4 General Managers, which also involved senior nurses, so
5 I picked up comments from that sort of environment. As
6 you have already said, several of the General Managers
7 were either nurses or PAMs so I picked it up from that.
8 So I picked it up from relatively senior people,
9 relatively senior nurses and there would have been, you
10 know, other occasions.
11 Q. The PAMs, I think, met over lunch at least once a month
12 with the District General Manager first and then the
13 Chief Executive?
14 A. I will take your word for that. I do not remember.
15 Q. Presumably at meetings such as that, with the Chief
16 Executive, there would have been an opportunity for
17 nurses, senior nurses, to express their view as to how
18 they were being treated or whether they had proper
19 professional leadership, and so on?
20 A. Yes.
21 Q. Is there any reason which you can identify, either
22 from the structure or from your knowledge of the
23 personalities involved, why that view may not have been
24 expressed?
25 A. First of all, the club culture I have alluded to, and
0082
1 also Dr Roylance's personality, which was very forceful,
2 I think made people reluctant to challenge him and say
3 "We are not happy with what is going on". I think
4 ironically, Dr Roylance did not mind that sort of
5 challenge. I would certainly happily debate issues with
6 him and I do not think it bothered him, but I think the
7 perception of lots of other people were that they were
8 intimidated by him and he did not want that sort of
9 challenge. The nature of the ambience that was being
10 created was such that people were reluctant to
11 challenge.
12 Q. So far as any person with a concern about a clinical
13 colleague and their clinical practice and performance
14 was concerned, how easy in the culture as you describe
15 it do you think it would have been for such an
16 individual to raise that concern with senior
17 management?
18 A. You are asking me to trespass on territory where
19 I really am inexperienced in the sense I have never been
20 any sort of clinician, so I cannot put my head inside.
21 Q. Can you stop there for a moment? I will show you why
22 I ask you to trespass on that area. It is page 17 of
23 your statement. It is paragraph 65.
24 A. I thought that is what you were leading up to. I think
25 it would have been difficult for what is described as
0083
1 "whistle-blowers" to have the confidence to come
2 forward, whether they were whistle-blowers with
3 a management background or a clinical background, but
4 I thought you were asking me in part about the
5 discussions which might have gone on between an
6 individual Sister and an individual Manager -- I am
7 sorry, an individual doctor. That was the area I did
8 not want to get into, because I have never occupied any
9 role like that.
10 I think the general culture of the organisation
11 would not have encouraged whistle-blowers.
12 Q. What aspect of it in particular?
13 A. I think this goes back to the club culture, where
14 whistle-blowing is a manifestation of disloyalty,
15 because what you are saying to the organisation
16 is, "We are not doing as well as we could be". I think
17 to say "We are not doing as well as we could be" is
18 disloyalty. It is a message which club cultures do not
19 wish to hear.
20 Q. In terms of that last question, "We are not doing as
21 well as we should be", would you please take a look at
22 UBHT 38/484?
23 Let us go back to the beginning of this document.
24 It is a letter to you from Mr Wisheart, 22nd May 1991.
25 A. Yes.
0084
1 Q. Go back over the page. He is quoting a phrase from
2 a contract which it is proposed to enter into, I think
3 with Bath:
4 "Overall surgical mortality will not exceed 5 per
5 cent. Any attempt to think in terms of global mortality
6 without taking into account the profile of severity of
7 disease is I believe most erroneous. We are prepared to
8 put our results on the table in an open way as indeed we
9 have done consistently in the past and I would suggest
10 that a clause that provides for audit information to be
11 made available either directly or through the District
12 Audit Committee should be sufficient."
13 Two questions. First of all, do you recall where
14 the suggestion that a contractual commitment not to
15 exceed overall surgical mortality of five per cent came
16 from?
17 A. I do not recall it, but I can deduce that it came from
18 Bath, because this is a letter from Jeff Griffiths, so
19 I can deduce that -- I think the process which is going
20 on here was that there was a sort of contract
21 negotiating team of myself, Graham Nix and Margaret
22 Maisey and we co-ordinated the contract negotiations.
23 I must have written, as part of that process, to Jeff
24 Griffiths and he evidently has written back saying "We
25 do not want to exceed it", but I have no recollection of
0085
1 the details behind that at all, I am afraid.
2 Q. We see the response there from Mr Wisheart, who was
3 effectively saying "We cannot tie ourselves up to that,
4 but we are very happy for people to see what results we
5 are actually doing"?
6 A. Yes.
7 Q. Both the request for 5 per cent and the offer of results
8 would suggest there was material available from which
9 mortality rates and results could be deduced?
10 A. That is the implication.
11 Q. Two questions. First of all, was it part and parcel of
12 your role in planning to have any regard for outcomes of
13 surgery?
14 A. None whatsoever.
15 Q. Secondly, you say at one stage in your statement that
16 really you cannot remember very much by way of reference
17 to audit?
18 A. Correct.
19 Q. Whether one calls it audit or not, in terms of the
20 availability of material dealing with outcomes and
21 results, this letter, amongst other things, might
22 suggest that there was at least material available?
23 A. I honestly cannot comment.
24 Q. Let me take it to the third stage, then: how frequent an
25 experience was it that the purchaser would ask for
0086
1 a particular set of results to be defined by the
2 equivalent of audit, of outcomes, the percentage of
3 outcomes, or a particular standard of outcome?
4 A. My recollection is that this is at the very, very early
5 stages of the purchaser/provider split and the contract
6 negotiations. This is an impression, but my impression
7 is that purchasers were not looking for specific audit
8 outcomes; they were more looking to see that providers
9 had audit processes in place because they were taking it
10 one step at a time.
11 That answer is impressionistic; it is so long
12 since I have dealt with this sort of negotiation, any
13 detail around these sorts of contracts that I am
14 dredging my memory, I am afraid.
15 Q. I just want to pick up one or two points, Mr Boardman
16 that arise.
17 Can you look at WIT 79/27, and can we go overleaf,
18 and again ... [to WIT 79/31].
19 The key objectives of the Trust -- we saw from the
20 first of those pages the document from which this
21 comes -- is that the Trust sees itself as a "centre of
22 excellence" and it talks about "maintaining and
23 improving the high standard of care provided".
24 Was this your drafting?
25 A. Yes.
0087
1 Q. You were drafting on the basis of information you had
2 deduced for yourself, or from what you were told by
3 others?
4 A. No. Can you remind me, is this the business plan or the
5 application for Trust status? Actually, it does not
6 matter. The business plan, right. This would have been
7 a reflection of the distilled wisdom of the Trust
8 Executive, so it is my drafting in the sense that I was
9 the scribe, but it is not me imposing my will as
10 Director of Corporate Development saying "These are the
11 objectives of the Trust". This is much more
12 a reflection of the corporate --
13 Q. So you are the amanuensis, rather than the author?
14 A. Do I have to answer that?!
15 Q. I think the answer is probably "Yes", from what you have
16 been saying.
17 A. I was the author in the sense that I had responsibility
18 for pulling the documents together. I fully accept
19 responsibility for that. The content of any document
20 like this reflects not just the author's intent but the
21 Board's, so the Board identified the objectives.
22 Q. Can you help from your presence at Board meetings how
23 high a standard of care or centre of excellence was to
24 be verified?
25 A. No.
0088
1 Q. Finally, you dealt, I think, with capital allocations.
2 Plainly, much of your work was influenced by finance and
3 financial considerations?
4 A. Yes.
5 Q. If the Trust had wished to carry out a capital project
6 in the context of the purchaser wishing to purchase
7 health care for the inhabitants of an area and the
8 provider wishing to provide it, were there mechanisms by
9 which that capital provision could easily and readily
10 have become available?
11 A. No. Not easily and readily become available, no.
12 Q. When available with difficulty, would the consequence be
13 that the cost of the provision of the service to the
14 purchaser would increase in order to fund the capital
15 provision that had been made?
16 A. The way the system works is that the Trust would have
17 put together a business case which would have said that
18 "In order to make this service work, we need a capital
19 investment of N million pounds", and say that was
20 œ5 million. There is a system called "capital charges"
21 which other people talked about. The capital charge
22 consequence of a œ5 million investment would have been
23 approximately a revenue cost of 10 per cent, so
24 œ500,000. That means that the net cost, revenue cost to
25 the purchaser, other things being equal, would go up by,
0089
1 say in this instance, œ500,000. The way in reality the
2 Health Service works with business cases is that the
3 purchasers will come back and say, "Yes, that is fine
4 but we do not have an additional œ500,000 to invest in
5 it". Therefore you need to make savings from elsewhere
6 within other parts of the Trust or other parts of this
7 project so it is revenue neutral.
8 So, to carry on with this example, if you were
9 incurring another half a million pounds worth of costs
10 because of capital charges, you would, in most
11 circumstances, have had to have made balancing savings
12 from somewhere else, they could be from anywhere, so at
13 that point you have a business case which is cost
14 neutral, and the purchaser can sign up to it.
15 In other words, there were certain purchasers,
16 I know this from firsthand experience, who had
17 sufficient growth to say, "Yes, we will finance the
18 additional cost of the additional capital charges
19 without requiring you to make savings elsewhere". That
20 would vary from individual Trust to individual Trust and
21 from purchaser to purchaser.
22 Q. Could you look, please, on the screen, at
23 UBHT 249/192? Can we go down, please:
24 "Performance Assessment Committee". This is
25 1988. It is I think a document which you saw:
0090
1 "Dr Kelly referred to the report of the meeting
2 of the Performance Assessment Committee held on
3 24th October ... The PAC had learned much about cardiac
4 surgery even though there were no national performance
5 indicators with which to make comparisons. There was
6 still a bias towards using London facilities by many of
7 the South West Region's districts."
8 I wonder if you can help with what, if any,
9 resistance there was to using Bristol's facilities from
10 the South West?
11 A. I cannot, really. This was --
12 Q. This was 1988, so it is before --
13 A. Before Trust status.
14 Q. Before Trust status and before purchaser/provider.
15 A. No, this was not an issue which I dealt with. In 1988
16 I was the Manager of the Planning Department. This
17 would not have been an issue I was dealing with.
18 Q. So it was not part of the minute which was of interest
19 to you?
20 A. No, I think I was present at this meeting.
21 Q. Can I take you on to the question which I was then going
22 to ask: to what extent, during the time that you were
23 concerned with contracts, was there any resistance to
24 using the facilities at Bristol for financial reasons?
25 A. I have very limited information to make a comment to
0091
1 that. I only remember two or three sets of negotiations
2 about cardiac surgery, with West Dorset, Exeter --
3 evidently there was the discussion with Bath because we
4 have seen the correspondence. I have a vague
5 recollection with somewhere around Hereford or
6 Worcester -- I think it was Hereford. I just cannot
7 remember whether people were saying "We want to move,
8 increase, decrease, the level of purchasing", because of
9 price. What I do recollect was that there was
10 speculation at the time that the costs at Oxford were
11 very low and were less than the -- the costs they were
12 charging were unrealistically low, and that was to do
13 with how they put together their accounting system.
