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Daily transcripts
Hearing summary
22nd July 1999
Mr Michael Burgess, Honorary Secretary, Coroners Society of England and Wales, today
gave evidence to the Inquiry. Mr Burgess began by explaining who coroners were and what
qualifications they would generally have. He also described the role of coroners officers.
New guidance from the Royal College of Pathologists on the retention of tissue was
discussed and also the effect of tissue retention on relatives. Mr Burgess told the
Inquiry of a change of emphasis relating to the permission required to retain tissue
following postmortem. He also discussed the possibility of detection by coroners of trends
in causes of death.
Evidence from Mrs Diane Kennington, Patient Affairs Officer at the Bristol Royal
Infirmary, followed Mr Burgess. Mrs Kennington began by describing her role at the
hospital. She then discussed her involvement in coroners post mortems and hospital post
mortems and the removal and retention of tissue/organs including the necessity of
obtaining consent. Mrs Kennington was shown several types of consent forms used in
directorates other than those for which she was responsible and discussed whose
responsibility it was to broach the subject of postmortem with relatives.
|
FULL TRANSCRIPT
1 Day 43, 22nd July 1999
2 (9.35 am)
3 THE CHAIRMAN: Good morning, everyone. Good morning,
4 Mr Maclean.
5 MR MACLEAN: Good morning. This morning's witness is
6 Mr Michael Burgess who is HM Coroner for Surrey.
7 Mr Burgess, could I ask you to stand and take the
8 oath, please?
9 MR MICHAEL BURGESS (SWORN):
10 Examined by MR MACLEAN:
11 Q. You are Michael John Clement Burgess?
12 A. That is right.
13 Q. And you are HM Coroner for Surrey and the Honorary
14 Secretary of the Coroners' Society for England and
15 Wales?
16 A. That is right.
17 Q. Can I ask you to look at the screen on your right, and
18 can we have on it WIT 39/1, please? If we see that, can
19 we see the whole page? That is the cover sheet of the
20 statement that was prepared by you and submitted to the
21 Inquiry?
22 A. That is correct.
23 Q. If we go, please, to page 3, that is the last paragraph,
24 paragraph 13, the statement which then has a number of
25 other documents attached.
0001
1 If we go over to page 4, there is a signature,
2 I think, at the bottom?
3 A. That is right. It is mine.
4 Q. You have submitted various appendices, and you have
5 also more recently submitted to the Inquiry another
6 document. Perhaps I could just show you that briefly.
7 It is at WIT 39/19. That is dated 15th July 1999. That
8 is a memorandum which we will come to in a little more
9 detail shortly, prepared by you, which, if we look over
10 the page, please, to page 20, the top of the page, it
11 endeavours to set out briefly essentially the role of
12 Coroners and the role of inquests in the process of
13 establishing the cause of death after somebody has died?
14 A. That is correct.
15 Q. And you were the sole author of that document, were you?
16 A. Yes, I am.
17 Q. I think finally on the documentation, Mr Burgess, the
18 Society has also, has it not, sent to the Inquiry
19 a formal written response to the submissions by the
20 Royal College of Pathologists. If we go to WIT 54/962,
21 that is the cover sheet of that document, is it?
22 A. That is correct.
23 Q. That relatively short document, if we go to 966, that is
24 your signature again?
25 A. That is correct.
0002
1 Q. So those three documents, your statement, your
2 memorandum and the response of the Society to the Royal
3 College of Pathologists represents the written material
4 that you have submitted, or the Society has submitted,
5 to this Inquiry?
6 A. That is correct.
7 Q. Can we just go back to your original statement, then,
8 at WIT 39/2? Paragraph 1 sets out your relevant
9 qualifications. You are a solicitor?
10 A. I am a solicitor.
11 Q. What is the general qualification for Coroners? Do they
12 tend to be medically or legally or both, in terms of
13 qualifications?
14 A. The requirement under the Act is that they should either
15 be a solicitor or barrister of five years' standing or
16 be a medically or legally qualified medical practitioner
17 of five years' standing. I think across the range of
18 140 Coroners there are about 125 solicitors, probably
19 8 or 9 barristers and the rest are doctors. There are
20 a few who are doubly qualified.
21 Q. If we go to the bottom of that page, just to deal with
22 who it is who is responsible for paying Coroners and for
23 providing them with facilities, you provide the answer
24 there that it is the relevant council, which in England
25 would be usually the county council, so in your instance
0003
1 Surrey County Council?
2 A. That is correct.
3 Q. But you make the point a Coroner is not an employee nor
4 a local government officer, so the county council is not
5 the Coroner's boss?
6 A. Other than for PAYE and pay purposes, the local
7 authority, the county council, will normally support but
8 can do little else. They certainly cannot either
9 discipline or dismiss them.
10 Q. As I am sure the Panel will know, Coroners' verdicts
11 can be susceptible to review by the higher courts. If
12 that should happen, if somebody was, for example, taking
13 through review proceedings in respect of one of your
14 inquests, what would be the position vis-a-vis the
15 council in terms of indemnifying the Coroner in respect
16 of those proceedings?
17 A. It is a very grey area at the moment. The matter is
18 the subject of a new statutory provision which is
19 incorporated in the Access to Justice bill, which will
20 give Coroners the indemnity from their relevant council,
21 but at the moment it is unclear in law as the statute is
22 silent on it.
23 Generally speaking, though, in practice, it has
24 only ever been a problem in one or two districts. Every
25 other Coroner has been supported by their relevant
0004
1 council.
2 Q. So the legal mechanism to cement that general practice
3 is on its way, is it?
4 A. That is correct.
5 Q. That is something that the Coroners' Society I assume
6 welcomes?
7 A. It has been campaigning silently for some time about it.
8 Q. If the Coroner is employed for PAYE -- I am sorry,
9 I should not use the word "employed". If the county
10 council is responsible for the PAYE and so on of the
11 Coroner but the Coroner is not an employee, to whom is
12 the Coroner answerable?
13 A. In effect the High Court, but the mechanism is normally
14 judicial review by somebody who is distressed by
15 a decision they have made. In the event of it being --
16 if I could put it this way, a non-inquest complaint
17 about the behaviour or demeanour of the Coroner, then
18 the Lord Chancellor has disciplinary powers and can
19 dismiss them.
20 Q. Has that ever happened in your experience?
21 A. The Coroner has normally retired or resigned before he
22 was otherwise forced out of office.
23 Q. So it is a similar --
24 A. I think the last time was 1942, but I do not recall it.
25 Q. It is relatively infrequent, then?
0005
1 A. It is relatively infrequent.
2 Q. Who else assists the Coroner? Let us take, for example,
3 your own County of Surrey. First of all, how many
4 Coroners would a County like Surrey have?
5 A. My County has only one Coroner. There are quite a few
6 counties of the same size with a population of
7 1.1 million which have more than one Coroner, but in the
8 case of Surrey, a decision was taken some years ago,
9 which was accepted by the Home Office, that the County
10 should be considered a unity for the Coroner's service
11 and there was an amalgamation of the different districts
12 as vacancies arose, and this is the same in three or
13 four shire counties around the country, but there are
14 some of similar size and population which have more than
15 one, two or even three Coroners.
16 Q. It would not follow that the single Coroner for Surrey
17 conducted all the inquests into deaths in Surrey. There
18 would presumably be a number of Deputy Coroners as well?
19 A. Unless I am on leave, I will be dealing with all the
20 deaths that occur during my -- while I am not on leave,
21 so to speak. There is a deputy covering me for today
22 because I am out of County, but in the normal course
23 I will be dealing with maybe 11 or 12 deaths a day.
24 Q. The Coroner is supported by a Coroner's officer?
25 A. That is correct.
0006
1 Q. What is the nature of the Coroner's officer's duty?
2 A. It varies very much from district to district. In my
3 district, they are very often the first point of
4 contact, the first referral point, and there are, in my
5 County, a number of different places where they are
6 situated; they do not all work out of one central
7 office.
8 Q. Their contact first would be with whom: relatives of the
9 deceased, clinicians --
10 A. It would depend very much on the way in which the report
11 is made to the Coroner, but it is very often a clinician
12 who will report a death and in that event, their first
13 port of call is normally to the Coroner's officer, most
14 of whom are situated at or near hospitals. So they are
15 well known in the local community, their local medical
16 community, their hospital community, as being, if you
17 like, the point of contact for the Coroner's service.
18 Then, through them, they are referred back to me and
19 I will then pass back instructions. In certain
20 circumstances the instructions are sufficiently
21 well-recognised for preliminary arrangements to be made,
22 even without first referral to me.
23 Q. If we take the example of a death after an operation in
24 a hospital, after, let us say, an open-heart operation
25 on a child, what would you expect the clinician to do
0007
1 vis-a-vis the Coroner's officer after the death of
2 a patient? What type of information would they convey
3 to the Coroner's officer in order to allow you to
4 determine what steps should be taken subsequently?
5 A. I think in that instance I would in the first point
6 expect to be contacted very quickly, personally, so that
7 the officer would be doing no more than conveying my
8 messages and passing back to me the answers that he
9 might get, and probably very quickly they would be
10 bypassed and I would be speaking direct to either the
11 clinicians concerned or pathologists or other
12 authorities who might at that point intervene.
13 So the Coroner's officer would not necessarily
14 be the sole and only contact in that particular case,
15 but I would certainly expect them to obtain, quickly,
16 the hospital notes as they then existed and make
17 preliminary arrangements for an examination of the body
18 of the child to take place, considering where was the
19 appropriate place for that examination to be. That is
20 a very difficult point, because in many counties, mine
21 included, we are entirely relying upon hospitals to
22 provide mortuaries at which examinations are made.
23 Q. When you refer to "examination", you mean a postmortem
24 examination?
25 A. A postmortem examination.
0008
1 Q. So when the clinician is conveyed to you through the
2 officer with the news that the death has occurred in
3 a child after an operation, it would be the normal
4 practice of the Coroner to arrange for the postmortem
5 examination to be conducted?
6 A. Can I qualify that in two ways? We have very few
7 cardiac deaths of children in my district, not least
8 because we do not have a dedicated paediatric cardiac
9 unit, so I am talking slightly abstract. Secondly,
10 I can talk about my own practice; I cannot necessarily
11 say it is the way every Coroner would act and I think we
12 have to recognise that different Coroners are staffed in
13 different ways with different talents or qualities,
14 either in themselves or their own staff, and may act in
15 different ways, but the reality is that in my district
16 in that sort of situation I would expect to be involved
17 very early on and not leave it to officers to make
18 decisions.
19 The sort of information that certainly I would
20 expect to obtain very quickly would include as much
21 background information as to the need for the surgery,
22 obviously the clinicians involved, and, it goes without
23 saying, establishing some sort of contact with the
24 family and finding out from them their perception of
25 what happened and how things went right or wrong.
0009
1 Q. The postmortem examination is ordered by the Coroner, is
2 it not, pursuant to section 19 of the Coroners' Act?
3 A. The Coroner has three sections that he can use to
4 initiate a postmortem examination. Although we tend to
5 refer to "ordering", none of the sections actually
6 refers to "order" at all but "direct" a medical
7 practitioner to make an examination.
8 The direction itself suggests, and indeed it is
9 implicit in the rules, that the pathologist or doctor so
10 directed can refuse the direction, so it does not quite
11 have the weight of an order, and the pathologist on
12 occasions may say to me, "I think I am too close", "I do
13 not have the necessary expertise", or "I am going on
14 leave, please ask somebody else": a whole range of
15 different excuses might be put up to divert the
16 direction from them.
17 Q. But in those examples, the direction would still be
18 carried out, albeit by somebody else?
19 A. Yes, so there is an expectation, I think, so far as the
20 choice of pathologist is concerned, that they have the
21 ability to side-step it, and indeed, the rules do
22 provide, and I suggest expect, a pathologist to decline
23 a direction if there is, in his view, some conflict in
24 him performing that examination.
25 There is in addition the venue for the examination
0010
1 itself, and this again, as I have hinted, does cause
2 a degree of difficulty, for example in my County, where
3 we are reliant upon National Health Service hospitals to
4 provide the mortuary facilities for the examinations
5 themselves. If the examination takes place at the
6 hospital where the death occurred, then it might be
7 perceived as being tainted, even if the examination is
8 made by a person who is quite independent.
9 Q. Can we just look at one of your statements, just to make
10 this point good? It is WIT 39/14. This is part of
11 Appendix A of your statement. Is it paragraph 2? Is
12 that the relevant passage?
13 A. Yes.
14 Q. "Rule 5 of the Coroners' Rules empowers a Coroner to
15 authorise any medical practitioner to make such an
16 examination."
17 You go on to explain that the Coroner should
18 recognise that under the provisions of rule 6 the
19 pathologist may wish to excuse himself from such
20 examination.
21 "The responsibility lies initially with the
22 pathologist to recognise any conflict of interest,
23 although if there seems to the Coroner that there is or
24 may be such a conflict, then he can either instruct an
25 alternative pathologist or seek confirmation from the
0011
1 pathologist as to whether there is any conflict in his
2 making the examination."
3 A. That is correct.
4 Q. That is the passage, is it?
5 A. Yes.
6 Q. You also mentioned in passing a moment ago the
7 involvement of the family of the deceased. Again, on
8 the same page, if we look at paragraph 4, perhaps you
9 can just explain what the mechanism would be once the
10 clinician has informed the Coroner of the death and it
11 has been determined or directed that a postmortem
12 examination is going to take place. At what stage would
13 you expect the Coroner to contact the family of the
14 deceased? And what would you expect the information to
15 be that would be imparted to the family at that stage?
16 A. The information that is given to a family depends very
17 much on their ability or perceived ability to receive
18 it. There is no point in information overload, so I am
19 sure most of us, and our officers, will inform the
20 family of the examination taking place; that it will be
21 made by a pathologist, a doctor who is qualified in
22 a particular field or expertise; very often the timing
23 of the examination; sometimes the venue, if it is not
24 obvious from the way in which the exchanges have at that
25 point taken place; and the expectation as to a result,
0012
1 in other words, that we are hoping that this examination
2 may establish for us what it is that happened that gave
3 rise to the death that has happened.
4 Q. Can I just interrupt you there? The family will
5 typically be concerned, presumably, amongst other
6 things, with funeral arrangements for the deceased?
7 A. That is correct.
8 Q. To what extent does the postmortem examination
9 typically impinge upon those? What are the relevant
10 considerations there?
11 A. The delay that there is in any event in most funeral
12 arrangements in England and Wales probably means that
13 any coronial involvement will not delay funeral
14 arrangements at all. There is a natural cycle of any
15 funeral in this country, probably more than a week, and
16 the sort of delay that there would normally be by having
17 a postmortem examination might occur very early on in
18 the whole process so that the funeral will still
19 probably take place early into the second week without
20 any effective delay.
21 Q. When might that situation be more difficult?
22 A. The situation certainly would be more difficult if, in
23 the course of the examination, the pathologist
24 identifies the need to retain an organ, particularly the
25 heart or the brain, and certainly the counsel the
0013
1 Society now gives to its members is that in the event of
2 one of those organs needing to be examined by experts,
3 such that there is a need for it to be taken away from
4 the body and possibly retained for a period, then they
5 should explore that and the implications of that with
6 the family.
7 Q. Can we take an example? For example, the brain. With
8 the recent development in recent years of concern about
9 CJD, for example, would that be the type of situation in
10 which, somebody having died, the brain of the deceased
11 might have to be the subject of more detailed
12 examination?
13 A. Yes, but CJD is a relatively rare condition. There have
14 been 41 deaths, I think, in the last four or five
15 years. But a more common one might be somebody who dies
16 from a brain tumour or some event associated with
17 hypoxia, a reduction of oxygen to the brain, possibly
18 through anaesthesia that has gone wrong or something
19 similar. In that event, pathologists tell me it can
20 only be identified with any degree of certainty if the
21 brain is examined in conditions which do not normally
22 obtain in the postmortem room: the brain would need to
23 be prepared and that preparation itself takes some time,
24 normally 5 or 6 weeks.
25 Q. The same would apply to the heart, would it not,
0014
1 typically? If the whole heart had to be examined, then
2 it is not uncommon for it to have to be prepared for
3 a matter of weeks as well?
4 A. I cannot comment on the time. Most of the examinations
5 on hearts that I have had to initiate or participate in
6 the decision-making about have normally resulted in the
7 heart being available for return to the body within
8 a week to 10 days. The heart is, I am reliably
9 informed, a more robust organ that itself is amenable to
10 examination with less preparation.
11 Q. So if we just pause there and see where we are, the
12 retention or the examination of organs that we have been
13 discussing is in the context, if we look down on the
14 page that is on the screen to paragraph 6, of the
15 Coroner's obligation to establish the cause of death and
16 how that cause of death arose.
17 So when you spoke a moment ago of the heart being
18 examined and then being available to be returned to the
19 body within 10 days, that is because that would be
20 a typical time-scale for the rule 9 based examination of
21 the heart to have been completed.
22 A. Yes. The Coroner can only ever authorise those acting
23 through him to make examinations to further his own
24 enquiry. There is nothing, to my mind at least, that
25 suggests that they themselves can authorise removal or
0015
1 retention of organs, or any other material, other than
2 for the limited purpose of the Coroner's enquiry.
3 Q. Because the Coroner is a creature of statute?
4 A. Absolutely.
5 Q. With no original jurisdiction?
6 A. No.
7 Q. And must operate pursuant to the Coroners' Rules?
8 A. Certainly the Act and the rules are made pursuant to the
9 rules, that is correct.
10 Q. The rules are a statutory instrument made by the
11 Lord Chancellor and laid before Parliament?
12 A. That is right.
13 Q. That is the point that is made in paragraph 6?
14 A. Yes.
15 Q. I am going to come back, obviously, to the question of
16 what happens once tissue or organs which have been the
17 subject of a rule 9 examination, when the Coroner's
18 deliberations are concluded, what happens to that tissue
19 or organ subsequently.
20 Before I do, can we just go to your memorandum,
21 page 19? I just want to deal a little bit with what
22 happens subsequently in the Coroner's deliberations
23 after the postmortem examination has been carried out.
24 First of all, not all postmortem examinations will
25 lead to inquests by the Coroner?