14 Q. So there was a feeling that there was, as it were,
15 a negative pressure drawing people away from Bristol on
16 grounds of cost to Oxford?
17 A. I do not want to say things which I do not have the
18 knowledge on. What I am saying is that I am aware that
19 there was a strong feeling that the costs at Oxford were
20 unrealistically low, but in terms of the other
21 negotiations that I dealt with, I have no specific
22 recollection about whether we were more or less
23 expensive. It would be unfair of me to claim one way or
24 the other.
25 Q. Again, on the financial line of questions, could you
0092
1 look at 249/117? It is the start of a document and I am
2 going to take you to a passage in it. You can see what
3 it is: minutes of the meeting of Bristol & Weston Health
4 Authority, 15th January 1990. We can see that you were
5 in attendance at it. It is page 122.
6 Just above the "Yatton Hall Hospital", there is
7 a comment, a paragraph which begins with something
8 Mrs Maisey said. The second sentence:
9 "This had meant greater spending than usual over
10 the period. Members discussed the principle of the
11 closure of wards as a means of controlling expenditure
12 and it was agreed that any such proposal should be
13 brought to the Authority by the District General
14 Manager."
15 That is obviously a way of controlling
16 expenditure, and what I want to ask generally is whether
17 either that or a freeze on the appointment of staff, or
18 staff salaries, a freeze on recruitment, was ever used
19 as a means of bringing the Trust into budget, given the
20 importance of budget as you have described it?
21 A. It is very likely. I mean, it was, still is, a common
22 technique in the Health Service. It is very likely that
23 it did happen, but I cannot put hand on heart and
24 recollect and say "Yes, on 15th January we froze
25 recruitment".
0093
1 Q. Finally, I do not know whether you are able to comment
2 or not, but you left, of course, to go to the NHS
3 Management Executive. Are you able to help us with the
4 roles of either the Regional Health Authority or the
5 regional outpost of the Management Executive in
6 monitoring the outcome performance of the Trust?
7 A. I cannot comment on the Regional Health Authority.
8 I can comment explicitly on the outpost. The outpost
9 had a very specific and very limited remit. We employed
10 six professional staff and a couple of secretaries. Our
11 role was to do two or three things: one was to monitor
12 the financial performance of the Trust, and secondly, to
13 review -- this was my role -- the strategic plans and
14 business plans of the Trust in our "patch" and that was
15 it. We had no responsibility for monitoring the
16 outcomes, clinical or otherwise, of any Trust in our
17 region. There were six staff and we had a very, very
18 prescribed and very limited remit, and we were also
19 working under a specific instruction to have what in
20 those days was described as a "hands off" or light touch
21 approach to our relationship with Trusts. The Trusts at
22 that time were encouraged to act in a spirit of managing
23 their own affairs and direction.
24 Q. So it follows that if and to an extent concerns were
25 expressed about any part of the clinical services
0094
1 provided by Trusts on clinical grounds, if they reached
2 you, they would not have been of interest to you as part
3 of the NHS Management Executive outpost?
4 A. They would not have been part of the outpost's remit.
5 I do not ever recall from any Trust that sort of
6 information coming to us. Had it come to us, we would
7 have referred it back to the appropriate people, the
8 Regional Health Authority, I imagine. We would have
9 taken advice from the Civil Service to whom we reported
10 on where to pass that sort of information.
11 But the outposts had a very low profile in terms
12 of the public or anyone other than Chief Executives and
13 Finance Directors, so the chances of the public or
14 a clinician making information known to us would have
15 been minimal.
16 Q. During the time that you were working for the Management
17 Executive outpost, did information about clinical
18 outcomes in cardiac surgery in Bristol come to your
19 attention?
20 A. No.
21 MR LANGSTAFF: Thank you, Mr Boardman. I am not going to
22 ask you any further questions. There may be some
23 questions from Mr Chambers in re-examination. Before he
24 or the Panel ask you any questions, is there anything
25 which you would wish to add which you feel I either have
0095
1 not covered or you would like to cover?
2 MR BOARDMAN: No, thank you, that is fine.
3 THE CHAIRMAN: Thank you. Mrs Howard?
4 Examined by THE PANEL:
5 MRS HOWARD: Thank you, Mr Boardman. First of all, if I put
6 a comment to you for your view first, if I were to
7 suggest to you that the cross-fertilisation of executive
8 directors' roles was actively discouraged within the
9 Trust, would you have a comment on that?
10 A. I am sorry, could you amplify what you mean by
11 "cross-fertilisation"?
12 Q. That you would be able in some way to step into the
13 shoes of the other directors and vice versa, excluding
14 the obvious specific skills that may be, for example,
15 required of a nurse or a doctor?
16 A. I would not say that cross-fertilisation was actively
17 discouraged. For instance, Graham Nix and I had
18 historically worked together very closely in the Health
19 Authority and we worked closely with each other on
20 planning issues because most planning issues have
21 a financial input, but -- I am sorry, I am struggling to
22 answer the question because I am trying to think of
23 examples of cross-fertilisation. Maybe if you have an
24 example, I could amplify my answer.
25 Q. In terms of your role as a planner, your understanding
0096
1 of the operational pressures with which directorates may
2 have been faced, and how that would enable you to
3 influence your role as a planner?
4 A. The pressures on my time, and everyone else's, were such
5 that I was not actively encouraged, for instance, to go
6 and spend time on a ward. I do remember doing at least
7 one ward round, but I was not actively encouraged to go
8 and spend time seeing what life was like at the sharp
9 end.
10 Equally, I could accept responsibility in that
11 I do not recall saying to John Roylance, "I think this
12 is a development need I have", that I should have
13 pursued, so I cannot absolve myself from responsibility
14 for that.
15 Q. That is very useful. The second point is, if I could
16 have WIT 79/27, I think Mr Langstaff referred to this
17 a few minutes ago. It is actually further on in the
18 document and I may have difficulty finding it, but if
19 I can try and recall the statement, it was part of the
20 business plan and you were talking about the Trust
21 wishing to promote "self-confident fiefdoms". I am sure
22 we will be able to find that statement subsequently.
23 Can you shed a light on the choice of that
24 particular description, which I am assuming relates to
25 directorates?
0097
1 A. I am sure it did relate to directorates. The actual
2 word "fiefdom" could have come from anyone. I could not
3 claim it was mine; I could not deny it was mine.
4 Q. If you were trying to reflect what that meant to
5 somebody reading that document, how would you have
6 reflected, if you like, the philosophy behind that
7 statement?
8 A. I suppose it comes back to a lot of the issues we
9 touched on earlier, which was around allowing the
10 clinical directorates a large degree of autonomy within
11 the framework of clinical freedom to pursue their own
12 objectives, so it was a "fiefdom" in that sense, but
13 also with an alliance to the centre -- my mediaeval
14 history is equally fudgy, I am afraid. It has been
15 described elsewhere as a "federal" system. I suppose
16 it is another word for the federal type arrangement that
17 was being talked about.
18 MRS HOWARD: Thank you very much.
19 THE CHAIRMAN: Professor Jarman?
20 PROFESSOR JARMAN: A general question. There seems to be
21 a lot of emphasis in the statement about encouragement
22 to maintain and improve high standards of care provided
23 and in the business plan to provide a high quality of
24 health care and so on, and yet in that same business
25 plan that we have in front of us, actually on page 58,
0098
1 on the quality of the service, I am not quite sure how
2 the management would have been responsible for or how
3 they would have maintained a high quality of service?
4 A. I think there are two aspects to the answer. One is in
5 the non-clinical issues, that management were very
6 clearly responsible for what most people described as
7 "hotel services" --
8 Q. I am only interested in the clinical sense.
9 A. In the clinical sense, within the culture of the UBHT,
10 it would have been an assumption that the doctors would
11 be doing the very best for their patients at all times
12 and would be constantly striving to improve the quality
13 of the patient care which they provided.
14 Q. So it was really left to the doctors, really?
15 A. Yes, in the sense that there was an assumption that that
16 was the constant objective of all consultants.
17 Q. There is a statement, as we heard earlier on, that the
18 main task of the Clinical Directors is to deliver health
19 care contracts within budget. That could cause a bit of
20 conflict, could it not?
21 A. It could cause a bit of tension, but that is their role
22 as a Clinical Director rather than their role as
23 a clinician. For individual Clinical Directors,
24 I imagine there must have been a tension for them,
25 because when they are practising medicine, they want to
0099
1 do the best they could. If they go back to being
2 a director, they think, "Hang on, how do I control the
3 budget?" So that tension would have existed.
4 Q. So you were watching the budget part of it and just
5 hoping they are getting the clinical outcomes right?
6 A. I think that is one way of putting it. I think there
7 was a very clear message that we, as managers, should
8 not interpose ourselves in the clinical relationship.
9 So it was not so much a hope that they would get it
10 right, but rather a --
11 Q. A trust?
12 A. No, "trust" is the wrong word. Part of the mental model
13 was that it was not our role to interpose ourselves
14 between doctor and patient; and that the only people who
15 would get the treatment right were the doctors -- I am
16 sorry, to maximise quality were the doctors.
17 Q. So you are effectively saying that it was no part of the
18 managerial role?
19 A. Certainly no part of my managerial role.
20 Q. Not just you, I mean in general?
21 A. Yes, in general. Yes, I think so, yes.
22 PROFESSOR JARMAN: Thank you.
23 THE CHAIRMAN: I have no questions, Mr Boardman, but
24 Mr Chambers?
25 MR CHAMBERS: Nor do I, sir, no.
0100
1 THE CHAIRMAN: I am very grateful. Mr Boardman, we are very
2 grateful for your having come today. If there are other
3 matters that come to your mind arising from what has
4 been asked today or otherwise that you wish to bring to
5 our attention, we would be very grateful. We will be
6 here for a while and we are always anxious to hear
7 whatever you and other witnesses have to say. For the
8 moment, thank you very much indeed. We have been much
9 helped by your evidence.
10 Mr Langstaff, may I suggest we take an adjournment
11 now? I would propose half an hour, therefore
12 reconvening at 10 past 1, at which point we will hear
13 another witness.
14 MR LANGSTAFF: Sir, yes. It will be Ms Mandie Lavin.
15 THE CHAIRMAN: I am grateful. Until 10 past 1.
16 (12.40 pm)
17 (Adjourned until 1.10 pm)
18 (1.10 pm)
19 MR MACLEAN: Sir, this afternoon's witness is Mandie Lavin,
20 who is the Director of Professional Conduct for the
21 UKCC.
22 The first thing we ask witnesses to do is to stand
23 up again to take the oath.
24 MS MANDIE LAVIN (sworn):
25 Examined by MR MACLEAN:
0101
1 Q. Could you give us your full name, please?
2 A. My name is Mandy Jane Lavin.
3 Q. You are the Director of Professional Conduct of the UK
4 Central Council for nursing, midwifery and health
5 visiting, which I intend to refer to as "UKCC"?
6 A. That is correct.
7 Q. You are a qualified lawyer, indeed, a qualified
8 barrister?