0016
1 A. The vast majority do not.
2 Q. What would be the factors which would lead a Coroner
3 to decide that an inquest was appropriate?
4 A. The Coroner is required to hold an inquest into those
5 deaths which are unnatural or violent, or have occurred
6 in prison, so that if an examination that is made showed
7 that there is an explanation which suggests that the
8 death did not fall into one of those three categories,
9 then an inquest can be dispensed with.
10 Q. What is it that determines when the inquest will be
11 carried out, if the Coroner has a power but not an
12 obligation to hold an inquest? What would be the
13 factors which would lead you to hold the inquest rather
14 than not to hold one?
15 A. It is, I suggest, quoted as a fine distinction between
16 a death being considered as unnatural or the consequence
17 of some naturally occurring event, maybe with some human
18 intervention.
19 If I personally am addressing this question in my
20 own district, then I would try and weigh up whether the
21 death was one which was inevitable regardless of any
22 human intervention, or whether it was the result of
23 a naturally occurring condition that may have taken
24 a turn, an unexpected, maybe an unidentified turn for
25 the worse, which precipitated the death prematurely.
0017
1 In that latter event, I probably would not have
2 an inquest. Most of the decision-making is, certainly
3 in my district, very often a matter of dialogue. I do
4 not sit with a cold towel over my head and say, "This is
5 an inquest, this one is not", although I have to say
6 there are some instances when it is so patently obvious
7 that it requires an inquest that one does not need
8 a cold towel to reach that decision.
9 Q. Who would the dialogue be with in that instance?
10 A. It will be in the first instance with the pathologist.
11 Very often I will bring in the members of the family and
12 say "This is where we are at, this is what an inquest
13 might disclose, but we may not, because of the limited
14 nature of an inquest, find out much more than we know".
15 Q. In some cases, perhaps suicides, there is nothing wrong
16 with the person, they are not physically ill before the
17 death. In the case of somebody who has surgery,
18 particularly very unusual surgery, those patients
19 obviously are ill before the death, otherwise they
20 typically would not be having the surgery.
21 In the case of somebody who has a congenital
22 defect, if it is a difficult and life-threatening
23 defect, would the Coroner rely, therefore, on the
24 pathologist essentially for advice as to whether or not
25 it was the congenital defect that proved too much for
0018
1 the patient or whether there is some failure or error in
2 the surgical correction?
3 A. I think in these particular cases, he has to take a view
4 not just on what he sees or hears from his pathologist,
5 but also on his understanding as to the degree of
6 congenital defect that itself may have given rise to the
7 death.
8 What he is trying to do is maybe simplify what is
9 probably quite a complex and difficult situation: was
10 death hastened by or brought about by the surgery, or
11 was it that the death arose regardless of the surgery?
12 I think that is often a debate that can quite properly
13 result in well-held beliefs which are totally opposite.
14 Q. That is obviously sometimes of concern if there was to
15 be, for example, civil litigation subsequently, then one
16 of the main focuses of the civil litigation would be
17 whether or not it was the original problem and the
18 reason why the patient was in hospital that killed them,
19 or whether there was some other intervention, some
20 surgical error or whatever it might be.
21 So it is a very important decision, therefore, for
22 the Coroner as to whether or not to carry out an inquest
23 in those cases?
24 A. That is quite true. Having said that, I think it should
25 be said that in several judicial reviews the courts have
0019
1 made it clear to us that we should not be the places at
2 which negligence is examined. What Coroners are there
3 to do is to try and tease out of the evidence, such as
4 it is, a factual history as to how the death resulted.
5 Q. That reminder has been given to Coroners and to the rest
6 of us most recently by Lord Bingham in the Jamieson
7 case. If we go to 39/28, this was when Lord Bingham was
8 Master of the Rolls. He is now Lord Chief Justice.
9 This is an extract from his judgment in Jamieson 1994.
10 Paragraph 1 identifies the four questions Lord Bingham
11 said were the four questions for Coroners at inquests.
12 Those are the identity of the deceased, the place of his
13 death, the time of the death, and then the fourth
14 question, which is usually the one that is the focus of
15 attention, how the deceased came by his death?
16 A. That is correct.
17 Q. I have certainly been to Coroners' inquests and
18 I appreciate that the focus there is not to apportion
19 blame, to establish whether anyone was negligent or
20 guilty of any criminal offence. Are you able to comment
21 as to whether or not, over the period that the Inquiry
22 is concerned with, there has been a greater pressure,
23 perhaps improper pressure, but greater pressure on
24 Coroners at inquests, a greater interest in civil
25 litigation?
0020
1 A. Undoubtedly. I think we have all noticed that there
2 has been a shift towards a more adversarial approach,
3 a more blaming approach, to some of those matters that
4 we have to investigate.
5 Q. How does that pressure manifest itself in the Coroner?
6 Does it change the approach?
7 A. Very much the change of approach, and the questioning
8 which is made by those who have a proper interest, the
9 interested persons, families, very often, or their
10 personal representatives, but conversely, also, the
11 defensive attitude that is taken by others as well: the
12 defensive attitude which may be taken by doctors,
13 clinicians, possibly by hospitals intervening and
14 putting up what one might describe as a defence in the
15 situation that does not normally warrant a defence.
16 Q. The Coroner can compel people to attend the inquest?
17 A. If they are within his district.
18 Q. I think I know the answer, but can you just explain to
19 me the rules about the Coroner's ability to force
20 witnesses to answer questions at inquests?
21 A. If the question is relevant, and "relevance" means that
22 it must go towards addressing one of those four limited
23 factual questions to which Lord Bingham refers and which
24 are set out in statute, then the witness is required to
25 answer, unless, under rule 22 of the Coroners' Rules,
0021
1 the answer is one which may tend to incriminate him.
2 Q. Criminal proceedings?
3 A. Well, it is a bald statement of incrimination, and
4 therefore -- I take as an example a motorist who has
5 been minding his own business but travelling at 31 miles
6 an hour in a 30 miles per hour speed limit: he should
7 not be asked a question which would require him to say
8 he was travelling at 31 miles an hour, because although
9 it is unlikely he will ever be prosecuted, the rule is
10 quite emphatic that the witness should be protected
11 against answering any question which may tend to
12 incriminate him.
13 Q. The protection is in answering the question. It is one
14 thing for somebody to ask it, but the --
15 A. The Coroner has to warn the witness.
16 Q. He has to remind the witness he does not have to answer?
17 A. Exactly. If the witness does answer, then he must be
18 truthful.
19 Q. We can see that in the road traffic context. What about
20 applying that to a medical or clinical context?
21 A. It becomes much more difficult because there is,
22 I think, confusion in the minds of many, including some
23 Coroners, but certainly some people who are not
24 necessarily versed in the law, that there is very little
25 distinction between criminal blame, to which
0022
1 incrimination and rule 22 applies, and civil
2 responsibility which, although a Coroner should not be
3 making any decision or judgment about, nevertheless may
4 be implicit in what questions are asked and required to
5 be answered.
6 So that in itself does cause a problem and there
7 are many doctors, I think, who on occasions are asked
8 questions which they feel wary of answering because of
9 the civil negligence or quasi negligence issues that may
10 be implicit in the question and answer.
11 It causes difficulty, though, for many of us in
12 Coroners' law and I suspect many outside as well, when
13 gross negligence manslaughter issues are considered,
14 where the action or failure of somebody who had care has
15 led directly to a death and the duty of care was so
16 grossly negligent within the recognised constraints of
17 Ademako that there is sufficient for the gross
18 negligence manslaughter charge to be preferred.
19 In that event, it is very often a lot of small
20 questions which together demonstrate that gross
21 negligence is existing, as against a single
22 incriminatory question. That is where, I think, many
23 Coroners, many of those practising in the Coroner's
24 courts have difficulty. Where does one draw the line?
25 Q. So it is precisely what emerge as being the grossest
0023
1 cases that one eventually runs into the incrimination
2 rule, and finds oneself as a Coroner with a witness who
3 becomes entitled to the protection of the rules?
4 A. Yes, and at what point should that protection be
5 offered? One finds that probably those acting for the
6 doctors or those who might be at fault are suggesting it
7 comes very early on, whereas those, including very often
8 the Coroner, are suggesting that, if it happens at all,
9 it is much further down the path.
10 Q. So again, to come back to where we started this little
11 discussion, is this something, this defensive attitude
12 and perhaps a more aggressive attitude on the one hand
13 and a more defensive attitude on the other, among the
14 parties, something that has been developing over recent
15 years?
16 A. Yes, but it is very insidious. I certainly would never
17 say it arises or springs from a particular event or
18 a particular date; it is something which has just been
19 growing more and more and occurs increasingly often.
20 Q. Is it something that the rules would be capable of
21 dealing with, if they were differently drafted, or is it
22 just one of those things we have to put up with?
23 A. I suspect, knowing the way these things happen, if the
24 rules were redrafted, then a different set of
25 difficulties would arise. I am not sure necessarily
0024
1 redrafting the rules is the solution.
2 Q. Very briefly, just to skate through what happens at
3 the inquest, if we look in the memo you have produced,
4 page 31, you set out one by one the various verdicts
5 that might be recorded at a Coroner's inquest: natural
6 causes; page 15 deals with accident/misadventure. There
7 is a possibility to supplement that by a finding of
8 "aggravated by neglect or self neglect".
9 Just on accident and misadventure, this sometimes
10 causes difficulties, does it not, because to conclude
11 that something is an accident sounds innocent, if you
12 like. To conclude that there has been a death by
13 misadventure sounds much more suspicious.
14 What is the relationship between those two?
15 A. The Divisional Court, way back in 1988, suggested that
16 we should be consigning "misadventure" to the scrap
17 heap. You have articulated one view, that misadventure
18 is redolent with so much suspicion and uncertainty.
19 Listening to a debate between Coroners three or four
20 weeks ago, they suggested exactly the opposite: that
21 "accident" was redolent with suspicion and uncertainty
22 and "misadventure" was much more acceptable.
23 Q. What is your perception of the public, how do they
24 perceive these two verdicts? Is the view I have put
25 more the view of the man in the street, do you think?
0025
1 A. Having listened to and debated them quite often with
2 families at different points, I personally generally
3 never return misadventure, but describe how the accident
4 seems to have come about, or the event seems to have
5 come about, and so describe it. I remain concerned that
6 Coroners and their audience, which may be families, it
7 may be the wider population, it may be the press, get
8 very hung up on conclusions, whereas my personal view is
9 that rather more important is the other information upon
10 which the conclusion is built, the sequence of events
11 that gave rise to a death which leads ultimately to
12 a conclusion, rather than the conclusion itself.
13 I know that for many the conclusion -- the
14 receiving of the conclusion or the avoidance of
15 a conclusion, is something which they have as a target;
16 they do not want a conclusion of suicide, they do not
17 want a conclusion of something because there may be
18 implications, social or otherwise, in that conclusion
19 being reached, but for me, I am much more anxious to get
20 as full and as accurate a factual conclusion in the
21 broadest terms rather than necessarily hung up on a word
22 or two.
23 Q. To the extent that the courts have suggested that
24 misadventure should be consigned, if not to the scrap
25 heap, at least then to the legal history books, because
0026
1 accident would do, as it were, as a verdict, presumably
2 it must follow that the vast majority, perhaps all cases
3 which are returned with a misadventure verdict could be
4 returned with an accidental death?
5 A. That is correct, and indeed, on the annual report that
6 Coroners have to make to the Home Office of the inquests
7 which they have concluded in the course of any calendar
8 year, misadventures come under the same heading as
9 accidents.
10 Q. If we just scan down on this page, again, this is part
11 of your memo that you have submitted to the Inquiry.
12 I think, also, that a similar memorandum has recently
13 been submitted to a parliamentary committee, has it not?
14 A. That is right.
15 Q. That committee is the Department of Health --
16 A. The House of Commons Health Select Committee.
17 Q. What are they up to at the moment?
18 A. They wrote to me at three days' notice asking me to
19 submit something on the way Coroners investigated deaths
20 arising from medical mishaps.
21 Q. Do you know where that is leading?
22 A. No, although I do believe they may have reported in the
23 last day or two.
24 Q. Mr Langstaff, an avid watcher of the news, tells me it
25 was reported in the news yesterday.
0027
1 Can we just look at what you have said about
2 misadventure, because the reason I have put to you the
3 view that misadventure might be thought to be more
4 suspicious, if you like, is that you say in the second
5 sentence after the line across the page:
6 "As a term, 'misadventure' is not always
7 understood and its use may lead to misunderstanding."
8 That is misunderstanding by the public, is it?
9 A. And Coroners, too. I do not think there is any secret
10 in me saying that this text and the one for natural
11 causes, the three appendices that are there, were
12 prepared for advice to be given to Coroners when
13 addressing juries, and what appears above the line might
14 well form the basis of a direction that they could use
15 for juries. What appeared below the line was the basis
16 upon which the direction itself is based.
17 Quite clearly from the debate that was going on
18 between Coroners, they had different perceptions as to
19 what misadventure was and indeed how it was received,
20 and it is as much based upon that as anything else.
21 I have included the words, "it is not always
22 understood".
23 Q. If the same factual scenario gave rise to one of two
24 verdicts of which one is misunderstood, would it not be
25 simpler to have one verdict under one label?
0028
1 A. I quite agree.
2 Q. What would that label be?
3 A. We have a problem that the ex parte Anderson case to
4 which I made reference there suggested that misadventure
5 should no longer be used. The following week the same
6 court suggested in a case where a child died from
7 solvent abuse a conclusion of misadventure would appear
8 to have been the appropriate one in this particular
9 case. So the court itself, I suggest -- I would not be
10 so bold as to suggest they misdirected themselves, but
11 I do think they did not necessarily recall what they
12 were saying the previous week.
13 Q. If one were to leave aside for the moment the judicial
14 decision, and starting with a blank piece of paper, what
15 does the Coroners' Society think would be the rational
16 way of eliminating the misunderstanding which is
17 presumably unwelcome?
18 A. There are some in the Society who believe that we should
19 be going down the route that is adopted in Northern
20 Ireland where they do not have conclusions at all. The
21 findings stop before the conclusions. I do not
22 necessarily entirely agree with that. Statistically,
23 I think most of us, even in our wildest moments, do
24 compartmentalise particular things or events, and like
25 to pigeonhole them. In that event, having a conclusion,
0029
1 despite the drawbacks, is as good a way as any. I would
2 have thought that an accident, if it is accompanied by
3 an explanation that it does not deprive any person of
4 the civil remedy that they otherwise have but is simply
5 a conclusion that it is not a naturally occurring
6 disease that has resulted in the death, should satisfy
7 most people -- should I say, "would satisfy" most
8 people.
9 Q. Can I then turn to something else? Perhaps we can
10 start exploring the new guidance for a few minutes, and
11 then have a break.
12 What I want to show you now, Mr Burgess, is the
13 new guidance produced by the Royal Colleges. Can we go
14 to RCP 1/72, please? I assume that you have at the very
15 least had a chance to read this paper. Perhaps you
16 could explain any involvement that you or the Coroners'
17 Society have had in drawing this up?
18 A. Over the years the Society has had discussions at
19 different levels with the Royal College on many
20 different things, and some months, some years ago, I had
21 some discussions with officers and officials at the
22 College for guidelines that we ourselves were producing
23 and which were annexed to my original submission to the
24 Inquiry. That included in part discussions on, as you
25 have quite properly pointed out, the retention of
0030
1 material that attended postmortem.
2 We were approached towards the end of last year
3 about fresh guidelines for the College to issue and to
4 make available to its members, and they sent me a draft
5 which was then a matter of discussion and debate and
6 amendment, to which we made a contribution, and indeed,
7 I saw the drafts at various stages immediately prior to
8 this consultation paper and at each time the Society,
9 not only me but others too, have made observations
10 available to the College, many of which have been
11 incorporated in the document that is now before you.
12 Q. Before we look at it in more detail, how would you
13 characterise the general attitude of the Coroners'
14 Society to this new paper from the Royal College?
15 A. We recognise that the College has to counsel and advise
16 its members. It almost seeks to do too much, because it
17 seeks to encompass both the medico-legal examinations
18 that are made either for Coroners or Procurators Fiscal
19 on the one hand, as well as hospital consent
20 examinations that are made. The reality is that most
21 examinations are now made for Coroners rather than
22 consent examinations, so that I think whilst they
23 concentrate on the consent side in one sense, the more
24 numerous examinations do not necessarily get as much
25 wordage as the other, not that that is necessarily a bad
0031
1 thing, because I suspect that most of the issues so far
2 as Coroners are concerned can be resolved by looking at
3 the Coroner's own legislation and rules.
4 Q. As you know, this paper starts off with an introduction
5 and then deals with the consent postmortem examination,
6 and then subsequently deals with the Coroner's ordered
7 or directed postmortem examination.
8 Can we just look at page 74(RCP 1/74), first of all? This
9 is in the general introduction. Can I just ask you to
10 have a look at paragraphs 1.4 through to 1.8 and -- we
11 will have to scroll -- let us know when you need to
12 scroll down the last couple of lines. Can I just ask
13 you to provide any comment on behalf of the Coroners'
14 Society on any of those paragraphs, any qualifications
15 or additions? (Pause).
16 A. I think this is, as you quite properly say, an
17 introduction, and it is almost a mission statement to
18 try and put matters into context.
19 The extent to which individuals, inside or outside
20 families, want to know exactly what takes place at the
21 postmortem, differs from family to family. I am not
22 sure that their knowledge, any person's knowledge, is
23 necessarily improved by some of the reporting that takes
24 place, or indeed, some of the television drama that
25 takes place in which the positions of pathologists and
0032
1 others are glamourised. There is no doubt, in my mind,
2 that inevitably organ retention is necessary in a number
3 but probably limited cases. That is I think the view of
4 most Coroners. The extent to which the results of
5 Coroners' examinations and the material that has been
6 obtained in the course of that is usable for other
7 purposes, is one that I know has concerned this Inquiry
8 over some time, and the Society's view remains that any
9 material that is retrieved at or in the course of
10 a postmortem examination cannot be used beyond the
11 limited purpose of a Coroner's inquest.
12 Q. In other words, it can only be used for rule 9
13 purposes?
14 A. It can only be used for rule 9 purposes, or for the
15 inquest in broad terms.
16 It is quite true, though, that getting better and
17 more detailed information from postmortems may lead to
18 better general health for the public, so there is an
19 undercurrent suggesting that if the postmortem
20 information can be improved, then there will be
21 a corresponding improvement for general health purposes,
22 but it is quite difficult, I think, to make a direct
23 correlation one to the other.
24 Q. So the difficulty arises, does it not, with the material
25 that is originally taken from the body for rule 9
0033
1 purposes within the Coroner's jurisdiction, in order to
2 help to establish what the cause of death is. The cause
3 of death is established. The Coroner has the inquest,
4 or does not have the inquest, but the Coroner's duties
5 are completely discharged in relation to that death.
6 What ought to happen to the tissue or other materials,
7 to use the words of rule 9, that has been taken from the
8 body once the Coroner is satisfied that he knows what
9 the cause of death was?
10 A. Can I step back a bit and say that the amount of
11 material which is normally retained is very, very small
12 indeed. We are talking in terms of the amount that
13 would fit on one or two microscope slides, if at all, so
14 we are talking in parts of a gram, may be a gram or two
15 of material.
16 Q. Professor Green said yesterday, I think, that a small
17 piece of tissue should be taken from every major organ.
18 That would be microscopically small?
19 A. That is right. And something that can be put on
20 a microscope slide and retained. It may be that a cc or
21 two of blood or body fluids from some place or other
22 might also be taken. It is by no means certain that in
23 every case those are taken. So the amounts of material
24 that are actually retained under rule 9 in most cases is
25 very, very limited.
0034
1 In those cases where there is no inquest at all,
2 the probability is that the material, if it is kept,
3 would be kept on a slide and probably retained for
4 a limited period -- I say "a limited period"; I am
5 talking a matter of maybe a few weeks, maybe a few
6 months.
7 Q. By the pathologist?
8 A. By the pathologist. If there is an inquest, then the
9 material will normally be retained until the inquest is
10 concluded, but there are some cases where it is
11 generally recognised that the retention of the material
12 for a long period is advisable. The two obvious ones
13 are where there is clearly a criminal act that has given
14 rise to the death and where there are serious charges
15 resulting, so, for example, if a person has been
16 murdered, then material might well be retained for
17 a very long time. Although the Society met with the CPS
18 and senior police officers years ago to try and agree
19 periods over which material might be retained, the
20 discussions were inconclusive on the basis that
21 increasingly the Court of Appeal is looking at matters
22 that everybody had thought had been concluded years or
23 decades earlier and there is really no safe period over
24 which material might be said to be no longer required.
25 So that is one albeit very limited area of
0035
1 continued concern, and the other is where there may well
2 be litigation, particularly litigation regarding
3 employment, so cases, for example, of asbestosis or
4 mesotheliomas are very often retained for an extended
5 period, but the sort of material that is retained would
6 tend to be small amounts. We are talking in terms of
7 blocks made from tissue of the lung or something
8 similar.
9 Q. So we have four categories, then: no inquest; ordinary
10 inquest, if you can put it like that; and then we have
11 extraordinary cases, either of serious criminal charges
12 or industrial disease or other civil litigation?
13 A. That is correct.
14 Q. Where there has been no inquest, the material, you say,
15 would normally be retained by the pathologist for
16 a limited period of time. It would presumably then be
17 disposed of. At whose behest would it be disposed of?
18 Would there be any referral back to the Coroner before
19 the decision was taken to dispose of it?
20 A. There could be, but there normally is not. The Coroner
21 will expect the pathologist to clear out his laboratory
22 periodically, but on occasions it has come to my
23 knowledge at least that that has not happened, probably
24 to the advantage of those who subsequently made the
25 enquiry. I recall about four or five years ago there
0036
1 was a television programme that suggested that some of
2 the sudden infant deaths that were occurring arose
3 because of the materials that had been used in the
4 manufacture of cot mattresses, and that there was some
5 scientist who believed that examination of particular
6 material could demonstrate this if it was treated in
7 a certain way. In my own district we had enquiries from
8 quite a few mothers who had lost children up to 10 or 12
9 years earlier to ask if it was possible if this
10 examination could be made, and it was possible from the
11 material that had been retained and was still in the
12 databank. In each case, it was possible to give the
13 family concerned some assurance that in fact the theory
14 that was propounded on television did not necessarily
15 accord with the specimens that were retained.
16 So there was a "silver lining", if that is the
17 right expression, in that particular case.
18 But generally speaking, the material is not
19 routinely, certainly to my knowledge, destroyed with
20 notification being given to the Coroner on the one hand,
21 or the Coroner alternatively saying "Now you must get
22 rid of all specimens which are dated 1997 or 1998".
23 Q. So it tends to be left to the pathologist?
24 A. It tends to be left to the pathologist.
25 Q. Is it any different in the case of an ordinary inquest?
0037
1 Obviously material will be retained until the conclusion
2 of the inquest, but thereafter, is it again up to the
3 pathologist, essentially, to decide when to dispose of
4 the material?
5 A. Probably, yes, it is, generally speaking.
6 Q. And then, just before we have a break, I think, just to
7 deal with your other two categories, the serious
8 criminal charge or the litigation example, what interest
9 would the Coroner take with the pathologist? Say you
10 have a fatal stabbing through the heart and it may be
11 important to retain the heart. Would the Coroner
12 typically give a direction to the pathologist and say,
13 "You must retain this pending the conclusion of the
14 criminal proceedings", or perhaps pending an appeal, or
15 perhaps even longer?
16 A. Although the Coroner is judicially involved immediately
17 a fatal stabbing has occurred, he is very often a pawn
18 in the whole complex scenario, because there are
19 different interests which come into play quite soon with
20 defendants and defence solicitors and barristers and
21 defence interests on the one hand, as well as
22 prosecution authorities and the police on the other. So
23 there are these different interests. The Coroner is
24 very often the person who is doing a reasonably fine
25 balancing act, trying to keep justice on the one hand
0038
1 satisfied, but also seeking to satisfy the demands,
2 whether it is the family who want the body returned for
3 burial or defendants and defence who want examinations
4 to be made. So one solution, often, is to retain those
5 parts, and it may be not necessarily a whole organ, but
6 it may be tissue, which will demonstrate a particular
7 view.
8 Q. So it is the Coroner's responsibility to hold that
9 reins?
10 A. That is correct.
11 Q. With the pathologist essentially acting as the Coroner's
12 agent, it is the Coroner who decides whether the whole
13 organ or part of the organ should be retained because it
14 may be evidence in future proceedings?
15 A. The ultimate responsibility lies with the Coroner.
16 Q. Presumably the same will apply to the other example of
17 civil litigation you gave?
18 A. It is not as clear-cut, not least because the prospect
19 of litigation is not always so obvious so soon.
20 Clearly, in those cases which arise from a recognised
21 industrial condition, often diagnosed before death but
22 which is confirmed by a postmortem after death, it
23 becomes quite clear, certainly to the mind of many
24 Coroners, that this could well form the basis of a claim
25 and therefore evidence may be needed by the dependents
0039
1 of the person who died.
2 Q. So the key distinction -- tell me if this is wrong --
3 between the stabbing case on the one hand and the
4 industrial case on the other, is that in the stabbing
5 case, the relatives of the deceased might have very
6 little interest in the retention of the organ because
7 they want the organ back into the body for burial, but
8 in the other case, it is perhaps often in the interests
9 of the relatives of the deceased that material should be
10 retained. So is there perhaps less controversy about
11 the second of those than the first?
12 A. I am not sure I would choose to use the term
13 "controversy". I think families are very often in
14 a very difficult position in criminal cases. They
15 clearly want to have the body of their relative back for
16 burial, and they want it back as soon as possible, so
17 that the whole process of coming to terms with their
18 loss can go forward. They are also tormented by the
19 fact that if they receive it back too soon, somebody may
20 get off the charge. Therefore, there is, I perceive,
21 a dilemma for many of them, a tension that is not always
22 easy for them to reconcile in their own minds, and
23 indeed, flowing from that, it may well be that there is
24 not necessarily a great difficulty or reluctance on
25 their part, receiving the body back minus an organ or
0040
1 two, if it is the critical piece of evidence that will
2 ensure that a conviction takes place.
3 MR MACLEAN: Thank you very much so far, Mr Burgess. Is
4 that a convenient moment for a short break?
5 THE CHAIRMAN: Yes. Shall we break for 15 minutes until
6 around 5 past 11?
7 (10.50 am)
8 (A short break)
9 (11.10 am)
10 MR MACLEAN: Mr Burgess, just before the break we were
11 beginning to get into the question of retention of
12 tissue or organs after the inquest that the Coroner may
13 have held, or after the decision not to hold an inquest
14 was taken by the Coroner.
15 Can I just take you in this Royal College of
16 Pathologists' document, to page 80(RCP 1/80), please? At the top
17 of the page, first, paragraph 4.3, you do not have the
18 beginning of the page, but I do not think that matters.
19 Can I ask you to read that first paragraph, "In
20 every case ..." Just read it to yourself. (Pause).
21 A. All right.
22 Q. That paragraph suggests that the onus is on the Coroner
23 at the beginning of the process to have a discussion and
24 to form some view, perhaps a preliminary view, but some
25 view as to what is going to be retained and how long it
0041
1 is going to be retained for?
2 A. Yes. This particular paragraph has been one over which
3 there has been quite a lot of debate and amendment. The
4 latest form that it takes is one which it has only
5 assumed following discussion with the Home Office and
6 with the Society. We generally felt that it was quite
7 important that the previous emphasis that had existed in
8 earlier drafts suggesting that the Coroner "should be
9 informed as to what tissue should be removed" should be
10 changed to "The Coroner should have a proactive
11 involvement in the retention of tissue".
12 Q. So that change of emphasis is something that was
13 certainly welcomed by, perhaps at the behest of, the
14 Coroners?
15 A. Yes. We have to emphasise, as I said before the
16 adjournment, that this is a College document, not the
17 Society's document, but they have reflected in this
18 paragraph concerns that we had in previous drafts.
19 Q. Would the Coroners' Society then want to firm up the
20 sentence that says: "The Coroner may well enquire ..."
21 into something a bit more definite?
22 A. I suspect in the next few weeks I will receive quite
23 a lot of representations from different Coroners and
24 others on this and other aspects of it. I think we
25 might well wish to firm it up a bit, and it might well
0042
1 be that we can persuade the College so to do, but I am
2 not sure that I can be more emphatic at this point.
3 Q. So there might be a Coroners' Society view that it needs
4 firming up, but it is too early yet to say whether that
5 view is crystallised?
6 A. Yes.
7 Q. If we go to the foot of the page(RCP 1/81), please, in
8 paragraph 4.5, this is dealing with, again, materials
9 which are taken during the postmortem examination. Tell
10 me if there is anything before subparagraph (c) that you
11 would wish to comment on, but I want to focus on
12 subparagraph (c). (Pause).
13 A. I would just comment on the second sentence of 4.5, that
14 "most Coroners allow their pathologists considerable
15 discretion". The legislation generally is silent as to
16 what is meant by a postmortem examination. We rely upon
17 pathologists to come with their own expertise and their
18 own knowledge as to how an examination should be carried
19 out, and at what point they have gone beyond what one
20 might normally expect in the course of an examination,
21 on the limitations of the examination to a certain
22 extent, the way it is performed, the results that it is
23 likely to produce, lie very much with pathologists.
24 The only statutory suggestion of what an
25 examination consists of is to be found in the schedule
0043
1 to the Coroners' Rules, setting out what form the report
2 from the examination should take, so although there is
3 a statement there that they allow their pathologists
4 considerable discretion, we are not necessarily able to
5 direct them as to how they should do their job.
6 Q. So could that be summarised as being, there is
7 a standard form as to outcome reporting, but substantial
8 latitude as to process?
9 A. We know what we want. We want the document that
10 demonstrates an examination that seems to fit into this
11 particular form of words. How you get there, we have to
12 rely upon those with the expertise and knowledge, so
13 I am not sure that the statement as it is written there
14 necessarily reflects our statutory duty and the
15 constraints that are placed upon us. I think if any of
16 us said to our pathologist, "You will make your incision
17 there and look there and not there", we would be very
18 quickly found to be in excess of our powers, or
19 responsibilities.
20 That is the first point I would make, but you have
21 a specific point later on?
22 Q. Yes, subparagraph (c):
23 "If retention of tissues or organs not within the
24 remit of the Coroner's postmortem examination appears
25 desirable": I assume that would be apparent to the
0044
1 pathologist, would it? That is what you were talking
2 about?
3 A. That is correct.
4 Q. "Signed consent from relatives is essential": presumably
5 that is something that the Coroners' Society accepts and
6 supports?
7 A. Absolutely.
8 Q. "The Coroner's authorisation must also be sought; it is
9 only where there are good grounds for refusal that the
10 Coroner's authorisation may be withheld. Coroners may
11 forbid such extra samples to be taken even when the
12 relatives consent, but cannot authorise them without
13 their consent."
14 Can you just explain to me why it is that the
15 Coroner's authorisation has to be sought in the first
16 instance for the taking of extra tissue or extra organ
17 material which does not fall within the rule 9 material?
18 A. I think that this may have got confused with the
19 responsibility that a Coroner has when a death is
20 reported to him and he may also receive, from others,
21 particularly families, suggestion that they want tissue
22 used for treatment or therapy. For example, a heart
23 might be wanted for transplant purposes and clearly, in
24 that event, the family have to agree that the heart
25 should be used for transplant and if it is a Coroner's
0045
1 case, the Coroner, too, has to so consent.
2 There may well be instances when the Coroner will
3 say, "I am sorry, I cannot agree to the heart being used
4 because it may have some influence on the way in which
5 my enquiries are pursued" and there are occasions,
6 unfortunately, when we have to deny opportunities for
7 transplant material being recovered, particularly when
8 the death is due to violence. So if a death has
9 occurred, a stabbing has occurred, to use the sample we
10 have given before, then I have to say "I am sorry, if
11 you take any major organ which might well save a life in
12 other circumstances, we may well be preventing some
13 criminal or -- particularly criminal investigation --
14 being pursued successfully".
15 Q. So that example you have given would not so much be
16 concerned with retention of other tissues or organs, but
17 the subsequent use of tissues or organs for I think it
18 is called "therapeutic purposes" in consent forms?
19 A. Yes.
20 Q. Which is code or shorthand usually for transplantation?
21 A. Yes. I believe that the only way in which Coroners may,
22 to use the words of paragraph 4.5 (c), "forbid" such
23 extra samples being taken is if, in so doing, it would
24 prevent the Coroner completing his role, limited as it
25 is.
0046
1 Q. Apart from that, it is nothing to do with the Coroner?
2 A. Apart from that, it is nothing to do with the Coroner at
3 all.
4 Q. The Coroner has this important but really rather narrow
5 jurisdiction to enquire into the four questions that
6 Lord Bingham sets out?
7 A. That is right.
8 Q. To what extent, if at all, are you, or the Society, able
9 to help the Inquiry with the way in which the attitude
10 of clinicians or hospitals or Trusts may have developed
11 or changed over the Inquiry's period in respect of
12 retention of tissue or organs in Coroners' postmortem
13 examination cases?
14 A. Although we are dealing with different hospitals and
15 different clinicians on a daily basis, it is actually
16 quite difficult to gauge how things change and develop.
17 In one's own district, you very quickly recognise
18 particular clinicians who are quite forthcoming and
19 quite prepared to discuss matters which may or may not
20 be relevant for a Coroner, very early on, and there may
21 be other clinicians from whom you hear very rarely.
22 When there are changes in the makeup of different
23 clinical teams, then you may have changes in attitude
24 from those as well. So there are a number of underlying
25 currents, if I can put it that way, which may well
0047
1 influence or give the impression to Coroners and others
2 acting in the Coroners' departments suggesting that
3 there is a particular way in which things are now being
4 addressed.
5 There has undoubtedly been a reduction in the last
6 15 years of the number of clinical or consent
7 examinations that are made, so that whilst probably when
8 I was first appointed a deputy 20 years ago, there were
9 a relatively large number of clinical examinations being
10 made following deaths in hospital, clinical examinations
11 made with the consent of relatives, it is very unusual
12 these days for those examinations now to follow.
13 This, I think, has been brought about by a whole
14 range of different issues, one of which is that the ways
15 in which different hospital Trusts provide mortuary
16 services to Coroners and the cost of providing them,
17 they will very often apportion costs of providing
18 a mortuary to the number of Coroner postmortems as
19 against the whole of the number of postmortems done in
20 a particular hospital. So if the Coroner is doing
21 98 per cent of examinations, or is responsible for
22 98 per cent of examinations in a hospital, then he will
23 be carrying 98 per cent of the costs of the mortuary,
24 and that tends to suggest that if an examination is to
25 be made, then it is certainly more economic from
0048
1 a hospital point of view for it to be ordered or
2 directed by the Coroner than for it to be obtained
3 through a consent procedure.
4 Q. That last factor you have just mentioned there: to what
5 extent do you perceive that to be an important reason
6 why the relative proportions of hospital postmortems
7 with consent as opposed to Coroners' postmortems on the
8 other hand has changed in the way that it has?
9 A. I think it is one; I do not think it is the only one.
10 Another reason, and again, it is a personal perception
11 rather than anything that I can say is provable by
12 demonstrable evidence, is that people's ability to
13 communicate the need for an examination, their skills in
14 that direction are not as good, maybe, or as persuasive
15 as they should be. Maybe they do not even try. I do
16 not think that I have heard it from relatives that if
17 they had been asked in a particular way then they would
18 certainly have agreed, but if the request is not made in
19 the first place, then they are not given the opportunity
20 of agreeing.
21 I think in the minds of some clinicians, too,
22 there is -- they have been treating somebody in the
23 confines and the disciplines of a hospital; the confines
24 and disciplines all seem to be improving health with
25 somebody leaving hospital fitter than when they went in,
0049
1 and when they die in hospital, that seems to be a denial
2 of the whole purpose of the hospital itself. Therefore,
3 difficulty is given to the clinician, the clinical team,
4 those who have the job of confronting the relatives and
5 saying, "Look, you have had your loved one in here for
6 six weeks but he has died; I do not know why he has
7 died". So I think there are a whole range of different
8 issues all of which make it difficult and have resulted
9 in a reduction in consent postmortems.