9 A. That is correct.
10 Q. Can I ask you to look at the screen in front of you,
11 please, at WIT 52/1? I should have said, you are not
12 only a qualified barrister, you are also a qualified
13 nurse?
14 A. That is correct, yes.
15 Q. WIT 52/1 is the first page of your statement to the
16 Inquiry?
17 A. Yes, that is right.
18 Q. If we go to page 20, that is the final page in the same
19 statement, and that is your signature?
20 A. That is correct.
21 Q. I think we need to read one qualification into this
22 statement, do we not? If we go to WIT 52/278, and just
23 blow up the text of that letter, please, you draw our
24 attention to an error on page 16. You invite us to read
25 paragraph 37 as it appears in that letter, and not as it
0102
1 appears in the text of the statement we have?
2 A. That is correct. The rules are a bit complex in the
3 area, but that is right. That amendment stands.
4 Q. What it comes to is that your statement, I think,
5 suggested that rule 18A applied to midwives but in fact
6 rules 18 and 18A applied to nurses and it is 30 and 31
7 that made the respective provision for midwives?
8 A. That is correct.
9 Q. There has been one comment submitted, that I am aware
10 of, on your statement. It is WIT 52/277, from the Chief
11 Executive of the English National Board, which I propose
12 to refer to as "ENB", for short, from Mr Smith.
13 You will be pleased to see that he says your
14 statement reflects accurately the legal foundations of
15 the UKCC and the National Boards, the structure and
16 funding of the UKCC and so on, but he does make
17 a qualification to paragraph 18 of your statement.
18 Is that qualification one that you would accept?
19 A. Absolutely, yes, I would.
20 Q. So if we read your statement with those two
21 qualifications, is there anything else in your statement
22 that you want us to qualify, anything you would like to
23 withdraw or add to, or change in any other way?
24 A. No, I think it stands, thank you.
25 Q. Your specific focus at the UKCC is on the conduct and
0103
1 discipline side of its activities?
2 A. That is right.
3 Q. One of the documents that again you helpfully supplied
4 to us, the starting point for conduct and discipline is
5 the Code of Practice. That is at page 140?
6 A. I think it is actually the Code of Professional
7 Conduct.
8 Q. I am obliged. If the document had come up a little
9 quicker I would have been able to read that. The Code
10 of Professional Conduct. If we go over the page, it is
11 dated June 1992. We see that at the bottom of the page;
12 it is very small at the moment, but it is June 1992?
13 A. That is correct.
14 Q. What did this replace? What had gone before? We see
15 this is the third edition. Which was the first edition?
16 A. At the formation of the UKCC in 1979, our first Act of
17 Parliament, there was a not dissimilar document. As you
18 can see, this is the third edition of the Code of
19 Professional Conduct, and as I speak, it is actually
20 under revision at the moment and indeed proposals have
21 been put forward as to how the Code of Professional
22 Conduct might look in the future.
23 Q. When did the second edition appear? I ask you that
24 because the Inquiry is concerned with the period between
25 1984 and 1995, and so this edition, the third edition,
0104
1 is plainly relevant directly to the latter part of that
2 period. The first edition would have been first
3 published before the Inquiry's period, but it may be
4 that the second edition appeared just before or just
5 after the beginning of the Inquiry's period.
6 A. I think it is important that I get this absolutely
7 right, so I think I will have to come back to you with
8 an exact date. I think it is fair to say, though, here
9 the second edition is not very different to the third
10 edition. I know that one of the key amendments was
11 around commercial interests because I think at the time
12 in question there was a developing feature of, for
13 instance, nurses being employed by commercial companies,
14 et cetera, and that was certainly one of the amendments
15 in the third edition. I will come back to that later if
16 that is all right.
17 Q. If the archives still have copies of the first and
18 second editions lurking at the back of the drawer, those
19 would be useful as well.
20 Can we then go to page 142, the next page? Just
21 before we look at any of these in detail, I take it
22 therefore -- obviously we will look at the first and
23 second editions when we get them, but this third edition
24 did not, so far as you are aware, bring about any
25 particularly significant change compared to the position
0105
1 previously?
2 A. No.
3 Q. So if we take as a working hypothesis that these
4 provisions have applied for some time, we start from the
5 most basic proposition in the Code of Professional
6 Conduct that "each registered nurse, midwife and health
7 visitor, shall [in other words, must] act at all times
8 in such a manner as to safeguard and promote the
9 interests of individual patients and clients."
10 Then we see the other three bullet points as well.
11 The governing principle is, is it not, that the
12 registered nurse, midwife or health visitor is
13 personally accountable for his or her practice, and in
14 the exercise of that professional accountability, must
15 comply with each of these provisions?
16 A. Yes, that is correct.
17 Q. Can you identify to me, please, which of these are most
18 pertinent to the Inquiry's deliberations. But perhaps
19 I could have a shot first.
20 Paragraphs 1, 2, 11, 12 and 13, most immediately
21 would seem to be the ones which are particularly
22 pertinent. Would that be right?
23 A. Yes. I think they would, with perhaps one caveat. Not
24 being a party to perhaps all the issues that the Inquiry
25 has heard in evidence, I do not know whether the issue
0106
1 of scope of practice relating to nurses has come at all
2 before you for consideration, but certainly clause 4 of
3 the code compels nurses to acknowledge limitations in
4 knowledge and competence, so that they would not stretch
5 those boundaries to the point where patient or client
6 would be exposed to risk.
7 I think that that would be full coverage, then, in
8 terms of clauses of the code.
9 Again, issues around confidentiality, I suspect,
10 may have entered into some of the Inquiry's
11 deliberations. Obviously that is covered by clause 10.
12 Q. If we take clause 10, for example, the need to protect
13 confidential information concerning patients and
14 clients, and only making disclosure when ordered to do
15 so by, for example, a court of law, sits beside, does it
16 not, clauses 11, 12 and 13, which are about,
17 confidentiality for patients notwithstanding, the duty
18 of the "committed nurse" which is shorthand for all
19 those covered by the code, to report to appropriate
20 people when the various matters identified in those
21 three paragraphs emerge?
22 A. Indeed, that is correct, and clause 10 also I think is
23 very specific about the ability to make disclosures when
24 it can be justified in the wider public interest.
25 Q. What would that embrace? What sort of circumstances
0107
1 would that cover?
2 A. In practice terms, certain examples where there are
3 firm grounds to believe that child abuse, perhaps, is
4 taking place, or where there is a matter that has
5 emerged that might lead a practitioner to believe that
6 a criminal act either had been committed or is about to
7 be committed. We obviously have jurisdiction across the
8 UK, and that in itself, I think, perhaps does have some
9 impact on when the wider public interest might justify
10 disclosure.
11 Q. The Inquiry has heard some evidence of nurses who move
12 into other roles in health care, management roles, for
13 example, becoming either nurse managers involved less in
14 the hands-on nursing than previously, or to become
15 General Managers, but are nonetheless still qualified
16 and registered nurses.
17 To what extent would they, as managers, continue
18 to be bound by the provisions of this code?
19 A. They are absolutely bound by the code whilst they
20 maintain their professional registration. Nursing
21 registration has to be renewed on a three-yearly basis.
22 We do have some practitioners, I think, who perhaps go
23 into different roles that do not necessarily require
24 them to have retained nursing registration, but choose
25 to allow their registration to lapse. In those
0108
1 circumstances, the UKCC would have no jurisdiction, for
2 instance, to pursue professional conduct proceedings
3 against them because you cannot remove a practitioner
4 from a register they are not currently on.
5 I think the majority of nurse managers, I think
6 I can speak from personal experience here, value
7 maintaining their professional registration alongside
8 any management qualifications or competencies that they
9 might so acquire.
10 Q. It would be those in managerial positions who might
11 perhaps be most likely to come upon information that
12 ought to be reported under paragraphs 11, 12 or 13,
13 rather than nurses more at the coalface?
14 A. I am not sure I accept that. I think that practitioners
15 throughout the grades of nursing come across
16 circumstances where it may be appropriate to report, and
17 in fact, I can say that from our experience at the UKCC,
18 sometimes we find that it is care assistants, nursing
19 auxiliaries going into areas of practice who may be the
20 people to come forward and report the registered
21 practitioner to the UKCC and in fact also students in
22 training going into areas of practice quite often will
23 express concerns about practices that may have been in
24 place for some period of time.
25 Q. It is important, is it not, to distinguish between the
0109
1 UKCC's disciplinary jurisdiction over its own members,
2 that it can strike people off its register or issue
3 cautions against them and so on, on the one hand, and
4 the obligations on those registered on the UKCC's
5 register to report concerns not only about other people
6 who are registered with the UKCC, but other health
7 professionals as well, including doctors, consultants
8 and the like?
9 A. Yes. I think that the clauses in the code are
10 broadly drafted.
11 Q. If we look at, for example, 11 and 12, if there was,
12 for example, a consultant who was continually drunk, let
13 us say, and a nurse noticed that and nothing appeared to
14 be being done about it, would that be the sort of matter
15 that would fall within the provisions of this code?
16 A. Yes, certainly, it would be.
17 Q. That would fall within what, 11 or 12, or possibly both?
18 A. Absolutely, yes.
19 Q. And it would be, would it, a breach, therefore, of that
20 nurse's professional obligations not in fact to report
21 to the appropriate person, whoever that might be in the
22 circumstances, of such a matter?
23 A. Yes, it would be.
24 Q. Can you comment on the extent to which there has
25 historically been a difference, if there has been
0110
1 a difference, a reluctance -- a greater reluctance on
2 the part of nurses to report matters about doctors
3 rather than to report matters about other nursing
4 colleagues? Is that something that the UKCC has noticed
5 or is able to comment on?
6 A. I think that I can comment on this at a number of
7 levels. I think we are getting better at it. I think
8 people are far more likely to express concerns and be
9 the patients' advocates in circumstances where they have
10 worries about individual practitioners across the board,
11 not just doctors. I think it can be very difficult
12 unless you work within a culture and a climate where
13 people are receptive to those concerns being addressed,
14 and you are not somehow labelled as being
15 a "troublemaker" or as somebody who cannot cope with
16 the stress of the job.
17 I think that there are some areas of nursing where
18 nurses still see themselves in a very subordinate role
19 to doctors, but again, I think that is changing. Nurses
20 are extending the boundaries of their competence and
21 knowledge; they are taking on many tasks that I think
22 traditionally might have been associated certainly with
23 a junior doctor's role, and I think that it is fair to
24 say that we see cases where we have managers who also
25 hold nursing registration who are reported to us for
0111
1 failing to act on concerns that have been made known to
2 them.
3 Our Conduct Committee views those very seriously,
4 because whilst we are trying to encourage within the
5 profession personal accountability, and recognising that
6 members of the public place themselves in our hands and
7 have high expectations of what is going to be delivered,
8 the two do not go easily together if the regulatory body
9 itself is not seen to enforce those standards.
10 Q. You have mentioned there the example of a nurse who was
11 a manager. If we look again at 11, 12 and 13, they all
12 refer to reporting to an "appropriate person or
13 authority".
14 Often, I assume, for the individual nurse on the
15 ward, the "appropriate person or authority" is liable to
16 be their immediate line manager, the General Manager of
17 the directorate of the Trust, for example.
18 A. I am not sure it is that clear-cut. The concerns they
19 have might be about their direct line manager --
20 Q. In which case things would be different, obviously.
21 A. Equally, if their experience is that where concerns have
22 been raised previously maybe nothing has happened as
23 a result of it, or perhaps they have been somehow
24 treated in a punitive manner, it may be appropriate to
25 consider taking that concern elsewhere.
0112
1 Q. What would be the role of the Director of Nursing in
2 terms of being the appropriate person in authority,
3 typically?
4 A. Absolutely key.
5 Q. How important, therefore, would it be for the
6 importance of the Director of Nursing in that role to be
7 advertised, known, without the Trust or other health
8 care organisation, so that nurses knew that that route
9 was open and available to them?
10 A. I think it would be of crucial importance.
11 Q. You talked about the changing situation of nurses now
12 being perhaps more willing to challenge or complain
13 about or comment on the conduct of doctors than they
14 were in the past. Is that a change that has taken place
15 since or during the period that the Inquiry is concerned
16 with?
17 A. Yes, I would say so.
18 Q. So in the mid-1980s, the culture would be other than
19 that that you have described as being the one that is
20 developing now?
21 A. I qualified as a nurse in 1987 and at that time I think
22 the change was starting to happen. I think there have
23 been a number of reasons for it. I think that many
24 people would say the changes in nursing education have
25 resulted in practitioners who perhaps have got better
0113
1 skills in terms of expressing concerns and feeling able
2 to do so. I am not sure I entirely concur with that
3 view.
4 Q. May it be that now that nursing is more of a university
5 orientated, educational environment than it was before,
6 that nurses are taken more seriously by doctors than
7 they were before?
8 A. Again, I am not sure about that. I certainly have been
9 in a position as a fairly junior nurse in challenging
10 a doctor about not telling a patient the truth, and in
11 latter years, as a Hospital Manager holding a nursing
12 registration, tackling a consultant about not telling
13 a patient the truth and in fact suggesting I was going
14 to go and tell the patient the true state of affairs
15 myself if he was not willing to do so.
16 I think much depends on the individuals and the
17 dynamics and the relationships between people in the
18 organisation as to how seriously and how credible
19 nursing is viewed.
20 Q. I am afraid our system is going to let us down in
21 a minute. I have a document which is headed "Guidelines
22 for Professional Practice". I am sure it is a document
23 you are familiar with. It is dated 1996. It tells the
24 reader it is going to be reviewed in 1998, and I cannot
25 find any review.
0114
1 Has that document been reviewed since?
2 A. No, it has not. The Guidelines for Professional
3 Practice were published to give more amplification on
4 the 16 clauses in the code of conduct. There has been
5 an information gathering exercise with regard to the
6 contents of the Guidelines of Professional Practice.
7 Q. So the document which I have in my hand, which we will
8 scan into the database, of course, is still the current
9 guidance?
10 A. Yes. In fact it was mailed to all of the registrants
11 on the UKCC register so every midwife and health visitor
12 at that time would have received it.
13 Q. I just want to read you a little bit of it. One of the
14 sections is headed "Making concerns known", it is
15 page 21 of the document. It says this:
16 "Providers have a duty to provide the resources
17 needed for patient and client care. The numerous
18 requests of the UKCC for advice on the subject indicate
19 that the environment in which care is provided is not
20 always adequate. You [the reader, the nurse] may find
21 yourself unable to provide good care because of a lack
22 of adequate resources. Also, you may be afraid to speak
23 out for fear of losing your job. However, if you do not
24 report your concerns, you may be in breach of the Code
25 of Professional Conduct." We have already discussed
0115
1 that. "You may also have concerns over inappropriate
2 behaviour by a colleague and feel it necessary to make
3 your concerns known. You will need to report your
4 concerns to the appropriate person or authority,
5 depending on the type of concern."
6 It may or may not be appropriate to go to the
7 Manager or the Director of Nursing or a consultant or
8 whoever.
9 "You may feel it necessary to discuss these
10 decisions with other colleagues or a membership
11 organisation".
12 That would be a Trade Union, for example?
13 A. Yes, that is right.
14 Q. The RCN or Unison, or whoever it might be?
15 A. Yes, that is right.
16 Q. Then the clauses of the code which relate specifically
17 to these issues --
18 THE CHAIRMAN: Mr Maclean, would you read just a bit more
19 slowly, please, bearing in mind we do not have it on the
20 screen, for the stenographer?
21 MR MACLEAN: Yes, of course. Then the clauses of the code
22 are set out, 11, 12 and 13, which we do have set out on
23 the screen. Then this:
24 "These clauses give advice on the minimum action
25 to be taken. This would help to make sure that those
0116
1 who manage resources and staff have all the information
2 they need to provide an adequate and appropriate
3 standard of care. You must not be deterred from
4 reporting your concerns, even if you believe that
5 resources are not available or that no action will be
6 taken. You should make your report verbally and/or in
7 writing and, where available, follow local procedures.
8 The manager, who may also be registered with us", your
9 earlier point, "should assess the report and communicate
10 it to senior managers where appropriate. This is
11 important because, if subsequently any complaint is made
12 about the registered practitioners involved in providing
13 care, this may require senior managers to justify their
14 action if inadequate resources are seen to affect the
15 situation."
16 So that sounds like a pretty tough instruction,
17 guideline, to those registered with the UKCC about the
18 importance of reporting matters falling within those
19 three paragraphs of the code.
20 A. Yes, I think it is.
21 Q. So it follows from that that it is something that the
22 UKCC takes rather seriously?
23 A. Yes.
24 Q. Presumably there are times that you would have knowledge
25 on and the UKCC would have knowledge of, whereby matters
0117
1 come to public attention some time after the events
2 complained of actually took place, and it is perhaps
3 obvious that there will be nurses who must have been
4 there at the time who would have something that could be
5 said.
6 It would follow, would it not, from these very
7 clear guidelines that there might well be a marked
8 reluctance on the part of a nurse subsequently to speak
9 out about matters which he or she could have spoken out
10 about before, for fear themselves of then being accused
11 of falling foul of the code.
12 A. Yes. I think you make a very valid point. I would
13 balance that, though, to say that in looking at any
14 individual case that is reported to the UKCC, clearly
15 mitigation, circumstances, the context, are crucial, and
16 there are cases where practitioners have expressed their
17 concerns, where problems were known about and accepted
18 within services, and practitioners got on with the job
19 doing the best they could to take care of patients and
20 clients.
21 Generally, I think our preliminary proceedings
22 committee, the first stage in our conduct process, take
23 a very careful look at such cases, and I think
24 particularly with regard to the circumstances of your
25 Inquiry, I think it is important that nurses feel
0118
1 enabled to assist you in the public interest and for the
2 greater good and should not be, I think, viewing the
3 UKCC as being the great punitive body that is going to
4 strike them off the register immediately for coming
5 forward.
6 I would go back to the first opening clauses of
7 the code, because I think that we do have a broader
8 interest to serve society and to justify public trust
9 and confidence and the best way of doing that is by
10 coming forward and assisting the work you are trying to
11 do.
12 Q. So if there are nurses who have stories to tell which
13 perhaps could have been told earlier but for whatever
14 reason were not, it would be the UKCC's position that it
15 would be better that if there are stories to be told
16 that they should be told, than that they should remain
17 untold?
18 A. I think that is right. I would also urge practitioners
19 to involve their professional organisations so they have
20 support in the process, because I do not think it is
21 ever easy to come forward perhaps years after the event
22 and acknowledge in the light of -- hindsight being
23 a wonderful thing -- that clearly the UKCC has
24 a statutory function which we have to discharge in the
25 public interest, but there are ways of doing that.
0119
1 The role of the UKCC is not to punish; we are here
2 to protect the public. We are here to protect the
3 public through professional standards. I think where
4 practitioners demonstrate to us that maybe there were
5 contextual matters, circumstances that led them to
6 perhaps not pursuing matters in the way they should have
7 done under the Code of Conduct, then UKCC has to look at
8 that and has to look at it in the most sympathetic way
9 that they can.
10 Q. Thank you, yes. Let us look at the professional conduct
11 rules a little. You have alluded to them briefly
12 there. If we go to 52/51, the way it works is that the
13 rules are actually a statutory instrument, and these
14 rules date, as we see, from 1993 -- there has been one
15 amendment of materiality since, which we will see in
16 just a moment.
17 I do not want to go through all these rules
18 because the Panel are well capable of reading them and
19 digesting them for themselves, but can I take you
20 briefly to 82, please, which is the explanatory note,
21 almost the most helpful bit of any statutory
22 instrument? This explains, as we see from the third
23 line, that this order comes into force on 1st April
24 1993. Again, a similar question to the one about the
25 code itself: to what extent were these a departure from
0120
1 the position previously?
2 A. I think it actually does tell you further down, because
3 the rules revoked and replaced the previous rules, there
4 was a fairly major change in terms of conduct in 1992,
5 following a review of the legislation. The whole of the
6 conduct function was consolidated under the UKCC. Prior
7 to that, part of the conduct function had been
8 discharged by the national boards in each of the four
9 countries. You had investigating committees instead of
10 our current Preliminary Proceedings Committee.
11 Q. Those investigating committees, the screening panel were
12 National Board panels, and it was only the ultimate
13 forum of the Professional Conduct Committee that resided
14 with the UKCC at that time?
15 A. That is right, but in fact there was an anomaly, because
16 the investigating function of the National Board was
17 actually funded by the UKCC, so they discharged the
18 function, but we funded it.
19 Q. That is why, in 1992, I think the Inquiry has heard this
20 evidence already, there was a dramatic fall in the
21 income of the National Board. The reason for it was
22 that this investigatory function was being transferred
23 from them to the UKCC, and their more limited role was
24 then funded by their relevant parent departments?
25 A. Yes, that is right.
0121
1 Q. If we look down to the paragraph you rightly take me
2 to, the next one, rule 7 of these rules constitutes
3 a "Preliminary proceedings committee."
4 That is the gatekeeper committee which sifts
5 complaints, "which will investigate and give initial
6 consideration to allegations of misconduct ..."
7 That committee has the ability to issue a caution
8 at that stage and the matter never gets to the
9 Professional Conduct Committee?
10 A. I think there are two points to make. Firstly all
11 complaints or allegations of misconduct or indeed
12 unfitness to practice because of ill-health have to be
13 considered by that committee.
14 Q. If we go to page 57, we will see that.
15 A. There is also no time limit for a complaint to the
16 UKCC.
17 Q. I think it is rule 6, is it not:
18 "The Council shall consider allegations of
19 misconduct by practitioners referred to it with a view
20 to proceedings for such practitioners to be removed from
21 the register."
22 So there is a duty to consider?
23 A. There is. I would say rule 7, which sets out the
24 investigation process, probably precedes that.