10 Q. You told us at the very beginning of your evidence of
11 the number of cases which you deal with, on I think it
12 was a daily basis. Has this trend to a higher number of
13 Coroners' postmortems impacted upon the workload of
14 Coroners?
15 A. I am not sure that there has been much difference in
16 overall numbers that the Coroner system in my districts
17 deals with. What we may have instead is that there are
18 more deaths which are not referred to Coroners, which
19 themselves might have had a consent postmortem
20 examination made in the immediate postmortem period.
21 They are now being signed up without any reference to
22 the Coroner at all.
23 Q. Move on to something else: the question of the
24 differences in approach by Coroners, and the Inquiry has
25 seen some evidence already in this area that the
0050
1 hospital, rightly or wrongly, noticed a change of
2 approach when the Coroner changed.
3 Let me start off at the general level. To what
4 extent would one expect there to be differences in the
5 approach of Coroners within the same area, to the same
6 set of circumstances, given the umbrella of the
7 Coroners' Act and the Coroners' Rules?
8 A. Coroners are independent and individual judicial
9 officers. We are not part of, despite what some people
10 may think, a National Service, all working to a single
11 master. We will tend to react on an individual
12 case-by-case basis on our own individual understanding
13 of both the circumstances that gave rise to the death as
14 reported to us on the one hand, and our own knowledge
15 and understanding of the law as it stands. So a number
16 of different issues may influence individual Coroners.
17 The second point is that Coroners are appointed to
18 districts. There is only one Coroner in any district,
19 so there is no collegiality, no-one else who is able to
20 make decisions in my district when I am there other than
21 me. Although I have deputies whom I may go to and say
22 "What do you think?" ultimately the responsibility lies
23 with me and not with them, so they can walk away without
24 any difficulty.
25 Having single Coroners in districts does mean that
0051
1 it is a relatively lonely existence on occasions, and
2 the decisions, in so far as they are not self-made --
3 because many decisions are -- it is reasonably obvious
4 the way you have to proceed, but in other cases, there
5 is nobody with whom you can share your experience
6 directly, because there is no-one else in your district
7 who carries the same responsibility.
8 In that sense, appointing somebody new may well
9 bring with it a fresh and new approach as to how things
10 should be done.
11 Q. It would follow from that answer, would it not, that if
12 you happened to be the Coroner for the district which
13 has a large teaching hospital, then presumably the
14 pattern of deaths that that Coroner would have to deal
15 with would be significantly different from a Coroner in
16 another district, perhaps next-door, which did not
17 happen to have the teaching hospital?
18 A. That is true. The Coroner who has a teaching hospital
19 in their district, or a hospital with a particular
20 specialty, may well find that there is, if I can put it
21 this way, a different mix of categories of death than
22 one might necessarily expect to find across the broad
23 spectrum of population in his district.
24 Q. Most people, if we assume for the moment that the
25 majority of people who die following operations, whose
0052
1 deaths are reported to the Coroner, typically die in
2 hospital rather than after discharge home, then that may
3 be a false assumption, but if we work on that basis for
4 a moment, then the Coroner for the particular district
5 in which the hospital is located will see all of those
6 cases?
7 A. In so far as they are reported to him.
8 Q. In so far as they were reported to him. In so far as
9 the patients leave hospital following an operation, or
10 perhaps transfer to another hospital -- which would
11 suggest that the operation had been at least a qualified
12 success, if they were able to be discharged or go to
13 another hospital -- and subsequently died, would it be
14 less likely that those deaths would be reported to the
15 Coroner for that district where the death occurred?
16 A. It is very difficult to say, because we do not know the
17 proportion of those deaths that are not reported to the
18 Coroner at all, where there is apparently a natural
19 cause which satisfies an attending doctor sufficient to
20 enable them to sign a medical certificate of death.
21 In that event, it does not get reported at all,
22 not through the Coroner system, but there is another
23 organisation, another enquiry, which is supposed to try
24 and pick up deaths following operations: the National
25 Confidential Enquiry into Peri-operative Deaths. They
0053
1 have some 15,000 deaths a year reported. Those deaths
2 are ones that have occurred within 30 days of surgery.
3 Very often, if there is coronial involvement, then they
4 may have access to any pathology or other matters that
5 have come to the attention of the Coroner. But it is
6 a confidential enquiry, and therefore, whilst they can
7 examine trends, they will not necessarily be able to
8 focus upon particular geographical areas or
9 institutions, for example.
10 Q. You are anticipating where we are going. If we forget
11 for the moment about the Coroner for the district which
12 includes a teaching hospital, what would your view be as
13 to the ability or the likelihood, perhaps, of other
14 Coroners from other districts being likely to detect
15 a trend of, for example, poor surgical techniques
16 leading to the death of patients who might otherwise not
17 have died, in the teaching hospital in another Coroner's
18 district?
19 A. I would think, if it comes to their attention at all,
20 then it would be presented to them as a one-off case, so
21 trends do not come into it.
22 Q. So the only Coroner who might be reasonably likely to
23 have sufficient cases which might or might not allow
24 them to detect a trend would be the particular single
25 Coroner for the district which included the teaching
0054
1 hospital?
2 A. In so far as any Coroner might see a trend, then I would
3 have expected it to be at the centre where the
4 institution is, rather than on the periphery outside
5 that Coroner's district.
6 Q. Then the next question, obviously is: given that that
7 Coroner is the person who might detect such a trend,
8 what would your view be as to the likelihood of the
9 Coroner for a district in a teaching hospital area being
10 able to detect such trends, if they existed?
11 A. I think that is almost an impossible question to answer,
12 because the trends themselves may be masked by a whole
13 range of other things. It depends very much on the
14 period and the numbers you are talking about, and
15 whether in fact the systems that the Coroner may have,
16 whether he is relying upon paper systems, his computer
17 systems, his own recollections, are sufficiently attuned
18 to appreciate that we have the same people, the same
19 clinicians, the same institutions involved, in
20 a sequence of cases that have all happened relatively
21 close together.
22 In any institution which is held out or
23 represented as a centre of excellence, or centre of
24 specialist expertise, I think one would probably expect
25 to have a high incidence of mortality there than in
0055
1 other places. I take as an example King's College
2 Hospital in Denmark Hill as a very successful liver
3 unit. They have a higher incidence there of people who
4 die from paracetamol poisoning because people go to
5 their hospital exactly because they have taken too much
6 paracetamol. So statistically, it may appear to be that
7 they are not successful there. So I think it is very
8 difficult to identify trends and say there has been or
9 has not been a success or there has or has not been
10 a trend that would suggest a particular unit, clinician,
11 policy, is or is not working.
12 Q. There are various factors, perhaps, to unpick from that,
13 are there not? First of all, the Coroner's focus is on
14 each individual death?
15 A. Yes, and once he has completed an inquisition, once the
16 inquest is at its end and it is ruled off, he cannot
17 re-open it. Each inquest, each death, is a singular
18 enquiry and his attention is focused on that Inquiry and
19 not on other matters.
20 Q. It is just like a judge who tries a series of different
21 cases: there is no obligation on the judge at the end of
22 the year to file a report saying "I have had 12 weeks of
23 breach of contract cases, 7 personal injury cases and 15
24 contested divorces, and the trends appear to be X, Y and
25 Z"?
0056
1 A. That is correct.
2 Q. When we are talking about the numbers of people who will
3 have died in a teaching hospital, a centre of particular
4 excellence, the Coroner would see how many deaths had
5 occurred which had been reported to him, which perhaps
6 in the case of complex paediatric surgery, most of the
7 deaths would be initially reported to the Coroner at
8 least -- would that be fair?
9 A. I would imagine so.
10 Q. But the Coroner would not know how many patients had
11 successfully had surgery and gone home?
12 A. That is right, so statistically he would have the
13 numerator but not the denominator to make any fraction
14 out of.
15 Q. And he would not be receiving, because he is only the
16 Coroner for one district, deaths from another teaching
17 hospital somewhere else?
18 A. No, nor those deaths from that same teaching hospital
19 that had occurred outside his district.
20 Q. So he is not particularly well equipped to take
21 a percentage view of the hospital; he can tell 10
22 patients have died in a year but does not know whether
23 that is 10 per cent or 100 per cent of the total, and is
24 not able to make a comparison with somewhere else?
25 A. That is right.
0057
1 Q. Coming back to the different from approach between
2 Coroners, I do not know whether you have had the chance
3 to see the evidence given yesterday by Professor Green.
4 I am afraid I cannot put it up on the screen for you.
5 May I read to you a little bit of his evidence?
6 He was asked about the differences, a variation in
7 the attitudes taken by Coroners towards the scope of the
8 investigation -- I have been asked to identify the page
9 and transcript reference, which I will do but I cannot
10 do just at the moment.
11 He was asked whether there was a variation in the
12 attitudes taken by Coroners towards the scope of the
13 investigation by the pathologist that was necessary for
14 the Coroner's purposes.
15 He said this:
16 "Yes, and again, Mr Burgess, I hope, will be able
17 to deal with this."
18 He did not leave it there. He said:
19 "I can only speak from the experiences which
20 I have in my own area. There was one Coroner, recently
21 retired, who would under no circumstances permit the
22 retention of any organ, no matter now strongly one
23 argued that it might be wanted. The defence might want
24 to view it and it might need to be fixed for three
25 months before the examination. He, I hasten to add, was
0058
1 an exception, but increasingly I have advised my junior
2 staff over the years, and it is a practice of my
3 successors in my department, to inform the Coroner if
4 a whole organ is being retained and the reasons for it."
5 Then he was asked:
6 "Can there be difficulties caused to the
7 pathologist by different attitudes on the part of
8 different Coroners as to the scope of their
9 jurisdiction?" and he said, "I think there can be,
10 certainly in the medico-legal field. I am particularly
11 concerned -- again, I can only speak for my own personal
12 interests here, but most of my research and most of my
13 specialisation in the last ten years was in physical
14 child abuse in the first 6 months of life and a lot of
15 this involves some shaking or shaking plus impact on the
16 child."
17 He said:
18 "One of the best ways of proving that shaking had
19 taken place was to examine the inside of the baby's
20 eyes".
21 He said there was one Coroner for whom he used to
22 work who under no circumstances would permit the removal
23 of the eyes, no matter how strongly Professor Green
24 should have implored him to do so.
25 He said that whilst most of the time most
0059
1 pathologists and most Coroners will discuss and come to
2 an appropriate modus operandi, the current vagueness of
3 the Coroners' Rules and the fact that although they are
4 rules, they are open to wide individual interpretation,
5 can produce difficulties.
6 Take it in stages. First of all, can I ask you to
7 take up Professor Green's kind invitation for you to
8 deal with the general point about the differences of
9 approach and what view the Coroners' Society would take,
10 for example, of a Coroner who under no circumstances
11 would allow the retention of any organ, even when the
12 pathologist felt that it might be important, for
13 example, for the defence of criminal proceedings, to be
14 able to see them?
15 A. I think it depends, first of all, what organ, if it is
16 a major organ that is being considered, and the
17 expectation both as to the examination to which that
18 organ is going to be subjected, the expected time it may
19 be needed and the likelihood of that examination
20 producing something that is not obtainable elsewhere.
21 I mean, there are a number of these different issues
22 which do not necessarily allow for a simple "Yes" or
23 "No" answer. If somebody comes to me and says "There
24 is just the possibility of something being demonstrated
25 if we take this heart, keep it for six months and do
0060
1 something with it, but the chances are 80 or 90 per cent
2 against that result coming out", I would say, "Well, it
3 is not worthwhile going through that examination".
4 Q. So it is obviously difficult to talk about individual
5 examples and to generalise from them?
6 A. Yes.
7 Q. What Professor Green did is to give the examples of the
8 Coroner who did not allow the retention of any organ,
9 the shaking of the baby example and the desire of an
10 pathologist to be able to examine the eyes, but he then
11 in his conclusion would appear to have attributed some
12 of these difficulties to vagueness in the Coroners'
13 Rules.
14 Is that a point of view the Coroners' Society
15 would accept?
16 A. Although the rules are said to be vague, they are quite
17 emphatic in other areas as well and the vagueness itself
18 has I think assisted over the years in allowing the
19 flexible approach which allows us to make assessments,
20 allows us to take a view as to whether or not
21 a particular line of enquiry should be continued, or
22 whether it should be discontinued.
23 If the rules are more tightly drawn, there is
24 a great difficulty and a great threat that people will
25 go to the limit in cases where it would be unreasonable,
0061
1 in broad circumstances, so to do, and yet get no result
2 at the end. The limitation may be drawn at a point
3 where some useful examination has not been possible
4 because of that very limitation.
5 So a flexible approach applied proactively.
6 Q. I just want to be clear about the terminology because it
7 may be important. Professor Green referred to the
8 vagueness of the current rules. You accepted at the
9 beginning of that answer that the rules were vague, but
10 went on to refer to flexibility. A rule might be vague
11 in the sense of being unclear; it might be clear but
12 permit flexibility, which is, I suggest, a different
13 thing. If you accept that distinction, is it your
14 Society's view that the Coroners' Rules are vague in the
15 sense of being unclear as to what is permitted, or
16 flexible in the sense that it is clear that there is
17 a degree of latitude permitted?
18 A. No, it is the degree of latitude. I mean, the sorts of
19 vagueness to which I was agreeing was for example, in
20 rule 9 to which we have referred several times, the use
21 of the word "material". "Material" can cover anything
22 from a pinhead piece of material on which there is DNA
23 or body fluids, to the whole body. Anything in between
24 those will be covered by that. We are not talking about
25 exclusively whole organs or enough to cover a microscope
0062
1 slide or enough to fill the test tube of a certain
2 capacity; we are talking about material in broad terms.
3 It is that latitude, that flexibility, which
4 I think Professor Green certainly in discussions with me
5 has suggested was vague, which I say may afford us the
6 opportunity to approach matters on an individual basis,
7 hoping to carry out a meaningful examination, but not
8 necessarily engage in examinations which are more likely
9 to be fruitless than otherwise.
10 Q. So the degree of flexibility so far as the Coroners'
11 Society is concerned is appropriate?
12 A. Yes.
13 Q. Are there any areas in the rules where the Coroners'
14 Society considers an increased degree of inflexibility
15 would be appropriate? If so, where?
16 A. I am sure if you put it to any group of Coroners, they
17 will immediately identify something with which they find
18 fault. I do not think as a Society we have necessarily
19 identified particular areas, certainly covering this
20 sort of thing, where we are finding it extremely
21 difficult.
22 Q. I just have a couple more points, Mr Burgess. I should
23 put to you another point Professor Green mentioned --
24 THE CHAIRMAN: Mr Maclean, can I butt in for a moment
25 there? As I understood Professor Green yesterday, he
0063
1 was talking about retaining the eye for the purposes of
2 research. Would Mr Burgess think he has any discretion
3 or flexibility in that context?
4 MR MACLEAN: Just before Mr Burgess answers that, I think
5 I did not read the next sentence. I am told it is
6 pages 76 and 77 of the transcript yesterday, where
7 Professor Green gave the example of the shaking of the
8 baby. He said:
9 "There is one Coroner for whom I used to work who
10 under no circumstances would permit the removal of the
11 eyes, no matter how strong the arguments which I put
12 forward. This certainly in one case I can think of
13 resulted in an acquittal."
14 I took it from that, although I was not here
15 yesterday, he was referring to it in the same context as
16 the previous one of the criminal case, but of course,
17 that is not to say that the question which you have now
18 posed to Mr Burgess is not appropriate.
19 THE CHAIRMAN: I think my interjection is ill-informed.
20 I think what Professor Green seems to have been talking
21 about was to determine the cause of death.
22 MR MACLEAN: Would it be helpful, sir, simply to ask
23 Mr Burgess the question which you put?
24 THE CHAIRMAN: Yes, please.
25 MR MACLEAN: Whatever the provenance of Professor Green
0064
1 yesterday -- and if either of us have misrepresented
2 what he intended to say I am sure he will be able to put
3 whichever of us it is right.
4 The question you asked of Mr Burgess was: would
5 Mr Burgess think that he has any discretion or
6 flexibility in the context of research?
7 That takes us back to the question of retention
8 of, in Professor Green's example, the eyes for the
9 purposes of research.
10 A. I do not believe Coroners do have the discretion that
11 Professor Green may have conveyed. I think we can only
12 ever authorise examinations and retentions relative to
13 causes of death. To go beyond that is, in my view,
14 beyond our powers given to us in statute.
15 I think one of the difficulties, though, that is
16 implicit in this whole area, is one that Professor Green
17 does touch upon, and certainly has been the subject of
18 learned articles in the BMJ and other periodicals,
19 concerning the frequency with which certain injuries
20 seem to be found; in other words, they are building up
21 a statistical database suggesting that a particular
22 lesion or condition may apply, and therefore,
23 retrospectively on the basis of statistical evidence,
24 drawing a conclusion from that.
25 I think that is a much more problematical area and
0065
1 it is not one that I think I can easily address. I can
2 only look at individual cases.
3 THE CHAIRMAN: Mr Maclean, if I may again come in, simply
4 to clarify for myself: the fact that the Coroner cannot
5 authorise that does not, of course, mean that the
6 retention may not be authorised by some other legal
7 provision, whether it be common-law or statute?
8 A. That is right. I think we also have a situation where,
9 if in the course of an examination a particular
10 clinician is noted and subsequently, in other
11 examinations and from other material, it becomes clear
12 that seems to be a reasonably common condition that is
13 found in some instances and not in others, it may be
14 noted and become part of a diagnostic tool in the
15 future. But, I mean, this is the way in which medical
16 knowledge seems to be built up, not just confining it to
17 sort of shaking syndromes in children.
18 MR MACLEAN: So the difficulty is, when one looks at each
19 individual case, it is perhaps not so very difficult to
20 determine whether further material should be retained
21 and whether or not it is a matter for the Coroner, but
22 patterns can emerge which can have very helpful
23 conclusions or outcomes, or consequences, but when one
24 looks at each individual case, it is difficult to see
25 the justification under the Coroners' Act or Rules for
0066
1 the retention of anything that does not in that
2 particular case seem to fall within rule 9?