25 Q. The Preliminary Proceedings Committee determines whether
0122
1 or not to refer the case up to the Conduct Committee, or
2 to professional screeners in a health matter, or they
3 can determine themselves whether the practitioner is
4 guilty of misconduct and if they do, they can issue
5 a caution, but they cannot, of course, invoke the
6 ultimate weapon of removal from the register?
7 A. Except to say that the Preliminary Proceedings Committee
8 has the very radical power of interim suspension.
9 Q. Yes. We will see that in a moment. Over the page to
10 58, rule 7(7): this committee meets in private.
11 Then rule 9, over the page to rule 9(3): if
12 proceedings are to be taken any further, a notice of
13 proceedings is send by the Preliminary Proceedings
14 Committee and the practitioner involved has the
15 opportunity to respond to that in writing, and then,
16 again, the Preliminary Proceedings Committee has another
17 look at the case and may at that stage refer it upstairs
18 to the Conduct Committee, or take the other steps that
19 we see there?
20 A. Yes, that is right.
21 Q. Then we should go back briefly to rule 2, should we not,
22 at page 56:
23 "The circumstances in which a practitioner may be
24 removed from the register are (a) that she has been
25 guilty of misconduct" or (b) is concerned with physical
0123
1 or mental condition.
2 "Misconduct" is defined at page 55, rule 1(2)(k)
3 as meaning conduct unworthy of a registered nurse,
4 midwife or health visitor, including obtaining
5 registration by fraud, which is perhaps an obvious
6 example of unworthy conduct.
7 Conduct unworthy of a nurse, midwife or health
8 visitor: do I understand it to be the case that what
9 that really means is that now that the code exists,
10 a breach of the code is liable to be thought to be, on
11 the face of it, conduct unworthy of a registered nurse,
12 midwife or health visitor?
13 A. I am not sure we are at that point yet. Certainly the
14 recommendation is that in the future the Code of Conduct
15 should be constructed in such a way as each clause of
16 the code could in fact be used as a specific charge in
17 a Conduct Committee case.
18 Conduct unworthy, I would say, as the code
19 currently stands, it may well be that you are looking at
20 the initial opening statements about perhaps the more
21 general duties about justifying public trust and
22 confidence and serving the interests of society, and
23 I am thinking particularly about conduct that may not
24 have fallen within a professional context.
25 THE CHAIRMAN: I am sorry, Miss Lavin, forgive me,
0124
1 I was signalling without seeking to interrupt you, that
2 occasionally you may be going just a little more quickly
3 than the stenographer can handle, so if I could urge you
4 to speak a little more slowly, we can make sure we have
5 it.
6 MR MACLEAN: To the extent that "conduct unworthy of
7 a nurse" is another vague expression, the suggestion is
8 that it might better be defined by tying it to
9 individual paragraphs of the code, such that the
10 practitioner would get a letter saying "We are
11 investigating you for breach of paragraph 1.2.4, in that
12 you are accused of not doing X or Y"?
13 A. That is the suggestion which is contained in the
14 government review document.
15 Q. We will see that in a moment. I do not want to go
16 through much more of these rules, but at page 66, at
17 rule 22, this is the provision that has been amended, is
18 it not: you could either be removed from the register
19 for an indefinite period or for a specified period.
20 Under these rules, where you were removed for
21 a specified period, you were automatically restored to
22 the register once the period had concluded?
23 A. That is correct.
24 Q. 22(2) covered the other position of removal for an
25 unspecified period and then you had to make an
0125
1 application and ask to be let back in?
2 A. Yes.
3 Q. There has been a change to that, has there not? If we
4 go to 86, please, I have not shown you the front
5 page but you know that these are the 1998 nurses',
6 midwives' and health visitors' approval and rule 22(1)
7 has been deleted. If we go over to 27, if we strip away
8 the legalese, it means that a person removed from the
9 register for a specified period for ill-health or
10 misconduct now has to apply for restoration at the end
11 of the period in the same way as a person who has been
12 removed for an unspecified period?
13 A. That is correct.
14 Q. So there is no presumption, certainly no right, not
15 even a presumption, of getting back in at the end of
16 your period of exclusion?
17 A. No, that is right.
18 Q. You mentioned, and I should just flag it so the Panel
19 will have it in mind when they again consider these
20 rulings, interim suspension of registration is
21 paragraph 58 on page 77. Those are the provisions that
22 you were referring to, are they not?
23 A. That is right.
24 Q. And they effectively allow for a person who is of
25 course innocent until proven guilty, nonetheless to be
0126
1 suspended from registration and therefore from the
2 relevant practice, pending the outcome the
3 investigation?
4 A. Yes. It is a power which is used only in the most
5 serious of cases, and as you can see from rule 3(a), we
6 are bound by a requirement to give the practitioner
7 14 days notice and they have the right to appear at the
8 hearing and to give cause why the committee should not
9 go ahead and impose an interim suspension.
10 At the moment we have about 32 practitioners
11 subject to interim suspension by the UKCC, and those
12 interim suspensions have to be reviewed on
13 a three-monthly basis.
14 THE CHAIRMAN: Is there no power to suspend with
15 immediate effect?
16 A. There is in respect of midwifery. Midwives can be
17 suspended from practice with immediate effect, but in
18 that all of those cases would then come before the
19 Preliminary Proceedings Committee for consideration of
20 interim suspension.
21 When we consider changes to the Professional
22 Conduct rules, it was suggested that we should have
23 a power of suspension with immediate effect. However,
24 I think the concern was that at least by giving 14 days'
25 notice, you are more likely to get the practitioner
0127
1 before you, and before you perhaps with some support
2 from a professional organisation, a trade union, or
3 indeed legal representation, to give some of the facts
4 and context to the case.
5 MR MACLEAN: The question of restoration to the register
6 after somebody has been removed: first of all, how many
7 people are registered with the UKCC? Is it about
8 600,000 registrations? That does not necessarily mean
9 600,000 people, because you can be registered in more
10 than one place?
11 A. Yes. It is in excess of that. Quite a high proportion
12 of practitioners hold registration on more than one part
13 of the register, as you have said. I suppose the figure
14 we tend to use is about 637,000 640,000.
15 Q. How many people are removed from the register on
16 average each year?
17 A. About 100.
18 Q. How many complaints survive the preliminary committee's
19 deliberations and go over to the Professional Conduct
20 Committee each year?
21 A. We receive about 1100 complaints a year about
22 practitioners. Approximately 60 per cent of those are
23 closed by the Preliminary Proceedings Committee. And
24 they are closed for a number of reasons. Firstly, we
25 may not have jurisdiction to deal with the complaint
0128
1 that has been made and there are occasions when it may
2 be more properly made to another body.
3 Q. For example?
4 A. For example, the Ombudsman, the Health Service
5 Commissioner. There are occasions when the Preliminary
6 Proceedings Committee will close a case because it is
7 not likely to lead to removal from the register. We get
8 minor road traffic offences reported to us. We get
9 people who will report nurses for conduct within their
10 private or personal life that is not likely to lead to
11 removal from the register. As you can see, the code is
12 very broadly drafted.
13 Q. Yes, but we saw at rule 6, did we not, that the
14 Council's duty to consider allegations of misconduct is
15 a duty with a view to proceedings for such practitioners
16 to be removed from the register?
17 A. That is correct.
18 Q. So if it is obvious at the beginning that on any view,
19 even if everything that is alleged is true, it could not
20 conceivably lead to removal from the register, that is
21 the end so far as the UKCC is concerned?
22 A. I think that is right, but the second part of that is
23 that we operate to a criminal standard of proof, so
24 alongside the allegations, the committee have to be sure
25 that the matters alleged are supported by evidence that
0129
1 is going to hit that standard.
2 Q. We will see I think in a few minutes, I hope, there is
3 a suggestion, is there not, that the Professional
4 Conduct Committee should be given the ability on a lower
5 standard of proof to impose a penalty falling short of
6 removal from the register?
7 A. Yes. That proposal is in existence.
8 Q. It is not yet fact; it is a proposal?
9 A. No, that is right.
10 Q. We were examining the numbers. It would mean,
11 therefore, would it not, that roughly a little over
12 400 cases a year must get to the Professional Conduct
13 Committee?
14 A. Yes, that is correct.
15 Q. If my maths are right, so one in four of those leads
16 to removal from the register?
17 A. Yes. It is probably slightly less than 400. The
18 Conduct Committee sat for 181 days last year because of
19 course some cases will be heard by the Health Committee
20 of the UKCC.
21 Q. And 100 removals from registration: again, that 100
22 would apply to misconduct and to mental and physical
23 health, would it?
24 A. No, that was just conduct cases. The Conduct Committee
25 also has the power to caution, the power which also
0130
1 exists at the preliminary proceedings stage, so some
2 practitioners may not be removed from the register but
3 they may well receive a caution which stays on record
4 for five years and is disclosed and declared to any
5 employer ringing the UKCC to check registration status.
6 Q. In this sphere, the UKCC's role vis-a-vis nurses,
7 midwives and health visitors is obviously analogous to
8 the role of the GMC for doctors.
9 Do you happen to know how many registered doctors
10 there are who potentially fall within the ambit of the
11 GMC?
12 A. This figure will not be exact, but I have a feeling that
13 their register has about 150,000, 140,000 on it.
14 Q. So it is about a quarter of the size of the UKCC's
15 ambit?
16 A. That is about right.
17 Q. Do you happen to know on average how many people are
18 struck off the register held by the GMC?
19 A. No.
20 Q. We will no doubt hear evidence from them and we can
21 ask them. There is no point in pressing it with you.
22 There was a review, was there not, of not only the
23 discipline and conduct aspects of the UKCC but of
24 education and training as well for nurses, midwives and
25 health visitors following on the 1997 Act?
0131
1 A. That is correct.
2 Q. The 1997 Act was the Nurses, Midwives and Health
3 Visitors Act, but that Act was merely a consolidating
4 Act drawing together the existing law rather than
5 amending?
6 A. That is correct.
7 Q. You have supplied us with the review. It is a lengthy
8 document and I do not want to go through all of it
9 either, but if we go to 52/218, this is chapter 2 of
10 the review; that chapter sets out the background and
11 I should say the review as we see from the bottom of
12 the page was carried out by a company called
13 JM Consulting Ltd?
14 A. That is correct.
15 Q. If we go back up, please, to 2.3:
16 "The 1979 Act established a single UK-wide
17 statutory framework for the regulation of nurses,
18 midwives and health visitors stemming [rather slowly
19 perhaps] from the Briggs report of 1972... Protection
20 of the public is the ultimate purpose of statutory
21 professional self-regulation. This was not the explicit
22 focus of this legislation".
23 2.5 sets out the five bodies that are currently
24 involved in education, training, conduct and discipline,
25 professional regulation in its broadest sense of nurses,
0132
1 health visitors and midwives and for England there are
2 two relevant bodies: the English National Board and the
3 UKCC?
4 A. That is correct.
5 Q. The functions of the UKCC and the Board are summarised
6 very briefly in paragraph 2.5: the Council maintains
7 a register, sets education and practice standards and
8 conducts disciplinary hearings, but it is the Boards who
9 implement the educational standards but no longer carry
10 out the preliminary investigations into alleged
11 misconduct because that was a function taken away in
12 1982?
13 A. That is correct.
14 Q. The UKCC is directly elected, at least in part?
15 A. Two-thirds of the Council are directly elected. The
16 remaining one third are appointed by the Secretaries of
17 State across all the countries.
18 Q. But the national boards are pure quangos with no
19 democratic elected element?
20 A. It depends what you mean by a "quango". Yes, factually,
21 you are right.
22 Q. You are reluctant to accept the designation "quango"?
23 A. I do not like the word "quango", really, but
24 I understand, the UKCC has a largely elected membership
25 on the Council.
0133
1 Q. If we go over the page to 219, paragraph 2.10, the
2 review said:
3 "We believe the essence of the nursing, midwifery
4 and health visiting professions is focused on three main
5 characteristics ... These encompass evidence-based
6 practice, challenging and developing ..."
7 Throughout this review of much of the material you
8 have submitted there is repeated reference to the
9 element of development of "evidence-based practice".
10 Can you put into lay person's terms what this
11 development is all about and what it replaces?
12 A. I do not think this is exclusive to the nursing,
13 midwifery or health visiting professions, I think it
14 runs through health care. There has been an enormous
15 drive to try and invoke practice which has proven
16 outcome, and still a lot of nursing practice is not
17 evidence based. There are some areas -- I can think of
18 areas like wound care, infection control -- where we do
19 have firm evidence base for some areas of practice.
20 There are other areas that I think are more
21 difficult.
22 Q. Like what?
23 A. I think palliative care is an area that can be
24 difficult. You can have an evidence-based element
25 perhaps to pain control; it does not mean to say that
0134
1 your patient's pain is going to be controlled.
2 Q. So it is difficult to judge whether or not the objective
3 is met in some areas of nursing?
4 A. I think that is right.
5 Q. But for other areas, like "Has this patient now got an
6 infection they did not have yesterday?" it is easier?
7 A. Those are two areas I would highlight as having,
8 I think, more available nursing evidence, certainly.
9 Q. If we go over the page to 220, paragraph 2.16, this is
10 a review started in 1997. This document, I think, is
11 a 1998 document:
12 "Nursing is going through a period of significant
13 change and professional development. Changes in nursing
14 roles and practice include: nurses becoming [so still
15 happening] individually accountable for their practice,
16 and nursing becoming more evidence-based."
17 Why is that happening now rather than previously?
18 A. Individual accountability has always been there.
19 I think nurses are becoming more aware of what it means
20 in practice, so I would probably challenge the wording
21 of that clause.
22 Q. So it is not strictly accurate to say they are becoming
23 individually accountable?
24 A. No.
25 Q. It may be they are becoming more aware that they have
0135
1 always been individually accountable?
2 A. I think that is fair to say.
3 Q. The second bullet point, that genuinely is new?
4 A. Yes. I think it is. There is a lot more nursing
5 research under way and nurses, I think, are reflecting
6 on practice to scrutinise outcomes in the interests of
7 patients from a far more evidence-based perspective,
8 doing literature searches, having, I think, clinical
9 meetings and peer review on perhaps developments in
10 care.
11 Q. If we go over, please, three pages to 223, you set this
12 out in your statement, but the functions of the Central
13 Council are set out in paragraph 2.33, if we can see all
14 of that, please. That is essentially what is in your
15 statement. The functions of the National Board at the
16 foot of the page at 2.35.
17 Can we see the whole page and just take those two
18 together? The Central Council with its functions and
19 the National Board with its functions, can I ask you to
20 compare those institutions and their roles to doctors?
21 Who would have the responsibilities in the doctors' case
22 that fall within the various bullet points in those two
23 paragraphs?
24 A. Broadly speaking, the role of the Central Council, very
25 similar to the role of the General Medical Council. The
0136
1 difference is around education and clearly Royal
2 Colleges have involvement on the medical education side
3 of things in the way I think that the National Boards --
4 there are some differences. It is not directly
5 analogous.
6 Q. If can take it there is a pretty good analogy between
7 paragraph 2.33 and the GMC, can we go to 2.35 and blow
8 that up and look at the comparison between the Royal
9 Colleges and the National Boards?
10 The approving of institutions to provide courses
11 of training for doctors would be a function of --
12 A. Well, my understanding is that I think -- are you
13 talking pre-registration training, because the National
14 Boards currently approve institutions providing courses
15 of training for both pre-registration and also for
16 post-registration education?
17 Q. Let us take post-registration.
18 A. Post-registration, my understanding is that the Medical
19 Royal Colleges have involvement in -- yes, again,
20 I think it is difficult because I am not sure -- my
21 understanding is that some of the Royal Colleges do it,
22 and I know that the GMC is involved as well, and just as
23 the UKCC has a joint education committee, certainly
24 I know that the General Medical Council have heavy
25 involvement in education. I probably cannot help you
0137
1 more than that. I have a feeling it is changing as
2 well.
3 Q. It may be that we can better explore these issues
4 elsewhere, but do I summarise it reasonably accurately
5 if I say that there is a pretty good correlation between
6 paragraph 2.33 and the GMC, but a much less precise
7 correlation between the functions of the National Boards
8 and the Royal Colleges?
9 A. Yes. I think that is true.
10 Q. The UKCC is funded principally by the subscriptions of
11 the people who are on its register?
12 A. Exclusively.
13 Q. And does not raise money in a commercial way?
14 A. No. We are a registered charity.
15 Q. So we could send you some money if we wanted?
16 A. Yes. The General Medical Council are not a registered
17 charity, so do not send it to them!
18 Q. I will remember that. But the National Boards, they are
19 funded by and accountable to the various departments, in
20 England the Department of Health?
21 A. Yes.
22 Q. The UKCC --
23 A. Well, yes with a caveat, in that there are certain parts
24 of their work in which they should be accountable to us,
25 the UKCC, because they are implementing standards that
0138
1 we set, but in terms of funding, you are absolutely
2 right, it would come through the departments.
3 Q. And the UKCC is accountable to whom?
4 A. Again, I would say we are accountable on a number of
5 levels. We are clearly accountable to the public. We
6 are accountable to the practitioners on our register who
7 fund our work, and we are accountable to the -- the
8 Department of Health is certainly a key influence in our
9 work.
10 The Secretary of State, I think we are accountable
11 at a number of levels. It would depend -- I think what
12 particular aspect, for instance, if I think about
13 professional conduct, we have public hearings and we are
14 very accountable to the general public as to how we
15 deliver that.
16 Q. In theory there is a democratic accountability as well,
17 is there not?
18 A. There is, and also the other aspect is that we do not
19 just have NHS registrants on our register. We estimate
20 nearly 25 per cent of our register are working in the
21 independent sector, so it is not just an NHS
22 accountability either.
23 Q. You have self-employed nurses outside of the Health
24 Service?
25 A. Nurses working in residential homes, perhaps
0139
1 increasingly, in independent hospitals and there are
2 a small number of practitioners who have self-employed
3 status. It may well be that in the future that number
4 grows.
5 Q. If we take England for the moment, since that is all
6 that we are presently concerned with, the regulation in
7 its broadest sense of the activities of nurses, midwives
8 and health visitors depends necessarily on co-operation
9 between the UKCC on one hand and the National Board on
10 the other, because they form complementary roles. How
11 well does that relationship work?
12 A. I think the review was welcomed, and in some ways, it is
13 an artificial divide. I was talking to you about
14 perhaps some of the difficulties around the
15 accountability levels. When you hand something on to
16 somebody else to do, such as implementing a standard
17 that you have set, it is quite difficult to do that.
18 Q. What control does the UKCC have over the National Board
19 to make sure that the National Board is in fact
20 implementing the training regime that the UKCC lays
21 down?
22 A. I think at an informal level, it does work. There is
23 a lot of collaboration, you meet regularly. If there
24 are concerns, I think they are addressed, but in terms
25 of formal sanction, I would say very little, and I think
0140
1 it is precisely for that reason that the review was
2 welcomed by all parties.
3 Q. So if we go over the page to 225, can I ask you to look
4 at paragraph 2.42? Just have a look at that. Tell me
5 if that says essentially what you have just said to me.
6 A. Certainly it is absolutely right that the Act says very
7 little about the relationship between the five bodies,
8 it merely sets out statutory functions. I think the
9 collaboration of goodwill on all sides has always been
10 present, but I think it is fair to say that all of the
11 five bodies acknowledge that the arrangements could be
12 better.
13 Q. So that is fair comment?
14 A. Absolutely.
15 Q. The review looked also, did it not, at the principles of
16 regulation, including mentioning that the Secretary of
17 State had powers to set up inquiries, which the Panel
18 will be interested to learn are said to be increasingly
19 used and providing a significant form of protection,
20 albeit retrospective -- that is page 228 of this
21 document. But what I want to go to is page 251.
22 This is dealing with the aspect we have dealt with
23 already about conduct and discipline. At 4.70 it was
24 said by the review that there was a serious mismatch
25 between what the UKCC was seen to be doing and what
0141
1 others think it should be doing.
2 Then in the next paragraph it is noted that the
3 sanctions were limited to the caution either at the
4 first stage or the second stage, by either committee, or
5 removal from the register, but there was no power to
6 reprimand, no power to have conditional registration,
7 and no power, as you have mentioned, to deal with cases
8 which are never going to lead, on any view, to removal
9 from the register.
10 4.72, if we can just look down, deals with the
11 balance of proof point. It says:
12 "A reprimand or formal admonishment could be
13 applied where misconduct is not proven (using criminal
14 standard of proof: beyond reasonable doubt) but there is
15 a case to answer (using a lower level of proof: balance
16 of probabilities)."
17 Whether or not "a case to answer" is the same as
18 "proof on the balance of probabilities" is an
19 interesting legal debate we do not have to go into, but
20 there is mention made at least of dropping the standard
21 of proof and having a correlative lesser penalty.
22 At the foot of the page it is suggested that there
23 should be an additional sanction of the removal of marks
24 or records against the register, so that that is
25 effectively taking a stripe away, is it not? It is
0142
1 demoting the nurses' registration without taking them
2 off the register? So if the nurse might initially be
3 registered, then have a mark put in the register
4 denoting a higher level of practice, and then falls foul
5 of the UKCC, at present they could only be either
6 cautioned, removed or no action taken, and the
7 suggestion is that they can be what sounds to me like
8 demoted to the ranks instead?
9 A. I am not sure I accept that. I think that the UKCC
10 has power at the moment to remove a practitioner from
11 one part of the register and not another. If I give you
12 an example, a registered nurse who is also a registered
13 midwife: it may well be that she would remove the
14 midwifery part of the registration and you might retain
15 the nursing part. There are very, very rare occasions
16 when that might be appropriate.
17 The suggestion here, I think, relates to something
18 that has not happened yet.