3 A. That is right.
4 Q. So how can that difficulty be ameliorated?
5 A. I think it is quite difficult, necessarily, to reconcile
6 the different issues in these, I think we have to say,
7 exceptional cases that may arise: the collection, the
8 justification for doing certain procedures or
9 examinations, if they go beyond finding a cause of
10 death, may be helpful to medical knowledge or
11 understanding of a particular syndrome or condition, but
12 may not necessarily accord with the limited parameters
13 within which Coroners and those working through them may
14 work.
15 If, as is implicit in some of the Coroners' Rules,
16 it is permitted for Coroners to either direct certain
17 examinations to be made, focused on the cause of death,
18 or for a postmortem report to come out which comments
19 according to the headings in schedule 2, I think it is,
20 of the rules, that the report should contain certain
21 things, then that seems in itself to justify those
22 things being done, but if you go beyond that, I think
23 that is where the difficulties start.
24 Q. As we have already discussed, it is a bit haphazard as
25 to whether any particular Coroner is liable to see any
0067
1 particular trend emerging. The Coroner never knows what
2 the next case is going to show, obviously, so it is
3 always going to be difficult, is it not, for the Coroner
4 to sanction any such retention on that basis, even
5 leaving aside rule 9, because he is not going to know
6 what is going to come along next week?
7 A. That is very true. Most of the new conditions that have
8 given rise to death in the last few years have only been
9 identified when more than a single case has arisen, and
10 that means that the first case very often goes
11 unidentified and it is only when you get to the second
12 and third case -- and I think of new variant CJD, for
13 example -- and the laboratory say "This is similar to
14 something we looked at last week", that the causal
15 connection or a causal similarity seems to be present,
16 such that they can then start putting things into
17 context.
18 So although individual Coroners can only ever look
19 at the limited case in front of them and seek to draw
20 conclusions from that, there is undoubtedly use made of
21 information that is collected in individual cases in
22 order to get a bigger picture.
23 MR MACLEAN: Sir, would you just give me one moment,
24 please? (Counsel confer)
25 Mr Burgess, the final question for me, at least,
0068
1 I hope, is this: does the Coroners' Society have a view
2 as to whether or not it would be helpful if there was
3 some mechanism, some body, which would be charged with
4 collating the results of Coroners' inquests and
5 endeavouring to establish, on a country or region or
6 county-wide basis, whether or not there were points
7 which could be picked up but that, because of the
8 individual Coroner system, patterns which are there to
9 be seen nobody at present is charged with looking for?
10 A. The Society as such has not addressed it quite in those
11 terms. Individuals have looked at it and recognised
12 that essentially they are running a system based on
13 19th century quill-pen technology. I personally have
14 got some minimal knowledge of systems in other countries
15 and see that in New South Wales, I think it is, or
16 Victoria in Australia, they have quite a sophisticated
17 system which is linking registration and Coroner systems
18 to make a more effective database able to identify
19 trends and localities and particular occupations and
20 other particular groupings.
21 It may well be that in time this country would
22 develop such a system, but it would need to be on the
23 basis, why do that in an individual Coroner district?
24 The trends in my own district on such things as drug
25 deaths, for example, which are sufficiently numerous
0069
1 each year to suggest that there might be trends, there
2 are relatively few compared with the country as a whole,
3 so it would be quite wrong to draw conclusions and
4 suggest trends exist based on an individual Coroner by
5 Coroner basis.
6 What it would need is a much more sophisticated
7 system, I am not sure as sophisticated as this room or
8 this Inquiry system, but certainly something which would
9 enable particular features that may be present in
10 a number of cases to be picked out and then, through
11 that, some basis of analysis to be followed through.
12 MR MACLEAN: I do not have any more questions for you at
13 this stage, Mr Burgess. The Panel may have in
14 a moment. Can I thank you very much for coming, taking
15 time from your duties in Surrey as Coroner to give us
16 your evidence. Could I invite you to bear in mind that
17 there is an opportunity for you, now, to say anything
18 else that you want to say at this stage, and an
19 opportunity later to submit further material -- I am
20 thinking particularly of if and when the Coroners'
21 Society does form a collective view, if that view
22 crystallises I think is how I put it, in response to the
23 Royal College's paper, then obviously it would be
24 helpful to the Inquiry to know what that view is as soon
25 as it has been formed, and it will form part of the
0070
1 panel's subsequent deliberations.
2 At this stage, is there anything you want to add?
3 MR BURGESS: I do not think so, at this specific stage,
4 other than the fact that I do recognise in the College's
5 evidence they suggest that the Coroner system has served
6 the country well, and I believe that generally it has.
7 I do recognise, though, that it is a human institution
8 and consequently, like any human institution, it is
9 capable of failing and I think the failings may have
10 applied both on a corporate basis as well as in
11 individual cases. I am not suggesting for one moment it
12 is perfect; on the contrary. I think we do try to work
13 wonders with 19th century technology; we have many
14 outdated practices that, try as we may, we cannot seem
15 to influence those who might be able to change the
16 system, to do so. I was reminded just last week that
17 the accounting system which by statute we are supposed
18 to operate is the basis upon which much local government
19 worked until the county councils were instituted in
20 1888. We are supposed to lay accounts on a quarterly
21 basis before county councils and then to be reimbursed
22 when we have justified spending it. Fortunately most of
23 us have sufficiently sympathetic county councils that
24 either pay our bills direct or reimburse us on a more
25 regular basis. But that is the sort of anachronism with
0071
1 which we are living and we are struggling to make the
2 system work in that sort of way.
3 The other point I just would make is that there
4 is, I think, a general public perception that with
5 increased sophistication and technology, we are more
6 able to define precisely how it is somebody came by
7 their death. Very often toxicology and histology and
8 all the other 'ologies that may be invented may delay
9 decision-making but will produce very little of
10 substance that enables us to say more definitively how
11 it is that a cause of death has come about. It may
12 assist us in saying something has not happened or does
13 not appear to have happened or has not left any trace of
14 it happening, but it does not necessarily demonstrate
15 that it has happened. I think that is one of the great
16 quandaries we have to deal with. These tests very often
17 take weeks or months to complete.
18 Looking back at the records in my own district, 60
19 or 70 years ago inquests would be held and concluded in
20 four or five days, sometimes in quite complicated
21 cases. These days we are looking at four to six months
22 sometimes if the case is complicated. So I am not sure
23 that the march of technology has necessarily improved
24 the cutting edge of the Coroner system.
25 MR MACLEAN: Does the Panel have any questions for
0072
1 Mr Burgess?
2 Examined by THE PANEL:
3 THE CHAIRMAN: I was left in some doubt, Mr Burgess, as to
4 whether you were complaining of the advent of technology
5 and harking back to the Victorian time, and at the same
6 time hoping technology would save you?
7 A. All three, I think.
8 MRS HOWARD: You said earlier this morning that despite
9 perhaps public perception, you are not part of
10 a national service or working for a single master,
11 I think you phrased it.
12 That suggests that perhaps the Society had
13 considered a national service and if they have, are
14 there any advantages to that?
15 A. The Society is no more than a grouping that formed in
16 1846 in order to try and standardise practices or
17 improve the standard of practices across Coroners across
18 the country. There have been, over the years, a number
19 of debates in different fora suggesting that there
20 should be a more cohesive regular service and I think
21 there are many of us who can see the attraction of that,
22 not least the collegiality, but there would be a better
23 overall consistency in the way we operate.
24 But the funding is one of the difficulties.
25 Funding is very much provided locally, albeit a lot of
0073
1 it going back into the National Health Service, I think
2 31 per cent of the total costs of running the service
3 goes back into the National Health Service every year to
4 support mortuaries. Another 28 per cent goes into it to
5 pay for pathologists, so getting on for 60 plus per cent
6 goes directly into doctors or the Health Service in that
7 way.
8 If central government were to take it over, or the
9 funding of it, then probably there would be
10 a consistency which central government, in its best
11 moments, can produce. But also I think we have all
12 recognised there have been instances when central
13 government institutions have not necessarily worked
14 quite as they were expected to, and that is, I think,
15 one of the great difficulties, that we do not want to
16 see a service that is not well-funded -- or not properly
17 funded, I should say -- which is less effective than the
18 present one. I think that is the dilemma that many of
19 us see.
20 MRS HOWARD: Thank you very much.
21 THE CHAIRMAN: Professor Jarman?
22 PROFESSOR JARMAN: Mr Burgess, I have a couple of questions
23 based very much as someone who is a non-expert and the
24 impressions I have gained over the last two days about
25 the Coroners' system. Would it be fair to say that in
0074
1 effect Coroners are a "law unto themselves"?
2 A. Within the constraints of judicial review, I suppose we
3 each are permitted a degree of flexibility as to how we
4 carry out our duties, but to say we are "a law unto
5 ourselves", I am not sure I would necessarily agree with
6 that. I would be reluctant to say that we are.
7 Q. It is just an impression!
8 A. Coroners are individuals, there is no doubt about that,
9 and that is part of the way we work, and the people who
10 are Coroners, particularly the 25 who are full-time
11 Coroners who are not permitted to do any other work, do
12 not necessarily have the recourse to general practice,
13 general medical or legal practice, or the exchanges and
14 the companionship that can be generated by that. We do
15 become very idiosyncratic, I am sure.
16 Q. The second question is, would it be fair to say that at
17 times there is something of a power struggle between the
18 Coroners and the pathologists in the Trusts in their
19 local districts?
20 A. I am not sure "power struggle" is quite the word.
21 Certainly there are tensions, and there are not
22 infrequently tensions, and the tensions are often
23 generated by the desire of Coroners to move the system
24 on and to get results, and not to be paying through the
25 nose for things which in the mind of the Coroner should
0075
1 be something which should be part of the overall package
2 that they are paying for. The pathologists, on the
3 other hand, take a view that if you want histology, then
4 the only way you are going to get some histology is by
5 paying extra for it. So those tensions are certainly
6 very much there. It is one which, talking with
7 Coroners, we have noticed a trend for pathologists to be
8 less willing to take a on a microscopic examination that
9 the death is natural, instead of saying "Look, on what
10 I have seen I am not prepared to make an assertion, to
11 give you an opinion at this time, you will have to open
12 an inquest", and I will therefore carry out some
13 histology or toxicology which will pay extra, and then
14 we may be able to get a more definite conclusion, and we
15 end up with the natural cause of death conclusion which
16 probably was available, if the pathologists had been
17 reasonable about it, before the inquest was opened.
18 So there are those tensions.
19 Q. The other thing is, I have a feeling that at times there
20 are contradictions and confusions in the way the system
21 worked. You described the system as based on
22 "nineteenth century quill-pen technology". I would
23 have thought it was based on an earlier technology, but
24 still. Could the reason for that be something to do
25 with the answer to my question, or is that not
0076
1 possible?
2 A. The system is parasitic, there is no doubt about that:
3 we rely upon others to inform us; we rely upon
4 pathologists to give us information; we rely upon
5 witnesses to come forward to give evidence; we rely upon
6 the police to provide our Coroner's officers, very
7 often, or to provide police officers to come and give
8 evidence. We are a parasitic organisation in every
9 sense of the word.
10 No Coroner even has his own mortuary. Those
11 provided in London are provided under the Public Health
12 Act because there is a statutory obligations on
13 authorities to provide public mortuaries. So we are
14 parasitic individuals, if I can put it that way, and
15 there is no doubt about it that some Coroners do take
16 a very keen interest and are well supported by their
17 local councils, to the point that they are regarded as
18 a Principal Officer with a substantial budget and
19 benefits that flow from that, whilst others work very
20 much under much more limited capabilities and are not so
21 generously appreciated, nor indeed so generously given
22 the opportunities to carry out their function.
23 I think all these things provide for differences
24 in the way that we operate, because we are all affected
25 by the experiences that they have on us, and I suppose
0077
1 to that extent, these differences will continue to
2 arise.
3 I am not sure in my own mind that the technology
4 that existed 800 years ago was that much different than
5 in the 19th century. It may be that velum has given way
6 to paper, but not much more.
7 Q. That is what I was trying to suggest, but I just
8 wondered whether these problems we have been discussing
9 could ever give rise to problems and difficulties with
10 patients at a very difficult time in their lives?
11 A. One would like to think that any influence that the
12 Coroner has is subsequent to the death itself and
13 therefore that what he says or does should not influence
14 the way in which the postmortem effects of that death
15 occur. I suppose it is possible from what you say and
16 the way you put the question that the attitude that
17 a Coroner may have had in previous cases will influence
18 clinicians to say, "We are not going to report this
19 case", or we are more willing to report it. Certainly,
20 when talking with Coroners, we try and encourage them to
21 get to know clinicians and to talk things through and to
22 offer an open door, on the basis that to be
23 approachable, to be ever ready to discuss matters, even
24 if it is to say, "Look, I do not see a problem with
25 this, but if you feel uncertain about it, then we can
0078
1 follow a certain route", is much more likely to be, in
2 my view, effective and to foster better relations and
3 therefore ultimately, I hope, better patient care than
4 to be stand offish and aloof and not co-operative.
5 PROFESSOR JARMAN: Thank you very much indeed.
6 THE CHAIRMAN: I have a couple of questions, if I may. The
7 first reverts to what we were talking about a while
8 back, namely, the retention of tissue.
9 I wondered, listening to what you said, whether it
10 was the view of the Coroners' Society that the retention
11 of tissue in the context of a coronial investigation,
12 other than with the permission of the Coroner exercising
13 the Coroner's power under rule 9 is unlawful, not least
14 because the pathologist is acting, in retaining that
15 tissue, as your "agent", broadly described.
16 A. I suppose it is only really in the last year or two that
17 the retention of tissue has become a matter that has
18 concentrated our minds. If I can just answer obliquely
19 for one moment, over the years the Society has
20 increasingly been asked, on behalf of Coroners, to
21 assist in research and we have been approached by
22 a number of teaching or other institutions asking if
23 access can be given to Coroner's records for the
24 purposes of research.
25 It does not normally present a problem if the
0079
1 death has long since occurred and they are effectively
2 saying, "Please can we have a look at your records
3 because we think we may be able to see a common link
4 between..." certain kinds of cases, and provided that
5 the information is (a) accessible; and (b) that they are
6 going to anonymise it so it is going to be used purely
7 as a statistical tool, then we do not see a problem.
8 The difficulty is when we get asked for certain
9 tests or examinations to be made in deaths that have not
10 yet occurred but which might be the subject of
11 a reference: "If you get somebody who falls down the
12 steps of a bus, could you please in future measure the
13 height of the step of the bus?" In so far as we would
14 not normally measure the height of the step of a bus,
15 then that might be, in the view of the Society, an
16 excess of power. I take that flippantly; I am not
17 necessarily suggesting that.
18 The numbers of research projects referred to the
19 Society reached an all-time high in 1997 when we had
20 something like 95 different national research projects
21 referred to us in the first three months of that year,
22 and we tended to adopt a relative broadbrush approach,
23 saying "By all means approach individual Coroners, but
24 do not necessarily expect to co-operate with every
25 single case, because the numbers might not make it
0080
1 possible". When it comes to deaths that have already
2 occurred, we are much more involved, saying "You cannot
3 expect Coroners, and Coroners are not allowed, to go
4 beyond finding a cause of death. We cannot look
5 specifically at or for a particular condition because it
6 will help you in your project". What we can do is, if
7 it is found in the normal course, then we can say, "Yes,
8 it has been found", but we cannot necessarily look
9 specifically for that.
10 In the course of 1995, there was one particular
11 project, looking at sudden adult death, and it was
12 a project being run by St George's Hospital together
13 with the Brompton Hospital, and in the course of a lot
14 of discussions we had with them, they offered to examine
15 the whole heart on the basis that the examination might
16 demonstrate, in particular rare kinds of cases,
17 a particular regional condition to apply. Normally such
18 an examination will be so expensive that it would be
19 beyond the availability of most Coroners' budgets, but
20 they offered to do it for us free. We were, as
21 a Society, able to say to individual Coroners on that
22 case, "If one of these deaths, albeit rare, has
23 occurred, then it might be possible for you to avail
24 yourself of this service, provided that it is focused
25 upon you getting a result there. As far as the removal
0081
1 of the heart is concerned, if that does take place, you
2 should ascertain before you permit it to go, how long it
3 is going to be, and then consult with the family and
4 discuss it with them".
5 The result was relatively successful. Not only
6 did it enable us to fix more clearly some cause of death
7 that otherwise would have gone undiagnosed, but it also
8 enabled families on occasions to appreciate some of the
9 underlying conditions that existed, and produced and
10 identified genetic difficulties that were relevant to
11 other members of the family.
12 So we recognise that in that particular study,
13 which took quite a lot of preparation, there was the
14 bonus that went beyond our normal limited remit. And we
15 believed, too, in that particular case, the way it was
16 structured, it would not contravene the cases upon which
17 we were carrying out our authority. But we also
18 perceived that it did not take very much more for it to
19 have gone that extra bit, which would have meant then
20 that what we were doing or what we appeared to be
21 authorising was illegal.
22 THE CHAIRMAN: It is that tension between what your powers
23 may be and the beneficial consequences that might arise
24 from the retention of tissue in some circumstances --
25 one leaves outside questions of consent and so on --
0082
1 which perhaps you might wish to, in your Society,
2 reflect upon. If you would wish to submit further
3 observations on that, I am sure we would be very
4 grateful.
5 May I ask another question?
6 You talked at one stage with Mr Maclean asking you
7 of the narrow line between a death brought about by or
8 independent of surgery, an example Mr Maclean was
9 giving. How is it that a Coroner who is not medically
10 qualified can actually know which side of the line
11 a particular case falls?