19 Q. We will see in a minute that the suggestion now is
20 that the register be greatly simplified and that in
21 essence one is either a registered nurse and/or
22 a registered midwife and/or a registered health
23 visitor -- I think that is the government's suggestion,
24 the third one -- and essentially on a basic structure
25 one can have a higher level of qualifications added by
0143
1 having marks, so one might be RN, open brackets,
2 whatever the for mental health is, showing what the
3 qualifications for mental health were. So this
4 suggestion is that on that new simplified structure the
5 registered nurse with the mental health qualification
6 can have the mental health notation removed but still
7 retain the registered nurse status.
8 Have I understood it?
9 A. You are not quite there. I think we actually have that
10 power on some occasions now, in that you may have
11 a nurse who is on a general part of the register and
12 also has a mental health registration, and you could
13 potentially remove that. This proposal relates to
14 recordable information on the register being removed as
15 a sanction.
16 The issue around simplifying the register is to
17 make it more accessible to the public, more easily
18 understood by employers. There are strong arguments for
19 it. And the evidence collected by the review team
20 pointed to the fact that the register is currently too
21 complex.
22 Q. There is a difficulty, is there not, with simplifying
23 the register caused by cross-recognition of European
24 qualifications?
25 A. That is right.
0144
1 Q. Can you explain that to me?
2 A. No, I cannot. It is a very, very difficult. I know
3 we have problems -- if I give you a practical example,
4 it is probably the easiest way of explaining it.
5 At the moment, enrolled nurse training does not
6 take place in this country.
7 Q. That is level ...
8 A. That is level 2 registration.
9 Q. That no longer exists?
10 A. You cannot train as an enrolled nurse. To all intents
11 and purposes, that part of the register should be
12 closed.
13 Q. Frozen?
14 A. Frozen. The reality is that in dealing with applicants
15 from the European Community to come on to the register,
16 many of them will fulfil the criteria for level 2
17 registration and therefore be added on to that part of
18 the register. So, if you like, there is a European
19 imperative that means that that part of the register
20 cannot be closed.
21 Q. UK nursing now has four recognised branches to it?
22 A. That is correct, under Project 2000.
23 Q. Adults, children, mental health and learning
24 disabilities?
25 A. Yes.
0145
1 Q. I do not know whether you have seen the evidence that
2 the ENB gave to this Inquiry, but there was a discussion
3 in the evidence about the fact that there is no European
4 Union-wide recognition of children's nursing as
5 a separate specialty. I think it was the evidence of
6 the two people who gave evidence here that within
7 Europe, the adult branch of nursing was seen as being
8 the generalist branch and the others were specialist
9 little brothers and sisters of the generalist
10 qualification.
11 To what extent did that cause problems for the
12 rationalisation of the UKCC register?
13 A. I think there is an issue there. I am not sure it is
14 an easily resolvable one. It is quite important to ask,
15 whilst we are talking about Project 2000 and the
16 branches in existence at the moment, to inform the
17 Inquiry that the UKCC have had a commission looking at
18 pre-registration nurse education. That commission has
19 been chaired by Sir Leonard Peach and is about to
20 report its findings in September.
21 The imperative to look at nurse education has been
22 there for some time. It may well be that any proposal
23 that comes out of the Education Commission will have
24 taken into account the European context.
25 Q. The register, if we just look at this briefly,
0146
1 WIT 52/243 -- this is still the 1997 review. I am glad
2 you said it was complicated, because I found it
3 complicated.
4 The Council maintains a single professional
5 register for nurses, midwives and health visitors. It
6 has 15 parts: four for nurses training on HE diploma
7 courses, one for each of the four branches, four for
8 nurses on pre-Project 2000 courses, level 2, and you see
9 in brackets these parts are still used for European
10 economic area registrants, so it is actually wider than
11 the EEU for parts relating to the second level, those
12 who were previously enrolled nurses, closed part for
13 fever nurses, health visitors and one for midwives.
14 The suggestion or the finding of the review was,
15 if we go over the page to 244, please, at 4.25:
16 employers, so the review found, found this a cumbersome
17 register, difficult to access. They were unfamiliar
18 with what the different parts meant, and yet, as the
19 review says, checking a professional's fitness to
20 practice through their entry in the register was
21 a fundamentally important part of public protection.
22 That is obviously right.
23 Then 4.26 and 4.27, some difficulties or anomalies
24 are pointed out. Then the recommendation:
25 "We considered simplification of the register to
0147
1 two parts, RN and RNM. The RN part could have a mark or
2 record against it denoting level, first or second and
3 branch, and that is the example I use -- I am sorry, if
4 we scroll down the page, please, it points out the
5 difficulties at 4.29.
6 Down a little more, please, and the changes
7 required are to close to admission those parts where
8 training no longer exists.
9 Over the page, simplify the register, ensuring the
10 underlying structures are appropriate with reference to
11 other legislation, e.g. the European directives. That
12 is the bit that is no easy task. Then you see the other
13 recommendations made.
14 I have not taken you through all of that review.
15 Those are, I think, perhaps the bits that are most
16 interesting and most pertinent to the Inquiry's present
17 concerns.
18 Before I turn to the government's response, which
19 I am going to, is there anything else in that review
20 that you think the Panel would be assisted by, at this
21 stage, given that they will, of course, have the whole
22 document before them?
23 A. May I just have one moment? (Pause).
24 There is one additional part that I think
25 I would like to draw the Inquiry's attention to. It is
0148
1 on page 6 of the review document.
2 Q. That is at page 193.
3 A. I think really by way of summary, this sets out the
4 functions, the proposed functions of what is called the
5 Nursing and Midwifery Council within this document, but
6 that may not be the final title of the regulator,
7 setting out the functions which I think would form the
8 statutory framework, but perhaps of more interest, talks
9 about the discharge of those functions. I think
10 specifically picking up the public interest element --
11 Q. Can we scan down the page, please?
12 A. -- and the duty on consultation, involvement of patients
13 and consumer groups, is something that the UKCC has been
14 working very hard at. We try and ensure that we have
15 the consumer at all our Conduct Committees, but I think
16 that is an important change.
17 Q. The consumer would be what, somebody from a community
18 health council?
19 A. It may well be somebody from the community health
20 council, a patient advocacy group, somebody who is the
21 voice of the public as opposed to the voice of the
22 professional on a Professional Conduct Committee.
23 Obviously the European issue is picked up as well
24 with regard to discharge of functions.
25 The important paragraph, I think, is 27f which
0149
1 talks about putting public safety first to the extent
2 that it is not incompatible with the public interest
3 endeavour to help and support practitioners to indulge
4 in safe practice.
5 It probably goes back to your point about lower
6 standard of proof. Things have to be pretty bad for you
7 to be removed from the register for misconduct. There
8 is going to be a far more rehabilitative focus in the
9 regulator's work in the future.
10 In the JM document I think it is acknowledged that
11 whilst I told you the role of conduct is not about
12 punishment, I think it is fair to say that is how it is
13 perceived within the profession at the moment. There is
14 no doubt in my mind that the thrust of this document and
15 the thrust of the government's response is that that
16 will change.
17 Q. Shall we have a look at the government's response, then,
18 unless there is anything else?
19 A. That was all.
20 Q. I think everybody now has this: 52/317. It was
21 issued as we see from the top of the page on
22 9th February 1999. It comes from the Department of
23 Health. Can we go then to the fourth page, so it must
24 be 320? Under the heading "Summary", the second
25 paragraph:
0150
1 "The report [the one we have been looking at]
2 identifies a number of weaknesses in the current Act and
3 makes recommendations for the new legislation. We
4 believe that the criteria and principles proposed are
5 sensible and that the recommendations reflect the broad
6 consensus view of the many organisations and individuals
7 who were consulted during the review."
8 Then in the bigger paragraph, about half a dozen
9 lines or so from the bottom:
10 "The government considers that the repeal of an
11 Act requires primary legislation. We therefore propose
12 an amendment to the Health Bill [which was going through
13 Parliament] to make provision to repeal the Nurses,
14 Midwives and Health Visitors Act 1997 [that is
15 a consolidating Act that underpins the UKCC and the
16 National Boards]. The repeal provision would not be
17 brought into effect until replacement arrangements are
18 in place. Other safeguards which will be statutory
19 requirements are full consideration with interested
20 parties publishing the order ..."
21 In other words, once a replacement is in place,
22 the repeal of the present Act will be invoked and the
23 old system disappear and the new system will appear in
24 its place.
25 If we go to the next page, page 5, over the page,
0151
1 321:
2 "The government makes clear that in its White
3 Paper they made a clear commitment to work with the
4 professions and the regulatory bodies to strengthen the
5 existing systems of professional self regulation by
6 ensuring that they are open, responsive and fully
7 accountable ..."
8 At the bottom of that page, it says that the
9 following pages summarise the government's response.
10 One more page on, then, please. The core
11 recommendation of the review was to sweep away the
12 system of the UKCC and the National Boards, and to have
13 a single body which it is proposed to be called the
14 Nursing and Midwifery Council, which was to concern
15 itself with the entire range of professional regulation
16 for nurses, health visitors and midwives embracing
17 pre-registration education, post-registration education,
18 and conduct and discipline?
19 A. Yes, that is correct.
20 Q. So to the extent that there is an analogy with the
21 doctors' profession which you have explained is
22 imperfect, it would be similar to but not the same as
23 the functions of the Royal Colleges in respect of
24 training and accreditation being merged with those of
25 the GMC into a single body?
0152
1 A. Yes.
2 Q. And we see the government's response, if we scan down:
3 the government essentially agrees, subject to a caveat
4 about health visitors.
5 If we go over the page to 323, the second half of
6 the page, the register, the government too grapples with
7 the European problem:
8 "A level of complexity is needed for the purposes
9 of satisfying European requirements. The report
10 considers this can continue to be met whilst presenting
11 a much simpler structure to the public and employer".
12 So a simplified front is going to be presented to
13 the outside world with the complexities hidden from
14 public view, and what is going to happen if the
15 government's proposal is carried through is that there
16 will be a three-part structure, which I think I outlined
17 earlier -- registered nurse, registered midwife,
18 registered health visitor -- with the extra marks tagged
19 on where appropriate.
20 Again, if we go to page 9, 325, dealing with
21 education now, the functions of approving institutions
22 and courses are currently undertaken by the National
23 Boards. Under the new arrangements a single UK-wide
24 statutory body will have ultimate responsibility for
25 setting and monitoring standards of education."
0153
1 But slightly different arrangements might be made
2 in different parts of the UK but for England, no
3 separate body below the Council is envisaged, although
4 the Council may collaborate with the new Quality
5 Assurance Agency.
6 So in England the new Council will be the only
7 body responsible for education and professional conduct
8 in discipline and so on?
9 A. Yes. I think that is what is proposed in the response.
10 Q. Just to tie up the loose ends of this, over the page to
11 page 10, 326, the government accepts some and consults
12 on others of the recommendations about sanctions. We
13 see, for example, the government says that a further
14 level of protection can be afforded by making it
15 possible for the marks to be removed without removal
16 from the register. It supports the notion of
17 conditional registration. It supports the notion of
18 mediation and conciliation, which is something you have
19 touched on, about the UKCC being seen at present as
20 being the great disciplinarian regulator, and scanning
21 down, welcoming views on the sanction of reprimand on
22 a lower standard of proof.