12 A. I think it was once said to me that I could properly
13 now perform most operations, and get them wrong, even
14 though I am not medically qualified. The short answer
15 is, whether Coroners are medically or legally qualified,
16 they should only ever react to information that is given
17 to them as evidence, so they are relying upon somebody
18 to say to them, "This is right" or "This is wrong" and
19 very often the person who is saying "This is right" or
20 "This is wrong" is a pathologist, so we are very
21 dependent upon having the services of pathologists who
22 are, it goes without saying, honest, but equally, who
23 are aware of current practices and disease processes
24 such that they can say to us, "This does seem to be
25 a naturally occurring progression of some disease
0083
1 process; it does seem to be independent of the surgery".
2 Q. The third and last question: very early in your
3 conversation with Mr Maclean you talked about the role
4 of the family and your Coroners bringing in the family,
5 and am I right in saying that you can have a postmortem
6 without an inquest, and an inquest without a postmortem,
7 and that being the case, my question was, at what point
8 is the family ordinarily, as you understand, in fact
9 involved and can the family express before it is too
10 late any view as to whether (a) there should be
11 a postmortem and (b) what limitations might properly and
12 responsibly be placed upon how it is conducted?
13 A. Certainly I would hope that most families are told that
14 an examination is to take place. The extent to which
15 they are told of what actually takes place in an
16 examination is of course a matter of degree, because the
17 expectations of some will be to receive a lot of detail,
18 for others, they either will not wish to know or will
19 not necessarily understand the reasons for it. So it is
20 very much a question of tailoring the information to the
21 recipients of it.
22 I would hope -- and I can only speak for my own
23 district as to exactly what takes place, because of the
24 diversity of practice, but my general understanding is
25 that it is increasingly common for families to be
0084
1 advised, but not necessarily in a directional sort of
2 way, but rather, "Look, we are faced with this problem,
3 we do not know why Dad has died, we clearly have to find
4 out. The doctors do not have a clue. We are going to
5 see. It seems to us, the only initial course is, we
6 have to have an examination, to find out if there is
7 anything that can direct us as to how his death came
8 about". So it is a reasoned discussion, informative
9 approach, rather than just a phone call saying, "Dad is
10 going to be examined tomorrow at 10 o'clock in the
11 mortuary".
12 Then, following that examination, either my
13 officers or I would normally speak to the relatives and
14 say -- in fact we always speak to the relatives, one of
15 us, and say, "Look, the examination shows that he died
16 from..." and explains to them both the formal wording
17 that will appear as a medical cause of death and try and
18 explain in layman's terms what the implications are for
19 that. If it is either unnatural or violent, then we
20 would say, "Clearly we have to pursue this by way of an
21 inquest and that will involve evidence being given".
22 So it is not really as much a simple monologue
23 from us to families; hopefully, it is a dialogue in
24 which opportunities are given for them to express their
25 concerns, and us to explain why we necessarily have to
0085
1 go through a particular course or the death may be
2 unexplained and continue to be unexplained.
3 Q. A supplementary question: because of the fact that all
4 Coroners are as it were independent, the idea of the
5 issuing, if it were thought proper, of a protocol or
6 guideline, or set of guidelines, as to how to deal with
7 families, would be quite difficult.
8 Do you think there would be any desirability in
9 doing that, and if so, from where would it emanate, such
10 a protocol?
11 A. I have great difficulty with protocols. The Society has
12 produced some information and directions for Coroners,
13 which are not always that well received. The great
14 difficulty about producing protocols is that if they are
15 not followed, then people are beaten over the head with
16 them, so I think there is some difficulty there.
17 Q. It may not be a bad idea!
18 A. I do not disagree with that either. I think that the
19 difficulty with any imparting of information is getting
20 the medium right. Some information clearly needs to be
21 given in writing, so that it can be referred to later
22 on; some information is so transient that it can be
23 given verbally on the telephone and it is out of date
24 because it has been superseded by other things within an
25 hour or two. It is getting the right information across
0086
1 to the right people at the right time, and I think that
2 increasingly, society, with a small "s", is hide-bound
3 with getting communications right. I am not sure we are
4 necessarily good at it, and Coroners are probably no
5 different from anybody else. Communication skills
6 could, I am sure, be improved on everybody's part, and
7 the Society is no different.
8 THE CHAIRMAN: I hope you do not feel it facetious of me to
9 say your communication skills today have been well above
10 average, in so far as you have thrown considerable light
11 on an area which is not only very complex, but also to
12 a degree has an element of uncertainty about it. I am
13 extremely grateful for you spending time with us this
14 morning. You have helped us very greatly. Thank you
15 very much for coming.
16 MR MACLEAN: Sir, I am in your hands and the hands of the
17 stenographers. I think we have probably got to the
18 stage now where ordinarily we would have a break.
19 Mrs Kennington, who is the next witness, her evidence
20 will not take overly long, but I think on balance we
21 ought to have a break before we embark upon her
22 evidence, which I would hope to deal with within
23 a single session.
24 THE CHAIRMAN: Thank you, Mr Maclean. I think it would be
25 appropriate to have 45 minutes and therefore reconvene
0087
1 at a quarter past 1, thank you.
2 (12.35 pm)
3 (Adjourned until 1.15 pm)
4 (1.20 pm)
5 MR MACLEAN: Sir, this afternoon's witness is Mrs Diane
6 Kennington. Perhaps she could come forward to the
7 chair, please.
8 Mrs Kennington, could I ask to you stand up again,
9 please, to take the oath?
10 MRS DIANA KENNINGTON (SWORN):
11 Examined by MR MACLEAN:
12 Q. You are Mrs Diane Kennington, and you are the Patient
13 Affairs Officer at the Bristol Royal Infirmary?
14 A. Yes, I am.
15 Q. I think it is important to bear in mind, is it not,
16 throughout your evidence, that you do work, and have
17 throughout the Inquiry's period worked at the Bristol
18 Royal Infirmary, but not at any of the other hospitals
19 now within the United Bristol Healthcare Trust?
20 A. That is correct, yes.
21 Q. Could we have on the screen WIT 214/1?
22 Is that the first page of a statement that you
23 have made to the Inquiry in respect of issue J,
24 Postmortems and Inquests?
25 A. Yes, it is.
0088
1 Q. If we go to page 15, that is your signature?
2 A. Yes, it is.
3 Q. If we just go back one page, please, to page 14, we
4 see from paragraph 46 at the foot of the page that you
5 actually conclude your statement with two paragraphs
6 dealing with issue I, the rest of the statement being
7 concerned with issue J?
8 A. Yes.
9 Q. You have helpfully supplied us with some other materials
10 which were annexes to your statement. One of those, if
11 we go to page 35, is a form. Can we just have a look at
12 the top half of that, please? We see that it is on the
13 notepaper of the UBHT. Could you just explain to me
14 what this form is for and where it is used?
15 A. This form is used for the consent of relatives to
16 a hospital postmortem, and it is used in the BRI.
17 Q. That is the one that is currently used?
18 A. Currently used.
19 Q. Before we go any further, your statement you have
20 supplied, have you had a chance of reading that
21 recently?
22 A. I am sorry, have I ...
23 Q. Had a chance of reading through your own statement
24 recently?
25 A. Yes, I have.
0089
1 Q. Is there anything on reflection you now want to add
2 to, change or subtract from?
3 A. No, I do not think so.
4 Q. So you are happy for that to be part of your evidence
5 to the Inquiry?
6 A. Yes, indeed.
7 Q. We will come back to this form and one or two other
8 forms in a minute or two. I just want to show you
9 a couple of other documents. WIT 214/51: this is
10 a statement from Dr Richard Mountford, who is
11 a consultant in the division of medicine at the BRI, is
12 he not?
13 A. Yes, it is.
14 Q. That is a comment, an interested party comment
15 Dr Mountford has made on your statement. Have you had
16 a chance of reading his comments?
17 A. Yes.
18 Q. Do you have any comments on his comments?
19 A. No, not at all.
20 Q. You agree with the points that he makes, do you?
21 A. Yes, I do.
22 Q. I hope you have also had a chance to see the other set
23 of comments we have had on your statement, WIT 214/78
24 from Dr Roberts?
25 A. Yes, I have read that.
0090
1 Q. Again, you have had a chance of reading these, have you?
2 A. Yes, I have, yes.
3 Q. I think it is right to say, is it not, at paragraph 9 on
4 page 80, he expresses the view that the change in your
5 role took place in 1996 rather than in 1994?
6 A. Yes. I was wrong, it is 1996, as he says.
7 Q. So, again, do you take issue with anything that
8 Dr Roberts says in that statement?
9 A. No, not at all.
10 Q. Can we go back then to your own statement, please,
11 WIT 214/1? You say in paragraph 1 -- we can see that on
12 the screen -- you have been the Patient Affairs Officer
13 at the Bristol Royal Infirmary for 16 years since 1983
14 and therefore throughout the period that this Inquiry is
15 concerned with, which as you may know concludes in 1995.
16 A. Yes.
17 Q. Can I just ask you what job you held before that, before
18 you became the Patient Affairs Officer at the BRI in
19 1983?
20 A. I was the cashier at the BRI for three years.
21 Q. What other jobs had you held previous to that throughout
22 your career?
23 A. All financial. In finance, mostly.
24 Q. When did you first start working in the Health Service?
25 A. In 1980.
0091
1 Q. So the three-year stint you had as cashier in the BRI
2 was the first time you had worked in any aspect of the
3 National Health Service?
4 A. Yes, it is.
5 Q. How did it come about that you became Patient Affairs
6 Officer? Was that a new post, or was there somebody
7 that held that post previously?
8 A. There was someone who held the post previously, and the
9 post became vacant. At that time I was considering
10 leaving my post as cashier and I was approached
11 regarding this vacancy and I was asked if I would like
12 to consider it.
13 Q. And you obviously did consider it?
14 A. I did.
15 Q. And you got the job?
16 A. I did.
17 Q. At that time, there was no Trust and the hospital, the
18 BRI, was administered by the Health Authority, was it
19 not, the District Health Authority?
20 A. Yes.
21 Q. To what extent did you or do you have any knowledge of
22 the goings-on in other hospitals which are now within
23 the UBHT?
24 A. At that time I had no knowledge of what happened
25 elsewhere.
0092
1 Q. When you became Patient Affairs Officer, what was the
2 nature of your duties in 1983?
3 A. Very much the same as they are today; they have not
4 changed too much. My role, really, was a facilitator
5 for the families, the bereaved families that came to see
6 me.
7 Q. The main jobs you had would be those referred to in
8 paragraph 1. You would deal with the requirements for
9 the formal registration of the death, helping the family
10 of the deceased to arrange the funeral, put them in
11 touch with funeral directors, and obtain the signature
12 on the consent form for a hospital postmortem?
13 A. That is right.
14 Q. You say in your statement that the number of hospital
15 postmortems as opposed to Coroner's postmortems has
16 declined over the period in which you have been Patient
17 Affairs Officer; is that right?
18 A. That is right, yes.
19 Q. Are you able to help the Inquiry with your perception
20 of why that should have come about?
21 A. There are several reasons, I think. One of them is that
22 I feel that the junior house officers are not really
23 given enough training in dealing with bereaved people.
24 Q. Are they given less training now than they were before?
25 If they have always been given the same amount of
0093
1 training, that would not account for a decline, would
2 it?
3 A. I do not really think they have ever been given enough
4 training. Another reason why there has been a fall in
5 the hospital postmortems I think also is that we have
6 now taken on responsibility at the BRI, since the city
7 mortuary closed, for more Coroner's cases, and that
8 means that they take precedence over hospital
9 postmortems.
10 Q. Are you able to help with the way in which the financing
11 of postmortems might play a role to the extent that
12 there is a difference between the financing of the
13 hospital postmortem and the Coroner's postmortem?
14 A. I could not comment on the way this was done.
15 Q. If we go to your statement, page 4, I think you heard
16 this morning some of Mr Burgess's evidence, and you will
17 appreciate from that that we were discussing the role of
18 the Coroner and the Coroner's postmortems.
19 I just want to clear up what your role in those
20 would be. Do I have it right that it is paragraph 11
21 which is really the sum total of your involvement in
22 Coroner's postmortems, that the family of the deceased
23 might come to see you to pick up property, but otherwise
24 would not have any contact with you other than by
25 telephone?
0094
1 A. No, that is not strictly correct. They would have
2 contact with me. In fact, I speak to all of the
3 bereaved families. They are told to ring me the day
4 after the death has occurred and I can then give them
5 information about the Coroner's involvement and give
6 them the Coroner's office's telephone number.
7 Q. In the case of a Coroner's postmortem examination or
8 one directed by the Coroner, there is no need or role
9 for the obtaining of the consent of the family of the
10 deceased for the postmortem examination itself; is that
11 your understanding?
12 A. That is right.
13 Q. To what extent were you ever involved in obtaining
14 consent from the families of the deceased when that
15 deceased was going to be the subject of a Coroner's
16 postmortem in respect of retention of tissue or organs,
17 not strictly necessary for the discharge of the
18 Coroner's obligations?
19 A. My involvement where there would be a hospital
20 postmortem as opposed to a Coroner's one, is that
21 I would be the person who would obtain the signature on
22 the consent form.
23 Q. I want to come to that. I want to focus on the
24 Coroner's postmortem at the moment, just so we can put
25 that, I suspect, to one side.
0095
1 Where there is a Coroner's postmortem, what role
2 did you have in obtaining any consent, at all, from the
3 family of the deceased -- for a Coroner's postmortem?
4 A. I had no involvement at all.
5 Q. In most or certainly in some Coroner's postmortem
6 examinations, you presumably would be aware that the
7 postmortem might involve the analysis of tissue or other
8 organs of the body?
9 A. Yes.
10 Q. What was your understanding of the legal basis on which
11 tissue or organs could be removed from the body of the
12 deceased during a Coroner's postmortem?
13 A. This was never within my remit. This was something
14 that I had no control over and had nothing whatsoever to
15 do with.
16 Q. You may have heard Mr Burgess this morning discussing
17 the question of the taking from a body of tissue or
18 organs or parts of tissue or organs, which would then be
19 retained by the pathologist after the inquest had been
20 concluded?
21 A. Yes.
22 Q. First of all, were you aware at any time that that
23 practice was adopted in some cases, of removing and
24 retaining tissue and organs after the Coroner's inquest
25 was concluded?
0096
1 A. I assumed that it was.
2 Q. So you assumed that what, tissue or organs, whole
3 organs, would be removed as part of the postmortem on
4 occasions?
5 A. Yes.
6 Q. Were you ever informed by the hospital, the management
7 and the authorities of the hospital, that it was
8 necessary or desirable to obtain the consent of the
9 relatives of the deceased to the retention of tissue or
10 organs after the end of the Coroner's inquest when the
11 cause of death had been established?
12 A. No, I was not aware of that. I thought it was a legal
13 requirement.
14 Q. You thought what was a legal requirement?
15 A. It was the Coroner's decision that a postmortem took
16 place, and that would have included the retention of
17 organs and tissue, and that was a legal requirement,
18 something that the relatives had no control over.
19 Q. So do tell me if I put it badly, but would this be
20 a fair way of summarising: that where there was
21 a Coroner's postmortem, you understood that tissue or
22 whole organs might be removed from the body of the
23 deceased?
24 A. Yes.
25 Q. That that tissue or those organs might be retained
0097
1 for some time, even after the conclusion of the inquest?
2 A. Yes.
3 Q. That the obtaining or the taking of that tissue or
4 organs did not require the consent of the family of the
5 deceased?
6 A. I was not aware that it needed consent from the family.
7 Q. And that as far as you were concerned, such retention,
8 the taking and retention of tissue or organs as there
9 was pursuant to a Coroner's postmortem examination, had
10 its legal basis as -- it was the Coroner's decision?
11 A. Yes.
12 Q. So as long as the Coroner had ordered or directed the
13 postmortem, any taking or retention of tissue that
14 a pathologist might do would be lawful because of the
15 Coroner's direction?
16 A. That is right.
17 Q. If we scan down that page in front of you, then, to
18 paragraph 12, we are now turning to the other type of
19 postmortem, the hospital postmortem.
20 You say in paragraph 12 that your role was to
21 identify that a hospital postmortem had been requested
22 and consented to on receipt of the medical notes
23 immediately following the patient's death and if so, to
24 obtain the signature to the consent form.
25 If we read the whole of that paragraph, which
0098
1 I know you have recently, is it right that what you are
2 referring to in the first sentence is something that you
3 would pick up from the hospital notes which would
4 evidence the fact that there had been a discussion
5 between a doctor and the next of kin in which the doctor
6 had raised the question of a hospital postmortem?
7 A. This sometimes can be written in the patient's notes.
8 More often than not, though, I would see the doctor the
9 day afterwards and he would come to me to complete the
10 death certificate and it is then usually that he would
11 discuss with me that a postmortem had been consented to,
12 but that I needed to get written consent from the
13 family.
14 Q. So usually there would be a discussion between the
15 doctor and the next of kin, very shortly after the
16 death?
17 A. Yes.
18 Q. You would not be there?
19 A. No.
20 Q. And the doctor would suggest that a hospital postmortem
21 might be a good idea?
22 A. Yes.
23 Q. And the next of kin would verbally consent?
24 A. That is right.
25 Q. And the doctor may or may not then make a note to that
0099
1 effect in the patient's hospital notes?
2 A. That is correct.
3 Q. Is that right?
4 A. Yes.
5 Q. Then subsequently, the doctor would have a discussion
6 with you, or you might pick up from the notes, the fact
7 that there had been a discussion between the doctor and
8 the next of kin?
9 A. That is right.
10 Q. Your job then was to reinforce the fact that consent had
11 been given by getting the relatives to "sign on the
12 dotted line"?
13 A. That is correct, yes.
14 Q. That is why, if we look about half a dozen lines into
15 that paragraph:
16 "I am not sure if this practice is a hard and fast
17 rule since in any event the postmortem will not take
18 place without the official signed consent form which
19 I am responsible for."
20 So your job was to get, in writing, the consent
21 which had been given previously orally to the doctor?
22 A. That is correct.
23 Q. And it was not until the signature was obtained on the
24 form that you held that, as it were, final consent had
25 been given and the postmortem would be carried out?
0100
1 A. That is right. Technically, though, before a family
2 give consent to a hospital postmortem, the doctor should
3 complete the death certificate.
4 Q. You mention in your statement that there have been
5 I think a very small number of occasions when next of
6 kin have said to the doctor at the time, "Yes, okay, we
7 will have a hospital postmortem; I will allow it; I will
8 give my consent". But when they come to see you a day
9 or so later, they have changed their mind?
10 A. Yes, they have had time to reflect.
11 Q. And that is okay?
12 A. That is perfectly okay. In fact we do not want the
13 family to be under any stress, really. We do not want
14 them to feel that this is absolutely necessary; it is
15 completely their decision to make.
16 Q. I know that the position changed in 1996, which you
17 mention and Dr Roberts puts the time of 1996 which you
18 now accept. Before then, did you have any substantive
19 role in explaining to the next of kin when they came to
20 see you a day or so after the death of their relatives
21 about what the hospital postmortem would involve and why
22 it might be a good idea, or was your role simply limited
23 to saying, "You spoke to the doctor yesterday, please
24 could you now sign this form?"
25 A. My role was not limited at all. I felt that if
0101
1 questions were asked of me, I could answer them as best
2 I could. I felt it was quite important that the family
3 should have these questions answered and if I could
4 answer them, I would. If not, I would get the doctor to
5 come and do so.
6 Q. Can we look at page 6, please? Paragraph 18, towards
7 the bottom of the page. You refer to the form we have
8 looked at. You say that to the best of your knowledge
9 it has not changed. You sit down with the relatives and
10 go through the form, and you read it out to them and
11 explain what each paragraph means.
12 Then you say:
13 "I explain to the relatives, if they should ask,
14 what paragraph 1 means ('the removal of such tissues
15 that are considered necessary for the purposes of
16 diagnosis, investigation of abnormal conditions, medical
17 education and research')".
18 What happens if the particular relatives do not
19 ask what that paragraph means and do not say anything
20 about it? What do you do then?
21 A. I do not offer that information if they do not ask.
22 Q. Why not?
23 A. I really do not know.
24 Q. Did anyone ever tell you that you should or that you
25 should not?
0102
1 A. No.
2 Q. Who was responsible for providing you with guidance as
3 to what you should or should not say to relatives in
4 this situation, if anyone?
5 A. I really have not had any guidance on this particular
6 issue at all.
7 Q. Who was your boss?
8 A. It would be the General Manager of Medicine.
9 Q. So that would be the consultant or the General Manager
10 of the Directorate of Medicine as it now is?
11 A. Yes.
12 Q. But that would cover only medicine; it would not cover
13 surgery?
14 A. It does cover surgery. I mean, the position whereby my
15 direct manager is the manager of medicine, that actually
16 covered surgery as well.
17 Q. So if we just leave surgery to one side as
18 a complication for the moment, the decision, therefore,
19 not to explain that paragraph of the form unless the
20 relatives asked was your decision, not one that was
21 guided by your manager?
22 A. Well, as I am reading through this form with the family,
23 I do actually read that sentence out to them and
24 I explain, as it says, that the tissue is removed for
25 therapeutic purposes, and for investigation, research
0103
1 and teaching. One of the things that the family often
2 mention to me is the fact that they are only agreeing to
3 this postmortem in the hope that it can help other
4 people in the future. So I think they are accepting
5 that sentence as it is. They do not need it to be
6 clarified any further.
7 Q. Do you explain, or did you explain, what was meant by
8 the word "tissues", what that embraced?
9 A. No, I never did explain the word "tissue".
10 Q. You understood that the word "tissues" would cover, for
11 example, the removal of a whole organ from the body?
12 A. Yes.
13 Q. If we just look in this paragraph at the fourth line
14 down, please, do you see the sentence:
15 "I have always taken care ..."
16 A. Yes.
17 Q. "I have always taken care to read the form out to them
18 and explain to them what each paragraph means".
19 A. Yes.
20 Q. If we go down to the sentence I just looked at a moment
21 ago: "I explained to the relatives if they should ask
22 what paragraph 1 means", the reconciliation of those two
23 paragraphs, that what you do is to read the
24 paragraph from the form and explain that removal of
25 tissue can be helpful for other patients in the future?
0104
1 A. Yes.
2 Q. But without going into the detail of what might be
3 embraced by the expression "tissues"?
4 A. That is right.
5 Q. You say in that paragraph that form 1, which is
6 attached, is the form that has been used since 1983;
7 is that right?
8 A. Yes, it is.
9 Q. Can we just go back to page 35, please? Can we just
10 see the whole form? The top of the form provides for
11 the name and address of the person who is signing it,
12 and then they say that they are in possession of the
13 body of the deceased and they give consent. Then there
14 is some detail. If you highlight the bottom part of the
15 page, please: four separate paragraphs, the second and
16 third of which may be deleted, but paragraphs 1 and 4
17 cannot be deleted?
18 A. That is right.
19 Q. What did you understand by paragraph 2:
20 "The removal of tissues for therapeutic purposes"?
21 A. The whole purpose of a hospital postmortem is for
22 research and education in a teaching hospital.
23 A postmortem examination would have included this.
24 Q. But research and education are mentioned in paragraph 1.
25 A. Yes.
0105
1 Q. I want to look at paragraph 2. What did you understand
2 paragraph 2 to add to paragraph 1?
3 A. I just understood it to be that for -- the word
4 "therapeutic", to be honest, I really could not say.
5 Q. Paragraph 3 is very specific. That is about the use of
6 eyes. It is either actually using the eyes in corneal
7 grafting or using those eyes as research?
8 A. Yes.
9 Q. Paragraph 4, I think, probably speaks for itself.
10 If we go back up to the top of the form, please,
11 this actual form, this piece of paper that you see an
12 image of on the screen, as I have already mentioned, has
13 the UBHT mark on the top.
14 A. Yes.
15 Q. Obviously the UBHT was not around until 1991?
16 A. That is right.
17 Q. So there must have been a previous form, must there not,
18 going back earlier?
19 A. Yes. There was a previous form to this. But the
20 content was the same.
21 Q. That is what I was going to ask. I understand your
22 evidence to be that the content of that form was exactly
23 the same as the content of this form?
24 A. As far as I can recall, it has never changed.
25 Q. So that we again are clear about this, in the top
0106
1 right-hand corner of that page you see the heading
2 "Directorate of Medicine". To what extent is this form
3 used by other directorates other than the Directorate of
4 Medicine?
5 A. The same form is used by surgery as well as medicine.
6 Q. Does the surgery form say Directorate of Medicine or
7 Directorate of Surgery?
8 A. We use this form. This form is kept in my office and
9 this is the only form that I use.
10 Q. Again, so that I have got it clear, which deaths in the
11 Bristol Royal Infirmary would be covered by this form
12 and which deaths in the Bristol Royal Infirmary would
13 not be covered by this form?
14 Let us take, for example: in 1993 or 1994, if
15 a child died after heart surgery at the Bristol Royal
16 Infirmary, would that death be covered by this form?
17 A. I have no recollection, actually, of this form being
18 used, or any other, where a hospital postmortem on
19 a child has been requested. My recollection is that all
20 of them were Coroner's cases, and if there were any,
21 they would have used this form, as far as I was aware.
22 Q. So as far as you remember, there were not any, because
23 they were Coroner's cases. If there had been some, it
24 would have been this form because this was the only form
25 that the Bristol Royal Infirmary used?
0107
1 A. The only form that I am aware of, yes.
2 Q. Are you aware that in fact elsewhere in the Trust there
3 were other forms being used throughout the period?
4 A. I am, as from today. I did not know of the existence of
5 these other forms prior to today.
6 Q. I think we have shown you some, have we not? Can we go,
7 please, to UBHT 202/8?
8 This, I think we can take it, is now a somewhat
9 elderly form because it is from the Bristol & Weston
10 Health Authority, which has not existed for a number of
11 years: a form of consent for use for postmortem
12 examinations in patients treated at the Bristol Royal
13 Hospital for Sick Children or Bristol Maternity
14 Hospital.
15 So that is one of the forms you have seen for the
16 first time today?
17 A. The first time today, yes.
18 Q. Can we go to the next page(UHBT 202/9), please, page 9. Can we see
19 the whole of that form? The difference between this
20 form and the previous form is that this one includes
21 subparagraph (a), if we blow that up. It is giving
22 authority for "the removal of any tissue or organ for
23 therapeutic purposes in relation to another person and
24 for the removal of surgically introduced material other
25 than human tissue or organs". So that would cover
0108
1 pacemakers, for example.
2 Again, is that one of the forms that you saw for
3 the first time today?
4 A. Yes, it is.
5 Q. If we go to UBHT 211/93 this is another form, again
6 emanating from the Children's and Maternity Hospitals.
7 Again, is that a form you are familiar with?
8 A. No, I have not seen this one.
9 Q. Are you able to help me with which of these forms
10 came first, second or third in the chronology?
11 A. As I have never seen them before, no.
12 Q. I assume not, no. If we go to UBHT 14/278, this is
13 not actually the same reference, but it is a form that
14 Mr Ross annexed to a statement he has recently made to
15 the Inquiry about this issue.
16 As I understand it, this is the form that is now
17 used in the children's and St Michael's Hospitals.
18 Can we look at this form? Are you familiar with
19 this one?
20 A. No, I have not seen this one before.
21 Q. Let us have a quick look at what it says:
22 "I consent to a postmortem examination being
23 carried out on ... We understand that this
24 examination ..."
25 It refers to laboratory tests, medical education
0109
1 and research, and then the whole brain/heart for
2 diagnosis.
3 Has it been suggested to you that the content of
4 this form might be used in the Royal Infirmary to
5 replace the content of the form which you supplied with
6 your statement at page 214/35 that we have just been
7 looking at?
8 A. I had a discussion with a pathologist yesterday who told
9 me that a new form was being produced, and I presume he
10 meant this one. But I have not been involved in it at
11 all, other than that.
12 Q. Do you think, Mrs Kennington, it would have been helpful
13 for you, doing your job, to have been aware of what
14 other parts of the Trust were doing in obtaining very
15 similar types of consent to the consent that you were
16 obtaining at the BRI?
17 A. Yes, I think it would have been extremely helpful, not
18 just to me but for families as well.
19 Q. How might you have been made aware of the existence of
20 these other forms in other parts of the Trust? What
21 would you have expected to have happened?
22 A. I would have expected to have been informed of these
23 other forms through the pathology department, probably.
24 Q. Why that department?
25 A. Because they would have been involved with this
0110
1 particular work and they would have --
2 Q. No matter which part of the Trust they came from?
3 A. That is right.
4 Q. Did you ever have any involvement with lawyers for
5 the Trust or ever see any advice from lawyers engaged by
6 the Trust or the Health Authority previously explaining
7 in terms, in written down terms, what was required by
8 the law for obtaining consent for postmortems?
9 A. No. I have never had any meetings with anybody of that
10 kind.
11 Q. Have you seen any memos or written material or
12 circulars dealing with those matters?
13 A. No.
14 Q. Do you think that having such material, explaining
15 in terms that would be suitable for relatives, what the
16 position was, would be helpful?
17 A. Yes, definitely.
18 Q. In your opinion, who is the appropriate person to obtain
19 consent to a hospital postmortem from the relative --
20 I do not mean simply getting the signature on the piece
21 of paper. Who is the appropriate person to actually
22 have the substantive discussion with the relatives?
23 A. I think it should be the clinician jointly, really,
24 with perhaps someone like myself. I think it should be
25 a joint thing, something which is first of all discussed
0111
1 soon after the death has happened, and then subsequently
2 by myself once the family have had time to discuss it
3 with the rest of the family.
4 Q. So tell me again if this is an unfair way of summarising
5 that: you think that the lead should be taken by the
6 clinician and someone like you should provide support to
7 the relatives subsequently?
8 A. Yes, I think so.
9 Q. You may or may not be aware that there is a memo from
10 Lindsay Scott, who I think is now the Director of
11 Nursing at the Trust, which was put to Mr Ross last week
12 when he came to give evidence, as you are now.
13 Lindsay Scott said in this memo, which is dated
14 24th May 1999, "The most senior medical practitioner
15 involved in the deceased patient's treatment should seek
16 the consent..."
17 That would generally speaking in a surgical case
18 be the consultant surgeon?
19 A. That is right.
20 Q. Was it ever suggested to you that consultants at the
21 Bristol Royal Infirmary, whether in medicine or surgery,
22 ought to be obtaining consent for hospital postmortems
23 rather than either you or more junior doctors?
24 A. I am sorry, could you repeat that?
25 Q. Was it ever suggested to you that it would be
0112
1 appropriate at the Bristol Royal Infirmary for consent
2 for hospital postmortems to be obtained by a consultant
3 rather than obtained by you or a junior doctor?
4 A. No, never.
5 Q. You explain in your statement that after 1996 a system
6 developed in the Division of Medicine whereby surgeon
7 consultants would, as it were, give you licence to
8 obtain the initial consent on their behalf; is that
9 right?
10 A. That is right.
11 Q. And other consultants did not give you that licence?
12 A. That is right.
13 Q. For those other consultants, the ones who did not
14 delegate the job to you, did those other consultants do
15 it themselves, or did they get their junior doctors to
16 do it?
17 A. The junior doctors were responsible for obtaining
18 consent.
19 Q. So as a matter of fact, is it right to say that consent
20 to hospital postmortems was obtained by one of two
21 people: either you, where the consultant had suggested
22 that was wise, or by the junior doctor?
23 A. That is correct.
24 Q. But not by the consultant?
25 A. I would say, never by the consultant.
0113
1 Q. Do we draw a distinction there between the Directorate
2 of Medicine and the Directorate of Surgery, the
3 difference of approach --
4 A. No, the approach would be the same, for either surgery
5 or medicine.
6 Q. Physicians and surgeons alike?
7 A. That is right.
8 Q. As you know, the Inquiry is concerned with the period
9 up to 1995. Has there been an attempt, since 1995, to
10 impose some Trust-wide coherence to the obtaining of
11 consent for postmortem examinations?
12 A. Yes, I am sure there has been.
13 Q. Are you yourself aware of that?
14 A. Yes, but I have not been involved in the outcome at all,
15 as yet.
16 Q. Can we look at UBHT 14/249? This is the minutes of
17 a Patient Care Standards Committee on 3rd June 1997,
18 which I think you did attend. We see you as being in
19 attendance there?
20 A. Yes, I did.
21 Q. Can we go to page 250(UHBT 14/250), at the bottom? The third line
22 in the last paragraph:
23 "The main problem encountered by pathology was
24 that the postmortem consent forms were not always
25 correctly processed. The possibility of using
0114
1 a Trust-wide form of consent forms was discussed. These
2 included permission for organ retention and it was
3 important that senior doctors, registrars and
4 consultants became involved."
5 Then Dr Porter outlined the importance of the
6 retention of tissue. Then there is reference to
7 Professor Berry drafting national guidelines:
8 "The importance of consent forms being attached to
9 the deceased was discussed", and so on.
10 If we go to 252(UHBT 14/252), just above paragraph 6:
11 "The importance of Diane Kennington's role was
12 recognised and it was considered important that she
13 should receive more support from a senior level. Victor
14 Barley ..."
15 Who is Victor Barley?
16 A. A consultant in oncology.
17 Q. So he would be in the Directorate of Medicine?
18 A. No.
19 Q. "Victor Barley would include the process of postmortem
20 and organ retrieval consent forms at a future Steering
21 Committee meeting."
22 Can we then go to UBHT 14/151? This is another
23 meeting of the Patient Care Standards Committee. This
24 one is 1st July 1997. Can we go to page 152(UHBT 14/152),
25 paragraph 4 --
0115
1 THE CHAIRMAN: Mr Maclean, I wonder if I may interrupt you
2 just for a moment? Mrs Howard is not feeling well. May
3 we take five minutes, please?
4 MR MACLEAN: Yes, of course.
5 (2.05 pm)
6 (A short break)
7 (2.15 pm)
8 THE CHAIRMAN: Mrs Kennington, forgive us for taking that
9 break. We are all the victims of a mild form of spinal
10 erosion due to the fact we have had to sit in these
11 chairs for four months and they are not the most
12 comfortable chairs and on this occasion Mrs Howard
13 succumbed, but she is now better.
14 MR MACLEAN: Mrs Kennington, we were just looking at this
15 point about the development of a Trust-wide approach
16 towards consent forms; do you remember?
17 A. Yes, I do.
18 Q. I showed you the minutes of the meeting you were at
19 when Mr Barley was going to take the matter on.
20 A. Yes.
21 Q. To a senior level.
22 A. Yes.
23 Q. And then I was showing you this document which is on
24 the screen now, which dates from July 1997.
25 Would you go back to page 151(UHBT14/151), the previous page,
0116
1 to remind ourselves what this is:
2 "The Patient Care Standards Committee", 1st July.
3 We see Dr Barley is present there, along with some other
4 senior people from the Trust, including Mr Ross.
5 Can we go back, then, to 152(UHBT 14/152), paragraph 4(i):
6 "Consent to postmortems and tissue retrieval.
7 Marius Lemon had not yet had the opportunity to propose
8 the subject of seeking consent to postmortems and tissue
9 retrieval as an agenda item for PGMEC. Victor Barley
10 had raised the subject with senior staff who felt that
11 it was handled adequately already and displayed no
12 enthusiasm for becoming more involved. It was noted
13 that people were less easily persuaded to accept
14 memos. The public as well as medics needed to be
15 educated ... Hugh Ross suggested that, to this end, the
16 way in which other Trusts had been more successful
17 should be identified."
18 Is it your perception that senior staff at the
19 UBHT showed no enthusiasm for changing the system which
20 existed then, or for getting themselves more involved?
21 Were they happy to let you get on with it?
22 A. They seemed perfectly happy for things to stay as they
23 were.
24 Q. So to the extent that Lindsay Scott's memo of 1999,
25 which I have referred to, suggests that consent should
0117
1 be obtained from the most senior medical practitioner
2 involved in the deceased patient's treatment, that which
3 in 1999 is a significant step down the line from the
4 attitude that is reflected here in July 1997, is it not?
5 A. Yes.
6 Q. In 1997, therefore, in these minutes, at that time the
7 system for obtaining consent for hospital postmortems at
8 the Bristol Royal Infirmary was the system that you
9 explain in your statement, namely, that some consultants
10 would delegate you the responsibility, and some
11 consultants would leave it to the junior doctors?