23 Is that something those presently involved in the
24 discipline of regulation in the UKCC would welcome? Is
25 that a weapon which is designed --
0154
1 A. I think the difficulty is currently around the lack of
2 clarity on how such a sanction might operate. You may
3 recall in the main document there was a suggestion of
4 cumulative effect and in the response to government,
5 I know that we tried to seek clarity on precisely how
6 a sanction of reprimand might operate.
7 At the moment, it probably happens in a fairly
8 informal way, in that the Preliminary Proceedings
9 Committee, whilst recognising they had to close a case,
10 often will direct myself or one of my senior staff to
11 write letters to practitioners indicating areas where
12 they might want to reflect on practice, for instance, in
13 relation to the administration of medicines or in
14 relation to guidance on records and record-keeping.
15 Equally, those letters do not just go to
16 practitioners. I can think of many occasions where
17 I have been directed to write to Directors of Nursing,
18 most recently I think to a Chief Executive who wrote
19 back to me and expressed his concern that the UKCC
20 should have such a degree of interest in the day-to-day
21 activities within his Trust. I assured him we were
22 interested and perhaps he might like to come and be an
23 observer at a Professional Conduct Committee that was
24 taking place very soon in his locality. So I think that
25 this is happening, although not in a public way.
0155
1 I think it is happening in an informal way.
2 The difficulty we have at the moment is, we have
3 nothing in between no action and a caution, which
4 remains on the register for five years. That is
5 a pretty big gap in terms of flexibility of response to
6 cases.
7 Q. The effect of the caution would be, would it, perhaps
8 two-fold: first of all, if the nurse applied for another
9 job in the five years, all things being equal, if there
10 was another candidate of equal ability, it is unlikely
11 that nurse would get that job?
12 A. I do not think you can come to that conclusion. We are
13 heavily dependent on the employer having the knowledge
14 that the practitioner has been cautioned. The use of
15 our confirmation service at the UKCC is very patchy. In
16 fact, the people who use it most effectively are nursing
17 agencies.
18 Q. What is involved? If I wanted to find out if there was
19 a caution against one of my prospective employees, what
20 do I have to do?
21 A. You can check registration in a number of ways. If you
22 were considering employing somebody, you would have
23 details of their name, their address, their date of
24 birth, their personal identification number, in order to
25 identify them on our register. Clearly, if there is
0156
1 a register of 640,000, you need some of that information
2 to be able to correctly identify the practitioner.
3 You would also then be able to confirm if the
4 practitioner was registered not just perhaps as
5 a general nurse but also as a registered midwife or
6 registered mental health nurse. It can be done directly
7 on a telephone link; we receive faxed requests for use
8 of the confirmation service. But only a matter of a few
9 weeks ago we issued a guide on the use of the
10 confirmation service which I can make available to the
11 Inquiry.
12 Q. If I wanted to check up this afternoon on a particular
13 nurse, when would I get a response from the UKCC telling
14 me how many cautions there were and against which parts
15 of the register?
16 A. You should get it immediately, and indeed you would not
17 just be told of the caution. The call would be taken in
18 the first instance by Registration, who would then
19 transfer you to Conduct, and you would be given details
20 of the charges that were found proven against the
21 practitioner so you had an idea of the subject matter of
22 the case. If you wanted, and assuming the caution had
23 been given at the Professional Conduct Committee,
24 a transcript of the case could be made available to you
25 free of charge.
0157
1 Q. What is the purpose of the caution?
2 A. If I can address this in two stages, a caution can only
3 be given by the Preliminary Proceedings Committee in
4 circumstances where a practitioner admits the facts of
5 the case and admits misconduct. It is to deal with
6 one-off deviances, practitioners who in a fit of anger
7 in overwhelmingly difficult circumstances with a lot of
8 mitigation have transgressed once; the Committee are
9 assured that there is a very low risk of reoffending,
10 circumstances that might lead to a caution at the
11 Preliminary Proceedings Committee. It might be the
12 one-off striking of a very demanding client in extreme
13 circumstances, poor staffing levels, difficult
14 management circumstances. Because the Committee's job
15 is to ensure public protection.
16 Q. If I had a caution against me and then I find myself
17 again within the five-year period in front of the
18 Professional Conduct Committee, does the Conduct
19 Committee know about that earlier caution before they
20 find me guilty of misconduct the second time around, or
21 only afterwards if they do find me guilty of misconduct?
22 A. Our proceedings are analogous to criminal proceedings.
23 If you have a caution in existence at the time of your
24 appearance before the Conduct Committee, that would come
25 out at the mitigation and previous history stage, which
0158
1 is after the finding of misconduct. In the Preliminary
2 Proceedings Committee, again, after the issue of the
3 notice of proceedings, after the committee have come to
4 a determination that what is alleged is likely to lead
5 to removal from the register, it is at that point that
6 it would be made known.
7 I did not finish the previous point about
8 caution --
9 Q. May I just clear up that last point? I was asking, to
10 take my example, about when my "previous" would appear
11 before the subsequent committee. I understand you to
12 say that if I had a caution against me and two years
13 later I ended up before the Professional Conduct
14 Committee, the fact of the earlier caution would only be
15 known to the Professional Conduct Committee if and when
16 I was convicted the second time around at the sentencing
17 stage, but you then went on -- that is what I understood
18 your answer to be?
19 A. Yes.
20 Q. You then went on to explain that the Preliminary
21 Proceedings Committee, which obviously can look at the
22 case, and would look at the case first, if they decided
23 to send my second case to the Professional Conduct
24 Committee, would that Professional Conduct Committee, on
25 receiving my second case, not know at that stage that
0159
1 I had a caution already against me?
2 A. I think I have lost your question. At the Conduct
3 Committee, your caution would be declared and notified
4 to the committee in the way that your previous
5 convictions would be placed before the criminal court
6 prior to sentencing. It is exactly the same.
7 THE CHAIRMAN: Would it short-circuit the question
8 to put it in the following way: as part of your
9 committal papers to the Professional Conduct Committee,
10 would that fact of a previous sanction be part of the
11 committal papers, using committal papers as
12 a generalisation?
13 A. No, it would not.
14 MR MACLEAN: I am obliged to the Chairman for summarising
15 my long-winded question.
16 Would you just give me a moment, please?
17 Those are all the questions that I had desired to
18 ask you this afternoon. Before I see if there are any
19 questions from the Panel, is there anything else that
20 you would like to say at this stage, and in particular,
21 are there any loopholes or shortcomings in the procedure
22 as it currently is, or as it is proposed to be, which in
23 your opinion exist and which the Panel might usefully be
24 made aware of?
25 A. I think there is only one point, in addition, and it is
0160
1 purely from a personal perspective, as somebody who has
2 occupied a management role at the same time as having
3 nursing registration.
4 I think it can be quite difficult to live by the
5 Code of Professional Conduct when you are trying to
6 balance with it the inevitable difficulties that
7 managing a service which is never going to have endless
8 resources devoted to it bring, and certainly, I know
9 that I have experienced circumstances where I myself
10 have not felt entirely happy that I could always defend
11 myself before a Professional Conduct Committee, and I am
12 a Director of Professional Conduct.
13 So I think there is a degree of realism that
14 has to be attached to the clauses of the code and in
15 operating it and in considering cases that come before
16 the Council, we have to give due consideration to the
17 context in which the practitioner is working, the
18 resource issues, skill mix, there are areas within
19 nursing that it is very difficult to recruit the right
20 sort of practitioners into, people who have the right
21 skills to care for that patient at that time, and it may
22 well be that recourse to less qualified staff is the
23 most appropriate thing you can do, the best thing you
24 can do, in those circumstances.
25 That does not take away the thrust of the Code of
0161
1 Professional Conduct. It is there for a very important
2 reason. It is because the patients that come into our
3 care as practitioners are very dependent on us, because
4 many of them cannot speak for themselves, and whilst
5 I think we have to attach realism to the code, I think
6 it is very important that we retain those ideas in
7 practice.
8 Q. Thank you. Is there anything else that you want to add?
9 A. That is all, thank you.
10 MR MACLEAN: There are not going to be any questions from
11 behind me. Are there any questions from the Panel?
12 THE CHAIRMAN: Mrs Maclean.
13 Examined by THE PANEL:
14 MRS MACLEAN: Just to clarify a point in case I have
15 misunderstood you. Mr Maclean a moment ago in
16 discussing your confirmation service said that if he
17 were to ring up this afternoon to check on somebody --
18 and you then described the information which he would
19 receive. I am assuming that he would be ringing up in
20 a professional capacity; it is not to indicate that
21 members of the public can ring up and be given this sort
22 of information in a general way?
23 A. The way in which the question was put was I think
24 from the perspective of a potential employer.
25 Q. Exactly.
0162
1 A. The register is a tool of public protection. We do
2 not print it in the way that the GMC print the Medical
3 Register, although, going back in time, it used to be in
4 a bound volume.
5 If, as a member of the public, you were to be
6 directly employing a practitioner and you had their
7 details, there is no reason why you should not be able
8 to confirm the registration status of that
9 practitioner. The one concern we always have is that we
10 do not want to give people information that is going to
11 enable people to pose or purport to hold nursing
12 registration, and clearly, we have to have safeguards in
13 the system to make sure that the system is not used in
14 that way.
15 MRS MACLEAN: Thank you.
16 THE CHAIRMAN: I do not have any questions, but I would
17 like to thank you very much indeed for coming, not least
18 because I hope all who are interested in this Inquiry
19 will have heard and understood what you said at the
20 outset about the attitude of the UKCC to those nurses
21 who may wish to come forward to help us.
22 I found that extremely valuable and helpful, I am
23 very grateful to you, and I am sure they will also.
24 So again, I repeat my thanks. If I may impose on
25 you just to sit there for a moment, I am to hear from
0163
1 Mr Langstaff before we adjourn for the day.
2 MR LANGSTAFF: Sir, only to anticipate whom we will have
3 tomorrow: Miss Jenkins and Miss Burr from the Royal
4 College of Nursing.
5 THE CHAIRMAN: I am grateful. I repeat my thanks to you,
6 Miss Lavin, and to everyone else and Mr Maclean and say
7 we will adjourn now and reconvene tomorrow morning at
8 9.30.
9 (3.00 pm)
10 (Adjourned until 9.30 am on Thursday, 24th June 1999)
11
12
13
14 I N D E X
15
16
17 MR STEPHEN BOARDMAN (affirmed):
18 Examined by MR LANGSTAFF ................... 3
19 Examined by THE PANEL ...................... 96
20
21 MS MANDIE LAVIN (sworn):
22 Examined by MR MACLEAN ..................... 101
23 Examined by THE PANEL ...................... 162
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Published by the Bristol Royal Infirmary Inquiry, July 2001
© Crown Copyright 2001