12 A. That is correct, yes.
13 Q. So that is the system which the senior staff,
14 apparently, felt was handled adequately already and
15 which they had no enthusiasm for interfering with?
16 A. I presume so.
17 Q. Is it right that some consultants at the hospital were
18 of the view, consistently, that consultants should be
19 the people who would obtain consent for postmortems?
20 Were you aware of that?
21 A. No, I was never aware of that. I was aware that they
22 considered it the responsibility of the junior houseman.
23 Q. Were you ever aware, for example, of Mr Wisheart's views
24 set out in a document, I think in 1997, setting out his
25 guidelines for cardiac patients' treatment that
0118
1 consultants, people like him, should obtain consent for
2 postmortems?
3 A. Yes. I think it would be more appropriate -- I would
4 say that in the cardiac surgery situation, that there
5 the consultants would be responsible.
6 Q. You would have understood that to have been the case?
7 A. Yes.
8 Q. You knew that was Mr Wisheart's attitude, did you?
9 A. Yes.
10 Q. But that was not an attitude which was shared?
11 A. Not overall, no.
12 Q. Would you just excuse me for a moment, Mrs Kennington?
13 (Confers) Thank you very much, Mrs Kennington. Is
14 there anything else you want to add at this stage,
15 anything else from you which you think the Inquiry would
16 be helped with?
17 A. No, I do not think so, thank you.
18 MR MACLEAN: Thank you very much for coming. I am sorry
19 you had to hang about a bit before you started to give
20 your evidence, but thank you very much for doing so.
21 I do not think there are any questions from behind me.
22 It may be there are some questions from the Panel?
23 THE CHAIRMAN: Mrs Maclean?
24 Examined by THE PANEL:
25 MRS MACLEAN: I just would like to ask one question. This
0119
1 is obviously a very difficult part of your work, dealing
2 with the recently bereaved families. It is not easy for
3 anyone to handle the situation. I just wondered whether
4 you felt there were things which a lay person such as
5 yourself could bring into helping people at this stage,
6 things which it might be more difficult for them to
7 raise with the doctor?
8 A. Yes, I think being someone who is totally apart from the
9 medical staff, someone who is of a different background,
10 they very often feel more at ease with me, that they can
11 discuss things that they probably would not like to
12 discuss with the doctor, consultant or even the nursing
13 staff and also, that they could bring to me any problems
14 that they might have which they would not feel that they
15 could talk to a doctor about, a complaint or a comment
16 that they would feel a lot easier talking to me about.
17 MRS MACLEAN: Thank you very much. That is very helpful.
18 THE CHAIRMAN: Mrs Kennington, I have no questions, but just
19 to reiterate before I call on Mr Miller: if there are
20 any other matters that come to your mind that you would
21 like to let us know, we are here for a while and we
22 would be grateful if there is anything else that you
23 want to tell us. You have seen some papers today you
24 have not seen before; if you have any reflections upon
25 those, for example, please let us know.
0120
1 Mr Miller?
2 MR MILLER: I have no questions, thank you, sir.
3 THE CHAIRMAN: I am grateful. In which case,
4 Mrs Kennington, thank you very much for coming to help
5 us this afternoon. We have been assisted. Thank you
6 very much indeed.
7 (The witness withdrew)
8 THE CHAIRMAN: Mr Langstaff?
9 MR LANGSTAFF: Sir, there remains for today, this week, this
10 month and indeed this part of the Inquiry, I think only
11 two further matters.
12 The first I think is to remind you that you were
13 invited by Mr Lissack, in an application to which you
14 acceded on behalf of the Panel on Tuesday, to set out
15 a re-statement of the principles that guided the
16 procedure of the Inquiry.
17 I imagine that following that, you might wish to
18 give to the wider public some indication of where we
19 have been, and where we are going, as an Inquiry?
20 CHAIRMAN'S RE-STATEMENT OF PRINCIPLES
21 GUIDING THE INQUIRY
22 THE CHAIRMAN: Yes, thank you, Mr Langstaff.
23 I explained when I opened this Inquiry last
24 October that it was not our concern to sit in judgment.
25 I expressed the hope that everyone concerned, both in
0121
1 the Inquiry and outside, would play their parts
2 responsibly and without rancour, so that we could find
3 the facts and learn from them with all reasonable speed.
4 We recognise how difficult the Inquiry has been
5 and will be for some, not least for those whose grief is
6 rubbed raw by our daily deliberations. We cannot pay
7 too high a tribute to all. The Inquiry has proceeded in
8 a measured and dignified manner, as befits its subject
9 matter. We are immensely grateful.
10 That we do not sit in judgment does not mean, of
11 course, that we will shrink from tough decisions and
12 tough words when they are called for. We read, we sit,
13 we listen. That is our duty now. And some must, from
14 time to time, be frustrated. They may think, "Why do
15 they not say something?" or "Surely they cannot believe
16 that?" Well, it will be our duty, later, to express our
17 views. We shall do so then.
18 Mr Lissack asked me on Tuesday of this week to
19 re-state the principles which guide the Inquiry. You
20 will remember, we first set them out last October, we
21 are happy to do so again, because it is obviously
22 a useful exercise bearing in mind that we have been
23 hearing witnesses in the hearing chamber for four
24 months, and it is nine months since I opened the
25 Inquiry. There may be those who come lately to the
0122
1 Inquiry who may not fully appreciate the way in which we
2 have approached the task with which we have been
3 entrusted.
4 There are a number of guiding principles. First,
5 this is an Inquiry. No-one is on trial or subject to
6 a legal process such as is found in a criminal or civil
7 court. Secondly, not only is the Inquiry not a court,
8 it is also neither a disciplinary hearing nor a lawsuit
9 where one party wins and another loses. Indeed, there
10 are no parties.
11 Thirdly, the Panel is an independent team working
12 within its terms of reference to discover what happened,
13 why it happened, and what lessons can be learned and
14 recommendations made.
15 Fourth, whatever view may be reached, or may have
16 been reached by others in other proceedings elsewhere,
17 this Inquiry has to make up its own mind. It begins
18 with no preconceptions.
19 Fifth, although criticism may, in our final
20 report, be levelled at organisations, or individuals,
21 and indeed will be if we think it is justified, the
22 purpose of the Inquiry, I repeat, is not to sit in
23 judgment.
24 The procedure which we have adopted is informed
25 by those principles. Our aim is to be thorough, open,
0123
1 within the bounds of medical confidence, fair and
2 impartial, but also speedy, so that the National Health
3 Service may gain, as soon as possible, the benefits of
4 any conclusions to be reached, but also that parents
5 amongst others may be helped to find a place for what
6 has happened.
7 The practicalities of the procedure are designed
8 to deliver this, and thus far, with the assistance of
9 all the participants, the Inquiry is on schedule.
10 Essentially, evidence is taken by means of formal
11 written statements and formal written comments, which
12 are invited upon such statements.
13 This evidence, together with documentary evidence,
14 all of which is published, goes before the Panel, and it
15 is important that this evidence is both clear and
16 comprehensive. I would like, if I may, to pay tribute
17 to the legal representatives of those who have submitted
18 such statements, for their input in ensuring that they
19 have been in the main carefully and helpfully structured
20 and complete.
21 They have managed the difficult task of stating
22 that which matters, whilst leaving out of account
23 irrelevancies which might simply confuse the issue."
24 For the oral hearings, as befits a Public Inquiry,
25 the procedure which we have adopted has been
0124
1 inquisitorial. Questions are asked of witnesses by
2 Counsel to the Inquiry. Counsel's very full preparation
3 is supplemented by matters raised by others,
4 particularly the various legal representatives. The
5 opportunity exists for a brief examination (sic) of
6 a witness, lasting perhaps no more than 15 to 20
7 minutes, to allow any area which may have been unclear
8 to be clarified and to ensure that a witness has given
9 a proper account of himself or herself. Such questions
10 as are put should not, of course, be repetitive of what
11 has already been put before the Inquiry, whether orally
12 or in writing.
13 At the close of a witness's evidence, a legal
14 representative may also make a submission about the
15 effect of the witness's evidence. This will normally be
16 in writing on the following day, but exceptionally, at
17 my discretion, may be made orally, and last again up to
18 about 15 minutes.
19 Cross-examination plays a very limited role in
20 these proceedings, not least because Counsel to the
21 Inquiry will or should have received lines of
22 questioning which the various legal representatives wish
23 to see pursued.
24 Also, it must be remembered that Counsel to the
25 Inquiry are non-partisan. They put all arguments and
0125
1 points of view before the Panel. They represent
2 no-one. In a sense, their client is the public
3 interest, as reflected in the Panel's duty to inquire.
4 But this is not to say that cross-examination has
5 no place. Applications can be made and will be treated
6 on their merits. If the Panel feel that it will assist
7 us in our task, if it would be unfair to deny it and if
8 the protocol we published earlier is satisfied, then any
9 application will be favourably regarded.
10 At first, we know that our inquisitorial approach
11 was unfamiliar to legal representatives and to their
12 clients. There was even some concern that if their
13 legal representatives were not always on their feet,
14 clients' concerns were not being taken proper account
15 of. Although entirely understandable, these concerns
16 are unfounded. Legal representatives took on different
17 but by no means less important roles, not least the
18 preparation of statements and comments, advice on papers
19 put out for consultation, and advancing lines of
20 questioning for Counsel to the Inquiry to pursue.
21 We are pleased to say that legal representatives
22 have risen to the challenge with customary skill and
23 professionalism. Their contribution, although
24 different, and we hope that their clients now recognise
25 this, has been crucial for the proper pursuit of matters
0126
1 warranting enquiry and for the smooth and effective
2 operation of the Inquiry. It has been of great
3 assistance to the Panel, and we hope their clients
4 recognise this also.
5 We thank them and pay tribute to them.
6 In due course, we shall receive from legal
7 representatives their written submissions to us
8 following the conclusion of the hearings in December.
9 We would expect them to be as comprehensive and helpful
10 as the statements of witnesses have been, and recognise
11 that time must be permitted for them to be compiled.
12 They should, therefore, be supplied to us, if they are
13 to be made, by mid-January of next year. They may be
14 supplemented orally if so desired on 9th and 10th
15 February next year, although the time for each
16 submission will be limited bearing in mind the
17 opportunity to develop matters fully in writing.
18 We are at the halfway point of our oral hearings.
19 I ventured to suggest last October when we began our
20 journey that the proceedings would be harrowing for
21 many, parents and others. They have been. They will
22 continue to be so in the autumn. As I said last
23 October, I cannot banish the pain, nor can I avoid its
24 being caused, but I did give my assurance that I would
25 do all in my power to make sure that the process and the
0127
1 practical arrangements make it as bearable as possible.
2 I say a final word on behalf of all of us. We do
3 not forget for a moment why we are here. Death and
4 disability are always tragedies. How much more tragic
5 are the deaths and disability of children. This is
6 never far from our minds.
7 Mr Langstaff?
8 MR LANGSTAFF: Sir, it may be that when the transcript of
9 what you have just said is published on the Internet,
10 that at page 125, line 5, there is a reference to
11 "examination" lasting 15 to 20 minutes, when of course
12 I imagine what you had in mind was re-examination. If
13 it were examination, I for one would be the greatest
14 transgressor in this Inquiry!
15 THE CHAIRMAN: We will be the greatest beneficiaries,
16 Mr Langstaff, but you are quite right, it should be
17 "re-examination". I am grateful to you.
18 MR LANGSTAFF: REVIEW OF ORAL PROCEEDINGS TO DATE;
19 RE FUTURE TIMETABLE
20 MR LANGSTAFF: I would like, for my part, sir, to take
21 slightly longer than I normally do in anticipating the
22 next day's oral hearing, because this is, as you say,
23 the halfway stage at which we have now sat for four
24 months, and we have four months of oral hearings
25 scheduled for the autumn, and review, briefly, what we,
0128
1 the Inquiry, have done, what the Inquiry is doing, what
2 the Inquiry will do in the autumn, and lastly, what it
3 intends to do after that.
4 What the Inquiry has thus far done in the four
5 months during which it has sat orally, is hear from some
6 59 witnesses. That is the visible tip of the iceberg
7 which consists of no less than 201 witness statements
8 thus far received. Of those 201 statements, 94, to
9 date, have been received from parents and we expect,
10 confidently, a further 140 before the end of the autumn
11 session; there may yet be more. Although 234 statements
12 from parents may seem a large number, we are conscious,
13 always, that there may be people who, for the first
14 time, become fully aware of our presence, and if already
15 aware, for the first time become fully aware that we
16 would like to hear from them, too, if they think they
17 have anything to say.
18 Some idea of the significant interest in what has
19 been said in the hearing chamber has been given not only
20 by the crowds which have gathered on some days, but by
21 the regular attendance, as it were, on the Internet,
22 every evening. The website, I am told by the
23 Secretariat, has had 225,000, very nearly a quarter of
24 a million, "hits" since March. The hits on the Internet
25 average 2,000 a day, and so far have come from 50
0129
1 countries worldwide. Staying with the electronic, the
2 evidence which has been scanned in now consists of just
3 under 800,000 pages, which fills more than 100 CDs.
4 That demonstrates, if demonstration were needed, the
5 scale of the comprehensive approach which this Inquiry
6 undertook, and has been undertaking, and it explains, if
7 explanation is needed again, why it is that the Inquiry
8 opened in October only to sit for the first time in
9 March, because of the vital work, heavy and detailed
10 work, that was going on behind the scenes, as it were.
11 For those who wonder what is happening when they
12 do not see the Panel, or hear from me, or even tune into
13 the Internet and have nothing new upon the screen by way
14 of transcript, they can be assured that in exactly the
15 same way during the next six weeks, until we meet again
16 in this chamber in September, the work continues, very
17 much so.
18 We are pleased that many people have access on the
19 Internet, but conscious that not all the public have
20 access or easy access to it. It is recognised by the
21 Secretariat that it is important that all are able to
22 follow what the Inquiry is doing and to attend oral
23 hearings if they wish, or to go to one of the remote
24 sites where there is a video conference link to this
25 hearing chamber. So from September onwards, each week's
0130
1 witness schedule will appear in advance on Saturday, in
2 notices which will be placed initially in three
3 newspapers covering South Wales and the South West. The
4 newspapers are the Western Morning News, the Western
5 Daily Press and the Western Mail.
6 So much for what has been done. What the Inquiry
7 is doing, is presently publishing a paper for comment
8 upon the Inquiry's approach to adequacy and the review
9 of the clinical case notes. This was anticipated last
10 week when we heard from statisticians and those
11 responsible for the collection and collation of
12 statistical material, and the paper, I anticipate, will
13 be made public, if not this week, certainly before the
14 end of the month, and we would welcome such comment as
15 anyone may usefully have upon it.
16 Today, also, there has been published a document
17 about which I shall say more, a consultation note in
18 relation to Phase II.
19 I flagged up the third thing I would mention,
20 which is what the Inquiry proposes to do in the autumn.
21 The answer is that the Inquiry intends to begin these
22 oral hearings on September 6th; it intends to finish the
23 oral reception of evidence in the week before
24 Christmas. There is detailed scheduling of witnesses,
25 many of whom have clinical commitments which have to be
0131
1 juggled and balanced, so that our demands upon their
2 time do not conflict with the public interest in the
3 continuation of health care for those who are
4 clinicians, and so it is not possible for me at this
5 stage to give, even if anyone would wish me to give,
6 a detailed timetable, person by person, day by day. But
7 suffice it to say that in the autumn we will explore, of
8 course, the issues of tissue retention, much of which we
9 have heard over the last two weeks, the counselling of
10 parents, the difficulties, advantages, views as to the
11 split site, the issues which arise in respect of
12 statistics and the results of the clinical case note
13 review exercise about which we spoke two weeks ago, and,
14 in addition, those expert medical issues which inform
15 the Panel's consideration of adequacy of care.
16 Then, perhaps slightly later in the autumn, the
17 Panel will be exploring both adequacy and the expression
18 of concerns under those headings of the Issues List
19 which relate to them.
20 The Inquiry's work will not, however, finish in
21 the week before Christmas and it would be wrong for
22 anyone to think that that natural break, as it may be,
23 will be anything of a natural break for the Panel or any
24 of those engaged in the Inquiry. This brings me to the
25 fourth of my headings: what the Inquiry proposes to do
0132
1 after the autumn. It brings me back to the consultation
2 note to which I referred a moment ago, which was
3 published today on Phase II of this Inquiry.
4 The objectives of Phase II are, as you said, sir,
5 when you opened the Inquiry last October, to assist the
6 Inquiry panel in meeting the requirement in their terms
7 of reference, to make recommendations which could help
8 to secure high quality care across the National Health
9 Service. Secondly, the objective in Phase II is to help
10 to ensure that such recommendations as you may make are
11 relevant to the National Health Service in the future,
12 practical and achievable, and all, of course, within
13 a realistic level of resources.
14 For that purpose, a number of themes will be
15 explored at seminar-style hearings, both here in Bristol
16 and in London. There are some 10 themes which are
17 explored and identified and detailed in the consultation
18 paper, and comments are invited upon those suggested
19 themes and sub-themes because I am quite sure that you,
20 and certainly I know the Inquiry Secretariat, will be
21 keen to hear from those who think that there is
22 something missing from the list or something in the list
23 which you propose to consider which might be better
24 avoided or left.
25 As always, the comment and consideration of
0133
1 participants and their legal representatives, as you
2 have just mentioned, will be very important in informing
3 the Inquiry as to the best way in which it may conduct
4 itself in order properly to fulfil its terms of
5 reference.
6 Sir, that is where I finished my list of four
7 headings. It is where, perhaps, we will finish today,
8 this week, this part of the Inquiry and I am not sure if
9 it is too early yet to say "10.30 on September 6th", but
10 that is what I invite you to do.
11 THE CHAIRMAN: I think that is right. Mr Langstaff. Good
12 afternoon, everyone. Good afternoon, Mr Langstaff. We
13 meet again at 10.30 on September 6th.
14 (2.50 pm)
15 (Adjourned until 10.30 am on Monday, 6th September 1999)
16
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Published by the Bristol Royal Infirmary Inquiry, July 2001
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